Case Brief Harsora

Case Brief Harsora

Hiral P. Harsora And Ors vs Kusum Narottamdas Harsora And Ors

Brief Facts of the Case

The present appeal arises out of a judgment dated 25.9.2014 of a Division Bench of the Bombay High Court.

Here on 3.4.2007, Kusum Narottam Harsora and her mother Pushpa Narottam Harsora filed a complaint under the 2005 Act against their brother/son, his wife and two sisters/daughters, alleging various acts of violence against them. No action was taken on the fresh complaints that were filed subsequently. Nothing happened for a period of three years till both of the complainants filed separate complaints in October, 2010.

The main issue here was the interpretation of a section 2(q) of the Protection of Women from Domestic Violence Act, 2005, (hereinafter referred to as “the DV Act”). The particular section defined the term “respondents” for the purpose of this act.

The Bombay High Court construed the provision in its literal sense and discharged the three female respondents from the complaint, as they concluded that the complaint could be filed only against an “adult male person”.

The present case deals with the writ petition filed by the mother and daughter duo in which the constitutional validity of Section 2(q) has been challenged, with no prayer seeking any interference with the order given in their previous case.

Issues before the court

Whether Section 2(q) of the DV Act violates Article 14 of the Constitution?

Whether the rest of the DV Act can remain in force if amendments are made in respect of Section 2(q)?

Legislative Intent

The court further explained as to how the phrase “adult male members” also reduced its scope and unreasonably excluded the ‘non-adult males’, 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.

The court further dealt with some cases of Article 14 including Lachhman Dass v. State of Punjab1, with which they explained that in the present case, the classification of “adult male person” clearly subverts the doctrine of equality.

The court observed that the microscopic difference between male and female, adult and non adult, regard being had to the object sought to be achieved by the 2005 Act, is neither real or substantial nor does it have any rational relation to the object of the legislation. In fact, as per the principle settled in the Subramanian Swamy judgment1, the words “adult male person” are contrary to the object of affording protection to women who have suffered from domestic violence “of any kind”.

Further after striking down the words “adult male” before the word “person” in Section 2(q), dealing with the second issue the court analyzed the Doctrine of Severability which was propounded in the R.M.D. Chamarbaugwalla v. Union of India1 in reference to various other judgments.

Further, the court explained and gained more clarity as to the legislative intent in respect of the interpretation the word respondent by referring to the Protection from Domestic Violence Bill, 2002 which had lapsed in the Parliament. The 2002 Bill defined “respondent” as meaning “any person who is…..” without the addition of the words “adult male”, being in consonance with the object sought to be achieved by the Bill, which was pari materia with the object sought to be achieved by the DV Act.

Decision of the Court

The court concluded that Section 2(q) of the DV Act violates Article 14 of the constitution and struck down the words “adult male” before the word “person” in the particular section. Consequently, the proviso to Section 2(q), being rendered otiose, was automatically deleted.

The court held the rest of the act to be operative and that the same can be enforced to achieve the object of the legislation without the offending words.