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
