Sasidharan Nambiar, J.
1. A learned Single Judge, while considering the question whether a mother could proceed against her daughter under the provisions of the Protection of Women from Domestic Violence Act, taking note of the two decisions of this court in Ramadevi v. State of Kerala (2008(4) K.L.T. 105) and Vijayalekshmi Amma v. Bindu (2010(1) KLT 79), felt that though it was held therein that respondent in a complaint filed under the Act could also be a female person, in view of the proviso to Section 2(q) of the Act, the scope of the proviso is limited to a complaint filed either by the aggrieved wife or a female living in a relationship in the nature of marriage and that aspect was not considered in both the decisions. Hence the following question was referred to a larger Bench for an authoritative pronouncement on “whether the ‘proviso’ in the definition of “Respondent” under Section 2(q) of Protection of Women form Domestic Violence Act (hereinafter referred to as the Act) enables only ‘an aggrieved wife’ or ‘a woman living in a relationship in the nature of marriage’, to proceed against the ‘relative of the husband’ or ‘the male partner’ as a respondent in a proceeding under the Act, or, does it enlarge and include all persons falling under the definition of ‘aggrieved person’ under the Act.” The Revision petition was thus placed before this Bench.
2. ‘Aggrieved person’ is defined in Clause 9a) of Section 2 of the Act as follows:
“(a) aggrieved person means 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”. Thus, an aggrieved person could be any woman who is or has been in a domestic relationship with the respondent and alleges to have been subjected to any act of domestic violence by the respondent and need not necessarily to be a wife or a female living in relationship in the nature of a marriage. ‘Respondent’ is defined in clause (q) of Section 2 of the Act as follows:
“(q) 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.
Provided 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.”
3. Thus, the main clause takes in only an adult male person, who is or has been in a domestic relationship with the aggrieved person as the respondent and against whom the aggrieved person has sought any relief under the Act. A female adult person cannot be a respondent in a complaint filed under the Act, as defined under the main clause. The scope of the respondent is widened by the proviso. As per the proviso, if a complaint is filed by an aggrieved wife or a female living in relationship in the nature of a marriage, a female relative of the husband or the male partner could also be the respondent. The question decided in both Ramadevi’s case (supra) and Vijayalekshmi Amma’s case (supra) was whether a female person could be a respondent in a complaint field under Section 12 of the Act. In both the decisions, it was held that a female person could also be a respondent in a complaint filed under Section 12 of the Act, in view of the proviso to Section 2(q) of the Act and also in view of the other relevant provisions of the Act. That question is no more res integra in view of the decision of the Apex Court in Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade (2011(1) K.L.T. 609).
4. Section 12 of the Act provides for filing an application before the Magistrate. Under Sub-section (1), an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person is entitled to file an application to the Magistrate seeking one or more of the reliefs provided under the Act. Therefore, any aggrieved person, is entitled to file a petition under Section 12. Provided the person is a woman, who is or has been in a domestic relationship with the respondent and alleges to have been subjected to any act of domestic violence by the respondent. Domestic relationship is defined under clause (f) of Section 2 of the Act as follows:
“(f) domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related to by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”
5. Domestic violence is defined in Clause (g) of Section 2 of the Act as “has the same meaning assigned to it in Section 3”. Section 3 of the Act defines domestic violence for the purpose of the Act as follows:
“3. Definition of domestic violence – For the purpose of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it-
(a) harms or injures or endangers the health, safety, life, limb or well-being whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse,. Verbal and emotional abuse and economic abuse; or
(b) harasses, harms injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security, or
(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause 9a) or clause (b) : or
(d) otherwise injures or causes harm, whether physical or mental to the aggrieved person,”
(Explanations omitted as not necessary in the context of the questions to be decided)
6. Therefore, as provided under Clause 9a) of Section 3 of the Act, if by any act, omission or commission or conduct of the respondent, harms or injures or endangers the health, safety, life, limb or well being, both mental or physical, of the aggrieved person or tends to do so and including causing physical abuse, sexual abuse, verbal or emotional abuse and economic abuse, the aggrieved person is entitled to file a petition under Section 12 of the Act. But in all such complaints, a female person cannot be a respondent. A female person could be a respondent only as permitted under the proviso to Section 2(q) of the Act. The proviso enables the aggrieved wife or female living in relationship in the nature of a marriage, to file a complaint against the female relative of the husband or the male partner. Though the learned counsel appearing for the respondent relying on the statement of objects and reasons for enacting the Act argued that the proviso is enacted because when the wife or the female living in a relationship in the nature of a marriage is entitled to file a complaint, that right is not given to the female relative of the husband or the male partner and therefore, the proviso provides for filing the complaint by the wife or female living in a relationship in the nature of a marriage and therefore, the scope of the proviso cannot be interpreted as restricting the meaning so as to exclude female persons as respondents in a complaint filed by other aggrieved persons, we cannot agree with the submission.
7. The relevant clause in the objects and reasons reads:
“4. The Bill, inter alia, seeks to provide for the following:
(1) it covers those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are related by consanguinity, marriage or through a relationship in the nature of marriage or adoption. In addition, relationships with family members living together as a joint family are also included. Even those women who are sisters, widows, mothers, single women, or living with the abuser are entitled to legal protection under the proposed legislation. However, whereas the Bill enables the wife or the female living in a relationship in the nature of marriage to file a complaint under the proposed enactment against any relative of the husband or the male partner, it does not enable any female relative of the husband or the male partner to file a complaint against the wife or the female partner.
(ii) it defines the expression “domestic violence” to include actual abuse or threat or abuse that is physical sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.
(iii) it provides for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate.
(iv) it empowers the Magistrate to pass protection orders in favour of the aggrieved person to prevent the respondent from aiding or committing an act of domestic violence or any other specified act, entering a workplace or any other place frequented by the aggrieved person, attempting to communicate with her, isolating any assets used by both the parties and causing violence to the aggrieved person, her relatives or others who provide her assistance from the domestic violence.
(v) it provides for appointment of protection officers and registration of non-governmental organizations a service providers for providing assistance to the aggrieved person with respect to her medical examination, obtaining legal aid, safe shelter etc.”
8. “Parker. C.B. In Mitchell Vs. Torup (145 ER 764) propounded the rule while interpreting the Acts of Parliament that where words are express, plain and clear, the words ought to be understood according to their genuine and natural signification unless by such exposition, a contradiction or inconsistency would arise in the Act, by reason of some subsequent clause from which it might be inferred the intent of the Parliament was otherwise.
9. In Attorney General Vs. Lockwood (152 ER 16), the rule regarding construction of statute was expounded in the following words:
“The rule of law, I take it, upon the construction of all statutes and therefore, applicable to the construction of this, is whether they be penal or remedial to construe them according to the plaint literal and grammatical meaning of the words in which they are expressed, unless that construction leads to a plain and clear contradiction of the apparent purpose of the Act or to some palpable and evident absurdity.”
10. In Sussex Peerage (8 ER 1034), House of Lords through Lord Chief Justice Tindal stated the rule for construction of the Acts of Parliament that they should be construed according to the intend of Parliament. If the words of the statute are of themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do declare the intention of the legislature.
11. The Constitution Bench of the Apex Court in Union of India v. Hansoli Devi (2002) 7 SCC 273) approved the said rule and stated the legal position thus:
“It is a cardinal principle of construction of statute that when language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In Kirkness v. john Hudson and Co. Ltd., 1955 (2) All ER 345, Lord Reid pointed out as to what is the meaning of “ambiguous” and held that “a provision is not ambiguous merely because it contains a word which in different context is capable of different meanings and it would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning.” It is no doubt true that if on going through the plaint meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. Patanjali Sastri, C.J. in the case of Aswini Kumar Ghose v. Arabinda Bose, 1953 SCR 1 had held that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In Quebec Railway Light Heat and Power Co. v. Vandray, AIR 1920 PC 181, it has been observed that the Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons, Similarly, it is not permissible to add words to a statute which are not there unless on a literal construction being given a part of the statute becomes meaningless. But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these words would have been inserted by the draftsman and approved by the legislature had their attention been drawn to the omission before the Bill had passed into a law. At times, the intention of the legislature is found to be clear but the unskilfulness of the draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language and in such a situation, it may be permissible for the court to reject the surplus words, so as to make the statute effective.”
12. In Union of India Vs. Deokinandan Aggarwal (1992) Suppl. (1) SCC 323), it was cautioned that it is not the duty of the court either to enlarge the scope of the legislation or the intention of the legislation when the language of the statute is unambiguous as follows:
“It is not the duty of the court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be, The court of course, adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself.”
13. Relying on the earlier decision in Kanai Lal Sur v. Paramnidhi Sadjukhan (AIR 1957 SC 907), the Supreme Court in Satheedevi v. Prasanna (2010) 5 SCC 622) held:
“12. Before proceeding further, we may notice two well-recognised rules of interpretation of statutes. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise.”
14. The law with regard to the provisos is well settled. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment. Ordinarily, a proviso is not interpreted as stating a general rule. Provisos are often added not as exceptions or qualifications to the main enactment, but as saving clauses in which case they will not be construed as controlled by the Section (S.B.K.Oil Mills v. Subhash Chandra (AIR 1961 SC 1596). The proper function of the proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, its effect is confined to that case. When the language of the main enactment is clear and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment so as to exclude from it by implication what clearly falls within its express terms (Madras and Southern Mahratta Railway Co. v. Bezwada Municipality (AIR (31) 1944 PC 71).
15. A proviso to a particular provision of a statue only embraces the field which is covered by the main provision to which it has been enacted as a proviso and to no other (Ram Narain Sons Ltd Vs. Assistant Commissioner of Sales Tax (AIR 1955 SC 765).
16. It is fundamental rule of construction that a proviso must be considered with relation to the principal mater to which it stands as a proviso (Abdul Jabar Batt Vs. State of Jammu and Kashmir (AIR 1957 SC 281).
17. The intention of the Legislature is to be found in the words used by the Legislature itself and only when there is some doubt, it is open to the courts to adopt any other hypothetical construction. The Honourable Apex Court, in Satheedevi v. Prasanna (2010) 5 SCC 622) held:
“Before proceeding further, we may notice two well recognized rules of interpretation of statues. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their pain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise – Kanai Lal Sur v. Paramnidhi Sadhukhan, 1958 SCR 360.”
18. The question is to be settled in the light of the principles enumerated.
19. The protection of Women from Domestic Violence Act 2005 is enacted to provide more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and matters connected therewith or incidental thereto. As is clear from the statement of Objects and Reasons, the Act was enacted “keeping in view the rights guaranteed under Articles 14, 16 and 21 of the Constitution, to provide a remedy under the civil law which is intended to protect the women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society. The domestic relationship as defined under Section 2(f) is a relationship between two person 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, adopting or are family members living together as a joint family. Hence any woman who is or has been in such relationship alleges to have been subjected to any act of domestic violence as provided under Section 3, is entitled to file a complaint as provided under Section 12. That woman need not necessarily be a wife or female living in a relationship in the nature of a marriage. But any complaint under Section 12 could be filed only against a respondent as defined under Section 2(q) of the Act.
20. The main clause provides that the respondent could only be a male person who is, or has been in a domestic relationship with the aggrieved person against whom the relief is sought in the complaint. Though the meaning of the respondent has been widened by the proviso, it is widened only to a certain class of aggrieved persons. Only if a complaint filed either by an aggrieved wife or a female living in a relation in the nature of a marriage, a female relative of the husband or the male partner could be arrayed as a respondent. In no other cases, a female person could be made a respondent in a complaint filed under Section 12 of the Act.
21. The question whether the petitioner herein is an aggrieved wife, is not to be settled by us, the question referred need alone be answered. The question is answered as follows:
Ordinarily, a respondent in a complaint filed under Section 12 of the Act could only be an adult male person who is or who has been in a domestic relationship with the aggrieved person could be made a respondent, provided relief is sought against him by the aggrieved person in that complaint. Only if a complaint is filed by an aggrieved wife or a female living in a relationship in the nature of a marriage, an adult female person could be a respondent. Such respondent must be a person who is or has been, in a domestic relationship with the aggrieved wife or female living in a relationship in the nature of a marriage and against whom the aggrieved wife or female has sought a relief provided under the Act, in that complaint.
Registry to post the petition before appropriate Bench.