"EXPLORING THE RULES OF INTERPRETATION IN HIRAL P. HARSORA AND ORS VS KUSUM NAROTTAMDAS HARSORA AND ORS" BY - HETAVI BARI
This paper is the case analysis of Hiral P. Harsora and Ors vs Kusum
Narottamdas Harsora and Ors. It questioned whether Section (q) of the PWDA Act,
2005, was constitutionally valid. Whether the term "Respondent" was
limited to simply an adult male or would have included anyone who is in a
"domestic connection" with the appellant were the main questions
before the Hon'ble Supreme Court, along with whether the provision is in
conflict with Article 14 of the Indian Constitution. This paper as has gone one
step forward and analyzed the rules of interpretation used by the courts in
deciding of the judgment. The key question in this case is whether a Domestic
Violence Act, 2005, charge of violence can be filed against female relatives of
an adult male. The paper conveys how the courts applied the literal rule at
first. But, upon appeal the courts understood the limitation of literal rule and
to determine the “mischief and defect” of the statute, the courts applied the
mischief rule.
Keywords: Protection of Women from Domestic Violence Act, 2005 (PWDV);
Mischief Rule; Literal Rule; Adult Male.
CHAPTER 2: RESERCH
OBJECTVES
“The main objective of the paper is to determine the applicability of
various rules of interpretation namely, mischief rule and literal rule with
reference to the case of Hiral P. Harsora and Ors vs Kusum Narottamdas Harsora
and Ors. In this process the paper gives a detailed analysis of the case. It is noticed that at many times, the
perpetrators, and abettors of domestic violence in given situations are also
the women themselves. In the light of the same, the present research article
discusses as to who can be ‘Respondent’ in a domestic violence complaint
vis-à-vis the judgement of the Supreme Court in the case of Hiral P. Harsora
and Ors. vs. Kusum Narottamdas Harsora and Ors.”
CHAPTER
3: CASE DETAILS
DATE: 25th September 2016
COURT: Supreme Court of India
BENCH: Kurian Joseph, Rohinton Fali Nariman
CITATION: [2016 SCC OnLine SC 1118] or [(2016)
10 SCC 165]
FACTS OF THE CASE: In this case, a mother and daughter duo, namely Pushpa Narottam Harsora
and Kusum Narottam Harsora, filed a case against their son/brother, his wife,
and two sisters/daughters, alleging physical and mental harassment and domestic
violence.
The respondents, including Pradeep (son/brother) and his family members,
sought to discharge the wife and two sisters/daughters from the case, claiming
that under Section 2(q) of the Protection of Women from Domestic Violence Act,
2005 (DV Act), only an "adult male" can be considered a respondent in
a complaint filed under the Act.
The Metropolitan Magistrate rejected the respondents' application, but
the respondents appealed the decision in the Bombay High Court. The Bombay High
Court construed the provision in its literal sense and discharged the three
female respondents from the complaint, as they concluded that the complaint
could be filed only against an “adult male person”.
Pushpa and Kusum then filed a writ petition in the Supreme Court of
India, arguing that Section 2(q) of the DV Act was violative of Article 14 of
the Constitution of India, which guarantees equality before the law and equal
protection of the laws to all persons.
To have a clear picture of these facts a table with a chronological event
of happenings related to the case has been curated below:[2]”
ISSUES OF THE CASE:
·
“Whether the
section 2(q) is contrary to the original objective of the act to be achieved?
·
Whether the section 2(q) of the DV act, 2005
is unconstitutional as it violates the Art.14 of the Indian constitution?
·
Whether
striking down of the expression ‘Adult Male’ under section 2(q) renders the
rest of the provisions invalid or doctrine of severability will apply here?”
RULES: Acts and sections touched upon in the present case under discussion are
as follows:
v
The
Protection of Women from Domestic Violence Act, 2005
Section 2(f); Section 2(q); Section 2(s)
v
Article
14 in The Constitution of India 1949
v
The
Hindu Succession Act, 1956
v
Section
125 in The Code of Criminal Procedure, 1973
v
Section
498A Indian Penal Code”
JUDGMENT: The Bombay High Court by the
impugned judgment has held that:
·
“The two judges Bench of the Apex Court held that
the words “Adult male person” shall be struck down in Section 2(q) of the Act.
·
The arguments of Senior Counsel Arora regarding the
application of doctrine of severability were accepted and the doctrine of
Severability was applied to read down the provision of “Adult male” and the
rest of the Section was held valid and constitutional.
·
The judges placed reliance on the Statement of
Objects of the Act and the Preamble of the Act and thereby did not restrict
themselves by applying the literal interpretation principle.
·
Further, the Court made very important observations
regarding the safety of women which includes the fact that a non- adult can
participate or abet an act of domestic violence against the aggrieved and hence
the word “adult” is struck down.[3]
·
The Court also recognised that violence can be
perpetrated against a woman by other women and this includes sexual violence.
Thus, with the rest of the provision intact, respondents can include anyone
without any difference being made on the basis of gender or age.”
CHAPTER
4: RULES OF INTERPRETATION
In the case of “Hiral P. Harsora and Ors
vs Kusum Narottamdas Harsora and Ors,” the court was required to interpret the
definition of "respondent" under the PWDVA, which includes any adult
male person who is or has been in a domestic relationship with the aggrieved
person and against whom the aggrieved person seeks any relief under the Act.
The question before the court was
whether the term "adult male" in the definition of
"respondent" included “male relatives of the husband or male members
of the family” who were not in a “domestic relationship with the aggrieved
person”.
LITERAL RULE
The literal rule of interpretation is a principle used in legal and
statutory interpretation that requires that the words of a statute be given
their plain, ordinary, and grammatical meaning, without adding, subtracting, or
modifying any of the words used.[4]
The court at first instance applied
the literal rule of interpretation and held that the term "adult
male" should be interpreted in its plain and ordinary sense, which means a
male person who has attained the age of majority. The court observed that the
definition of "respondent" under the PWDVA was clear and unambiguous
and did not include male relatives of the husband or male members of the family
who were not in a domestic relationship with the aggrieved person. (When read
with Section 2(f) & (s) of the act[5])
Thus, the literal rule of
interpretation was applied in this case because the language used in the PWDVA
was clear and unambiguous, and there was no need to go beyond the plain and
ordinary meaning of the term "adult male."
The literal rule assumes that the
words used by the legislature have a clear and unambiguous meaning. However,
this approach can sometimes lead to unintended or absurd results. In such
cases, courts may use other methods of interpretation, such as the purposive or
contextual approach, to determine the intent behind the law.
MISCHIEF RULE
In this case the court applied the
mischief rule of interpretation in addition to the literal rule.
The court used the mischief rule to
determine the purpose of the Protection of Women from Domestic Violence Act
(PWDVA), 2005 and whether the term "adult male" should be interpreted
to include male relatives of the husband or male members of the family who were
not in a domestic relationship with the aggrieved person.
According to section 498 of the IPC[6], a
woman who experiences cruelty from her husband or his family members may file a
criminal complaint against them, but there was no equivalent provision in civil
law. The Protection of Women from Domestic Violence Act, 2005 was introduced as
a civil law remedy to address this issue and safeguard women from becoming
domestic abuse victims. The act's legislative purpose was to offer different
cutting-edge remedies for women who experience domestic abuse and against those
who commit such violence. The court in this instance used the preamble, the
statement of objects and reasons, and the provisions of the 2005 Act to
identify the primary purpose of the Act. The court noted that the statute was
introduced to provide women with the broadest protection from domestic abuse by
any person, male or female, who just so happens to share a home or a domestic
partnership with that lady.
The court also noted that the term
"adult male" was added to the definition of "respondent"
under the PWDVA to ensure that male abusers were held accountable for their
actions. The court then applied the mischief rule to interpret the term
"adult male" considering the purpose of the Act and the mischief it
was intended to remedy. 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.[7]
The court agreed that it’s not
necessary that violence will be committed by only men, enen women can be
committing such offence. There violence can be physical, sexual, verbal or even
economic. For example, a
daughter-in-law or a sister-in-law will be in contraction with the object of
the act. Also, the inclusion of the term "Adult Male" ensures that
anyone between the ages of 16 and 17 cannot engage in violence, which would
result in absurdities and anomalies.[8] “The
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redress)
Act, 2013,” which seeks to protect women in a different setting, was also
mentioned by the court. Section 2(m) of this Act [9] defines
"respondent" as a person against whom the aggrieved woman has filed a
complaint under Section 9[10].
The "Protection of Women from Domestic Violence Act, 2005" has been
referred to in Shashikant Laxman Kale v. Union of India to determine the scope
of protection of women generally.[11]
After considering the purpose of the
PWDVA and the mischief it was intended to remedy, the court held that the problem
that the PWDVA was intended to address was not limited to male abusers who were
in a domestic relationship with the aggrieved person, but also extended to male
relatives of the husband or male members of the family who resided together
with the aggrieved person and were related to the husband or any other male
member of the family by blood, marriage, or adoption.
The court applied the mischief rule
because the language used in the definition of "respondent" under the
PWDVA was not entirely clear and could be interpreted in more than one way. The
court noted that the purpose of the PWDVA was to protect women from domestic
violence.
CHAPTER 5: JUDGMENTS THAT FOLLOWED SUIT
Satish Chander Ahuja vs. Sneha Ahuja
(2016)[12]: In
this case, the Delhi High Court held that a complaint under the Domestic
Violence Act can be filed against a wife's in-laws if they have been living
together in a shared household.
Vinay Varma V/s Kanika Pasricha &
Anr[13]: In this case the court has observed
that “One of the objects of the DVA is to provide for the rights of women to
reside in their “matrimonial home” or “shared household” irrespective of
whether their husband or in-laws have a title to the property. The DVA protects one of the three basic
necessities of human life for woman viz. “shelter”.”
“Sandhya Manoj Wankhade v. Manoj
Bhimrao Wankhade,[14]” : the Supreme Court has held that: “it is true that the expression “female”
has not been used in the proviso to section 2(q), but, on the other hand if the
Legislature intended to exclude females from the ambit of the complaint, which
can be filed by an aggrieved wife, females would have been specifically
excluded. No restrictive meaning has been given to the expression “relative”,
nor has the said expression been specifically defined in the Domestic Violence
Act, 2005, to make it specific to males only. In such circumstances, it is
clear that the legislature never intended to exclude female relatives of the
husband or male partner from the ambit of a complaint that can be made under
the provisions of the Domestic Violence Act, 2005.”
In this case, the Bombay High Court
held that a wife's right to reside in a shared household cannot be denied by
her husband or in-laws, even if they own the property.
CHAPTER
6: JUDICIAL REASONING
The mother-in-law is also allowed to
submit a complaint against the daughter-in-law under the terms of the 2005 Act,
the court said in the case of Kusum Lata Sharma v. State and Anr., and the
Special Leave Petition against the aforementioned verdict was denied by the
Supreme Court, the court stated, “It is evident that there is no
intelligible differentia between a proceeding initiated under the 2005 Act and
proceeding brought in other form under other Acts, in which the self-same
reliefs grantable under this Act, which are restricted to an adult male person,
are grantable by the other fora also against female members of a family”.
The Court further examined the issue of the
application and impact of this verdict on the remaining provisions of the DV
Act, 2005 after deciding on the section's validity. If the term "Adult
Male" is declared illegal under section 2(q), would the remaining clauses
also be declared invalid, or will the doctrine of severability apply in this
case?
“While deciding on this issue the
court referred its own judgments in the case of Corporation of Calcutta v.
Calcutta Tramways Co. Ltd[15]and
Cellular Operators Association of India v. TRAI[16],
and relied on the doctrine of severability propounded in R.M.D. Chamarbaugwalla
v. Union of India[17]. An
application of the aforesaid severability principle would make it clear that
having struck down the expression “adult male” in Section 2(q) of the 2005 Act,
the rest of the Section is left intact and can be enforced to achieve the
object of the legislation without the offending words.[18]”
JUSTIFICATION
“It is noticed other important
legislations like POSH don’t make such classifications. Most of the female
centric legislations have a gender-neutral respondent base.[19] Therefore making this a significant step
towards equality for all. The genesis of the legislation along with the other
legislations on the subject was, as can be seen necessitated by the harassment
which was faced by women. The main purpose of this legislation is equality
before law and equal protection of laws regardless of religion, caste,
community, and faith.[20] These days the cases of Domestic Violence are
not just on women, even men are facing the problems of Domestic Violence, and
now that the provision allows women to be respondents, such cases can be dealt
with as well, under this provision.”
CRITISICM
The decision is significant and will
aid in solving more domestic violence cases and protecting more victims,
however the arguments made to invalidate the phrase were a little dubious and
flawed. While this judgment has proposed its own cure for the restricted
application of PWDVA, it has done so by extending the legislation to those who
have historically been at the weaker end of gendered power relations in Indian
society. This judgment also poses the serious challenge of PWDVA being misused
against women and minors through frivolous complaints.[21]
The reasoning of court to investigate
other legislation’s definitions in order to rectify its own, does not make
sense, as it is not the court’s duty to bring uniformity in all the related
legislations, specifically in a case which deals with only one such
legislation’s one particular subsection definition, i.e., Section 2(q) of “The
Protection of Women from Domestic Violence Act, 2005”. Secondly, the
legislations looked upon were “The Hindu Succession Act, 1956”, and the
amendment in question was taken place on 9th September 2005, whereas “The
Protection of Women from Domestic Violence Act, 2005” was enacted on 13th
September 2005. That means the amendment of “The Hindu Succession Act, 1956”[22]
was done before the enactment of the said act, so if the Legislators did not
deem it necessary to refer to the amendment while enacting “The Protection of
Women from Domestic Violence Act, 2005”, the court need not take the said task
upon itself.
Men have also been excluded from the
definition of a "aggrieved person" under S. 2, yet there have been
instances in which women have subjected males to domestic abuse by mistreating
them emotionally, financially, and in some circumstances even physically.
Hence, legislation to combat domestic violence against men should either be
made more comprehensive or implemented separately.
The deleting was of the word “adult
male” and not just male compartments. The question one needs to ask here is if
we don’t let the minors of our country take responsibility for contracts
entered or let them drive or adopt how one can let them become hold liability
under DV act.
CHAPTER
7: IMPACT OF THE JUDGMENT & A WAY FORWARD
The societal values and cultural
standards have altered because of modernization and westernisation in the
rapidly evolving world of today. Men used to be thought of as the family's
protector, but today both sexes work equally to support their families and
manage their houses by splitting costs and contributing equally to revenue. So,
if society is treating men and women equally and providing them the same social
status, it should also consider that women can commit the same crimes as men.
Men are no longer stronger than women, hence it is improper to categories
crimes based on gender.[23] This
verdict opened the doors for the protection of women and their rights. The fact
that a respondent can be anyone irrespective of gender or age makes sure that
women can proceed against any act of violence as provided under Section 3 of
the Act against them.[24]
This judgment overruled the prior judgment of Ajay Kant and Ors. vs Smt.
Alka Sharma.[25] Which
gave completely opposite judgment.
There have been significant changes
overall, since this act was enacted, which highlights a dire need for new
changes which will inculcate more adaptive and inclusive provision that set
right with todays world.
“Further, in recent times cases of
misusing this legislation have been seen, hence, it becomes utterly necessary
to impose proper checks and balances, so that no party is punished against the
principles of natural justice.[26] The
act takes away any gender bias and the abettors and perpetrators of domestic violence
are treated equally under the Act. This quantum step has ensured that the
victims of domestic violence are not rendered remediless under any garb
whatsoever.[27]”
Despite this verdict, acts of
domestic violence haven’t decreased. They have increased in an unprecedented
rate throughout the lockdown period. Causes include social causes like economic
hardship, drug addiction, upbringing etc., and even biological, psychological
factors.[28]
However, the legal system also has an important role to play. Further there is
a lack of awareness regarding the legal provisions and there is need for
awareness and sensitization programmed to be carried out by the State in this
regard. Women have a right to life and liberty and the State has a duty to
ensure that these rights of women aren’t breached. Women should be encouraged
to report such incidents instead of stigmatizing them socially whenever they
speak up. Only then will women be able to enjoy their life and liberty to the
complete extent.
It is important that these definitions
under the act become more inclusive to give equality to all. Further, there is
need for spreading of awareness and knowledge about the availability of such
provision. Also, The Domestic Violence Act should be interpreted considering
its objectives, which are to prevent and protect victims of domestic violence.
The courts should interpret the act in a broad and liberal manner to achieve
its objectives.
CHAPTER 8:
CONCLUSION
There are always three sides to a narrative: the true story, the two persons
recounting it, and their respective versions. Instead of hastily drawing
conclusions based on gender, it is the role of the law to discover the truth by
speaking with both sides. The judiciary must conduct examinations,
investigations, and trainings in order to determine its version of truth or the
actual truth. The sad truth is that men are abused, but this fact is not
acknowledged by many people in our society, leaving them with nowhere to turn
because they are afraid to defy the social norms that are established by
applying gender stereotypes to them.
Domestic
Violence can be filed by any woman on any relative, including women, who
subjected her to Domestic Violence!
The judgement talks about the term
“adult male” being struck down from the Section 2(q) of “The Protection of
Women from Domestic Violence Act, 2005” because it is in violation to the
Article 14 of “The Constitution of India, 1949”. But keeping the rest of the
section entact.
In this case, the Court found that
the literal interpretation of the definition of "domestic
relationship" under the Act would lead to an absurd result, as it would
exclude certain categories of relationships which were intended to be covered
by the Act. Therefore, the Court applied the mischief rule to interpret the
definition in a manner that would give effect to the intention of the
legislature and provide protection to women in all types of domestic
relationships.
The Court noted that the use of the
mischief rule was justified in this case because the Act was enacted with the
specific purpose of protecting women from domestic violence, and a literal
interpretation that excluded certain relationships would defeat that purpose.
The Court's application of the mischief rule in this case demonstrates the
flexibility of statutory interpretation in Indian law, where both literal and
purposive approaches can be used depending on the circumstances of the case.
[1] Hiral P. Harsora and Ors vs Kusum
Narottamdas Harsora and Ors, 2016) 10 SCC 165.
[2] This table has been created by the
researcher using information available on the reported judgment at Indian
kanoon.
[3] Ayush Verma, Hiralal P. Harsora and Ors. V. Kusum
Narottamdas Harsora and Ors, IPLEADERS ( Jan. 06, 2021), https://blog.ipleaders.in/hiralal-p-harsora-ors-v-kusum-narottamdas-harsora-ors/.
[4]Alekhya Reddy, Literally
Interpreting the Law:An Appraisal of theLiteral Rule of Interpretation in India, Manupatra (September 2018),
https://manupatra.com/roundup/338/Articles/Literally%20interpreting%20the%20Law.pdf.
[5] Protection of Women from Domestic
Violence Act, 2005, § 2(f), No. 43, Acts of Parliament, 2005 (India).
Protection of Women from Domestic Violence Act, 2005,
§ 2(s), No. 43, Acts of Parliament, 2005 (India).
[6] Indian Penal Code, § 498, Act No.
45 of 1860 (India).
[7] ANANYA BALI, Doctrine of
Reasonable Classification as an Exception to the Right to Equality, 2(2)
INTERNATIONAL JOURNAL OF LAW MANAGEMENT & HUMANITIES 139 (2019),
https://www.ijlmh.com/wp-content/uploads/Doctrine-of-Reasonable-Classification-as-an-Exception-to-the-Right-to-Equality.pdf.
[8] Vedant M. Maske, Hiral P
Harsora And Ors. V. Kusum Narottamdas Harsora, 1
JOURNAL OF LEGAL RESEARCH AND JURIDICAL SCIENCES,
(2022), https://jlrjs.com/wp-content/uploads/2022/04/44.-VEDANT.pdf.
[9] Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013, § 2(m), No. 14,
Acts of Parliament, 2013 (India).
[10] Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013, § 9, No. 14, Acts
of Parliament, 2013 (India).
[12] Satish Chander Ahuja v. Sneha
Ahuja, (2016) 8 SCC 480.
[14] Sandhya
Manoj Wankhade v. Manoj Bhimrao Wankhade, (2018) 2 SCC 577.
[15] Corporation of Calcutta v.
Calcutta Tramways Co. Ltd., (1899) 26 I.A. 242.
[16] Cellular Operators Association of
India v. TRAI, (2016) 7 SCC 703.
[17] R.M.D. Chamarbaugwalla v. Union of
India, AIR 1957 SC 628.
[18]Rashmi Agagwani, ‘Respondent’
under the Protection of Women from Domestic Violence Act vis-à-vis Hiral P.
Harsora v. Kusum Narottamdas Harsora & Ors, LEGALDESIRES (2016),
https://legaldesire.com/respondent-under-the-protection-of-women-from-domestic-violence-act-vis-a-vis-hiral-p-harsora-v-kusum-narottamdas-harsora-ors-2016/.
[19] Guest Post: Transitioning PoSH –
Is the Act Fit to Protect Trans Women?, BeingBrief (Oct. 18, 2021),
https://www.beingbrief.in/editorial/guest-post-transitioning-posh-is-the-act-fit-to-protect-trans-women/.
[20] Pooja Tiwari, Reflection on
Domestic Violence Act, 2005 and Role of Judiciary for Balancing the Rights of
Women, SCC Online Blog (Jan. 29, 2021),
https://www.scconline.com/blog/post/2021/01/29/reflection-on-domestic-violence-act-2005-and-role-of-judiciary-for-balancing-the-rights-of-women/.
[21] Sai Vinod, Editorial: The Pandemic
and the Indian Constitutional Order, 7 Indian Journal of Constitutional Law 1
(2020),
https://ijcl.nalsar.ac.in/wp-content/uploads/2020/07/7IndianJConstLi_Editorial.pdf.
[22] The
Hindu Succession Act, 1956, Act No. 30 of 1956 (India).
[23] LexLife. "Tag: Domestic
Violence." LexLife Blog. Wordpress.com,
https://lexlife68840978.wordpress.com/tag/domestic-violence/. (Accessed March
6, 2023).
[24] Case Comment, Hiral P. Harsora and
Ors. v. Kusum Narottamdas Harsora and Ors., Law Essential (Apr. 11, 2017),
https://lawessential.com/case-comments-1/f/hiral-p-harsora-and-ors-vs-kusum-narottamdas-harsora-and-ors?blogcategory=Case+Comments.
[25] Ajay Kant And Ors. vs Smt. Alka
Sharma 2008 CriLJ 264
[26] Anuradha Mishra, Critique:
Domestic Violence Act – A Ray of Hope, LatestLaws.com (Oct. 4, 2016),
https://www.latestlaws.com/articles/critique-domestic-violence-act-a-ray-of-hope/.
[27] Rishabh Sharma, Respondent under
the Protection of Women from Domestic Violence Act vis-à-vis Hiral P. Harsora
v. Kusum Narottamdas Harsora & Ors. (2016), Legal Desire (Nov. 22, 2017),
https://legaldesire.com/respondent-under-the-protection-of-women-from-domestic-violence-act-vis-a-vis-hiral-p-harsora-v-kusum-narottamdas-harsora-ors-2016/.
[28] MyAdvo, Domestic Violence Against
Women in India: Laws, Protection & More, MyAdvo Blog (last updated Sept.
15, 2021), https://www.myadvo.in/blog/domestic-violence-against-women/.