Amongst the many conflicting decisions arising out the application of Protection of Women Against Domestic Violence Act, one of them, is in respect of the operation of the Act. The Andhra Pradesh High Court held that the PWDV Act does not apply retrospectively and that an action under the Act can lie only if the acts of domestic violence are committed on or after 26 Oct 2006, i.e. the date on which the Act came into force. Similarly, a Delhi Metropolitan Court and a JMFC in Goa also took the view that this Act will not be applicable if the acts complained of have been committed prior to the passing of the Act. On the other hand the Bombay High Court and Madras High Court have taken a different view. They held that, the court is competent to take cognizance of the act of domestic violence committed even prior to the Act came into force and pass necessary protection orders. The Act can be applied retrospectively to take cognizance of the act of violence alleged to have been committed even prior to the coming into force of the Act. This controversy over the application of the Act arises because the Act does not expressly state whether it applies retrospectively or not.
The argument for holding against restrospective operation has been that, an act having penal consequences cannot be applied retrospectively and therefore the PWDV Act cannot be applied retrospectively. For example the AP HC, in the aforementioned case observed, “It is a fundamental principle of law that any penal provision has no retrospective operation but only prospective. There is no allegation either in the report or in the statement or in the complaint on the 1st Respondent with regards to the acts of domestic violence that took place on or after 26-10-2006.Therefore continuation of proceedings against the petitioners is nothing but abuse of process of court”.
Though the AP High Court was correct in its observation regarding the principle of retrospective operation in case of a penal provision, it is respectfully submitted that it may haved erred in asuming that PWDV Act attracts penal consequences. The PWDV Act does not prescribe any criminal punishment for committing an act of domestic violence. It may be quoted from the Statement of Objects and Reasons of the Act, that the Act is “to provide for 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 society.” Penal consequences are provided only in case of a breach of the protection order (section 31 of the DV Act) and not for the acts of domestic violence.
Though the general rule is that, every legislation is prima facie prospective unless it is expressly or by necessary implication, made to have retrospective operation, (Rashid Ahmed v. State of Uttar Pradesh, AIR 1979 SC 592; Narsing Rao v. Shankar Saran, AIR 1958 All 775; Pirbux v. Babulal, AIR 1987 MP 18) remedial statutes constitute an exception to this general rule. Remedial statutes are legislations directed to cure some immediate mischief and to bring into effect some type of social reform by ameliorating the condition of a certain class of persons who, according to present day notions may not have been fairly treated in the past. (See Justice G.P. Singh, Principles of Statutory Interpretation, 11th edition 2008) The PWDV Act being a legislation of this nature, (i.e. a legislation intended to ameliorate the condition of women who have been victims of domestic violence), is a remedial statute and may therefore be applied retrospectively.
Having regard to the object and scope of the Act, it may be concluded that the Act may be given retrospective application. However, it can also not be denied that giving the Act retrospective application, may also open the gates to substantial abuse of the enactment. Until the Apex Court finally decides this question, the law regarding operation of the PWDV Act remains confusing and subject to multiple interpretations by various High Courts.
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