The Supreme Court of India in exercise of its Appellate Jurisdiction in Civil appeal No. 10084 of 2016 (Arising out of SLP (Civil) No. 9132 of 2015) made an important pronouncement in the case of Hiral P Harsora and ors Vs. Kusum Narottamdas Harsora & ors. has removed the words ‘adult male’ in the Section 2(q) of the The Protection of women against Domestic Violence Act, 2005.
The case was initiated on 3-4-2007 when Kusum Narottan Harsora and her mother filed a complaint against Pradeep, the brother/son his wife and two sisters/daughters under the Domestic Violence Act, 2005 alleging acts of violence against them. This complaint was later withdrawn. After 3 years in October 2010, the mother and daughter filed fresh complaints against the same respondents. The case was taken up before the Metropolitan magistrate stating that complaint was made under Section 2(a) and section 2(q) of the 2005 Act. The magistrate passed an order in 2012 in which discharge was refused. Then a writ petition was filed in the Bombay High Court in which the three respondents were discharged from the complaint. The case was then presented before the Hon’ble Supreme Court.
The Supreme Court held that these words were discriminatory amongst persons similarly situated and this was contradictory to the object of the Domestic violence Act, 2005. After this judgment a complaint in cases of Domestic violence can be made against ‘any person’ who is or has been, in a domestic relationship with the aggrieved person. The Hon’ble Supreme Court also deleted the proviso clause o Section 2(q) of the Domestic Violence Actas it was being rendered otiose.
The Supreme Court bench that comprised of Justice Rohinton F. Nariman and Justice K. Joseph set aside the previous Judgment dated 25-09-2014 given by a Division bench of the Bombay High Court, that raised an important question regarding the Constitutional validity of Section 2(q) of the Domestic Violence Act, 2005. The Hon’ble Court read the provisions of section 2(q) of the Domestic Violence Act, 2005 and said that the provision of the word “respondent” given in section 2(q) of the Domestic Violence Act are not to be read alone but are to be read with the scheme of the Domestic Violence Act, particularly with the definitions of the words “aggrieved person”, “domestic relationship” and “shared household” in sub clauses (a), (f) and (s) given in section 2 of the Domestic Violence Act, 2005. The Court further stated that the word ‘adult male’ is to be deleted clarifying that if the word ‘respondent’ was read only as an adult male person then it was clear that any female would not be within its coverage and if that happens then the very object of the Act will be defeated as an adult male person will not be on the forefront thereby placing forward female persons who will therefore exclude the aggrieved person from the shared household.
The divisional bench of the Hon’ble Supreme court further observed: “It is not difficult to conceive of a non-adult 16 or 17 year old member of a household, who can aid or abet the commission of acts of domestic violence, or who can evict or help in evicting or excluding from a shared household an aggrieved person. Also, a residence order, which may be passed under Section 19(1)(c) can get stultified if a 16 or 17-year-old relative enters the portion of the shared household in which the aggrieved person resides after a restraint order is passed against the respondent and any of his adult relatives.
Authored by Vishwaraj Panwar | Edited by Shreya Mishra