THE “SHARED HOUSEHOLD”: RIGHT OF RESIDENCE OF WOMEN IN “ESTRANGED” RELATIONSHIP

 

THE “SHARED HOUSEHOLD”: RIGHT OF RESIDENCE OF WOMEN IN “ESTRANGED” RELATIONSHIP

 

The Protection of Women from Domestic Violence Act, 2005 ( In short DV Act) was enacted with a view to provide safety valve to a women in distress in a matrimonial relationship and for such additional reliefs as may have been necessary for ensuring a dignified life to a woman in such a relationship.  The outlet of safety and security of women is therefore the hallmark of the legislation. The DV Act over the space of time has withstood the test of time, though, some grey area in the provisions of DV Act have also surfaced in due course and dockets of judicial authorities remained flooded with the said aspect. The Right to residence in shared household had remained a bone of contention. Of course, what is a shared household is defined in the Act, but the definition was tested by judicial dicta and now the issue appears to have been settled.

The evolution in law as regards right to residence of a woman in a shared household shall be deliberated herein.      

Shared Household:

Section 17 of the Domestic Violence Act reads as follows:-

"17. Right to reside in a shared household.-(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law."

Section (s)  of DV Act defines "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.

What emanates from the above, thus, is that if the property is not owned or tenanted by the husband, nor belonged to joint family property, it does not fall within the ambit of section 2 (s) of DV Act. It may be worthwhile to analyze judgments rendered in this regard to trace the evolution in law. 

 

                                        

                                                     LAW

(i)           Shumita Didi Sandhu Vs Sanjay Singh Sandhu & Ors 174 (2010) DLT 79

The Delhi High Court had to deal with a question for prima facie consideration in the case was as to whether the wife has any right to stay in the suit property in which her husband has no right, interest or share and belongs to her Father-In-Law and/or Mother-In-Law. Incidental question for determination was as to whether it could be treated as matrimonial home of the wife?

In para 18 of the Shumita Didi (Supra) it is held :

“Legal position which emerges is that the husband has legal and moral obligation to provide residence to his wife. Therefore, wife can claim right of residence against her husband. If the house in question where she lived after marriage belongs to her husband, it would certainly be treated as matrimonial home. Likewise, if the house in question belongs to HUF in which her husband is a coparcener, even that can be termed as matrimonial house. However, where the house belongs to parents-in-law in which husband has no right, title or interest and they had allowed their son along with daughter-in-law to stay in the said house, it would be a permissive possession by the daughter-in-law but would not give any right to her to stay in the said house. What would be the position if there is no dispute between the husband and wife but the parents of the husband do not want their son and son's wife to stay in the said house for certain reasons. Obviously, their son, who is only a permissive licensee and staying in the house with his wife cannot claim legal right therein. If son cannot claim any such right against his parents to stay in a house which belongs to his parents, his wife obviously would also have no case to claim such a right…”.

(ii)           SR Batra & Anr vs Taruna Batra 136 (2007) DLT 1 SC

The above is another milestone judgment about the same time, wherein the Supreme Court had reversed the judgment of Delhi High Court while dismissing the injunction application of the daughter-in-law.

It was thus emerged that:

(i)           The house in question belonging to the Mother-in-Law and did not belong to her husband and no rights of residence could be claimed in the said house.

(ii)          The 'Shared household' within the meaning of Section 2 (s) of the Protection of Women from Domestic Violence Act, 2005 cannot be stretched to include a household where the person aggrieved lives or at any stage had lived in a domestic relationship. Mere living in the property in question in the past, cannot be construed as shared household.

In para 26 of S R Batra (Supra) It is observed that:

“If the mere residence of a women should be treated as shared household is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grandparents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned Counsel for the respondent is accepted, all these houses of the husband's relatives will be shared households and the wife can well insist in living in the all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd”.

Section 19(1) (f) of the DV Act prescribes need of an alternative accommodation. However, it is held that the claim for alternative accommodation could only be made against the husband and not against the parents- in-laws or other relatives.

(iii)  Savitri Devi Vs Manoj Kr & Anr III (2013) DMC 689

The Delhi High Court in the above captioned case has held that if property neither belonged to husband nor is taken on rent by him nor is a joint family property of which husband is a member. The said property cannot be regarded as a "shared house hold" as defined under Section 2 (s) of The Domestic Violence Act.

(iv)       In Neetu Mittal vs. Kanta Mittal 2009 AIR (Del) 72, The Delhi High Court has held that :-

A woman can assert her rights, if any, against the property of her husband, but she cannot thrust herself against the parents of her husband, nor can claim a right to live in the house of parents of her husband, against their consult and wishes.

(v)         Preeti Satija Vs. Raj Kumari and Anr., 2014 SCC Online Del 188.

In paragraph 21, the Division Bench of Delhi High Court has laid down following:-

21.  The other aspect, which this Court wishes to highlight, is that the 2005 Act applies to all communities, and was enacted “to provide more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family”. The right to residence and creation of mechanism to enforce is a ground breaking measure, which Courts should be alive to. Restricting the scope of the remedies, including in respect of the right to reside in shared household, would undermine the purpose of this enactment. It is, therefore, contrary to the scheme and the objects of the Act, as also the unambiguous text of Section 2 (s), to restrict the application of the 2005 Act to only such cases where the husband alone owns some property or has a share in it. Crucially, the mother-in- law (or a father-in-law, or for that matter, “a relative of the husband”) can also be a Respondent in the proceedings under the 2005 Act and remedies available under the same Act would necessarily need to be enforced against them.”

(vi)         Navneet Arora Vs. Surender Kaur and Ors., 2014 SCC Online Del 7617

The Division Bench of Delhi High Court had considered the various aspects of Act, 2005. Dealing with right of residence in paragraphs 58 following was held:-

“58. It may be highlighted that the Act does not confer any title or proprietary rights in favour of the aggrieved person as misunderstood by most, but merely secures a ‘right of residence’ in the ‘shared household’. Section 17 (2) clarifies that the aggrieved person may be evicted from the ‘shared household’ but only in accordance with the procedure established by law. The legislature has taken care to calibrate and balance the interests of the family members of the respondent and mitigated the rigour by expressly providing under the proviso to Section 19(1) that whilst adjudicating an application preferred by the aggrieved person it would not be open to the Court to pass directions for removing a female member of the respondents family from the “shared household”. Furthermore, in terms of Section 19 (1)(f), the Court may direct the respondent to secure same level of accommodation for the aggrieved person as enjoyed by her in the “shared household” or to pay rent for the same, if the circumstances so require.

(vii)     In Barun Kumar Nahar vs. Parul Nahar 2013 (2) AD (Delhi) 517, Delhi High Court has held thus:

A daughter-in-law has no right to reside in the subject property which belongs to her father-in-law as the said property is not covered by the definition of ‘shared household’, the same being neither a joint family property in which her husband is a member, nor it belongs to her husband and is not even a rented accommodation owned by the husband.

(vii) Harish Chand Tandon Vs Darpan Tandon & Ors 2015 (153) DRJ 273

 The Delhi High Court has held that a Son or daughter-in-law shall only be a  "gratuitous licensees in the property of their parents/Parents-in-laws". An adult son or daughter or for that matter daughter- in-law has no legal right to occupy the self acquired property of the parents or parents-in-law, as the case may be, against their consent and wishes.

(ix)  Jotsna Vs Lakhpat Rai 235 (2016) DLT 633

The Delhi High Court has held that the father-in-law cannot be compelled to remain under constant threat of false implication and face humiliation at the hands of his daughter-in-law and grandson. The parents in such a case when their life has been made miserable by their daughter-in-law can always ask such son, daughter-in-law or grandson to leave the house and lead their life so that the parents can live in peace. Thus, right of residence cannot be claimed in the property of father-in-law. 

(x) Manju Gupta Vs Pankaj Gupta 2018 SCC OnLine Del 11337

The Delhi High Court has held that if daughter-in-law was permitted to use a portion of the property, then, it is clear that what was allowed was only a permissive user. The petitioner cannot force herself on the owner of the property, particularly when she has no vested or legal right to claim residence in his property.

(xi)     Aarti Kumari Vs Rakesh Kumar Chhabra & Anr  264 (2019) DLT 617

The Delhi High Court in view of the verdict of the Hon'ble Supreme Court in "S.R. Batra & Anr. Vs. Taruna Batra" (2007) 3 SCC 169,  "Manju Gupta Vs. Pankaj Gupta" 2018 SCC OnLine Del 11337, "Jotsna Vs. Lakhpat Rai" 2016 SCC OnLine Del 6205, "Harish Chand Tandon Vs. Darpan Tandon and Ors." 2015(153) DRJ 273 &  "Sudha Mishra s. Surya Chandra Mishra" 2015(2)Crimes182(Del.) has held that if the premises were neither owned nor tenanted by the husband of the aggrieved  wife nor did the premises belong to the joint family comprising the other members, thus, does not fall within the ambit of Section 2 (s) of the Protection of Women from the Domestic Violence Act, 2005.

The aforesaid judgments have categorically laid down the principles based on Section 2 (s) & Section 17 of the DV Act that aggrieved woman shall have right to residence in the property where she lived or had been living, provided the same belonged to her husband or her husband had indefeasible interest in the said property and not otherwise.

The hon’ble Supreme Court in a recent judgment however has redefined the scope and ambit of section 2(s) & section 17 of DV Act in a judgment rendered as Satish Chandra Ahuja Vs Sneha Ahuja (CIVIL APPEAL NO.2483 of 2020) and the same has also taken note of ambit of civil court in such matters where the issues of right to residence or such allied issues are pending before a court of Magistrate.

The hon’ble Supreme Court has redefined the meaning of shared household and has also recorded a finding that judgment rendered by the Supreme Court earlier reported as S.R. Batra and Anr. Vs. Taruna Batra, (2007) 3 SCC 169 as regards interpretation of section 2(s) was not a correct law. Firstly, it is held that the definition of shared household under Section 2(s) is very comprehensive and no restrictive meanings could be given to it. What may constitute a shared household is that the aggrieved person lives or has lived in the household and the aggrieved person had been in a domestic relationship and the property is a joint family and the husband is a part of the joint family. Moreover, it is also pointed out that in SR Batra (Supra), the estranged wife was not residing in the premises in question. What weighed in the mind of hon’ble Supreme Court is that a woman cannot be denied the right of residence, only on the premise that on the date of filing of application, she did not reside at the suit property, while it is laid down that the protection under Section 19 of DV Act is indefeasible and shall be available to a woman in all the cases, irrespective of the nature of proceedings. The Court also cannot be oblivious to the need of the senior citizens as they are entitled to a peaceful life. The contention of a woman about her right of residence and issue of shared household should be duly considered.

In Satish Chandra Ahuja  (Supra) in para no. 157 the Supreme Court has held as under:

(i) The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under DV Act, 2005.

(ii) The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.

(iii) A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.

(iv) In the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the appellant as well as by the defendant claiming a right under Section 19 were to be addressed and decided on the basis of evidence, which is led by the parties in the suit.

CONCLUSION

The Protection of Women from Domestic Violence Act, 2005 is enacted with a view to provide a shielding umbrella to women who may be facing onslaught in domestic relationship. The law has evolved ever since on multiple aspects including on the issue of right to residence in shared household. The judgment of apex court reported as SR Batra & Anr vs Taruna Batra 136 (2007) DLT 1 SC held the field over the years, however, recently the Supreme Court has held that the SR Batra (Supra) does not lay down correct proposition in law and it is held in Satish Ahuja (Supra) that no restrictive meaning could be given to shared household under Section 2(s) of the Act. It is not without reason that principle of Section 17 (1) & (2) of the DV Act lays down that irrespective of any contrary provisions in any other law, every women in a domestic relationship shall have the right to reside in the shared household and the aggrieved person shall not be evicted or excluded from the shared household by the respondent except in accordance with the procedure established by law. No doubt, the property owned by the father-in-law or Mother-in-law of a woman, where her husband has no alienable rights, title or interest, the right to residence cannot be claimed in it. Moreover, possession as licensee and permissive possession ipso fact shall not confer any right on a woman. The rights could also be availed of by aggrieved persons in civil courts, as there is no embargo that effect and the Mother-in-Law or father-in-law or any aggrieved party with a view to seek injunction against right to residence etc under DV Act may approach civil court.

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com