Plea In J&K&L High Court Challenges Constitutionality Of Domestic Violence Act On Grounds Of Gender Bias, Vexatious Proceedings

The Jammu & Kashmir High Court recorded a petition challenging the constitutional validity of the Protection of Women from Domestic Violence Act, 2005 (PWDVA) following proceedings initiated against petitioners in the Court of the 2nd Additional Munsiff, Srinagar.

A bench of Justice Moksha Khajuria Kazmi directed the Registrar Judicial to place the matter before the Chief Justice for further orders, noting the importance of proper adjudication given the constitutional questions raised.

Factual Matrix:

According to the petition, the petitioners have been falsely implicated and subjected to interim orders by the learned Munsiff, Srinagar. An order dated 02.11.2023 had directed Petitioner No. 1 to pay Rs. 10,000/- per month as maintenance and restrained the other petitioners from committing acts of domestic violence.

The interim maintenance was later reduced to Rs. 5,000/- per month by an order dated 02.02.2024, while other protective directions were maintained. The petitioners argue that the PWDVA, enforced in Jammu & Kashmir only from 31.10.2019, is being applied arbitrarily, particularly in cases where female relatives of the male member are implicated despite living separately or where allegations pertain to past years.

The petition challenges the Act on multiple grounds, including:

1. Gender Bias & Arbitrary Classification: The Act exclusively presumes men as offenders and women as victims, which petitioners contend is discriminatory and violates Articles 13 and 14 of the Constitution.

2. Property Rights Infringement: Section 19 of the Act grants the aggrieved woman right to residence, potentially infringing upon property rights of third parties, including landlords and male members.

3. Overbroad Definitions: The Act criminalizes even minor domestic disagreements, thereby granting the aggrieved woman unbridled power without procedural checks and balances.

4. Jurisdictional Overreach: Learned Munsiff acted without satisfying mandatory requirements under Section 12 for issuance of protection orders and ignored the Domestic Incident Report.

5. Vexatious Proceedings: Proceedings allegedly target petitioners not residing in the shared household or involved in the complaint, thereby amounting to abuse of process.

The petitioners seek a writ of mandamus and/or under Articles 226 and 227 of the Constitution to Quash the application instituted on 02.11.2023 under Section 12 of the PWDVA and interim orders apart from declaring the Protection of Women from Domestic Violence Act, 2005 as ultra vires the Constitution.

High Court Proceedings:

During the hearing, the learned counsel for the petitioners produced a Registrar General's order dated 29.05.2020, directing that matters involving constitutional validity of statutes, rules, regulations, or notifications be listed before a Division Bench.

The petition has now been flagged for Division Bench consideration in light of its wider implications on gender-neutrality, civil rights, and procedural safeguards under the Domestic Violence Act.

Case Title:

Tasleem Arif Dar and Ors vs Union of India and Ors, 2025.

Counsel for Petitioner: Salih Pirzada, Advocate Counsel for Respondents: J. H. Reshi, Advocate, Mr. T. M. Shamsi, DSGI

Click Here To Read/Download Order