Written by: Harshita Singhal
Introduction
The Protection of Women from Domestic Violence Act, 2005 (“the DV Act”) was enacted to provide effective protection of the rights of women that are guaranteed under the Constitution. It was enacted particularly to protect the rights of those women who are victims of violence of any kind occurring within the family and matters connected therewith or incidental thereto. Section 2(a) of the DV Act provides for the definition of an aggrieved person under the DV Act to mean “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.” This article discusses the persons that are covered within the definition of aggrieved person based on their gender and the type of domestic relationship such a person has enters.
Who does an aggrieved person include?
The definition of an aggrieved person provided under the DV Act can be broken down in three parts – aggrieved woman, domestic relationship and respondent. The first part states that an aggrieved person can be any women irrespective of her status of being married, unmarried or divorced. The second part states that such a woman is or must have been in a domestic relationship. Section 2(f) of the DV Act defines domestic relationship to mean a relationship between two persons who live or have, at any point of time, lived together in a shared household or when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. For the third part, such a domestic relationship of an aggrieved woman must be with a respondent. Section 2(q) provides for the definition of respondent under the DV Act. It states that “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.” In Hiral P. Harsora v. Kusum Narottamdas Harsora (2016) 10 SCC 165, relying upon Article 14 of the Constitution that provides for equality before law, the Supreme Court had struck the word adult male to expand the definition of respondent under the DV Act to include any person whether male or female and even minors against whom an aggrieved person alleged domestic violence under the provisions of the Act.
It is imperative to note that the definition of aggrieved person under the DV Act is exhaustive as it uses the word ‘means’ and therefore its scope cannot be expanded. In view of the above interpretation this article analyses different parts of the definition of aggrieved person under the DV Act to understand whom it really includes.
Does an aggrieved person include a male?
On an earlier occasion, the High Court of Karnataka at Bengaluru in Criminal Petition No. 2351 of 2017 titled Mohammed Zakir v. Shabana and Ors. relying upon the decision of the Supreme Court of India in Harsora (supra) held vide its order dated 18 April 2017 that an aggrieved person under Section 2(a) of the DV Act includes a man. In Zakir (supra) the Petitioner before the Court was an adult male who was allegedly aggrieved by the acts of the wife and her family members and therefore sought to invoke the provisions of the DV Act. The High Court of Karnataka at Bengaluru in Zakir (supra) by relying upon Harsora (supra) appears to have decided an expanded question of law that was never even in consideration before the Supreme Court in Harsora (supra) and has erroneously held that the “the question whether 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.”
Subsequently, however, the said decision was withdrawn on 28 April 2017 by the High Court itself observing “Notwithstanding Section 362 of Cr.P.C., the order rendered by this Court earlier on 18.04.2017 is found to be patently erroneous and therefore the order is withdrawn. The petition is restored to file and the registry is directed not to web host the order passed earlier and to take note of the fact that the order is withdrawn.” Section 362 of the Code of Criminal Procedure, 1973 provides that “Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.” A Criminal Appeal was filed before the Supreme Court that observed that the High Court was in error in correcting an order on merits despite a clear bar existing on the same under Section 362 of the Code. Ultimately, the Supreme Court passed directions on 23 July 2018 that Criminal Appeal 95/1997 that was pending consideration before the Trial Court be decided expediently.
The controversy of whether anyone other a woman can be an aggrieved person under the provisions of the DV Act came to an end when the Court of the Additional City Civil and Sessions Judge Court at Bengaluru finally held vide order dated 19 December 2019 in the Criminal Appeal 95/1997 that there does not exist any room for presumption that a male person could file a complaint against a female person under the DV Act. Despite the same, on 29 November 2021 it is seen that the Court of Sub-Judge (judicial Magistrate) 1st Class, Jammu has erroneously relied upon the decision of the High Court on Harsora (supra) and Zakir (supra) (order dated 18 April 2017) to yet again proceed against a wife in a complaint filed by the husband under the provisions of the DV Act.
More recently, the High Court of Delhi is hearing a similar issue in an appeal that was filed by the wife who was summon for being tried as a respondent in a complaint filed by her husband as the aggrieved person under the DV Act. The reliance by the husband is yet again on the decision in the case of Harsora (supra) and Zakir (supra) (order dated 18 April 2017). However, the High Court of Delhi vide its order dated 23 January 2023 in Crl. M.C. 6715 of 20222 observed that prima facie the protection under Section 2(a) has not been made available to a male member of the family and more particularly the husband. Therefore, the court allowed interim protection and directed that the proceedings before the Trial Court against the wife would remain stayed.
It is imperative to note Article 15 of the Constitution of India provides for the prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth. However, the DV Act has been made as beneficial legislation under Article 15(3) of the Constitution of India which provides that nothing in Article 15 of the Constitution shall prevent the State from making any special provision for women. In light of the aforesaid, the interpretation by the Courts that an aggrieved person under the DV Act can only include a woman appears to be correct.
Does aggrieved person include women in live-in relationships?
Under the provisions of the DV Act, the proviso to Section 2(q) provides 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. Further, Section 2(f) defines domestic relationship to mean a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. The term relationship in the nature of marriage was further defined by the Supreme Court of India in Velusamy v. D. Patchaiammal (2011) Cri L J 320 to mean that the couple:
a. must hold them to be akin to spouses to the society for significant time period;
b. be of the legal age to marry;
c. qualified enter into a legal marriage; and
d. must have voluntary cohabitation.
Therefore, women in live-in relationships with male partner are also included within the purview of the DV Act if they satisfy the conditions laid down by the Supreme Court in Velusamy (surpa).
Does aggrieved person include same-sex couples or transgenders in live-in relationships?
It is not in question anymore that there exists equal amount of intimate partner violence in the LGBTQ+ just as it exists in heterosexual partners. Moreover, the stigma that exists in the society with respect to the LGBTQ+ community makes them more vulnerable to intimate partner violence. Given, the above provisions and judgments we have established that an aggrieved person includes a woman whether married or in a live-in relationship and a respondent includes any person who is, or has been, in a domestic relationship with the aggrieved person. However, would it mean that in case of same-sex live-in relationships or relationships between cis-man/woman and transgender person, the DV Act can be invoked by the aggrieved female against the respondent? In 2014, the Supreme Court of India in National Legal Services Authority v. Union of India (2014) 5 SCC 423 upheld the rights of transgender persons to decide their self-identified gender. Accordingly, directions were passed by the Court to the government to grant a legal recognition of male, female or third gender. In another landmark occasion, same sex relationships were legitimatized by the Supreme Court of India in Navtej Singh Johar v. Union of India and Ors., Writ Petition (Criminal) 76 of 2016 by striking down Section 377 of the Indian Penal Code, 1860 that criminalized it.
In considering whether an aggrieved person can include same sex couples or transgenders in live-in relationships, amongst the considerations laid down in Velusamy (supra) the third condition that the couple must be qualified enter into a legal marriage appears to be a hurdle as there have been multiple occasions where Registrars in India have refused registration of marriage between a same-sex couple or a cis woman/man and a transgender person. Further, the said issue also remains pending consideration before the Supreme Court of India in Supriyo @ Supriya Chakraborty & Anr. v. Union of India, W.P. (C) 1011/2022.
On an earlier occasion, relying upon the decision of the Supreme Court of India in Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 recognizing the right to privacy, the High Court of Madras in Arunkumar and Anr. v. The Inspector General of Registration and Ors. (W.P. (MD) No. 4125 of 2019) has directed the Registrar to register the marriage solemnized between a male and a transwoman as a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955. Once such a marriage is held to be valid, consequently benefits of all beneficial legislations that are enacted to protect abuse in such relationships must also be held to fall within the purview of the DV Act by interpretation of the word aggrieved person in a manner that the maximum number of people who may face abuse under the Act are accorded its benefits.
Conclusion
Article 15 and 16 lay emphasis on fundamental rights against sex discrimination in a manner to ensure that there is no direct or indirect discrimination in any form against any person on account of them or their choices not being in conformity with the stereotypical generalizations that appear to exist in binary form primarily in the society. A total of thirty-three countries have legitimized same-sex marriage. Countries such as Austria, Brazil, Colombia, Argentina amongst other have granted a legal recognition to the same-sex marriage by way of judicial pronouncements in their respective jurisdictions. It has also been legally recognized in several other jurisdictions such as Netherlands, Denmark and France amongst others. Not guaranteeing same sex couples, or transgender person in a relationship with a cis-man or woman a legal right to marry prevents them from availing benefits of all legislations that accord protection in case of violence in such domestic relationships. In Navtej Singh Johar (surpa) the Court had observed that it owes an apology to the LGBTQ+ community for the decades of exclusion and discrimination meted out to them. There exists a positive obligation on the State to “recognize rights which bring true fulfilment to same sex relationships.”
To overcome such hurdles there exist a need to either pass a law that says that all laws will be read in a gender-neutral manner particularly to ensure inclusion of the LGBTQ+ community in particular as the present state of affairs reflect that because of the language in which the statutes have been drafted and because of the inherent stigma that exists in the society towards the LGBTQ+ community an aggrieved person does not appear to include same sex couples or transgenders in live-in relationships.
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