WHETHER PWDVA, 2005 IS APPLICABLE WITH RETROSPECTIVE EFFECT :
No.
The Hon’ble Andhra Pradesh High Court, in the matter of U. U. Thimmanna & Ors. Vs Smt. U. U. Sandhya & Anr., has held
“There is no dispute that the Act came into effect when the Central Government appoints 26-10-2006 as the date on which the Act was came into force. For acts of violence, certain penal provisions are incorporated. Therefore, 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. Accordingly, the Criminal Petition is allowed quashing the proceedings in DVC No.1 of 2007 on the file of the Judicial Magistrate of I Class, Yemrniganur, Kurnool District.”
The Hon’ble Madras High Court, in the matter of Dennison Paul Raj & Ors Vs Mrs. Mayawinola, considered the PWDVA, 2005 only from one perspective (i.e. no penal provisions) whereas it is cardinal principle of construction that every statute (irrespective of whether it has penal consequences or not) is prima facie prospective, unless it is expressly or by necessary implication, made to have retrospective operation. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only.
In Govinddas and Ors. Vs Income Tax Officer and Anr. Manu/SC/0248/ 1975, the Hon’ble Supreme Court has laid down that:
“Now it is well settled rule of interpretation hallowed by time an sanctified by judicial decisions that unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general-rule as stated by HALSBURY in Vol. 36 of the LAWS OF ENGLAND (3rd Edn,) and reiterated in several decisions of this Court as well as English Courts is that all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.”
The legislatures and the competent authority under Article 309 of the Constitution of India have the power to make laws with retrospective effect and that intent has to be expressed in unambiguous language. The PWDVA, 2005 by its enactment has come into force w.e.f. 26.10.2006 through Official Gazette publication and doesn’t contain any express provision to make it applicable with retrospective effect.
