Domestic Violence Act becomes Gender Neutral

In Civil Appeal No. 10084 of 2016 (Arising out of SLP (Civil) No. 9132 of 2015) decided on 06.10.2016, the Supreme Court of India has held 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"

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

On 3.4.2007, 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. The said complaint was withdrawn on 27.6.2007 with liberty to file a fresh complaint.

After 3 years the mother and daughter filed two separate complaints against the same Respondents in October, 2010. 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. This order had attained finality.

The present mother and daughter then filed this writ petition, being writ petition No. 300/2013, in which the constitutional validity of Section 2(q) has been challenged. Though the writ petition was amended, there was no prayer seeking any interference with the order dated 15.2.2012, which, as has been stated hereinabove, has attained finality.

The Apex Court based on various citations and arguments of the Counsel has 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 judgment, the words "adult male person" are contrary to the object of affording protection to women who have suffered from domestic violence "of any kind". We, therefore, strike down the words "adult male" before the word "person" in Section 2(q), as these words discriminate between persons similarly situate, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act. "

It was therefore ordered that "We, therefore, 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. "

Thus this judgment has made the DV Act gender neutral and a complaint of the act of Domestic Violence can now be made against not only a male person but also against a female person.