Are women immune from prosecution under the PWDVA?

As a practicing lawyer (and a first time blogger), perhaps the most useful contributions to this Blog from my side would be to share a first-hand account of how the Higher Judiciary actually understands, interprets and implements the Law, as well as the practical and jurisprudential considerations (or the lack of them) that often weigh with our Courts while arriving at a decision. As a litigating lawyer, one gets to witness on a regular basis, the wide gap between the Legislature’s intention behind a law and its interpretation by the Judiciary, often leading to an inconsistent decision making by the organs of the State.

One such issue that has resulted in surprising and conflicting interpretations is whether a female can be prosecuted as a ‘respondent’ under the Protection of Women from Domestic Violence Act, 2005.  Section 2 (q) of the PWDVA defines a ‘respondent’ to mean 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. The proviso to the section however clearly qualifies it by explaining 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 literal and purposive interpretation of the Section and the Proviso seems to clearly imply that the definition of ‘respondent’ has been extended to a relative of the husband, which would include women as well. This has been the view of the Rajasthan and Kerala High Courts in Nand Kishore V State of Rajasthan, 2009 (2) RCR (Criminal) 908 and Rema Devi v. State of Kerala, (2009) 1 DMC 297 (Ker) respectively. However, the Madhya Pradesh and Andhra Pradesh High Courts have taken a contrary stand in Ajay Kant v. Alka Sharma, 2008 Cri LJ 264(M.P.) and Menakuru Mona Reddy v. State of A.P. (CRM No 4106 of 2008). The A.P. High Court is of the view that the proviso to the Section could not include what the main Section excluded, while the M.P. High Court has given a very limited meaning to the word ‘complaint’ as used under the PWDVA and concluded that an application can be filed for initiating proceedings against only an adult male person. This question is lying pending before the Punjab and Haryana High Court in a bunch of petitions clubbed together, and I happen to be arguing one of them.

In my view, the interpretation that females cannot be prosecuted as respondents under the PWDVA is clearly wrong, against the legislative intent and leads to dangerous consequences. Firstly, the proviso to the Section, which is explanatory in nature, leaves no room of doubt that a complaint can be filed against a ‘relative’ of the husband or the male partner under the Act. The term ‘relative’ is gender neutral and obviously includes females as well. By restricting the definition of respondent to only an ‘adult male person’, the proviso to the Section 2(q) would be rendered completely nugatory. The definition of ‘Domestic Violence’ is also very wide and includes includes “verbal and emotional abuse” and “economic abuse, and limiting the definition to domestic violence by men alone would defeat the purpose the wide definition seeks to achieve.  Secondly, the intention behind the framing of the PWDVA can never be to protect women only from domestic violence at the hands of ‘adult males’, while leaving them unprotected against domestic violence committed by females. The Act is not based on the impossible and illogical presumption that women cannot commit acts of domestic violence against other women. The Statement of Objects and Reasons of the Act make it clear that the intention behind the Act is to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. Further, the legislation is a welfare legislation and must be given an expansive interpretation to ensure that the objectives are not defeated. Therefore a logical and purposive interpretation of the Act would lead to the conclusion that the PWDVA offers protection from violence committed by women as well.

This issue is already snowballing into a source of large scale litigation in the lower courts, as numerous complaints under the PWDVA are being rejected against females because of conflicting precedents. One possible practical reason for the clearly erroneous interpretation that women cannot be ‘respondents’ under the PWDVA is the possibility of abuse of the Act. Courts on various occasions have pointed out the abuse of Section 406 and 498-A of the Indian Penal Code, being used as a tool to rope in every family member in a matrimonial dispute. However, the potential of abuse cannot be a cogent reason to defeat the legislative intent of the Act, which is to provide to extensive protection to women from all possible means and sources of domestic violence. It is therefore important that this issue attains finality as soon as possible by correctly and purposefully interpreting Section 2(q) of the PWDVA.