Can Women be Charged under Domestic Violence Act: Read Judgment Amaresh Patel LANDMARK JUDGMENT Mon, Jun 10, 2019, at ,09:10 AM Title of the Case – Can Women be Charged under Domestic Violence Act: Name of the case – Hiral P. Harsora & ors. Vs. Kusum Narottamdas Harsora & ors, C.A. No. 10084 of 2016 (@SLP (C) No. 9132 of 2015) Date of Judgment – October 6th, 2016 Judges: Justice Kurian Joseph & Rohinton Fali Nariman Subject and sections involved – Constitutional Validity of Section 2 (q) of the Protection of Women from Domestic Violence Act, 2005 Issue: Whether section 2 (q) of Protection of Women from Domestic Violence Act, 2005 violates Article 14 of the Constitution of India? Fact of the Case: 03rd April 2007, Kusum Narottam Harsora and her mother Pushpa Narottam Harsora filed a complaint under the 2005 Act against Pradeep, the brother/son, and his wife, and two sisters/daughters, alleging various acts of violence against them. 27th June, 2007, The said complaint was withdrawn with liberty to file a fresh complaint. An application was moved before the learned Metropolitan Magistrate for a discharge of respondent Nos. 2 to 4 stating that as the complaint was made under Section 2(a) read with Section 2(q) of the 2005 Act, it can only be made against an adult male person and the three respondents not being adult male persons were, therefore, required to be discharged. The Metropolitan Magistrate passed an order dated 5.1.2012 in which such discharge was refused. In a writ petition filed against the said order, on 15.2.2012, the Bombay High Court, on a literal construction of the 2005 Act, discharged the aforesaid three respondents from the complaint. The present proceedings arise because mother and daughter have now filed a writ petition, being writ petition No.300/2013, in which the constitutional validity of Section 2(q) has been challenged. Ratio of the case - Doctrine of Interpretation The Supreme Court relying upon the judgments in DTC vs. Mazdoor Congress, 1991 Supp (1) SCC 600, observed in reference to interpretation of provision that the doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations are possible—one rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intention of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires extensive additions and deletions. Not only it is no part of the court's duty to undertake such exercise, but it is beyond its jurisdiction to do so. “reading up” a statutory provision is equally not permissible. The bench further stated that apart from not being able to mend or bend a provision, this Court has earlier held that “reading up” a statutory provision is equally not permissible. In B.R. Kapur v. State of T.N., (2001) 7 SCC 231, this Court held: “Section 8(4) opens with the words “notwithstanding anything in sub-section (1), sub-section (2) or sub-section (3)”, and it applies only to sitting members of Legislatures. There is no challenge to it on the basis that it violates Article 14. If there were, it might be tenable to contend that legislators stand in a class apart from non-legislators, but we need to express no final opinion. In any case, if it were found to be violative of Article 14, it would be struck down in its entirety. There would be, and is no question of so reading it that its provisions apply to all, legislators and non-legislators, and that, therefore, in all cases the disqualification must await affirmation of the conviction and sentence by a final court. That would be “reading up” the provision, not “reading down”, and that is not known to the law.” Struck Down sec 2 (q) of DV Act Thus, the division bench of Supreme Court set aside the impugned judgment of the Bombay High Court and declare that the words “adult male” in Section 2(q) of the 2005 Act will stand deleted since these words do not square with Article 14 of the Constitution of India. Consequently, the proviso to Section 2(q), being rendered otiose, also stands deleted. We may only add that the impugned judgment has ultimately held, in paragraph 27, that the two complaints of 2010, in which the three female respondents were discharged finally, were purported to be revived, despite there being no prayer in Writ Petition No.300/2013 for the same. When this was pointed out, Ms. Meenakshi Arora very fairly stated that she would not be pursuing those complaints, and would be content to have a declaration from this Court as to the constitutional validity of Section 2(q) of the 2005 Act.