Does Karnataka HC judgment allows for DV complaints on wives by husbands?

The Protection of Women from Domestic Violence Act, 2005, or PWDVA, 2005 or DV Act in short, is very clear on one point.  It is only for protection of women (practically speaking only wives use it) in a household.  The name of the act itself makes it very clear.

Update 28/04/2017: This order has been withdrawn, see end of post for screenshot from Karnataka HC website.

Then this High Court of Karnataka judgment (text below) comes along, which seems to redefine the whole DV Act itself, by suggesting that a complaint filed by husband on wives and in-laws should be considered.  And it refers to this Supreme Court judgment (Harsora vs Harsora) which changed definition of DV Act to allow for respondent to be both male or female.  Following is the excerpt from Karnataka HC  judgment which refers to above SC judgment:

In this connection, it is to be noticed that the said issue was subject matter of an appeal before the Apex Court in the  case  of    Hiral  P.  Harsora  v.  Kusum  Narottamdas Harsora, (2016) 10 SCC 165,        wherein the Supreme Court has struck down a portion of Section 2(a) on the ground that it is violative of Article 14 of the Constitution of India and the phrase “adult male” as appearing in Section 2(q) stood  deleted.  If the said sub-section is read after deleting the expression ‘adult male’, it would appear that any person, whether male or female,  aggrieved  and alleging violation  of the provisions of the Act could invoke the provisions under the Act. In that view of the matter, the petitioner’s complaint could not have been trashed  on  the  ground  that  the  Act  does  not  contemplate provision for men and it could only be in respect of women.

That SC judgment though very long in text does a very short and simple thing: it deletes two words “adult male’ from Section 2(q) of PWDVA which was used to define as to against whom a DV complaint could be filed.  It never went into constitutionality of Section 2(a) of DV Act, but only into constitutionality of Section 2(q) which was challenged in front of Supreme Court.  That SC judgment says clearly in beginning:

2. The present appeal arises out of a judgment dated 25.9.2014 of a Division Bench of the Bombay High Court. It raises an important question as to the constitutional validity of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, (hereinafter referred to as “the 2005 Act”).

So the Harsora vs Harsora SC judgment was only about constitutionality of Section 2(q) of DV Act.  The final paras of the judgment give detail on what the SC has amended in DV Act:

46. 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.

Section 2(q) before Harsora vs Harsora judgment:

(q) “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.

Section 2(q) after Harsora vs Harsora judgment:

(q) “respondent” means any 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

That judgment allowed for change in definition in against whom a complaint could be made, and now it includes females also as respondents.  However, it never touched the definition of aggrieved person, who can only be a woman under DV Act.  As per Section 2(a):

(a) “aggrieved person” means 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;

So this Karnataka HC judgment which allows for husband’s DV complaint against wife and in-laws to be considered by referring to above SC judgment is not right in law.  It seems to suggest that SC judgment had changed definition of Section 2(a) whereas that was never even a point raised.   If the point was to be made that it is not morally or constitutionally right to give protection from domestic violence only to women in household, then that argument can be made on its own merits provided the PWDVA Section 2(a) is challenged appropriately of course, but referring to Harsora vs Harsora judgment by SC is not right since that judgment went only into question of whether females can be respondents under DV Act, not whether males can be aggrieved persons who can file complaint under DV Act.

This judgment suggests that one should rely on one’s own reading of law and judgments, and not blindly follow authority.

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Full Judgment text below:
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1

IN THE HIGH COURT OF KARNATAKA AT
BENGALURU

TH
DATED THIS THE 18  DAY OF APRIL 2017

BEFORE

THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

CRIMINAL PETITION No.2351 OF 2017

BETWEEN:

Mohammed Zakir,
S/o. Shakeel Ahamed,
Aged 36 years,
th
No.23/B, 10  cross,
Kuppaswamy Layout,
Arabic College Post,
Nagawara, Bangalore – 45.
… Petitioner

(By Sri. Tajuddin, Advocate)

AND:

1.     Smt. Shabana,
Ex. W/o. Mohammed Zakir,
D/o. Mohammed Yunus,
Aged about 34 years,

2.     Sri. Parveez,
S/o. Mohammed Yunus,
Age 31 years,

2

3.     Sri. Javeed,
S/o. Mohammed Yunus,
Age 29 Years,

4.     Smt. Nasreen,
W/o. Mohammed Yunus,
Age 54 years,

5.     Sri. Mohammed Yunus,
S/o. Mohammed Hafiz,
Age 58 years,

Respondent Nos. 1 to 5
th
are residing at No.20, 20  Main,
th
5  Phase, Ramaswamy Layout, JP Nagar,
Bangalore -560 078.
… Respondents
(Notice to respondent dispensed with)

This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973, praying to quash that this
Hon’ble court may be pleased to set aside the order dated
02.02.2017 passed by the LXVIII Addl. City Civil and Sessions
Judge, Bangalore in Crl.A.No.95/2017 filed to recall the order
dated 25.01.2017 in the Court of Prl. City Civil and Sessions
Judge, Bangalore order dated 04.03.2017.

This Criminal Petition coming on for Admission this day,
the court made the following:

O R D E R

Heard  the  learned  Counsel  for  the  petitioner.    The

petitioner is a Muslim male.  He is aggrieved by certain acts of

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his  wife  and  her  family  and  therefore  had  invoked  the

provisions  of  the  Protection  of  Women  from  Domestic

Violence Act, 2005 (Hereinafter referred to as the ‘DV Act’, for

brevity).  The court below was not impressed with the same as

the Act clearly is loaded in favour of women only and it does

not contemplate any male person being aggrieved by domestic

violence.  In this connection, it is to be noticed that the said

issue was subject matter of an appeal before the Apex Court in

the  case  of    Hiral  P.  Harsora  v.  Kusum  Narottamdas

Harsora, (2016) 10 SCC 165,        wherein the Supreme Court has

struck down a portion of Section 2(a) on the ground that it is

violative of Article 14 of the Constitution of India and the

phrase “adult male” as appearing in Section 2(q) stood  deleted.

If the said sub-section is read after deleting the expression

‘adult male’, it would appear that any person, whether male or

female,  aggrieved  and alleging violation  of the provisions of

the Act could invoke the provisions under the Act. In that view

of the matter, the petitioner’s complaint could not have been

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trashed  on  the  ground  that  the  Act  does  not  contemplate

provision for men and it could only be in respect of women.

2.  In that view of the matter, since cognizance was never

taken  by  the  Magistrate  and    process  was  not  issued,  the

question of giving them a right of hearing either by the Sessions

Court or by this Court does not arise.  It is for the Magistrate to

reconsider the case from inception.  On the question whether

the provisions of the DV Act can be invoked by the petitioner

or not is no longer    res integra.   The petition would therefore

have to be entertained.

With that observation, the petition  is allowed.

Sd/-
JUDGE

nv

Case status as on 28/04/2017: