The Invalidation of S. 2(q) of the Domestic Violence Act: A Comment

Last week, a two-judge bench of the Supreme Court struck down Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 [“DV Act”], on the basis that it violated Article 14 of the Constitution. Section 2(q), which is part of the definitional clause of the DV Act, read:

“…”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.”

To understand what, precisely was at issue, it is also important to set out the definitions of “aggrieved person” and “domestic relationship”. Section 2(a) defined an “aggrieved person” to mean “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.” Section 2(f) defined domestic relationship as “a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”

The effect of Section 2(q), therefore, was that insofar as a domestic relationship was concerned, an aggrieved woman could proceed only against male perpetrators of domestic violence. However, if the domestic relationship was a marriage or a relationship in the nature of a marriage, the aggrieved woman could file complaints against the relative of her husband/male partner. It is important to note that it is, by now, settled law, that under the proviso to Section 2(q), women could be respondents. Consequently, the distinction drawn by S. 2(q) was between marriages/relationships in the nature of marriage on the one hand, and other domestic relationships on the other. In the former case, female relatives of the husband/male partner could be made respondents, while in the latter, a respondent could only be an “adult male”.

The Supreme Court found that this distinction was irrational, arbitrary, and contrary to Article 14. For the most part, the judgment is a textbook application of Article 14 doctrine, and needs no comment. However, a couple of interesting issues do arise out of the judgment, which deserve to be examined.

The first is the issue of legislative purpose under Article 14. Relying upon Shashikant Laxman Kale vs Union of India and Harbilas Rai Bansal vs State of Punjab, Justice Nariman held that the Statement of Objects and Reasons and the Preamble of the DV Act must be examined to discern its purpose. Reading the two together, he found that the purpose of the Act was to “provide for effective protection of the rights of women who are victims of violence of any kind occurring within the family.” (emphasis his) (paragraph 16) In light of the wide definition of ‘domestic relationship’, which included members of both sexes (paragraph 18), the amendments to the Hindu Succession Act that now made women co-parceners in a joint family (paragraph 18), the gender-neutral definition of “domestic violence” under Section 3 of the DV Act (paragraph 19), and the fact that the remedies under the Act (such as protection and residence orders) could easily be defeated if “respondent” was limited to adult male persons (paragraph 20), he then held that the classification under S. 2(q) failed the rational relation test under Article 14. This was not just true for “male”, but for “adult” as well, since it was easy to envisage 16 and 17- year olds engaging in acts of domestic violence within shared households (paragraph 24). The linchpin of Justice Nariman’s opinion, which he repeated, was that “the classification of “adult male person” clearly subverts the doctrine of equality, by restricting the reach of a social beneficial statute meant to protect women against all forms of domestic violence.” (paragraph 31) The phrase “domestic violence of any kind” was repeated in paragraph 36.

In short, therefore, the Court struck down S. 2(q) on the basis that the distinction it drew between the persons who could be arraigned as respondents in the case of marital relationships, and other kinds of domestic relationships, bore no rational relation with the purpose of the Act, which was to protect women against domestic violence of “any kind”, or of “all forms”. This legislative purpose was drawn from its statement of objects and reasons and the Preamble.

It is important, however, to draw a conceptual distinction between two kinds of “legislative purposes”. In the first sense, “legislative purpose” is what the legislature actually had in mind (to the extent that collective purposes make sense) when enacting the statute, something that a Court can determine by looking at the text and surrounding documents of the law. This is what Justice Nariman did in the present case. Call this the “intended purpose“. In the second sense, “legislative purpose” is a purpose that can be justifiable attributed to a statute, regardless of whether or not it was actually within the contemplation of the legislature while drafting the law. Call this the “justified purpose“. In this case, after having found that the stated purpose of the Act was to protect women against domestic violence of “all kinds”, and that the S. 2(q) classification did not serve this purpose, Justice Nariman did not ask (and indeed, the State did not propose) whether S. 2(q) could be plausibly justified in relation to any other possible legislative purpose. Here is one possible candidate:

The Domestic Violence Act understands “domestic violence” as not simply violent acts committed by one person upon another within a domestic setting, but as a problem that flows from differential, structural power relations between men and woman in the family (which is why only women can be complainants under the Act), and therefore, primarily seeks to prevent male-on-female violence. While we may disagree with this framing, it is within the realm of legislative discretion to make this call. This accounts for S. 2(q). However, the legislature was also cognisant of the fact that the marital relationship is a space where women are specifically vulnerable, in no small part because in many circumstances they must leave their homes and live with their husband’s family. Consequently, the legislature chose to carve out a proviso to S. 2(q) to deal with the heightened vulnerability of women in marital relationships.

I am not arguing that this restated purpose of the Domestic Violence Act would necessarily clear Article 14 scrutiny. It might be argued, for instance, that even if one is to accept the argument that domestic violence is structural and institutional, acts of domestic violence can and are committed by both men and women – and so, even if we were to take the above argument on its own terms, it would fail the test of rational classification (in that case, however, the Court would also have to explain why the legislature’s identification of the specific harm that it was seeking to prevent was irrational and could be overridden in a judicial enquiry). What I am arguing, however, is that principles of judicial deference and the presumption of constitutionality would require the Court to adopt a generous approach towards the determination of legislative purpose, which would include, at times, reconstructing legislative purpose in a manner that would make the strongest case for the constitutionality of the law. If, even then, the law failed Article 14 scrutiny, then of course, it would need to be struck down.

As an aside, it is also interesting to take note of the path that this judgment did not take. Recall that in Yusuf Abdul Aziz vs State of Bombay, the Supreme Court upheld the constitutionality of adultery law against a gender-equality challenge (women are not liable in case of adultery) on the basis that it was saved by Article 15(3) of the Constitution (“special provisions for women and children”). An argument could have been made in this case that exempting a class of women from legal liability was exactly what was done in Yusuf Abdul Aziz, and upheld under Article 15(3). The problems with that approach are too many to list out here, and so, it is certainly a good thing that the Court showed no signs of retracing its steps along that road.

 

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8 Comments

Filed under Article 14, Equality

8 responses to “The Invalidation of S. 2(q) of the Domestic Violence Act: A Comment

  1. Pingback: Addendum: The Impact of the S. 2(q) Judgment upon the Marital Rape Exception | Indian Constitutional Law and Philosophy

  2. Pingback: Weekly Roundup: October 5-11, 2016 – Centre for Constitutional Law, Policy, and Governance

  3. Prashant Mishra

    Don’t you think this judgment would add to the tyranny of abuse of S.498 A or dowry laws which has been accepted by our courts too?

  4. Para 27 of the judgment:
    “In Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, the appellant entered into a live-in relationship with the respondent knowing that he was a married person. A question arose before this Court as to whether the appellant could be said to be in a relationship in the nature of marriage. Negativing this contention, this Court held:
    The appellant, admittedly, entered into a live-in relationship with the respondent knowing that he was a married person, with wife and two children, hence, the generic proposition laid down by the Privy Council in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy [(1928) 27 LW 678 : AIR 1927 PC 185] , that where a man and a woman are proved to have lived together as husband and wife, the law presumes that they are living together in consequence of a valid marriage will not apply and, hence, the relationship between the appellant and the respondent was not a relationship in the nature of a marriage, and the status of the appellant was that of a concubine. A concubine cannot maintain a relationship in the nature of marriage because such a relationship will not have exclusivity and will not be monogamous in character. Reference may also be made to the judgments of this Court in Badri Prasadv. Director of Consolidation [(1978) 3 SCC 527] and Tulsa v. Durghatiya [(2008) 4 SCC 520] .
    We may note that, in the instant case, there is no necessity to rebut the presumption, since the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. The long- standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that the DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and exhaustive.
    Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage. [Paras 57, 59 & 64]”

    This is such a regressive statement. Why does the Supreme Court still use the archaic and demeaning term concubine? We have had “concubines” as members of Parliament. There is so much that is wrong with this statement.
    How does the Court presume monogamy in other live-n or married relationships?

    Any long-term live-in relationship between a man and a woman in a sexual relationship should in my opinion fall within the purview of the Domestic Violence Act for certain purposes but perhaps not for all.

  5. Indra Sarma vs V.K.V.Sarma SC 2013 is a terrible judgment replete with old-fashioned misogyny. A single woman entered into a live-in sexual relationship with a married man and they lived together for 18 years with her giving up her job and handling the household. The terms in which the judgment describes the woman and her action in entering into this relationship is judgmental and demeaning.

    Note how the judgment blames the woman in para 24:
    ” Appellant had entered into this relationship knowing well that the respondent was a married person and encouraged bigamous relationship. By entering into such a relationship, the appellant has committed an intentional tort, i.e. interference in the marital relationship with intentionally alienating respondent from his family, i.e. his wife and children. If the case set up by the appellant is accepted, we have to conclude that there has been an attempt on the part of the appellant to alienate respondent from his family, resulting in loss of marital relationship, companionship, assistance, loss of consortium etc., so far as the legally wedded wife and children of the respondent are concerned, who resisted the relationship from the very inception. Marriage and family are social institutions of vital importance. Alienation of affection, in that context, is an intentional tort, as held by this Court in Pinakin Mahipatray Rawal case (supra), which gives a cause of action to the wife and children of the respondent to sue the appellant for alienating the husband/father from the company of his wife/children, knowing fully well they are legally wedded wife/children of the respondent..”

  6. J. Katju in D.Velusamy vs D.Patchaiammal on 21 October, 2010
    “If a man has a `keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage'”

    Why was this not expunged? The Supreme Court using such derogatory language to describe the circumstances of many women in exploitative relationships is unfortunate.

  7. Our Supreme Court Judges should at least read the wikipedia entry on “Concubinage”at https://en.wikipedia.org/wiki/Concubinage so that they do not use this term again.
    “While various forms of long-term sexual relationships and co-habitation short of marriage have become increasingly common in the Western world, these are generally not described as concubinage. The terms concubinage and concubine are used today primarily when referring to non-marital partnerships of earlier eras. In modern usage, a non-marital domestic relationship is commonly referred to as co-habitation (or similar terms), and the woman in such a relationship is generally referred to as a girlfriend, lover or (life) partner.”
    The word concubine essentially used to mean a sexual slave or a socially and sexually subservient woman living in a man’s household with legal sanction and occupying a lower status than the wives, Its not even an Indian concept. Why would our judges use this term?

  8. Pingback: Guest Post: Consistency across Statutes and Article 14 in Harsora vs Harsora – A Further Critique | Indian Constitutional Law and Philosophy

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