High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 03.04.2009CORAMTHE HONOURABLE MR. JUSTICE K.VENKATARAMANWrit Petition No.28521 of 2008 and M.P.No.1 of 20081.Dennision Paulraj2.Baby Merey3.G.Devasagayam4.Johnson Gunaraj Devasagayam5.Jasmine Glory6.Jhansi Rani... Petitioners vs.1.The Union of India, rep. by Secretary, Ministry of Law and Justice, New Delhi.2.Union of India, rep. by Secretary, Ministry of Women and Child Development, New Delhi.3.State of Tamil Nadu, rep. by Secretary, Department of Social Welfare, Fort St. George, Chennai-9.4.The Protection Officer, District Social Welfare Office, 2nd Floor, Collector Office Campus, Thiruvallur 602 001.5.The Inspector, All Women Police Station, Teynampet, Chennai.6.Mrs.Mayawinola ... RespondentsWrit petition has filed filed under Article 226 of theConstitution of India to issue a writ of Declaration declaringthat Sections 12, 18, 19 and 23 of the Protection of Women fromDomestic Violence Act, 2005 (Central Act 43 of 2005) asunconstitutional, ultra vires and void. https://hcservices.ecourts.gov.in/hcservices/ For petitioners: Mr.K.MoorthyFor respondents: Mr.L.S.M.Hasan Fizal, G.A.,for R.1 to R.5 M/s.Ram and Ram, for R.6O R D E RBy consent, the main writ petition itself is taken up forfinal disposal.2. The petitioners have come forward with the present writpetition for a declaration declaring Sections 12, 18, 19 and 23 ofthe Protection of Women from Domestic Violence Act, 2005 (CentralAct 43 of 2005) as unconstitutional, ultra vires and void.3. The short facts which are necessary for the disposal ofthe present writ petition, are set out here under:-3.1. The first petitioner is the husband of the sixthrespondent. Petitioners 2 and 3 are his parents. Petitioners 4 to6 are his brother, sister in law and sister respectively. Thefirst petitioner married the sixth respondent on 05.07.2004 atC.S.I. Trinity Church, Avadi. It is an arranged marriage. Afterthe marriage, the sixth respondent demanded the first petitioner anextravagant and ultra modern life style and made all the otherfamily members as servants for her simple needs and started pickingup quarrels with everyone in the family for no reasons. Hence, thefirst petitioner had to prefer a petition under Section 22 of theIndian Divorce Act for judicial separation on the file of thelearned Principal Judge, Family Court, Chennai, in O.P.No.887 of2005 and the same is at the stage of enquiry.3.2. Since the sixth respondent was continuouslythreatening the petitioners that she is going to prefer a criminalcomplaint against them, the petitioners approached this Court byfiling Crl.O.P.No.6823 of 2005 seeking anticipatory bail and thesame was dismissed as there was no case. After coming to know ofthe orders, the sixth respondent filed a complaint against thepetitioners before the fifth respondent under Section 498-A ofIndian Penal Code, which compelled the petitioners to approach thisCourt by filing Crl.O.P.No.10554 of 2005 seeking anticipatory bailand the same was granted by this Court.3.3. The sixth respondent having failed in her maliciousattempt, with an ulterior motive to harass the petitioners, filed https://hcservices.ecourts.gov.in/hcservices/ an application under Sections 18, 19 and 23(2) of the Protection ofWomen from Domestic Violence Act, 2005 (herein after referred to asthe Act) setting out false and frivolous particulars. The saidprivate complaint filed by the sixth respondent in C.M.P.No.1772 of2007 in unnumbered M.C.No. / 2007 on the file of the learnedJudicial Magistrate No.II, Poonamallee, has been referred to thefourth respondent for conducting enquiry. The petitionersattended the enquiry before the fourth respondent and submitted themalicious intention of the sixth respondent. 3.4 Aggrieved against the calculative and ulteriormotivated action of the sixth respondent, the petitioners wereconstrained to approach this Court to quash the proceedings of theprivate complaint given by the sixth respondent referred to abovein Crl.O.P.No.1772 of 2007 and the same was dismissed on02.04.2008.3.5. The proceedings initiated under the said Act is acomplete abuse of process of law, especially when it was initiatedafter the first petitioner filed a petition seeking judicialseparation before the Family Court. Hence, the petitioners haveapproached this Court by filing the present writ petitionchallenging certain provisions of the said Act.4. The main grounds on which the present writ petition hasbeen filed are--(i) Sections 4, 12, 18, 29 and 23 of the said Act arediscriminatory and biased in favour of the wife and affect theright of life and liberty of the husband and his relatives.(ii) The said Act does not permit the husband to file acomplaint under the Act and hence, it is violative of Article 14and 21 of the Constitution of India.(iii) The proceedings before the learned JudicialMagistrate No.II, Poonamallee in Crl.O.P.No.1772 of 2007 isillegal, arbitrary and opposed to principles of natural justice andviolative of Article 14 and 21 of the Constitution of India.(iv) The reference by the learned Magistrate to the fourthrespondent for an enquiry even though the sixth respondentvoluntarily left the matrimonial home, is untenable.(v) The proceedings before the learned Magistrate areviolative of the rights of the husband and his relatives as perSection 12 of the Act as the proviso to Section 12 envisages areport being received from the fourth respondent by the learnedMagistrate before passing any orders. https://hcservices.ecourts.gov.in/hcservices/ (vi) Section 23 of the said Act suffers from arbitrarinessand confers unrestricted powers on the Magistrate and hence, ultravires to the provisions of the Constitution of India.5. On notice, learned counsel appearing for the sixthrespondent would submit that --(i) the said Act has been challenged before the Delhi HighCourt and the Delhi High Court has held that the said Act is notultra vires and unconstitutional.(ii) special protection given to women is intelligibledifferentia and hence, the contention on the side of thepetitioners that the Act is enacted with a view to help only thefemale members cannot be accepted.(iii) The petitioners filed a quash petition before thisCourt raising the same grounds and hence, they cannot be heard toraise the same grounds in the present writ petition.(iv) No valid ground has been raised to declare fewsections of the said Act as ultra vires.6. I have considered the submissions made by the learnedcounsel appearing for the petitioners and the learned GovernmentAdvocate appearing for respondents 1 to 5 and the learned counselappearing for the sixth respondent.7. The main ground of attack on certain provisions of theProtection of Women from Domestic Violence Act, 2005 are that underthe said Act, the husband cannot file any application, but only thewife can file applications. It is therefore, discriminatory andbiased in favour of the wife affecting the right of life andliberty to the husband and his relatives, which is violative ofArticle 14 and 21 of the Constitution of India.8. As rightly contended by the learned counsel appearingfor the sixth respondent, giving certain preferential treatment tothe wife and treating them as a special category cannot be termedas violative of either Article 14 or Article 16 of the Constitutionof India. Though Article 15 of the Constitution of India prohibitsdiscrimination on grounds of religion, race, caste, sex or place ofbirth, however, Article 15 (3) states "nothing in this Articleshall prevent the State from making any special provision for womenand children". Thus, the Constitution itself provides specialprovision for women and children. It has been widely resorted toand the Courts have upheld the validity of the special measures inlegislation and executive orders favouring women. Thus, when the https://hcservices.ecourts.gov.in/hcservices/ Constitution itself provides for making special provision for womenand children, the contention on the side of the petitioners thatthere could be no special treatment for women is totally untenable.In tune with Article 15(3) of the Constitution of India, the Statehas thought it fit to frame a special legislation for women andthus, the Protection of Women from Domestic Violence Act, 2005came into force.9. In A.I.R. 1954 S.C. 321 – Yusuf Abdul Aziz v. State ofBombay, the Hon'ble Apex Court, while dealing with the questionwhether Section 497 of India Penal code contravenes Article 14 and15 of the Constitution of India, has held that since sex is a soundclassification and although there can be no discrimination ingeneral on that ground, the Constitution itself provides forspecial provisions in the case of women and children by clause (3)of Article 15. Articles 14 and 15 thus, read together validatethe last sentence of Section 497 I.P.C. which prohibits the womanfrom being punished as an abettor of the offence of adultery. Para6 of the said judgment is usefully extracted here under:-" Article 14 is general and must be read withthe other provisions which set out the ambit offundamental rights. Sex is a sound classification andalthough there can be no discrimination in general onthat ground, the Constitution itself provides for specialprovisions in the case of women and children. The twoArticles read together validate the impugned clause inS.497 Penal Code."10. In (2003) 10 Supreme Court Cases 78 – SanaboinaSatyanarayana v. Govt. of A.P. and others, the Hon'ble Apex Courtwas posed with a question whether granting remission of sentencecan be made excluding those prisoners who were convicted for lifeand for crimes against women. It was held by the Hon'ble ApexCourt that considering Article 15 (3) and 14, exclusion ofprisoners convicted of crimes against women from scheme ofremission, is a sound, just, reasonable, proper and it necessitatedin the larger interest of the society and greater public interest.11. In 1985 SC 1695 – Partap Singh v. Union of India, thequestion that was posted before the Hon'ble Apex Court was aboutthe constitutional validity of Section 14 (1) of the HinduSuccession Act. The Hon'ble Apex Court in the said judgment hasclearly held that in view of Article 15 (3) of the Constitution ofIndia there is hardly any justification for the males belonging tothe Hindu community to raise any objection to the beneficentprovisions contained in Section 14 (1) of the Act on the ground ofhostile discrimination. Para 6 of the said judgment is usefullyextracted here under:- https://hcservices.ecourts.gov.in/hcservices/ " There is very little substance in the secondcondition raised by the petitioner also. The submissionmade on behalf of the petitioner in this case overlooksthe benign constitutional provision in clause (3) ofArticle 15 of the Constitution which provides thatnothing in Article 15 shall prevent the State frommaking any special provision for women and children.The said provision overrides clause (1) of Article 15 ofthe Constitution which provides that the State shall notdiscriminate against any citizen on grounds only ofreligion, race, caste, sex, place of birth or any ofthem. Section 14 (1) of the Act was enacted to remedyto some extent the plight of a Hindu woman who could notclaim absolute interest in the properties inherited byher from her husband but who could only enjoy them withall the restrictions attached to a widow's estate underthe Hindu law. There is now hardly any justificationfor the males belonging to Hindu community to raise anyobjection to the beneficent provisions contained inSection 14 (1) of the Act on the ground of hostilediscrimination. The above provision is furtherprotected by the express provision contained in clause(3) of Article 15, since it is a special provisionenacted for the benefit of Hindu women. We do not findany merit in the Writ Petition. The writ petition isdismissed. Consequently, the special leave petitionalso has to be dismissed. It is accordingly,dismissed."12. Again, in A.I.R. 1985 Supreme Court 1618 – SowmithriVishnu v. Union of India, the Hon'ble Apex Court has held whileconsidering Section 497 of I.P.C., that it does not discriminatebetween man and woman by conferring right only on husband toprosecute the adulterer and hence, it is not violative of Article14 or Article 15 of the Constitution of India. 13. In fact, the Delhi High Court in W.P (Crl.) No.425 of2008, by an order dated 07.04.2008 had upheld the provisions of thesaid Act. Para 4 of the said judgment is usefully extracted hereunder:-" Domestic violence is a world wide phenomenonand has been discussed in International fora, includingthe Vienna Accord of 1994 and the Beijing Declaration andthe Platform for Action (1995). The United NationsCommittee Convention on Elimination of All Forms ofDiscrimination Against Women (CEDAW) has recommended thatStates should act to protect women against violence ofany kind, especially that occurring within the family. https://hcservices.ecourts.gov.in/hcservices/ There is a perception, not unfounded or unjustified, thatthe lot and fate of women in India is an abjectly dismalone, which requires bringing into place, on an urgentbasis, protective and ameliorative measures againstexploitation of women. The argument that the Act isultra virus the Constitution of India because it accordsprotection only to women and not to men, is therefore,wholly devoid of any merit. We do not rule out thepossibility of a man becoming the victim of domesticviolence, but such cases would be few and far between,thus not requiring or justifying the protection ofparliament."14. At this juncture, learned counsel appearing for thepetitioners would submit that the said Act can only be prospectiveand not retrospective and further submitted that the petitionersare not liable for the charges that have been levelled againstthem. The arguments raised by the learned counsel appearing forthe petitioners are to be considered by the authority concernedbefore whom the application filed by the sixth respondent ispending and the same cannot be canvassed before this Court.15. For all the reasons stated above, I am not inclined tohold that Sections 12, 18, 19 and 23 of the Protection of Womenfrom Domestic Violence Act, 2005 (Central Act 43 of 2005) areunconstitutional, ultra vires and void and the writ petition isliable to be dismissed and accordingly, dismissed. However, thereis no order as to costs. Consequently, connected miscellaneouspetition is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarsbi To1.The Secretary, Union of India, Ministry of Law and Justice, New Delhi. https://hcservices.ecourts.gov.in/hcservices/

2.The Secretary, Union of India, Ministry of Women and Child Development, New Delhi.3.The Secretary, Department of Social Welfare, Fort St. George, Chennai-9.4.The Protection Officer, District Social Welfare Office, 2nd Floor, Collector Office Campus, Thiruvallur 602 001.5.The Inspector, All Women Police Station, Teynampet, Chennai.1 cc to MR.K. Moorthy, Advocate, Sr. 12365 W.P.No.28521 of 2008KM (CO)kk 6/5