Landmark Judgments & Orders (Recentely Updated)
Important Judgments under the PWDVA
Constitutional Challenges Dismissed:
1. Aruna Parmod Shah v. UOI WP (Crl.) 425/2008, High Court of Delhi, (Decided on 07.04.2008)
This judgment of the Delhi High Court was delivered on a writ petition filed by the mother-in-law seeking to quash proceedings under the PWDVA initiated against her in a lower court. The petition challenged the constitutionality of the PWDVA on two grounds:
1. The gender-specific nature of the Act, by rexcluding men, is arbitrary and, hence, violates Article 14 of the Constitution
2. The petitioner contended that the placing of “near or like marriage” status (relationships in the nature of marriage) at par with ‘married’ status in Section 2(f) of the Act leads to the derogation of the rights of the legally-wedded wife.
The Court dismissed the first contention on the grounds that, “there is a difference between class legislation and reasonable classification”1. The gender-specific nature of the PWDVA (2005) was held to be a reasonable classification in view of the object that the Act seeks to achieve and, hence, was held to be constitutionally valid.
The Court rejected the second contention by saying that there is no reason why equal treatment should not be accorded to a wife as well as a woman who has been living with a man as his “common law”2 wife or even as a mistress. The court opined that, “like treatment to both does not, in any manner, derogate from the sanctity of marriage since an assumption can fairly be drawn that a ‘live-in relationship’ is invariably initiated and perpetuated by the male.”
Aggrieved by the application filed by his wife under the PWDVA, this writ petition was filed by the husband and his family members challenging constitutionality of the Act and alleging that the proceedings initiated in the lower court was a complete abuse of process of law. Following are the main grounds on which the PWDVA was challenged:
1. The PWDVA is violative of Article 14 and 21 of the Indian Constitution as the law does not permit a husband to file an application against the wife.
2. Sections 4, 12, 18, 19, 23 & 29 of the Act were challenged as providing preferential treatment to the wife and hence, affecting the right to life and liberty of the husband and his relatives. Section 23 in particular was challenged as arbitrary and conferring unrestricted powers on the Magistrate.
During the arguments, the counsel for the respondents referred to the judgment of the Delhi High Court in Aruna Shah v. UOI (supra) and argued that special protection provided to women is intelligible differentia and hence, the gender-specific nature of the Act does not make it unconstitutional.
The Madras High Court agreed with the contention of the respondents and noted that when the Constitution itself provides for making special provision for women, the contention that there could be no special treatment for women cannot be accepted. The court highlighted the fact that the PWDVA was enacted as a special legislation for women in keeping with Article 15(3) of the Constitution. It was also pointed out that this provision on special measures has been widely used to enact legislations and executive orders for women and the courts have upheld their validity. The Madras High Court went on to cite several judgments of the Supreme Court where sex was held to be a sound classification under Articles 14 and 15. Hence, this writ petition was dismissed by the court.
Interpretation of “respondent” and “domestic relationship”
Female relatives of the husband are “respondents”:
3. Smt. Sarita v. Smt. Umrao 2008 (1) R.Cr.D 97 (Raj)
This revision petition was filed challenging the order of the appellate and trial courts, which withdrew proceedings under the PWDVA against the mother-in-law on the basis that women cannot be made respondents under the Act.
Before the Rajasthan High Court, the counsel for petitioner argued that the lower courts failed to appreciate the proviso to Section 2(q) which states that a complaint can be filed against relatives of the husband or male partner. It was contended that the term “relative” is not gender-specific.
The High Court held that the term “relative” is quite broad and includes all relatives of the husband irrespective of gender or sex. Hence, the lower courts overlooked the proviso to the section and allowed the revision petition challenging withdrawal of proceedings against female relatives under the PWDVA.
Similar judgments have also been passed clearly stating that women can be made respondents under the PWDVA in Nand Kishor and others vs. State of Rajasthan MANU/RH/0636/2008 and Rema Devi v. State of Kerala I (2009) DMC 297
“Shared household” and Right to Reside:
4. S.R.Batra v. Taruna Batra, (2007) 3 S.C.C.169
In this judgment, the Supreme Court interpreted the expression “shared household” under section 2(s) of the PWDVA and held that an aggrieved wife has the right to reside in the shared household, which was held to mean a house belonging to or taken on rent by husband, or house which belongs to joint family of which husband is a member.
The Court was called upon to decide whether the wife had the right to reside in the premises, owned by the mother-in-law, and held that since the premises was owned by the mother in law, the wife could claim no right to reside there. The Court reached the conclusion that in India, there is no right to reside in the matrimonial home, and there was no statute akin to the Matrimonial Homes Act, 1967 in England. Moreover, it held that she cannot claim an injunction against dispossession from the property because she was not in possession of the said premises. With regard to the relief of alternate accommodation claimed under Section 19(1)(f), the Court held that the claim for alternative accommodation can only be made against the husband and not against the husband's in-laws or other relatives.
On these grounds therefore, the Supreme Court allowed the appeal, and set aside the judgment of the Delhi High Court granting temporary injunction against dispossession to the respondent.
Residence in shared household is a de jure right of the legally wedded wife:
5. Vandana v. Mrs. Krishnamachari & Ors. (2007) 6 MLJ 205 (Mad)
In this interim application in a suit for permanent injunction filed by the wife restraining the respondents from dispossessing her, the Madras High Court provided a broad interpretation to “shared household” and “domestic relationship” as defined under Section 2(s) and Section 2(f) of the PWDVA, respectively. The respondent-husband contested the right of the aggrieved wife to reside in the shared household under Section 17 of the PWDVA because the parties had not “lived together” in the shared household for even a single day after their marriage. The parties disputed even the very fact of marriage. The Court, upholding the right of the aggrieved wife to reside under Section 17, held that she has a de jure right to live in the shared household because of her status as a wife in the domestic relationship.
Distinguishing facts of the case:
5. P. Babu Venkatesh & Ors. v. Rani MANU/TN/0612/2008
The criminal revision petition was filed by husband and family seeking reversal of an order of the lower court in an application filed by the wife under Section 23(2) of the PWDVA (2005), alleging dispossession from the matrimonial home. The Magistrate’s Court had granted a residence order and allowed the police to break open the lock of the “shared household”.
The husband and his family contended that the house in question was, in fact, owned not by the husband but, by his mother, in whose name it was registered. Hence, it was not a “shared household” for the purposes of PWDVA (2005). It was also alleged that because there was a divorce proceeding pending between the parties, the wife was not entitled to any relief under the Act.
Dismissing the afore-mentioned contentions, the High Court of Madras held that the ratio laid down by the Supreme Court in S.R. Batra v. Taruna Batra (supra) could not be applied to the instant case as the facts clearly demonstrated that the husband, with the intention of defeating the rights of the wife, had transferred the household into the name of his mother, after the matrimonial dispute arose. In arriving at its conclusion, the Court recognised the fact that, before the wife’s dispossession, both parties resided jointly in the said household. The Court also held that pending divorce proceedings did not affect the granting of relief(s) under the PWDVA (2005).
DIR, Application and Service of Notice:
DIR is not a prerequisite for taking cognizance of application under Section 12 and private notice served is in consonance with the Act:
5. Amar Kumar Mahadevan v. Karthiyayini MANU/TN/9632/2007
In this petition before the High Court of Madras to quash ongoing proceedings on an application under the PWDVA in a lower court, the following issues were raised regarding the necessity of complying with procedures prescribed:
1. That the service of notice is not in accordance with the procedure prescribed under Section 13(1) of the Act namely, that notice was not served by the Protection Officer and private service was permitted. Further, there is no declaration of service by the Protection Officer.
2. That the Magistrate has admitted the application without calling for the report of the Protection Officer as required by the proviso to Section 12(1).
The Court dismissed both contentions at the threshold. It held that the lower court had made every effort at serving the notice to the petitioner and that directing the private service of notice is in consonance with the procedural mandate under Section 28 of the Act and that, therefore, a declaration of service by the Protection Officer is not required. The Court also held that receipt of the Protection Officer’s report is not a condition precedent for taking cognizance of an application under Section 12 of the PWDVA.
Application under Section 12 not filed in prescribed format does not invalidate it:
5. Milan Kumar Singh & Anr. v. State of U.P. & Anr. 2007 Cri LJ 4742
In this petition before the High Court of Allahabad, the husband challenged the application filed by his wife under the PWDVA (2005) on the ground that such an application could not be filed directly before a Magistrate without first approaching the Protection Officer and recording a Domestic Incident Report (DIR). The husband also argued that the application was not in the prescribed format as provided in Form II.
The Court dismissed both contentions on the grounds that the provisions of the Act were not accurately interpreted by the husband. It held that as the PWDVA is a social legislation, its purpose is to help the aggrieved person and not impose strict procedural requirements. The Court held that a plain reading of Section 12(1) shows that the aggrieved person can file complaint directly to the Magistrate concerned. The court referring to the word ‘or’ used in Section 12(1) stated that it is her choice that instead of directly approaching the Magistrate, she can approach the Protection Officer and, in case of emergency, the service provider. There is no bar in directly approaching the Magistrate for taking cognizance in the matter. The Court further explained that, “it is for the Magistrate concerned to take help of Protection Officer and service provider after receiving the complaint provided, if he feels it necessary for final disposal of the dispute between the parties”. The DIR therefore, is to be recorded only if the Magistrate or the parties require the assistance of the Protection Officer.
Statutory remedies to be exhausted before approaching higher courts:
5. Smt. Maya Devi v. State of NCT of Delhi MANU/DE/8716/2007
This judgment by the High Court of Delhi held that procedure for appeal under the PWDVA must first be used before approaching higher courts through writ or appellate jurisdictions. An application seeking a residence order was filed under the Act before a Magistrate’s Court. The Magistrate passed an interim order directing the aggrieved person not to be dispossessed from the shared household pending final disposal of the application. This writ petition for quashing the interim order was filed before the Court under Article 227 of the Constitution.
The Court dismissed the writ petition and held that, “an order passed by the Magistrate under this Act has an alternate relief under the PWDVA itself which has not been availed of by the petitioner in the instant case.” The court stated that where a right or liability is created by a statute which gives a specific remedy for enforcing it, the remedy provided by that statute only must be used. A person may approach the higher court under any other provision only after the specific statutory remedy has been exhausted.
Judgments relating to other laws where PWDVA has been interpreted:
5. Suresh Khullar v. Vijay Kumar Khullar AIR 2008 Delhi 1
In this case, the parties got married after the husband obtained an ex-parte divorce from his first wife. After a few years, the parties filed separate proceedings, the husband for a divorce and the wife for maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (HAMA). Under Section 18, maintenance can only be claimed by a “Hindu wife”. During the course of the proceedings under HAMA, it came to light that the ex-parte divorce granted to the husband for his first marriage had been set aside. The second wife’s petition for maintenance under HAMA was, therefore, dismissed on the grounds that the marriage between the parties was not legally valid as the husband had an earlier subsisting marriage. The dismissal of this petition was appealed before the Delhi High Court by also relying upon the provisions of PWDVA (2005).
The Court held that while existing case law under HAMA excluded the granting of maintenance to the second wife where there is a subsisting valid first marriage, the trial court had, in this case, failed to recognise the fact that the decree of divorce was in operation on the day that the second marriage was solemnised, making this second marriage legally valid. Referring to the “mischief rule”, the Court stated that if a liberal interpretation is not given in this case, it would amount to giving immunity to the husband for defrauding the appellant-wife. Therefore, the appellant-wife, at least for the purposes of claiming maintenance under Section 18 of HAMA, is to be treated as legally wedded. In arriving at its decision, the Court also placed reliance upon Sections 2(a), 18, 20 and 26 of the PWDVA (2005).
A similar judgment has been passed by the Delhi High Court in Smt. Narinder Pal Kaur Chawla v. Shri Najeet Singh Chawla AIR 2008 Delhi 7
1 The doctrine of “reasonable classification” has been evolved by Indian courts to examine whether a law is consistent with the right to equality guaranteed under Article 14 of the Constitution. The Delhi High Court explained the requirements of Article 14 by stating that, “What Article 14 of the Constitution prohibits is ‘class legislation’ and not ‘classification for purpose of legislation’. If the legislature reasonably classifies persons for legislative purposes so as to bring them under a well-defined class, it is not open to challenge on the ground of denial of equal treatment that the law does not apply to other persons....”
2 “Common law” marriages refer to individuals who have lived together for a substantial period of time and who represent to the world that they are married. Some of the factors taken into account to determine a common law marriage are whether the parties reside in the same household, have children from the relationship, share names, etc. Such marriages are recognised as valid in law.