Fundamental Rights occupy pride of place in Part III of our Constitution. It gives liberty to the citizens of India and protects it from being infringed by the state. It also provides the remedy if their fundamental right is violated. This Part protects the individual's fundamental rights by rendering any law null and void if it intervenes with the liberty or is inconsistent in any way with the fundamental right of the person.

Fundamental right for both men and women are same under our constitution. The discussion on this paper is made with a view when Legislature makes beneficial legislation exclusively for the women, would it stand constitutionally valid at the cost of violation of fundament rights of men?
Further while grating reliefs to women under beneficial legislation, could Fundamental Rights of men be kept in abeyance?

This paper intent to discuss the provisions envisaged in Section 28 and Section 22 of the Protection of Women from Domestic Violence Act in relation with Part III of the Constitution.

A. Inconsistency of powers of Magistrate under sub-section (2) of Section 28 of the Protection of Women from Domestic Violence Act with Article 14, 21 of The Constitution of India

Sec. 28. Procedure-

1. Save as otherwise provided in this Act, all proceeding under section 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974)
    
2. Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.

As per Sec. 28(1) of Domestic Violence Act the proceedings under section 12, 18, 19, 20, 21, 22 and 23 and offences under Sec. 31 shall be governed by the provisions of Code of Criminal Procedure, 1973. Further Sub-section (2) of Section 28 of the Act confers the power on the Court to lay down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.

While conferring the power to Court under sec. 28(2) the legislature has not indicated in what manner it should be exercised and to what extent it should be enlarged.

Therefore question would arise
Whether personal liberty of a person could be deprived of by the procedure which would be laid down by the Court itself? The answer should definitely be No because personal liberty of a person should not be deprived except there being express Legal Sanction. Personal liberty of a person should not be subject of discretion of the Court.

Without any express criteria or guidelinens by the legislature in pursuance of the powers conferred under section 28(2) of Domestic Violence Act, Court has been conferred on wide powers to lay down its own procedure to decide rights and liabilities of the parties to litigation. Further this power may be exercised in case of disobidence of the any order made under the Act, and therefore, the personal liberty of a person who failed to comply with the order could be put in peril on the basis of discretionary power conferred under section 28(2) of Protection of Women from Domestic Act.

In case of Sagar Shendge Vs Mrs. Naina Shendge & Ors. 2013 ALL MR (Cri) 2572 (Hon'ble Bombay High Court), it is observed that:

1. The Petitioner is the husband against whom maintenance order has ben passed U/s 20 of the Protection of Women from Domestic Violence Act (DV Act). The petitioner has challenged the order of maintenance in the Session Court in which the Petitioner has not obtained any stay of the order ordering maintenance U/s 20 of the DV Act. The husband breached the order of maintenance. Consequently, wife applied for executuion of the order of maintenance. Hence the wife filed an application for issue of warrent for recovery of the maintenance amount. Consequent, NBW has been issued. The Petitioner has challenged the order of issuing NBW.
    
2. In his application the learned judge observed that an appeal was preferred, but no stay was granted and that the husband (petitioner herein) was given ample opportunity to deposit interiem maintenance but he was only binding time. Hence learned Magistrate granted the application of the wife and issued the NBW. He also directed that if the Respondent paid off the arrears of maintenance which was Rs. 56,000/- he will be released at the time of execution of the NBW. The amount of maintenance payble under the same order is now much more.

11. It is argued on behalf of the Petitioner husband that in this case the Magistrate would follow u/s 421 (1) (a). He would issue a warrent for attachment and sale of the property of the husband. The form of issuing such a warrent is under From 19 of the CrPC. The form is issued upon Police Officer to attach moveable property and sale up to the extent of the unpaid amount of maintenance.

12. If even after such warrent is issued for attachment and sale and the property is attached and sold but yet the maintenance amount remains unpaid, the Magistrate, under the later part of Section 125(3) would sentence the for such amount upto for one month.

20. The Court appointed Ms. Flavia Agnes, to assist the Court as amicus curiae. She has drawn my attention to Section 28(2) of the DV Act which runs thus;
Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23.

21. Thus the aforesaid argument becomes academic. The provisions of CrPC relating to maintenance as also the DV Act which are beneficial legislation for the Protecton of Woman such as the respondent wife in this case are required to be construed such as to benefit those persons for whom they are enacted.

22. The Magistrate issuing NBW, therefore, seems to have followed the Special Procedure for the arrest of the husband for non payment of the maintenance ordered to be paid. Such procedure and such procedural order is within the framework of Section 28(2) of the DV Act and cannot be faulted as it is not seen to be illegal.

In case of Sachin Bodhale Vs Sau. Sushma Bodhale 2015 ALL MR (Cri) 3128 Cri. Writ Petition No. 305/2014 (Bombay High Court-Nagpur Bench), His Lordship observed that,
Para no. 5
5. Therefore, it is abundantly clear that basically the learned Magistrate has to follow the procedure laid down in the Code of Criminal Procedure for the recovery of maintenance either final or interiem. Sub-section (2) of Section 28 of the Protection of Women from Domestic Violence Act, 2005 can be pressed into service when there is no provision available for implementing a particular order passed under the Protection of Women from Domestic Violence Act, 2005. If the procedure is available in Code of Criminal Procedure that is necessarily to be followed.

Para no. 8
8. Thus there is absolutely clear the provision under the Code of Criminal Procedure, which lays down as to how the amount of maintenance, final or interiem, is to be recovered. The Magistrate, in my opinion, could not have issued non-bailable warrent directly. He should have followed the procedure laid down in sub-section (3) of Section 125 and Section 421 of the Code of Criminal Procedure......

The observations in the above two cases in relation to the scope of Sec 28(2) of the Protection of Women from Domestic violence Act appear different. Apart from this the question remains about the scope of the power of Magistrate under sec 28 (2) of DV Act, because procedure under section 125(3) of Cr. P. C. is available only to the monetory relief whereas under Domestic Violence Act apart from monetory relief many other reliefs could be granted by the Court. This situation creates questions such as whether while enforcing the other reliefs apart from the execution of monetory relief granted under the Act, Court could deprive the personal liberty of a person by invoking power under sec. 28(2) of the DV Act.? Whether under sec. 28(2) of the DV Act Magistrate has power to lay down its own procedure abridging ones personal liberty?

Without any legiaslative policy or principle to guide the court in exercising its discretion in vital area of deciding of rights and liabilities as well as personal liberty of parties to the litigation, the exercise of discretion of the court is bound to vary from Judge to Judge. What may appear as due procedure to one judge may not so appear to another and the decision given in a case, to large extent, depends upon who is judge called upon to make the decision. Without any guidelines given by the legislature, the task of Judges becomes much more diffucult and the decision is bound to vary with Judge. When unguided discretion is conferred upon the court, the choice is bound to be influenced by the subjective philosophy of the Judge who decides the matter.

Law should be definite and expressive in the area of personal liberty as well as deciding rights and liabilities of parties otherwise, every Judge will decide an issue according to his own view and lay down a rule according to his own perception and there will be no certainty and predictability in the law, leading to chaos and confusion and in the process, destroying the rule of law.
The deprivation of personal liberty of a person should be the subject of express provision of Law and not to be within the power or control of Court. Without express Sanction of Law, no Court should have power to deprive one's personal liberty, otherwise it would be against concept of  Rule of Law.

As per the theory of separation of powers constitutional power has been divided into three organs of the State. Further one organ of the State should not encroach into the domain of another organ. Simillarily one organ of the State should not confer its basic or fundamental powers or duty on another organ of the State.

Taking in to consideration the scope of sec 28 (2) of D. V. Act it appears that, by enacting said section legislature confers the power of legislation on judiciary and introduces a new trend of Law making process by the trial Courts or subordinate judiciary. Here it will be worthwhile to consider that, whether such type of powers could be conferred on the trial Court under our Constitution? Whether legislature has constitutional power to confer its basic or fundamental power or duty on another organ of the State?

Further consequential effect of the conferment of powers is nothing but judicial legislation and judicial activism by subordinate judiciary or trial Courts. While exercising the powers under this section by the trial it will appear that, each trial court will enact its own separate Code or procedure for disposal of application under section 12 of the Act and if appeal is filed from the order then each appellate Court will waste much of the time in ascertaining the validity or justification of the procedure or rule enacted by the trial Court. Consequential effect of this process will be, the subordinate appeallate and upper Judiciary will be over burdened with deciding validity of the procedure or rule made by trial Court rather than to interpreat and enforce the law made by legislature.

Further here it is necessary to take in to consideration one important ascept that, suppose during the couse of rule making process or procedure and its execution if any procedural rule made by trial Court violates the Fundamental Right of litigant, then what will be status of rule or procedure made by trial Court. Whether it may be termed as 'Order of Court'? or 'Procedure or Rule made by the Court'? and then how it will be challenged, whether by way of appeal or by way of writ petition before Constitutional Courts?

Further if we more scrutinize the sub section (1) and (2) of Section 28, it appears that, in sub section (1) of Section 28, word 'proceeding' is used relating to application of Code of Criminal Procedure while dealing with section 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 of the Act. While in sub section (2), word procedure is used relating to the power of Court to lay down its own procedure for the disposal of application under section 12 or under sub-section (2) of section 23 of the Act. Here it is necessary to take in to consideration the scope of expression 'proceeding' and 'procedure' to realise the actual scope of the power of the Court u/s 28(2) of D. V. Act to lay down its own procedure for the disposal of the application under section 12 or under sub-section (2) of section 23 of the Act. The expression 'proceeding' and 'procedure' has not been defined in the Protection of Women from Domestic violence Act.
The meaning of the word 'proceeding' as given in the 'Law Lexicon' as under –

Proceeding:

The word proceeding is defined in the Shorter Oxford Dictionary as doing a legal action or process, any act done by the authority of a Court of law. In Words and Phrases, Permanent Ed., Vol. 34, a number of American decisions are referred to for ascertaining the meaning of the word proceeding.

It is said that the term  proceeding is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right and hence it is necessarily embraces the requisite steps by which a judicial action is invocked.

It is a clear that the meaning to be attributed to the word  proceeding would depend upon the scope of the enactment wherein the expression was used and with reference to the particular context wherein it occurs. A proceeding is said to have commenced if a prescribed course of action for enforcement of a legal right or taking a requisite step by which judicial action is invoked or a step in aid or action taken by the concerned authority in the process of dealing with a person for contravention of any provision of the Act.

It is in the sence the word proceeding has been used under sec. 16(1) (a) of Act 8 of 1976 – Collector of Central Excise, Madras v. R. Seshammal, 1982 Tax L. R. 743 at p. 747 (Mad.).

The word proceeding is not defined in the Act. Shorter Oxford Dictionary defines it as:
carrying on of an action at law, legal action or process, any act done by authority of a court of law; any step taken in a cause by either party.

The term  proceeding is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right.

It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word proceeding in Sec. 22 Specific Relief Act, 1963 includes execution proceedings also. Babu Lal v. Messrs Hazari Lal Kishori Lal, (1982) 1 S.S.C. 525 at p. 535.

The term proceeding is frequently used to denote a step in an action, and obiviously it has that meaning in such phrases as proceeding in any cause or matter. When used alone, however, it is in certain statutes to be construed as synonymous with, or including, action.[ See Halbury's Laws of England, 3rd Ed., Vol. 1, pp. 5, 6].  proceeding mean legal proceeding ant not private action. –In re, Sakamari Steel & Alloys Ltd., (1981) 51 Comp, 266 at p. 282 (bom.).
(Reference: Venkataramaiya's Law Lexicon 2nd Edition Vol. 3 page )

The expression 'procedure' has also not been defined in the D. V. Act. Here it is necessary to take in to consideration the language and expression used in the Article 21 of the Constitution of India.

Article 21.- Protection of life and personal liberty.
No person shall be deprived of his life and personal liberty except according to procedure established by law.

While dealing with the matter of life and personal liberty, the expression 'procedure' and not 'proceeding' is used in the Article 21 of Constitution. The scope of the expression procedure can be said to be wider than that of expression  proceeding Section 28 (2) of D. V. Act neither lays down any standard or principle to guide the discretion of the court nor it differentiate the term proceeding and procedure while Court exercing the power under Sec. 28 (2) of the Act regarding laying down its own procedure.

The critical choice is left to the discretion of the court. The legislature has left the very difficult task for the court, to bifurcate both the term 'procedure' and 'proceeding' and exercise the power conferred under the Act to lay down its procedure for the disposal of application under section 12 or under sub-section (2) of section 23 of the Act.

In the Act or in the relavent provision nowhere is defined the term disposal of application. Therefore question would arise- Whether Court could lay down its own procedure only to decide the rights and liabilities of parties or whether this power could be exercised till the execution of the order made by it? Further Section 12 of the Act has no separate existence, but it only expresses its scope for the reliefs under the Act. Therefore, when sub-section (2) of Section 28 of the Act comes in to play, then Court gets the power to lay down it own procedure to decide the reliefs under section 18, 19, 20, 21, 22 and under sub-section (2) of Section 23.

B. Inconsistency of provisions of Section 22 and Sub-section (1) of Section 28 of the Protection of Women from Domestic Violence Act with Article 14, 19 amd 21 of The Constitution of India:

Section 22. Compensation Orders.

In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by the aggrieved person, pass an order directing the respondent to pay compensation and dameges for the injuries including mental torture and emotional distress, caused by the act of domestic violence committed by that respondent.

Section 22 of the Act relates to relief of compensation to the aggrieved person while sub-section (1) of Section 28 of the Act, relates to the proceeding proceeded under section 22 of the Act. As per Sec. 28(1) of the Act, proceeding under Section 22 shall be governed by the provisions of the Code of Criminal Procedure 1973 (2 of 1974). If we look at the provisions of the Code of Criminal Procedure Section 357 of Code of Criminal Procedure, expresses the provision of compensation while imposing the sentences of fine or a sentence.

Apparently the words while imposing the sentences of fine or a sentence used in the section 357 of Cr.P.C. have used in connection with liability of offender arising out when he is found guilty of any offence and not in relation with any liability arising out of domestic violence. Therefore we can say that in Code of Criminal Procedure there is neither any scheme of compensation envisaged nor any criteria has been provided to decide the compensation in matrimonial cases.

Proceeding governed under the D. V. Act to provide the reliefs to aggrieved person is of summary nature. While deciding rights and liabilities under the Act, it is not required for the aggrieved person to prove the facts alleged, to that extent as the facts required to be proved under Civil Law or while deciding criminal or contractual liability.

While deciding the rights and liabilities of any party under the D.V. Act, high value of proof or evidence is not expected. The proceedings under the Act are summary in nature. While deciding the the liability and granting relief under this Act, it is not required that facts asserted by the aggrieved person relating to the domestic violence to be proved on count of intention or negligence on part of opposite party.

The proof of non performance of matrimonial obligation by opposite party by way of oral evidence is sufficient to grant any relief under the Act. The issue of intention or negligence does not have any place or matter of consideration while proceeding under the Act.

The relief of compensatory damages in matrimonial matters, by way of summary procedure or without the facts being proved to the extent as required while imposing criminal liability or contractual liability may convey the unfortunate wrong impression to the aggrieved person, that marriage does not involve an element of risk on her part or that remedy cannot be perused without payment of damages. Family disputes or the break up of marriages is usually not caused by just one party.

Rather they are caused by myriad reasons or inter - related causes.

Very difficult task is left for the Court to make a judgment of compensation without taking in to consideration the real reason or the main cause of the dispute, as well as issue of intention, negligence or willfully non performance of matrimonial obligation by the aggrieved person.

With regard to the determination of causation, Court can only make inferences. If complainant adduces evidence specifically in respect of non performance of matrimonial obligation or violation of spousal right by the other party and the Court is convinced by the oral evidence, the grant of compensation would be result, and there will not be a need to further adduce evidence to show that there is causation regarding non performance of matrimonial obligation or violation of spousal right.

Many times natural conduct, attitude or behaviour of one spouse may cause mental cruelty or emotional distress to other spouse. This may happen due to dissimilarity in educational qualifications and standard of living of the spouses before marriage

or expectations from each other of which fulfillment might be beyond the control of either spouse. In such type of cases it would be very difficult to justify and determine the compensation and damages on account of mental torture and emotional distress as there is no any legal parameter existed therefore.

It seems that very wide and unguided discretion has been conferred on the Court while grating the relief of compensation and damages. While deciding the liability of compensation and damages, the opposite party does not have a fair opportunity or fair procedure to contest the issue of compensation and damages.

Conclusion:
From the plain reading of Article 15(3) of the Constitution it appears that State has power to make any special provision for women and children. At the same time there is restriction in Article 13(2) that State shall not make any law which takes away or abridges the rights conferred by Part III.

Protection of Women from Domestic Violence Act has come into existence for the benefit of the aggrieved women. It is beneficial legislation came into force with particular aim and objects. It protects the rights of particular section of the society.

On the basis of above discussion even if we felt such provisions abridge some sort of fundamental rights of men, the issues:
whether the State has power to cross the ban imposed under Article 13(2) for making any special provision for women and children under Article 15(3) of the Constitution, and whether such type of beneficiary legislation would stand constitutionally valid at the cost of some sort abridgement of Fundamental Rights of men, would be within the whole domain of Constitutional Court.

Written By: By Shri. Kiran S. Pawar. B.S.L. LL.B. Advocate, Islampur Dist- Sangli (Maharashtra) 415409

Authentication No: AG30778352343-13-820