in Commentary

Imagine a situation! A Married Woman files a complaint against her in-laws (Husband, father in law, mother in law & sister in law) accusing them of Domestic Violence. As per Section 2(q) of Domestic Violence Act 2005, All of them can easily go acquitted and cannot be charged for any violence. Why?

Because, this is what Section 2(q) states:

“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.

A Loophole and Fundamental Rights

The Constitution of India offers Right of Equality for all its citizens irrespective of religion, race, gender, caste or place of birth.

This is what The Article 14 of The Constitution of India States:

Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

So Technically as per the law, if a woman undergoes domestic violence, the “Adult-Male”(Husband/Father in law) can simply use the proxy of “Women/Child” in their house and state that it was not him or his father unleashing the hell on the complainant but it was mother in law/sister in law beating up the woman. Using such proxies, all of them can be acquitted without any single charge and would be allowed to roam free in the society. Something like ISI is using LeT terrorists as proxy.

But this is absolutely against the basic fundamental rights as stated in Article 14 in The Constitution of India. With the word “Adult – Male” , many cases were delivered against the complainant as the accused male members used the loophole in the law.

domestic violence

Domestic Violence And Doctrine of Severability

Doctrine of Severability means judiciary has powers to separate/remove specific part of the law which are “Unconstitutional” keeping the remaining law intact.

The Supreme Court bench of Justices Kurian Joseph and Rohinton F Nariman have striked down the “Adult Male” word in the law. The new law may look like below:

“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.

The Common Sense and the Equality has prevailed !!

Conclusion:

Laws are always confusing but motive of this article was to majorly highlight Doctrine of Severability  – powerful judiciary provision and how such provisions can be used to alter the existing law framework in order to ensure that nothing, in any of the laws, is unconstitutional.

Can such provisions help public policy framework by bringing needed change in the law and setup policies which can be beneficial to major population? We will keep brainstorming on this and try to find out where we can put this provision to good use for public policy- law related frameworks.

Source: The Indian Express | Indian Kanoon – 1 & 2 | Full Judgement – barandbench.com | Image