Rohinton Fali Nariman JUDGMENT
Rohinton Fali Nariman, J.
1. Leave granted.
2. The present appeal arises out of a judgment dated 25.9.2014 of a Division Bench of the Bombay High Court. It raises an important question as to the constitutional validity of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, (hereinafter referred to as "the 2005 Act").
3. On 3.4.2007, Kusum Narottam Harsora and her mother Pushpa Narottam Harsora filed a complaint under the 2005 Act against Pradeep, the brother/son, and his wife, and two sisters/daughters, alleging various acts of violence against them. The said complaint was withdrawn on 27.6.2007 with liberty to file a fresh complaint.
4. Nothing happened for over three years till the same duo of mother and daughter filed two separate complaints against the same Respondents in October, 2010. An application was moved before the learned Metropolitan Magistrate for a discharge of Respondent Nos. 2 to 4 stating that as the complaint was made Under Section 2(a) read with Section 2(q) of the 2005 Act, it can only be made against an adult male person and the three Respondents not being adult male persons were, therefore, required to be discharged. The Metropolitan Magistrate passed an order dated 5.1.2012 in which such discharge was refused. In a writ petition filed against the said order, on 15.2.2012, the Bombay High Court, on a literal construction of the 2005 Act, discharged the aforesaid three Respondents from the complaint. We have been informed that this order has since attained finality.
5. The present proceedings arise because mother and daughter have now filed a writ petition, being writ petition No. 300/2013, in which the constitutional validity of Section 2(q) has been challenged. Though the writ petition was amended, there was no prayer seeking any interference with the order dated 15.2.2012, which, as has already been stated hereinabove, has attained finality.
6. The Bombay High Court by the impugned judgment dated 25.9.2014 has held that Section 2(q) needs to be read down in the following manner:
In view of the above discussion and in view of the fact that the decision of the Delhi High Court in Kusum Lata Sharma's case has not been disturbed by the Supreme Court, we are inclined to read down the provisions of Section 2(q) of the DV Act and to hold that the provisions of "Respondent" in Section 2(q) of the DV Act is not to be read in isolation but has to be read as a part of the scheme of the DV Act, and particularly along with the definitions of "aggrieved person", "domestic relationship" and "shared household" in Clauses (a), (f) and (s) of Section 2 of the DV Act. If so read, the complaint alleging acts of domestic violence is maintainable not only against an adult male person who is son or brother, who is or has been in a domestic relationship with the aggrieved complainant-mother or sister, bu........