Crl. M.As. 4172-73/2008
1. Allowed, subject to all just exceptions.
WP(Crl.) 425/2008 & Crl. M.A. 4171/2008
2. This Petition was originally listed before a Single Judge of this Court. The Petition contains two prayers - (a) for declaring the Protection of Women from Domestic Violence Act, 2005 (for short 'Act) as ultra vires the Constitution of India and (b) to quash the proceedings before the Metropolitan Magistrate, New Delhi. Very briefly stated, the Petitioner admits that a Ring Ceremony had been performed between him and Respondent No. 2, but no marriage had been celebrated. Respondent No. 2 however appears to have taken the stance that their marriage was duly solemnized.
3. Learned Counsel for the Petitioner has assailed the vires of the Act on the ground that inasmuch as it provides protection only to women and not to men, the statute offends Article 14 of the Constitution of India. It is beyond cavil that legislation must be presumed to be legally sound and proper, and therefore the burden of proving that it is unconstitutional rests heavily on the Petitioner who asserts so. It has been laid down that if it is evident that a statute is predicated on an intelligible differentia between persons falling within the protection of the provision viz-a-viz those falling outside, and this classification/differentia bears a reasonable nexus to the object sought to be achieved by the legislation, it would not infract or impinge upon the equality doctrine articulated and enshrined in Article 14 of the Constitution. We can do no better than to reproduce the following paragraph from State of A.P. v. Nallamilli Rami Reddi which has also been relied upon in Basheer v. State of Kerala :
8. 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.
4. 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 India is an abjectly dismal one, which requires bringing into place, on an urgent basis, protective and ameliorative measures against exploitation of women. The argument that the Act is ultra vires the Constitution of India because it accords protection only to women and not to men is, therefore, wholly devoid of any merit. We do not rule out the possibility of a man becoming the victim of domestic violence, but such cases would be few and far between, thus not requiring or justifying the protection of Parliament.
5. Learned Counsel for the Petitioner has drawn attention to the definition of "domestic relationship" contained in Section 2(f) of the Act. He has strenuously objected to the placing of married persons on the same platform as those in a relationship in the nature of marriage. We find no reason why equal treatment should not be accorded to wife as well as woman who has been living with a man as his common-law wife or even as a mistress. Like treatment to both does not, in any manner, derogate from the sanctity of marriage since an assumption can fairly be drawn that a "live-in relationship" is invariably initiated and perpetuated by the male. Once again, we do not rule out the exception but such cases would be rare to find, thus obviating the need of Parliament to provide protection to the male victim. The Court should also not be impervious to social stigma which always sticks to women and not to the men, even though both partake of a relationship which is only in the nature of marriage.
6. Learned Counsel for the Petitioner has also assailed Section 18 but we are unable to appreciate any reason for the challenge to this Section. The third paragraph of the Statement of Objects and Reasons of the subject statute records that - "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 the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society". Parliament was at the same time fully alive to the reality that Section 498-A of the Indian Penal Code, dealing with the malaise of dowry demand and attendant cruelty meted out to women, does not and cannot address the pressing need to provide protective measures against the consequences and repercussions of the pernicious prevalent practice of the demand of dowry. Section 18 postulates the passing of protective and ameliorative orders of civil Courts, calculated to preserve the status quo for the benefit of women. This is, in fact, one of the most significant features of the statute. A woman who is facing the brunt of harassment in a domestic relationship is more concerned with being rendered destitute rather than punishment being handed down to the perpetrator of the harassment. In this connection, the preceding Section 17 is legally path-breaking since it introduces the right of every women in a domestic relationship to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. Equity should come to the aid of a woman who has been living in joint property of the man since it was always open to the other members of family to object to and resist such a move. Family consent, even willy nilly, should work in favor of the woman concerned. Beyond stating that this Section 18 is ultra vires the Constitution of India no worthwhile reasons or arguments have been put forward by learned Counsel for the Petitioner in discharge of the burden of proving the unconstitutionality of the statute.
7. Learned Counsel for the Petitioner has contended that the provisions of the Act jeopardise and/or diminish the rights of legally wedded women inasmuch as wives' rights may stand diluted in accommodating the rights of the women who is in a relationship in the nature of marriage with the husband. Reference has been made to the Hindu Marriage Act. It seems to us that it is not unconstitutional for Parliament to provide for protection to a woman in a relationship akin to marriage, Along with and juxtaposed to the protection given to wives and legitimate children. In unfortunate and uncomfortable situations such as these, if the protection given to unwedded women results in the diminution of funds available for complete maintenance of the legally wedded wives and the legitimate children, such diminution would not render the statute unconstitutional. The bread-winner husband or man, as the case may be, may suffer ill-health or insolvency etc. and in such cases the wife would be bereft of finances. These are the vicissitudes of marriage against which legal insurance and insulation is not possible.
8. After hearing learned Counsel for the petitioner at great length we had suggested to him that it would be in the interest of justice of the petitioner to address and concentrate upon prayer (b) relating to the quashing of the proceedings before the Metropolitan Magistrate. He has, however, insisted that the Act is ultra vires the Constitution, thereby needlessly wasting public time on an issue in respect of which no arguments of substance have been articulated. The challenge to the vires of the Protection of Women from Domestic Violence Act is misconceived and devoid of merit. The challenge is dismissed with costs of Rupees Three Thousand to be paid by the Petitioner to Legal Aid for Women, Children, SC, ST and Poor, Delhi High Court, New Delhi to be deposited within two weeks from today.
9. We direct the Petition to be placed before the Hon'ble Single Judge as per Roster, so far as Prayer (b) is concerned, on 21.4.2008.