The Supreme Court of India The Supreme Court of India

Not only men, but women can also be prosecuted under the Protection of Women against Domestic Violence (DV) Act. The Supreme Court has struck down the words “adult male” from the pertinent provision in the DV Act to lay down that a woman can also file a complaint against another woman, accusing her of domestic violence.

Under Section 2(q) of the 2005 Act, a complaint can be made only against an “adult male person”, thereby insulating women from being accused of offences mentioned under the law.

But a bench of Justices Kurian Joseph and Rohinton F Nariman ruled Thursday that this provision frustrated the objective of the legislation since “perpetrators and abettors of domestic violence” can be women too.

It noted that the legislative intent of providing effective protection to rights of women could “easily be defeated by an adult male person not standing in the forefront, but putting forward female persons” who could forcibly evict a woman or defeat any other order passed under the Act without fear of inviting prosecution.

“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, the words ‘adult male person’ are contrary to the object of affording protection to women who have suffered from domestic violence of any kind,” held the bench.

It underlined that the classification of “adult male person” subverted the doctrine of equality by restricting the reach of a social beneficial statute meant to protect women against all forms of domestic violence.

“We, therefore, strike down the words ‘adult male’ before the word ‘person’ in Section 2(q), as these words discriminate between persons similarly situated, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act,” ruled the court.

The bench resorted to the “doctrine of severability” and struck down only that part of Section 2(q) that created a distinction based on gender relating to offenders under the Act. “Application of the aforesaid severability principle would make it clear that having struck down the expression ‘adult male’ in Section 2(q), the rest of the Act is left intact and can be enforced to achieve the object of the legislation without the offending words,” it held.

The ruling came on an appeal filed against a judgment of the Bombay High Court in 2014 that had read down the Act to hold that complaints could be filed against the women too. The top court, however, set aside this judgment on the ground that the provision could not be read down. “We declare that the words ‘adult male’ in Section 2(q) will stand deleted since these words do not square with Article 14 (equality) of the Constitution of India,” it said.

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