IN THE HIGH COURT OF DELHI AT NEW DELHI
(EXTRA ORDINARY WRIT JURISDICTION)
W.P. (CRI) NO. 638 OF 2010
IN THE MATTER OF:
MRS VARSHA KAPOOR
W/O LATE SH. KIRAN KAPOOR
R/O L-80, D.D.A. FLATS
SAKET, NEW DELHI-110042 ...…PETITIONER
VERSUS
1.
THROUGH SECRETARY,
MINISRTRY OF LAW & JUSTICE,
2. MINISTRY OF WOMAN AND CHILD
WELFARE THROUGH SECRETARY,
3. GOVT. (NCT) OF
THROUGH CHIEF SECRETARY,
4. MRS. CHHAYA KAPOOR,
W/O SH. KAPIL KAPOOR,
D/O SH. VIPAN MALIK,
R/O D-628, C.R.PARK, II FLOOR,
NEW DELHI-110019 …RESPONDENTS
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE WRIT, ORDER OR DIRECTION IN THE NATURE OF MANDAMUS OR OF ANY OTHER APPROPRIATE NATURE WHREBY ISSUING DIRECTIONS TO THE RESPONDENTS NOT TO ENFORCE PROVISIO OF SECTION 2(q) AND SECTION 28(2) OF PROTECTION OF WOMEN FROM DOMESTIC VOILANCE ACT, 2005 AS THE SAME ARE UNCONSTITUTIONAL, ULTRA VIRES AND VIOLATIVE OF FUNDAMENTAL RIGHTS OF THE PETITIONER AND AS ENSHRINED UNDER ARTICLE 14, 15,19 AND 21 OF THE CONSTITUTION OF INDIA.
FURTHER ISSUE APPROPRIATE WRIT ORDER OR DIRECTION IN THE NATURE OF CERTIORARI, OR OF ANY OTHER APPROPRIATE NATURE THEREBY SETTING ASIDE ORDER/NOTICE DATED
TO
THE HON’BLE CHIEF JUSTICE OF
COMPANION JUDGES OF THE
THE WRIT PETITION OF THE ABOVENAMED PETITIONER
MOST RESPECTFULLY SHOWETH:
1. That the humble petitioner is a bonafide and law abiding citizen of India and is a widow aged about 54 years entitled to invoke the extraordinary writ jurisdiction of this Hon'ble Court for protecting her fundamental and legal rights as guaranteed under Article 14, 15, 19 and 21 of the Constitution of India, by filing the present Writ Petition Under Article-226 of the Constitution of India against violation of her fundamental rights enshrined under Article 14, 15, 19 and 21 of the Constitution of India against the respondents and seeking a writ of Mandamus or any other appropriate writ issuing direction to the Respondents not to enforce PROVISIO OF SECTION 2(q) and section 28(2) of Prevention of Women from Domestic Violence Act, 2005 (herein after referred as DV Act) AS THE SAME ARE UNCONSTITUTIONAL, ULTRA VIRES AND VIOLATIVE OF FUNDAMENTAL RIGHTS OF THE PETITIONER UNDER ARTICLE 14, 15, 19, AND 21 OF THE CONSTITUTION OF INDIA.
2. That the brief facts which forced the petitioner to file the present writ petition are as under:-
(A) That the marriage between the son of the petitioner namely Sh. Kapil Kapoor S/o Sh. Kiran Kapoor was solemnized with respondent no 4 on
(B) That out of this wedlock two children were born namely Teesha and Disha in year 2003 and 2005 respectively. That no dowry was asked or given in the marriage between the son of the petitioner and respondent no 4.
(C) That after the birth of the second child the respondent no 4 started harassing the petitioner and her family members on false and concocted stories with the connivance of her parents and brother.
(D) That the son of the petitioner is residing separately from the petitioner. On 03/04/10 the petitioner went to Nasik for meeting with her relatives, and on 04/04/10 the petitioner came to know from her sister that the respondent no 4 with her parents had visited the house of the petitioner in her absence and after breaking open the locks of the house, the respondent no 4 entered in the house of the petitioner with her parents and brother and there after at the time of return locked the house with her own locks. The sister of the petitioner namely Smt. Sudha Sharma lodged a complaint regarding the above said incident at PS Saket.
(E) That on 06/04/2010 when the petitioner came back to Delhi searched her house she found that the respondent no 4 had taken with her a golden Kada, cash Rs. 40,000/- (Rs Forty thousand only), Zen Estilo car of the petitioner and a golden chain and cash Rs. 20000/- (Rs. Twenty Thousand Only) of the son of the petitioner which were lying in the house of the petitioner. The respondent no 4 again visited the house of the petitioner with her father and brother and abused the petitioner and her son in a filthy and un-parliamentry language, and the brother and father of the respondent threatened the petitioner with dire consequences. The petitioner reported the above said incident and theft information to the PS Saket Delhi, but the Police did not take any action against the respondent no 4 and her family members.
(F) That it is pertinent to mention here that the house and the other properties mentioned above are the self acquired properties of the petitioner as she was in the service.
(G) That on
(H) That petitioner appeared through her counsel on
3. That it is most humbly submitted that the notice issued to the petitioner by Ms. Veena Rani, MM Patiala House Court, Delhi on the application filed by the respondent no 4 under section 12 of the DV Act is without application of judicial prudence, jurisdiction, against the mandatory section 2(q) of DV Act and without laying down any just, fair and reasonable procedure. Hence the application under section 12 and notice thereupon is absolutely illegal and bad in law and is liable to be set aside/ quashed.
4. That it is most humbly submitted that Violence constitutes a major form and process of oppression of women. An understanding of gender reality over the years reveals how violence has always been used as a means to subjugate women and keep them in a position of subordination. Gender based violence may take many different forms and there may be distinctive patterns or manifestations of gender violence associated with particular communities, cultures or regions and historical epochs. Gender violence is present in all societies ; it is a structural phenomenon embedded in the context of culture ,socio- economic and emotional dependency, the property of some male protector .Societies organized around gendered, hierarchical power relation give legitimacy to violence against women.
Violence against women, like all other historical manifestation of violence, is embedded in the socio- economic and political context of power relations. It is produced within class, caste and patriarchal social relations. It is produced within class, caste and patriarchal social relations in which male power dominates .A narrow definition of violence may define it as an act of criminal use of physical force. But this is an incomplete definition. Violence also includes exploitation, discrimination, upholding of unequal economic and social structures, the creation of an atmosphere of terror, threat, or reprisal and forms of religio-culture.
5. That it is most humbly submitted that the DV Act came into force on 26/10/2006 to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.
The Statement of the objects and reasons of the Act states that “domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and Beijing Declaration and Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination in its General Recommendation No. XII (1989) has recommended that state parties should act to protect women against violence of any kind especially that occurring within the family.
The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, it is an offence under section 498 A of IPC. The civil law does not however address this phenomenon in its entirety.
It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the constitution to provide for a remedy under civil law which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society”.
6. That the Statute is a special benevolent piece of legislation aimed to provide for more effective protection of rights of women guaranteed under the constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. The act inter-alia provides for various reliefs to the “aggrieved person” against the “respondent” like protection order, residence orders, and custody orders. Both the terms “aggrieved person” and “respondent” have been defined under the definition clause of the DV Act.
7. That it is most humbly submitted that Hon’ble Mr. Justice Vikramjit Sen and P. K. Bhasin of this Hon’ble Court in Aruna Parmod Shah versus Union of India (WP (Crl.) No.425 of 2008) vide an order dated 07.04.2008 had upheld the provisions of the D.V Act. The relevant extracts of the said judgment is usefully reproduced here under:-
“What Article 14 of the Constitution prohibits is 'class legislation' and not 'classification for purpose of legislation'. If the legislature reasonably classifies persons for legislative purposes so as to bring them under a well-defined class, it is not open to challenge on the ground of denial of equal treatment that the law does not apply to other persons. The test of permissible classification is twofold: (i) that the classification must be founded on intelligible differentia which distinguishes persons grouped together from others who are left out of the group, and (ii) that differentia must have a rational connection to the object sought to be achieved. Article 14 does not insist upon classification, which is scientifically perfect or logically complete. A classification would be justified unless it is patently arbitrary. If there is equality and uniformity in each group, the law will not become discriminatory; though due to some fortuitous circumstance arising out of (sic) peculiar situation some included in a class get an advantage over others so long as they are not singled out for special treatment. In substance, the differentia required is that it must be real and substantial, bearing some just and reasonable relation to the object of the legislation.
Domestic violence is a worldwide phenomenon and has been discussed in International fora, including the Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995). The United Nations Committee Convention on Elimination of All Forms of Discrimination against Women (CEDAW) has recommended that States should act to protect women against violence of any kind, especially that occurring within the family. There is a perception, not unfounded or unjustified, that the lot and fate of women in
8. THE HONOURABLE MR. JUSTICE K.VENKATARAMAN of HIGH COURT OF JUDICATURE AT MADRAS in Writ Petition No.28521 of 2008 and M.P.No.1 of 2008 has observed as follows:-
“As rightly contended by the learned counsel appearing for the sixth respondent, giving certain preferential treatment to the wife and treating them as a special category cannot be termed as violative of either Article 14 or Article 16 of the Constitution of India. Though Article 15 of the Constitution of India prohibits discrimination on grounds of religion, race, caste, sex or place of birth, however, Article 15 (3) states "nothing in this Article shall prevent the State from making any special provision for women and children". Thus, the Constitution itself provides special provision for women and children. It has been widely resorted to and the Courts have upheld the validity of the special measures in legislation and executive orders favouring women. Thus, when the Constitution itself provides for making special provision for women and children, the contention on the side of the petitioners that there could be no special treatment for women is totally untenable. In tune with Article 15(3) of the Constitution of India, the State has thought it fit to frame a special legislation for women and thus, the Protection of Women from Domestic Violence Act, 2005 came into force.
In A.I.R. 1954 S.C. 321 Yusuf Abdul Aziz v. State of Bombay, the Hon'ble Apex Court, while dealing with the question whether Section 497 of Indian Penal code contravenes Article 14 and 15 of the Constitution of India, has held that since sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children by clause (3) of Article 15. Articles 14 and 15 thus, read together validate the last sentence of Section 497 I.P.C. which prohibits the woman from being punished as an abettor of the offence of adultery.
"Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two Articles read together validate the impugned clause in S.497 Penal Code."
In (2003) 10 Supreme Court Cases 78 Sanaboina Satyanarayana v. Govt. of A.P. and others, the Hon'ble Apex Court was posed with a question whether granting remission of sentence can be made excluding those prisoners who were convicted for life and for crimes against women. It was held by the
In AIR 1985 SC 1695 Partap Singh v. Union of India, the question that was posted before the
“There is very little substance in the second condition raised by the petitioner also. The submission made on behalf of the petitioner in this case overlooks the benign constitutional provision in clause (3) of Article 15 of the Constitution which provides that nothing in Article 15 shall prevent the State from making any special provision for women and children. The said provision overrides clause (1) of Article 15 of the Constitution which provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Section 14 (1) of the Act was enacted to remedy to some extent the plight of a Hindu woman who could not claim absolute interest in the properties inherited by her from her husband but who could only enjoy them with all the restrictions attached to a widow's estate under the Hindu law. There is now hardly any justification for the males belonging to Hindu community to raise any objection to the beneficent provisions contained in Section 14 (1) of the Act on the ground of hostile discrimination. The above provision is further protected by the express provision contained in clause (3) of Article 15, since it is a special provision enacted for the benefit of Hindu women. We do not find any merit in the Writ Petition. The writ petition is dismissed. Consequently, the special leave petition also has to be dismissed. It is accordingly, dismissed."
Again, in A.I.R. 1985 Supreme Court 1618 Sowmithri Vishnu Vs. Union of India, the Hon'ble Apex Court has held while considering Section 497 of I.P.C., that it does not discriminate between man and woman by conferring right only on husband to prosecute the adulterer and hence, it is not violative of Article 14 or Article 15 of the Constitution of India”.
9. It is most humbly submitted that As far as the definition of “aggrieved person” as defined under Section 2 (a) of DV Act, 2005 is concerned; there is no controversy. Section 2 (a) of DV Act is reproduced as under:-
2(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.
10. It is most humbly submitted that as per Section 2 Clause (q) of DV Act, the Respondent means any ‘adult male person’ who is or has been in a domestic relationship. Hence, a plain reading of this definition clause shows that an application is not maintainable under the provisions of this Act against a female. Section 2 (q) of DV Act which defines Respondent in the following words:-
2(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”
11. That it is respectfully submitted that the Hon’ble the then CJI A. N. Ray, K. K. Mathew, V. R. Krishna Iyer and S. Murtaza Fazal Ali, JJ. In Dwarka Parsad versus Dwarka Das Saraf (AIR 1975 SC 1758) has rightly propounded that “if on a fair construction, the principle provision is clear, a proviso cannot expand or limit it. A proviso must be limited to the subject matter of the enacting clause. A proviso must prima facie be read and considered in relation to the principle matter to which it is a proviso. It is not a separate or independent enactment.”
12. It is most respectfully submitted that the application under section 12 of DV Act is not maintainable against the petitioner in view of the definition of ‘respondent’ in Sec.2(q) of the Act, as the same can be filed only against ‘any adult male’ person but not against female persons in view of the judgments of the Madhya Pradesh High Court in Ajay Kant v. Alka Sharma, (2008 Cri LJ 264) and in Smt. Menakuru Renuka and others v. Smt. Menakuru Mona Reddy and others (unreported judgment of AP High Court in Crl.P.No.4106/2008 dt. 22-10-2008 (reported in 2009 Cri LJ (NOC) 819).
13. It is most humbly submitted that Hon’ble Justice B.M. Gupta of Hon’ble Madhya Pradesh High Court in the case of Ajay Kant and Ors. V. Smt. Alka Sharma reported in 2008 Crl.L.J. 264 (M.P.) adroitly held that application under section 12 of DV Act is maintainable only against adult male persons. The relevant passage interpreting the crux of the matter and clarifying the distinction between an application and complaint is as follows:-
“Section 12 of the Act provides that an application (not a complaint) for seeking one or more reliefs under the Act can be filed. On perusal of Sections 18 to 22 of the Act, it appears that the reliefs under these Sections as mentioned hereinabove can be passed on the application under Section 12 of the Act.
The word complaint as appeared in the definition of respondent under Section 2(q) of the Act has not been defined anywhere in the Act. Although it is not provided that the definition of complaint can be considered the same as provided under the Cr. PC but at the same time it is also not prohibited. In view of this, the definition of complaint can appropriately be seen in Cr. PC which goes as under:
2. (d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
It is clear by this definition that a complaint as provided in Cr. PC can only be for an offence. As mentioned hereinabove only two offences have been mentioned in this Act and those are (1) under Section 31 and (2) under Section 33. It appears that this word complaint appeared in the definition of respondent has been used for initiating proceedings for these two offences and an aggrieved wife or female living in a relationship in the nature of a marriage has been given a right to file a complaint against a relative of the husband or the male partner. This word complaint cannot be considered beyond the scope of the main provision of this Section which has been defined in first part of Section 2(q) that is for any relief under this Act. As provided in Section 31 of the Act, a complaint can be filed against a person who has not complied with a protection order or interim protection order.
Thus, it is clear by the definition of respondent that for obtaining any relief under this Act an application can be filed or a proceeding can be initiated against only adult male person and on such application or under such proceeding, aforementioned protection order can be passed. Obviously those orders will also be passed only against the adult male person. As provided under Section 31 of the Act, non-compliance of a protection order or an interim protection order has been made punishable and as such it can be said that the complaint for this offence can only be filed against such adult male person/respondent who has not complied with the protection order. Hence, it is clear that the application under Section 12 of the Act which has been filed by the respondent against petitioner Nos. 3 and 4, who are not adult male persons, is not maintainable.”
14. It is most humbly submitted that the aforesaid judgment of the Ajay Kant (supra) was followed by the Hon’ble Madras High Court in the case of Uma Narayanan Vs. Priya Krishna Prasad (2008) 3 MLJ 756 (Mad) in which the Hon’ble Madras High Court held that term respondent would mean only an adult male person thus, an application under Section 12 of the DV Act, 2005 is not maintainable as against a Women.
15. It is most honestly submitted that there is some ambiguity, contradiction and conflict in the definition and proviso of clause section 2(q) of DV Act, if the main enacting part is read with the proviso which uses, the expression “relative of the husband” thereby extending the meaning of respondent without any gender restriction. While Single Bench of Hon’ble M.P. High Court, A.P. High Court & Madras High Court opined that female members cannot be made as respondents in the proceedings under the DV Act, the judgments of single Bench of Rajasthan High Court and Division Bench of Andhra Pardesh High Court held that a female relative is not excluded from the definition of respondent contained in Section 2(q) of the Act.
16. It is most humbly submitted that the subsequently Hon’ble Rajasthan High Court differed from the view taken by the Hon’ble MP High Court and the Madras High Court. The Hon’ble High Court of Rajasthan in Sarita vs Smt. Umrao, cited as 2008 (1) WLN 359 has held that “From a plain reading of the proviso to Section 2(q) of the Act of 2005 it is a apparent that a complaint by a wife or a female living in relationship in the nature of marriage may also file a complaint against a relative of the husband. The term relative is quite broad and it includes all relations of the husband irrespective gender or sex.”
17. It is most humbly submitted that the Hon’ble High Court of Rajasthan in another case Nand Kishore and Ors. Vs State of
18. Due to the different opinions of various high courts it was felt by the Hon’ble Single Bench of A.P. High Court that the matter should be decided by a Division Bench and accordingly directed the Registry to place the matter before the Hon’ble the Chief Justice for constitution of appropriate Bench for deciding the issue. Accordingly in a reference the Division Bench of Hon’ble Andhra Pradesh High Court in Afzalunnisa Begum & etc. vs State of A.P. & Anr. (2009 CRI. L. J. 4191, AP) overruled its Single Bench judgment in Smt. Menakuru Renuka and others Vs. Smt. Menakuru Mona Reddy and others, (supra) and in its judgment held that the 'respondent' as defined under Section 2(q) of the Act also includes a female relative. The relevant passage is reproduced here as under:-
“We accordingly answer the reference as under:
The ‘respondent’ as defined under Section 2(q) of the Act includes a female relative of the husband depending upon the nature of the reliefs claimed against the respondent in the Domestic Violence Case.”
19. That Hon’ble Justice A.S
“It must also be remembered that section 2(q) specifically uses the word adult male member or male partner. If the intention of the legislature was that the relative of the husband or the male partner referred to in the proviso has to be only a male relative, the legislature would have specifically used the word male in the proviso. As set out earlier, there is another reason why the relative of the husband or male partner referred to in the proviso to section 2(q) cannot be only a male relative. The said reason is that the proviso to sub-section (1) of section 19 clearly implies that the residence
order in terms of any of the clauses of sub-section (1) of section 19 except clause (b) can be passed against a respondent who is a woman. It is obvious from the proviso to section 2(q) that a woman can be a respondent only in a
case where the aggrieved person is the wife or the female referred to in proviso to clause (q) of section 2. From the proviso to sub-section (1) of section 19 it becomes crystal clear that the word relative used in proviso of section 2(q)
is not restricted to a male relative of the husband or a male relative of the male partner. Therefore, the word relative in proviso to section 2(q) includes a female relative.” The Hon’ble Justice A.S. Oka remarked that “Perusal of the decisions of Madhya Pradesh and Andhra Pradesh High Courts shows that the aforesaid aspects have not been considered by the High Courts”.
20. It is most humbly submitted that to the best knowledge of the petitioner there is no judgment from this Hon’ble court on the interpretation of main clause and proviso of section 2(q) of the DV Act specifically on the constitutional validity of section 2(q) of DV Act and on the question” Whether ‘respondent’ as defined under Section 2(q) includes a female person or not under the scheme of DV Act, 2005? ”. It is further respectfully submitted that to the best knowledge of the petitioner till date there is no final word of
21. It is most humbly submitted that the opinion of different benches of the above mentioned Hon’ble High Courts are sharply in contradiction and conflict with each other on substantial questions of law Whether ‘respondent’ as defined under Section 2(q) includes a female person or not under the scheme of DV Act, 2005 ? And in respect to the correct interpretation and scope of proviso to Section 2 (q) DV Act in the context of the scheme underlying the other provisions of the Act as well as in tune with the object set out in the statement of objects and reasons.
22. It is most humbly submitted that the inherent contradiction and conflict in the aforesaid definition clause, which is very much apparent from the reading of the main enacting part defining respondent as any ‘adult male person’ in a domestic relationship with the aggrieved person, on the other hand the proviso says that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner, needs reconsideration for a true and correct interpretation in accordance with the rational nexus and basic objective sought to be achieved by the legislatures by enacting the DV Act and if no harmonious construction is possible the same may be struck down being ultra virus to the constitution. It is worth mentioning here that “complaint” is not defined in DV Act and only an application can be filed under section 12 of DV Act.
23. It is most humbly submitted that with due respect to the Hon’ble High Courts the petitioner is of the considered view that the judgments of the Hon’ble High Courts mentioned above are based on conservative and erroneous interpretation of Section 2(q) of the DV Act and not in accordance with the accepted principles of harmonious construction and objective interpretation of statutes.
24. It is most humbly submitted that Hon’ble Justice S.B. Sinha and Markandey Katju of Supreme Court of India in S.R. Batra and Anr. VS Smt. Taruna Batra observed with a heavy heart regarding draftsmanship of the DV Act that “No doubt, the definition of ‘shared household' in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society”. It is most humbly submitted that same is the case with drafting of section 2(q) of DV Act which is absolutely absurd and seems to deliver altogether a different connotation than intended by the legislature enacting a special statute for protection to women and children under Article 15(3) of the Constitution of India. Hon’ble Justice S.B. Sinha and Markandey Katju of Supreme Court has also propounded that “it is well settled that any interpretation which leads to absurdity should not be accepted”.
25. It is most humbly submitted that the loophole with respect to the contradiction, conflict and ambiguity in Section 2 (q) can be done with true and correct interpretation of main enactment of Section 2 (q) and proviso to Section 2 (q) DV Act in the context of the scheme underlying the other provisions of the Act as well as in tune with the object set out in the statement of objects and reasons in accordance with the accepted principles of interpretation of statutes by giving it a harmonious construction which should not be used as a sword against the women by a women as the DV Act is a Special Statute for protection to women and children covered by Article 15(3) of the Constitution of India.
26. It is most humbly submitted that “Respondent” as defined under Section 2 (q) of DV Act carves out a situation in which the respondent can only be a adult male person in domestic relationship with an aggrieved person against whom the aggrieved person has sought any relief but the Proviso says that in case an “aggrieved person” is a wife or female living in a relationship in the nature of a marriage, she may also file a complaint against a relative of the husband or the male partner. If the word ‘a relative’ of the husband or the male partner is read without gender than even the minor male/female relatives will also be covered within the mischief of this proviso, which can never be the intention of the legislatures while enacting the DV Act.
27. That it is most humbly submitted that the Nation is being governed by Rule of Law. That the proviso of section 2(q) of DV Act is absolutely arbitrary, unfair, unreasonable, unjustified, oppressive, contradictory, conflicting, discriminatory, and unconstitutional having no nexus with the real objective sought to be achieved, which needs to be suitably amended and/or struck down being ultra virus to Article 14,15,19 and 21 of The Constitution Of India.
28. That it is most respectfully submitted that from the bare perusal of the provision it is transparently clear that provisio is contradictory and conflicting to the main provision of the Act which seems to be absolutely absurd, unfair, unreasonable and unjustified and have no intelligible differentia having any rational relation or nexus with the objective sought to be achieved by this social legislations, enacted for protecting and safeguarding the best interest of the women of the nation.
29. That it is respectfully submitted that section 28 (2) of the Act which has laid down the procedure to be adopted by the Magistrate in disposing of the application under section 12 or 23(2) of the D V Act is absolutely arbitrary unfair, unreasonable and unjustified and have no intelligible differentia having any rational relation or nexus with the objective sought to be achieved.
30. That it is respectfully submitted that section 28 (2) of the Act arbitrarily gives unfettered powers to the Magistrates throughout the country to invent their own procedure for disposal of the application as mentioned above. Section 28 of the Act is reproduced here as under:-
Procedure:-
(1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974 ).
(2) Nothing in sub- section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub- section (2) of section 23.
31. That It is respectfully submitted that the petitioner cannot be deprived of her life and liberty except by the procedure established by law as per Article 21 of the Constitution of India. Since the procedure to be adopted by the Magistrate for disposal of the application may be as per his/her whims and fancies and ultimately may not be just fair and reasonable at the touch stone of the Constitutional mandate and will lead to flood gate of litigation challenging the procedure adopted by the Magistrates.
32. That It is respectfully submitted that the lower courts can not decide about the constitutional validity of the procedure adopted by the magistrates even otherwise revision against the orders of the Magistrates are specifically barred because only an appeal can be filed under section 29 of the Act. As per a line of judgments of different High Courts even a petition under section 482 of Code of Criminal Procedure is not maintainable because the orders passed by the Magistrates are not on complaints under Section 200 read with section 2(d) of the Cr. P. C, which further violates the fundamental rights of the petitioner enshrined under Article 14, 15 and 21 of the Constitution of India.
33. That it is respectfully submitted that Hon’ble Justice V.B. Gupta of this
“When specific remedy by way of appeal or by way of alteration, modification or revocation of any order, has been provided under the Act, prima-facie, the present petition under Article 227 of the Constitution of India, or Section 482 Cr. P.C. is notmaintainable before this court. It has been laid down in various judicial decisions by this court as well as by the Apex court that where the specific remedy is open to the party under specific Act, the High court will not interfere under Section 482 of Cr. P.C. In case of N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Others., 1952 SCR 218, the Apex court has laid down that:-
“Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed off”
34. That it is respectfully submitted that the procedure prescribed by law or adopted by the Magistrate under section 28(2) of the DV Act must be fair, just and reasonable, not fanciful, or arbitrary. The concept of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on that article. The exercise of judicial discretion on well-recognised principles is the safest possible safeguard for the petitioner.
35. That it is respectfully submitted that due to inherent contradictions and conflicting law, interpreting the law in reference to particular facts and circumstances of the case, by following or dissenting the precedents, by presuming the statutes to be wholly constitutional and/or by importing the legislative intents from tombs or towers of silence, there are line of judgments of the Hon’ble Supreme court and different High Courts, which may be considered as a scholarly written historical verdict on the issue but the same if appreciated or applied to an another case of different dimensions and implications, it may not be found worthy of doing complete justice, rather it may become an instrument of perpetuating injustice, age old patriarchal values, traditions and culture of female (s)exploitation in an wider perspective and vision of Human Rights, Inter-national Conventions, social justice or gender justice.
36. That it is respectfully submitted that Hon'ble Justice Fazal Ali and sabyasachi Mukharjee in Pratibha Rani V/s. Suraj Kumar (AIR 1985 S.C. 628 at page 630) in a most pious moments with divine powers conferred by Saraswati, has honestly confessed and cautioned that “Sometimes the law which is meant to import justice and fair play to the citizens or people of the country is so torn and twisted by a morbid interpretative process that instead of giving heaven to the disappointed and dejected litigants it negatives their well established rights in law.”
37. That it is most humbly submitted that Hon’ble Justice Kuldeep Singh and S.Saghir Ahmed in Bodhisattwa Gautam V/s. Shubra Chakraborty,( A.I.R. 1996 Supreme Court 922 at page 926, Para 9 )observed as under :-
“Unfortunately, a women, in our country, belongs to class or group of society who are in a disadvantageous position on account of several social barriers and impediments and have, therefore, been the victim of tyranny at the hands of men whom they, fortunately, under the constitution enjoy equal status. Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honor and dignity cannot be touched or violated. They also have the right to lead an honorable and peaceful life. Women, in them, have many personalities combined. They are mothers, sister, daughter, and wife and not play things for centre spreads in various magazines, periodicals or newspapers nor can they be exploited for obscene purposes. They must have the liberty, the freedom and of course independence to live the roles assigned to them by nature so that the society may flourish as they alone has the talents and capacity to shape the destiny and character of men anywhere and in every part of the world.”
38. That it is most respectfully submitted that in a recent judgment the Hon’ble Justices of Mumbai High Court has observed as under :-
“The right to gender equality is intrinsic to the right to life under Article 21 of the Constitution. The right to life comprehends the right to live with dignity. An affront to or the invasion of gender is destructive of the right of every woman to live with dignity. Article 15 of the Constitution, which contains a prohibition inter alia against discrimination by the State on the ground of sex is an emanation of that right. The provisions of the Constitution recognize gender equality as a fundamental right. Gender equality in all dimensions is a basic human right which is recognized by and embodied in the provisions of the Constitution. The board sweep of the human right to gender equality traverses every facet of the position of a woman in society. The rights comprehend the preservation of the dignity of women. At a basic level, gender equality postulates protection of woman against all those practices which invade upon the dignity of being and the privacy of a person. A dignified existence includes the right to earn one’s livelihood in conditions that are fair and gender neutral. A condition which operates to disadvantage a woman worker on the ground of gender is fundamentally anachronistic to the vision of our constitutional order. Gender as a concept has wider dimensions than sex. Gender equality postulates the realization of societal values that travel beyond a mere notion of sexual equality. Gender in that sense denotes the realization of every facet of personality that contributes to the fullness of life to which a woman is entitled.”
39. That it is respectfully submitted that in the above mentioned legal milieu and with the sole objective of larger interest of the society, future generations, and upholding the gender equality, decency, morality and dignity of womanhood the humble petitioner respectfully submits and prey this Hon’ble court to kindly look into and reconsider provision of relevant law in sharp contra distinction to each other and give a harmonious construction where ever needed or if required, the provision which is or have become redundant, obsolete, oppressive, useless, absurd and unconstitutional the same may be strucked down from the statute.
40. That it is most humbly submitted that the petitioner has been denied by the state to equality before the law and equal protection of law embodied in Article 14 of Constitution of India by enacting discriminatory provision of law in DV Act giving a different and discriminatory treatment having no intelligible differentia or any rational relation to the objective sought to be achieve by the statute whatsoever which has adversely effected Petitioners fundamental rights under Article 19 and 21 of the Constitution of India.
41. That it is respectfully submitted that the law as an instrument of fostering social order is also required to be used as a channel for doing good and conversely for curbing misuse and abuse of process of law but shockingly the petitioner has been denied the equality before law and equal protection of law. The poor helpless and innocent petitioner who is not able to understand the consequences of the ill deeds committed upon her by her own daughter in law is also a victim of unconstitutional, ultra virus and conflicting laws. The most important and significant fundamental right i.e. “Right to Life’’ of the petitioner has been violated, but the unconstitutional and ultra virus provisions of law are not capable to take care of the old senior citizen and her fundamental rights as well as human rights.
42. That being aggrieved by the above said arbitrary, unfair, unreasonable, unjustified, oppressive, contradictory, conflicting, discriminatory, and unconstitutional provision of law resulting in absolute absurdity and having no nexus or rational relation with the real objective sought to be achieved, the humble Petitioner approaches this Hon’ble Court for Justice challenging the Constitutional validity of the same and for proper, pragmatic and meaningful application of the law, inter-alia on the following amongst other grounds :
GROUNDS
A. Because the notice issued to the petitioner by Ms. Veena Rani, MM Patiala House Court, Delhi on the application filed by the respondent no 4 under section 12 of the DV Act is without application of judicial mind, jurisdiction, against the mandatory provision of section 2(q) of DV Act and without laying down any just, fair and reasonable procedure.
B. Because the provisio of section 2(q) of DV Act is absolutely arbitrary, unfair, unreasonable, unjustified, oppressive, contradictory, conflicting, discriminatory, and unconstitutional having no nexus with the real objective sought to be achieved, which needs to be suitably amended and/or struck down being ultra virus to Article 14,15,19 and 21 of The Constitution Of India.
C. Because section 28 (2) of the Act which has laid down the procedure to be adopted by the Magistrate in disposing of the application under section 12 or 23(2) of the D V Act is absolutely arbitrary unfair, unreasonable and unjustified and have no intelligible differentia having any rational relation or nexus with the objective sought to be achieved.
D. Because the domestic violence case against the petitioner is not maintainable in view of the definition of ‘respondent’ in Sec.2(q) of the Act, as the same can be filed only against ‘any adult male’ person but not against female persons.
E. Because there is no judgment from this Hon’ble court on the interpretation of main clause and proviso section 2(q) of the DV Act specifically on the constitutional validity of section 2(q) of DV Act on the question” Whether ‘respondent’ as defined under Section 2(q) includes a female person or not under the scheme of DV Act, 2005? ”. it is further respectfully submitted that to the best knowledge of the petitioner till date there is no final word of
F. Because the opinion of different benches of the above mentioned Hon’ble High Courts are sharply in contradiction and conflict with each other on substantial questions of law Whether ‘respondent’ as defined under Section 2(q) includes a female person or not under the scheme of DV Act, 2005 ? And in respect to the correct interpretation and scope of proviso to Section 2 (q) DV Act in the context of the scheme underlying the other provisions of the Act as well as in tune with the object set out in the statement of objects and reasons.
G. Because the inherent contradiction and conflict in the aforesaid definition clause, which is very much apparent from the reading of the main enacting part defining respondent as any ‘adult male person’ in a domestic relationship with the aggrieved person, on the other hand the proviso says that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner, needs reconsideration for a true and correct interpretation in accordance with the rational nexus and basic objective sought to be achieved by the legislatures by enacting the DV Act and if no harmonious construction is possible the same may be struck down being ultra virus to the constitution.
H. Because the loophole with respect to the contradiction, conflict and ambiguity in Section 2 (q) can be done with true and correct interpretation of main enactment of Section 2 (q) and proviso to Section 2 (q) DV Act in the context of the scheme underlying the other provisions of the Act as well as in tune with the object set out in the statement of objects and reasons in accordance with the accepted principles of interpretation of statutes by giving it a harmonious construction which should not be used as a sword against the women by a women as the DV Act is a Special Statute for protection to women and children covered by Article 15(3) of the Constitution of India.
I. Because on the bare perusal of the provision it is transparently clear that provisio is contradictory and conflicting to the main provision of the Act which seems to be absolutely absurd, unfair, unreasonable and unjustified and have no intelligible differentia having any rational relation or nexus with the objective sought to be achieved by this social legislations, enacted for protecting and safeguarding the best interest of the women of the nation.
J. Because section 28 (2) of the Act arbitrarily gives unfettered powers to the Magistrates throughout the country to invent their own procedure for disposal of the application as mentioned above.
K. Because the petitioner cannot be deprived of her life and liberty except by the procedure established by law as per Article 21 of the Constitution of India. Since the procedure to be adopted by the Magistrate for disposal of the application may be as per his/her whims and fancies and ultimately may not be just fair and reasonable at the touch stone of the Constitutional mandate and will lead to flood gate of litigation challenging the procedure adopted by the Magistrates.
L. Because the lower courts cannot decide about the constitutional validity of the procedure adopted by the magistrates even otherwise revision against the orders of the Magistrates are specifically barred because only an appeal can be filed under section 29 of the Act. As per a line of judgments of different High Courts even a petition under section 482 of Code of Criminal Procedure is not maintainable because the orders passed by the Magistrates are not on complaints under Section 200 read with section 2(d) of the Cr. P. C, which further violates the fundamental rights of the petitioner enshrined under Article 14, 15 and 21 of the Constitution of India.
M. Because the procedure prescribed by law or adopted by the Magistrate under section 28(2) of the DV Act must be fair, just and reasonable, not fanciful, or arbitrary. The concept of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on that article. The exercise of judicial discretion on well-recognised principles is the safest possible safeguard for the petitioner.
N. Because the petitioner has been denied equality before the law and equal protection of law embodied in Article 14 of Constitution of India by enacting discriminatory provision of law in DV Act giving a different and discriminatory treatment having no intelligible differentia or any rational relation to the objective sought to be achieve by the statute whatsoever which has adversely effected Petitioners fundamental rights under Article 19 and 21 of the Constitution of India.
O. Because it is the paramount duty and obligation of this Hon’ble Court to appreciate the arbitrary, unfair, unreasonable, unjustified, oppressive, contradictory, conflicting and unconstitutional law having no nexus with the real objective sought to be achieved, which needs to be struck down being ultra virus to Article 14,19 and 21 of The Constitution Of India.
P. Because the Nation is being governed by Rule of Law and it is transparently clear that because of the reason that the legal provisions in D.V. Act are absolutely arbitrary, unfair, unreasonable, unjustified, oppressive, contradictory, conflicting, discriminatory, and unconstitutional having no nexus with the real objective sought to be achieved, which needs to be suitably amended and/or struck down being ultra virus to Article 14,19 and 21 of The Constitution Of India.
Q. Because the petitioner has been denied equality before the law and equal protection of law embodid in Article 14 of Constitution of India by enacting DV Act giving a different and discriminatory treatment having no intelligible diffrentia or any rational relation to the objective sought to be achieve by the statutes whatsoever, which has adversely affected Petitioners fundamental rights under Article 14, 19 and 21 of the Constitution of India.
R. Because the above stated conflicting, confusing, absurd and unconstitutional provisions have created such a mess and chaos that interests of justice/ends of justice are not available to the petitioner to rescue and save the basic human dignity honor and reputation of the petitioner. The above stated obnoxious provisions have locked horns enough to bleed, beat and defeat the basic human rights and fundamental rights of petitioner in spite of fundamental rights enshrined an Article 14, 19 and 21 of Constitution of India, international treaties regarding welfare of women and children duly signed by the State and declarations of a welfare state.
S. Because conflicting provision of law stated above exist in statute and enforced by state against the innocent and helpless women without any equitable relief or remedy.
43. That the Petitioner has not filed any other Writ Petition before the Hon’ble Supreme Court of India or before this
44. That petitioner has no other equally efficacious, speedy and exhaustive remedy available to him under the law except the present Writ Petition.
45. That the requisite court fees are affixed on the Petition.
PRAYER
For the reasons and ground as stated above in the interest of Justice, it is, therefore most humbly prayed that this
(a) The following sections/sub-sections being Ultra virus of the Constitution of India be struck down from the respective statute(s).
i. Proviso of Section 2(q)of Protection of Women from Domestic Violence Act, 2005 ( Act no. 43 of 2005) which is read as under:-
“Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”
ii. Sub section 2 of section 28 of Protection of Women from Domestic Violence Act, 2005 ( Act no. 43 of 2005 which is read as under:-
“(2) Nothing in sub- section (1) shall prevent the court from laying down its own procedure for disposal of an application under section 12 or under sub- section (2) of section 23.
(b) Direct the Respondents by issuing Writ in the nature of Mandamus or another Writ, Order(s) or Direction(s) not to enforce the Provisions of the Statutes mentioned in above said Prayer.
(c) Further issue appropriate writ order or direction in the nature of certiorari ,or of any other appropriate nature thereby setting aside order/notice dated 7th April 2010 passed by Ms. Veena Rani, learned M.M, Patiala House Court, Delhi.
(d) Pass any other Order(s) or Direction(s) which may deem fit and proper in the facts and circumstances of the case and in the interest of justice.
(e) Allow the writ with cost.
Petitioner
Through
[ARVIND JAIN, T. S. CHAUDHARY & MS. CHITRANJALI NEGI]
Advocates for the: PETITIONER
For Indian Chamber of Law,
170, Lawyers’ Chambers,
Dated: 26th April, 2010
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Tags :Criminal Law
