The Kerala High Court decided against the women while the Madhya Pradesh High Court in their favour. Now the Delhi High Court has declared that women are liable and can be prosecuted under the provisions of the Domestic Violence Act, 2005. Taking note of the fact that other High Court have also adopted the line of reasoning similar to Kerala High Court; being Madras High Court, Rajasthan High Court, Andhra Pradesh High Court and Gujarat High Court; a Division Bench of the Delhi High Court declared that women could be prosecuted against under the Act.
Despite noting that the definition under the Act was not happily worded but keeping in view the purpose and intent of the law, the High Court observed that "courts are not supposed to throw their hands up in the air expressing their helplessness. It becomes the duty of the Court go give correct interpretation to such a provision having regard to the purpose sought to be achieved by enacting a particular legislation."
The High Court declared that there was nothing wrong with including women within the scope of the Act given the fact that the Domestic Violence Act was a means of social control and intended to mould the social thought and outlook against "a wife or a female living in a relationship in the nature of marriage". The High Court took note of these functions of law in the following terms;
29. For centuries, jurists and legal scholars have debated about the functions of law, viz., why do we need law, and what does it do for society? More specifically, what functions does the law perform? Though there may not be unanimity amongst the scholars of law on the precise functions, it is widely recognized that the recurring theme of law includes; (i) social control, (ii) disputes settlement and (iii) social engineering. Though there are many methods of social control, law is considered one of the forms of former social control by prescribing social norms within which individuals/members of the society have to behave. Likewise, law discharges the functions of disputes settlement, i.e., disputes are settled by application of the law of land providing for legal rights and obligations. Apart from these, many scholars are of the view that principal function of law in modern society is social engineering (with which we are concerned here). It refers to purposive, application and direct social change initiated, guided and supported by law. Roscoe Pound captures the essence of this function of law when he states:
“For the purpose of understanding the law of today, I am content to think of law as a social institution to satisfy social wants – the claims and demands involved in the existence of civilized society – by giving effect to as much as we need with the least sacrifice, so far as such wants may be satisfied or such claims give effect by an ordering of human conduct through politically organized society. For present purposes I am content to see in legal history the record of a continually wider recognizing and satisfying of human wants or claims or desires through social control; a more embracing and more effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence – in short, a continually more efficacious social engineering. (1959:98-99).”
30. Though it will remain a matter of never ending debate as to whether law brings social change or social changes in society brings law (i.e. whether law “leads” change or “follows” change), it has to be accepted that many times laws are passed to ensure normative changes in the society. Abolition of Sati Pratha by an appropriate enactment is a sterling example. In broad terms, “change” is of two types: continuous or evolutionary and discontinuous or revolutionary. The most common form of change is continuous. This day-to-day incremental change is a subtle, but dynamic, factor in social analysis.
31. The journey from enacting Dowry Prohibition Act, 1961 to Amendment in IPC by incorporating Section 498A and 304B to the passing of DV Act is aimed at bringing desirable and much needed social change in this particular sphere. Therefore, Courts are required to give an interpretation which subserves the aforesaid purpose with which the law is enacted. The contention advanced by the petitioner, which negates the right given to women by this legislation has to be eschewed.
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