Saturday, February 27, 2010

Retrospective Operation of PWDV Act

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.

4 comments:

  1. Interesting Point!!! Here is what I think.

    If, as you say, the only penal provision under the statute is s. 31 which relates to breach of protection orders of the Court, then the question of the whether the statute is retrospective or not doesn’t even arise. Whether or not the acts of domestic Violence took place before or after the coming into force of the statute won’t really matter because in its direct operation the statute continues to be prospective. Merely because it relates to certain acts or events which are past, doesn’t mean it is retrospective.

    Let me illustrate using the English Case of R v. Inhabitants of St Mary, Whitechapel, (1848) There the statute in question provided that no women residing in a house with her husband at the time of his death could be removed from that house for 12 months after the death of her husband. Now the question arose whether the statute could apply to a widow whose husband had died before the statute came into force. In this context the court noted that the statute was in its direct operation prospective, as it related to future removals only. And that it couldn’t be termed as retrospective because ‘a part of the requisites for its action was drawn from time antecedent to its passing’. And even though the statute was prospective it was held protecting a widow whose husband had died before the Act came into force.

    Since I don’t think the statue has to be retrospective, to apply to breaches of protection orders under s. 31, the question of whether it is remedial or not loses much its significance. In any case the Act doesn’t really seem remedial to me. The nature of the Act would have to judged from the perspective of the person on whom it is being applied, which in the case of s. 31 would be the husband. Something which creates on a person penal consequence can hardly be remedial.

    Best
    -Homi

    ReplyDelete
  2. Dear Sir,

    Thank you for your comment.

    I would like to clarify that, my post discusses the retrospective operation of the Act in general i.e. it addresses the question whether a woman can seek relief under the Act even if the acts of domestic violence have been committed prior to the enforcement of the Act. It is not discussing the retrospective operation of section 31. Moreover, the question of Section 31 being applicable retrospectively doesn’t even arise as it provides for penal consequences in case a protection order of the magistrate is breached. Naturally, a protection order can be passed by the magistrate only under the PWDV Act from the time the Act came into force and not prior to that. Hence, there is no way that Section 31 can be applicable retrospectively and there is no dispute about that.

    The dispute however, is whether the relief under the Act (i.e protection orders, residence orders etc.) can be available to a woman who has been subjected to domestic violence prior to the enforcement of the Act?

    Now, since the Statute does not clearly give an answer to this question, it becomes important to look at the nature of the Statue and the object of the statute to determine the intention of the legislature. Regard must also be given to the words of the statute which may by implication offer a solution to this question.

    As suggested in my post, the PWDV Act is a remedial statute because it attempts to cure an existing evil. The fact that it provides for penal consequences in case of a breach of the magistrate’s order does not alter the characteristic of the statute. On the contrary, many times, a remedial statute has penal provisions in order to prevent its infringement. In such cases, a different rule of construction is adopted for the remedial provisions and the penal provisions (i.e. the remedial statute has to be liberally construed, but the penal provisions should receive strict construction.)

    Coming to the case you cited ‘R v. Mary White Chapel,’ it is my submission, that, this case cannot be compared to the question under the DV Act. In that case, the Court was interpreting Section 2 of the Poor Removal Act which stated, “no woman residing in any parish with her husband at the time of his death shall be removed from such parish, for 12 months next after his death, if she so long continues a widow.” The Court held that the Act was prospective because the words “shall be removed” indicated that legislature intended to cover cases of future removals but; nevertheless it held them to be wide enough to cover cases where the husband died prior to the Act. It was under these circumstances that, the court held that, merely because a part of the requisites of the Act are drawn from time antecedent to its passing, the Act cannot be called retrospective. Nothing in the PWDV Act suggests that the relief was to be available only to future acts of domestic violence. On the contrary, the words of the Statute suggest that the Act was intended to apply to acts of domestic violence committed prior to the enforcement of the Act. (Kindly see my next post on this argument.)

    I hope this comment clarifies the scope of the topic I am discussing

    ReplyDelete
  3. ya, then I guess you are right, i was only looking it from the prespective of s. 31

    -Best
    Homi

    ReplyDelete
  4. hi

    women and child department, hyderabad recently launched a website on protection of women from domestic violence act that site is http://www.pwdvhyd.ap.nic.in and providing more information about act and other related, it is very useful to victim of domestic violence….

    ReplyDelete