RIGHT TO RESIDENCE OF WIFE IN INDIA

The statement of objects and reasons of the DV Act states that the Act is enacted to secure rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. Such right is secured by a residence order which is passed by the Magistrate.

RIGHT OF RESIDENCE       
Section 17 of the Domestic Violence Act gives a right to every woman in a domestic relationship to reside in the shared household whether or not she has any right, title or interest in the same. Section further states that the aggrieved person shall not be evicted or even excluded from the shared household other than by a procedure established by law.

However the right so given to a woman is not absolute. One has to prove that she was part of the shared household and has been aggrieved by the acts of domestic violence. In ManmohanAttavar v. NeelamManmohanAttavar, (2017) 8 SCC 550, the Supreme Court Observed that the right to residence is not an absolute right. Therefore, it has some specific limitations. To get the residence order, wife has to prove that she had lived in a domestic relationship in the household. If a wife never lived in the shared household, then she cannot claim residence order under section 19 of the DV Act.

WHAT COSTITUTES A SHARED HOUSEHOLD    
Section 2(s) of the DV Act defines Shared Household. It states 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.

Earlier, in the case of S.R. Batra And Anrvs Smt. TarunaBatra AIR 2007 SC 1118, Supreme Court observed that  the definition of ‘shared household’ in Section 2(s) of the Act was not happily worded and appeared to be a result of clumsy drafting which necessitated the Court to provide a sensible interpretation to avoid chaos in the society. The Supreme Court therefore was of the view that “shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member”.

But the Supreme Court in a recent judgment of Satish Chander Ahuja vs. Sneha Ahuja, held that a woman can claim right to residence in the houses owned by relatives as well. This means that, she can seek residence order with respect to property which belongs to in-laws, if she and her husband lived there with some permanency after marriage. The judgment reads,

“The definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share.”

The Bench also held that theS.R Batra verdict did “not lay down the correct law”, and did not correctly interpret Section 2(1)(s) of the 2005 Act. The judgment states,

“The definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share. The judgment of this Court in S.R. BatraVs. TarunaBatra (supra) has not correctly inter- preted Section 2(s) of Act, 2005 and the judgment does not lay down a correct law.”

The Court went on to hold,

“We, thus, are of the considered opinion that shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time when application was filed or in the recent past had been excluded from the use or she is temporarily absent.

The living of woman in a household has to refer to a living which has some permanency. Mere fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not.”

In the judgment, a total of eight issues were raised. Which are-

1. Whether definition of shared household under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share?
2. Whether judgment of this Court in S.R. Batra and Anr. Vs. TarunaBatra, (2007) 3 SCC 169 has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act, 2005 and does not lay down a correct law?

In view of the foregoing discussions, the answer to issue Nos. 1 and 2 in following manner:-

• The definition of shared household given in Section 2(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share.
• (ii) The judgment of this Court in S.R. BatraVs. TarunaBatra (supra) has not correctly interpreted Section 2(s) of Act, 2005 and the judgment does not lay down a correct law.

• Whether the High Court has rightly come to the conclusion that suit filed by the appellant could not have been decreed under Order XII Rule 6 CPC?
• Whether, when the defendant in her written statement pleaded that suit property is her shared household and she has right to residence therein, the Trial Court could have decreed the suit of the plaintiff without deciding such claim of defendant which was permissible to be decided as per Section 26 of the Act, 2005?

In view of the foregoing discussions, the answer to issue Nos. 3 and 4 in following manner:-

It is observed that the Court, on examination of the facts and circumstances, has to exercise its judicial discretion keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant by way of an appeal on merits. It is further observed that, therefore, unless the admission is clear, unambiguous and unconditional, the discretion of the Court should 84 not be exercised to deny the valuable right of a defendant to contest the claim. In short, the discretion should be used only when there is a clear “admission” which can be acted upon. It is further observed and held that “admission” should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it.

The power under Order XII Rule 6 is discretionary and cannot be claimed as a matter of right. In the facts of the present case, the Trial Court ought not to have given judgment under Order XII Rule 6 on the admission of the defendant as contained in her application filed under Section 12 of the D.V. Act. 97 Thus, there are more than one reason for not approving the course of action adopted by Trial Court in passing the judgment under Order XII Rule 6. We, thus, concur with the view of the High Court that the judgment and decree of the Trial Court given under Order XII rule 6 is unsustainable.

Section 26 of the 2005 Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Unless the determination of claim by an aggrieved person seeking any order as contemplated by the 2005 95 Act is expressly barred from consideration by a civil court, this Court shall be loath to read in bar in consideration of any such claim in any legal proceeding before the civil court. When the proceeding initiated by the plaintiff in the Judge, Small Cause Court alleged termination of gratuitous licence of the appellant and prays for restraining the appellant from using the suit flat and permit the plaintiff to enter and use the flat, the right of residence as claimed by the appellant is interconnected with such determination and refusal of consideration of claim of the appellant as raised in her counterclaim shall be nothing but denying consideration of claim as contemplated by Section 26 of the 2005 Act which shall lead to multiplicity of proceedings, which cannot be the object and purpose of the 2005 Act. We, thus, are of the considered opinion that the counterclaim filed by the appellant before Judge, Small Cause Court in Civil Suit No. 77 of 2013 was fully entertainable and the courts below committed error in refusing to consider such claim.” 96. In view of the ratio laid down by this court in the above case, the claim of the defendant that suit property is shared household and she has right to reside in the house ought to have been considered by the Trial Court and non-consideration of the 96 claim/defence is nothing but defeating the right, which is protected by Act, 2005.

• Whether the plaintiff in the suit giving rise to this appeal can be said to be the respondent as per definition of Section 2(q) of Act, 2005 ?

For the purposes of determination of right of defendant under Sections 17 and 19 read with Section 26 in the suit in question the plaintiff can be treated as “respondent”, but for the grant of any relief to the defendant or for successful resisting the suit of the plaintiff necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the defendant, only then the relief can be granted by the Civil Court to the defendant.

• What is the meaning and extent of the expression “save in accordance with the procedure established by law” as occurring in Section 17(2) of Act, 2005 ?

The court held that the expression “save in accordance with the procedure established by law”, in Section 17(2) of the Act, 2005 contemplates the proceedings in court of competent jurisdiction. Thus, suit for mandatory and permanent injunction/eviction or possession by the owner of the property is maintainable before a Competent Court. We may further notice that in sub-section (2) the injunction is “shall not be evicted or excluded from the shared household save in accordance with procedure established by law”. Thus, the provision itself contemplates adopting of any procedure established by law by the respondent for eviction or exclusion of the aggrieved person from the shared household. Thus, in appropriate case, the competent court can decide the claim in a properly 113 instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household. One most common example for eviction and exclusion may be when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Section 19 sub-section (f) itself. There may be cases where plaintiff can successfully prove before the Competent Court that the claim of plaintiff for eviction of respondent is accepted. We need not ponder for cases and circumstances where eviction or exclusion can be allowed or refused. It depends on facts of each case for which no further discussion is necessary in the facts of the present case. The High Court in the impugned judgment has also expressed opinion that suit filed by the plaintiff cannot be held to be nonmaintainable with which conclusion we are in agreement.

In case, the shared household of a woman is a tenanted/allotted/licensed accommodation where tenancy/ allotment/license is in the name of husband, father-in-law or any other relative, the Act, 2005 does not operate against the landlord/lessor/licensor in initiating an appropriate proceedings for eviction of the tenant/allottee/licensee qua the shared household. However, in case the proceedings are due to any collusion between the two, the woman, who is living in the shared household has right to resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings. The embargo under Section 17(2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law operates only against the “respondent”, i.e., one who is respondent within the meaning of Section 2(q) of Act, 2005.

7.) Whether the husband of aggrieved party (defendant) is necessary party in the suit filed by the plaintiff against the defendant?

In the present case, although plaintiff has not claimed any relief against his son, RaveenAhuja, the husband of the respondent, hence, he was not a necessary party but in view of the fact that respondent has pleaded her right of residence in shared household relying on Sections 17 and 19 of the Act, 2005 and one of the rights which can be granted under Section 19 is right of alternate accommodation, the husband is a proper party. The right of maintenance as per the provisions of Hindu Adoption and Maintenance Act, 1956 is that of the husband, hence he may be a proper party in cases when the Court is to consider the claim of respondent under Sections 17 and 19 read with Section 26 of the Act, 2005. Civil Procedure Code, Order I Rule 10 empowers the Court at any stage of the proceedings either on an application or suomoto to add a party either as plaintiff or defendant, whose presence before the Court may be necessary in order to enable the Court effectively and completely adjudicate upon and settle all the questions involved in the suit. Now, coming to the present case, we have already observed that although husband of the defendant was not a necessary party but in view of the pleadings in the written statement, the husband was a proper party.

• What is the effect of orders passed under Section 19 of the Act, 2005 whether interim or final passed in the proceedings initiated in a civil court of competent jurisdiction?

From the above discussions, we arrive at following conclusions:-

• 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 D.V. Act, 2005.
• The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant 150 within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.
• 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.

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.

Shared Household as Distinguished from Matrimonial Home     
The word shared household as used in section 17 of the DV Act has to be distinguished from matrimonial home. A shared household as defined under section 2(s) of the Act means where the aggrieved person has lives or at any stage has lived in a domestic relationship with the respondent. The phrase ‘matrimonial home’ has not been defined under the Act. A matrimonial home is a home where the wife resides with the husband and fulfills her matrimonial obligations. Therefore to fall under the definition of shared household the accused need not be the wife of the respondent. Therefore where a daughter in law has not been in a domestic relationship with the in laws, she cannot claim residence rights in that property.

In ShumitaDidiSandhuVs Sanjay Singh Sandhu& Others MANU/DE/4077/2012, the Delhi High Court observed that it is clear that the expression “matrimonial home” does not find place in the said Act. It is only the expression “shared household” which is referred to in the said Act. The word “household” has not been defined in the said Act, however, Black‟s Law Dictionary, 9th Edition defines “household‟ in the following manner:-“household, Belonging to the house and family; domestic household, A family living together; A group of people who dwell under the same roof. In contrast, the impression that we get by reading Section 2(s), which defines “shared household” is that the “household” which is referred to in the said provision, relates to the property and not just to the group of people who dwell under the same roof or the family living together. Therefore, we are of the view that the word “household” used in Section 2(s), actually means a house in the normal sense of referring to a property, be it a full-fledged house or an apartment, or some other property by any other description. Therefore, in order to fall within the meaning of “shared household” as defined in Section 2(s), it is essential that the property in question must be one where the person aggrieved lives, or at any stage, has lived in a domestic relationship, either singly or along with the respondent.

ENFORCEABILITY OF THE LEGAL RIGHT       
Whereas Section 17 of the DV Act gives a legal right to an aggrieved person in the shared household, section 12 r/w section 19 enables an aggrieved person in getting such right enforced. Section 19 of the Act states that the magistrate on being satisfied that domestic violence has taken place pass a residence order–        

1.  Restraining respondent from disturbing or dispossessing the aggrieved person from shared household;
2. Directing the respondent to remove himself from the shared household;
3. Restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
4. Restraining the respondent from alienating or disposing off the shared household;
5. Restraining the respondent from renouncing his rights in the shared household; or
6. Directing respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same if circumstances so require;

RESPONDENT TO REMOVE HIMSELF FROM THE SHARED HOUSEHOLD        
Under S. 19(1)(b) of the Act order can be passed directing the Respondent to remove himself from the shared household. Thus, the Magistrate is empowered to pass an order directing the respondent to remove himself from the shared household if act of domestic violence is proved. 

In Sabita Mark Burges Vs Mark Lionel Burges (2013) Bom HC, the Bombay high court observed in 18^th paragraph of its judgment that “It may be mentioned that even in the absence of such an alternate accommodation a violent husband cannot be allowed to enter upon the matrimonial home to cause more apprehension pending the petition. The Court must restrain any illegal activities including domestic violence. However in this case an alternate premises is available. The husband’s application is made under common law. He claims the right because he is an equal owner of the flat and has used it as matrimonial home. He would otherwise be entitled to it, but for the violence prima facie seen.”

Exception to Such Order       
Proviso to Section 19(1) of the DV Act states that no order under clause (b) shall be passed against any person who is a woman. Therefore even if it is proved that any woman in the domestic household committed any act of violence on the aggrieved person such a woman cannot be removed from the domestic household.

In Narayanan vs Mrs. Priya Krishna Prasad (2008) MAD HC,the High Court of Madras observed that u/s 19(1)(b) of the Act, the Magistrate is empowered to pass an order directing the respondent to remove himself from the shared household. While enumerating the directions that could be passed u/s 19(1)(b) of the Act and with particular reference to the direction that could be issued u/s 19(1)(b) of the Act the said proviso has been incorporated just to protect the interest of a woman member of the family who is living in such a shared household. Such a provision in the proviso has been incorporated only for the aforesaid limited purpose. In a shared household which may belong to a joint family women members may also be living and in the guise of passing an order under Section 19(1) (b) of the Act,such women members of the family cannot be directed to be removed from the shared household but such a direction can be issued only against male members.

However the magistrate u/S 19(1)(c) can restrain the female relative of such respondent from entering any portion of the shared household where the aggrieved person resides, thereby maintaining the peace of the aggrieved person.

ALTERNATE ACCOMODATION TO THE AGGRIEVED     
Section 19(1)(f) of the DV Act states that the respondent can be directed to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay the rent for the same, if circumstances so require.

INTERIM ORDERS  
An aggrieved person can also seek for interim residence orders till the matter is finally adjudicated by the court. An application under Section 23 r/w Section 19 of the DV Act can be moved and the court on being satisfied that there exists prima facie case of domestic violence may pass interim residence orders.

In the case of GauravManchanda v. Namrata Singh, 2019 the court held that held that the magistrate has a power to pass an order granting interim maintenance under Section 23 of the Protection of Women from Domestic Violence Act, 2005, with effect from the date of filing of the substantive petition under Section 12. The Court observed,

 “Section 23 of the DV Act does not provide a substantive right to parties but is a provision which empowers the trial court to pass an order granting interim maintenance in a petition filed under Section 12 of the DV Act. Merely because the trial court has not exercised the power under Section 23 of the DV Act, when a substantive petition under Section 12 of DV Act was filed and chose to pass an order only when a separate application under Section 23 of the DV Act was filed, does not mean that a Magistrate does not have the power to pass an order with effect from the date of filing of the substantive petition under Section 12.”

WHEN RESIDENCE ORDERS MAY NOT BE GIVEN   
In SangitaSahavsAbhijitSaha (2019) SC, the Supreme Court observed that “In the eye of law plea is not proof. Allegations of domestic violence are grave in nature and have serious impact if really proved. Unless it is satisfactorily established that domestic violence has taken place neither any protection order under Section 18 nor any residence order under Section 19 nor any order for monetary relief under Section 20 nor any compensation order under Section 22 of the Protection of Women from Domestic Violence Act, 2005 should be passed”.

There may be other cases too wherein the court may restrain from passing residence orders. Such as:    
1. Wife has more means than husband and husband is unable to maintain himself.
2. With respect to a particular property, if that property doesn’t constitute a shared household.

Live-In Relationship and the Domestic Violence Act, 2005

 By enacting the Protection of Women from Domestic Violence Act, 2005 Parliament of India has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship. This new relationship, still rare in our country, sometimes is found in big urban cities. In India, in the wake of changed social context, judiciary has also taken cognizance of the live-in relationship while interpreting the term, ‘relationship in the nature of marriage’ as used in section 2 of the Act. Though the term, ‘relationship in the nature of marriage’, has been used in different definitions given in section 2 of the Act it has not been defined. In D. Velusamy v. D. Patchaiammal,2011 Cri L J 320  the Supreme Court laid down following requirements to be fulfilled for determining the term ‘relationship in the nature of marriage’:

1. The couple must hold themselves out to society as being akin to spouses.

2. They must be of legal age to marry.

3. They must be otherwise qualified to enter into a legal marriage, including being unmarried.

4. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

The Court held that a ‘relationship in the nature of marriage’ under the Act of 2005 must fulfill the above requirements, and in addition the parties must have lived together in a ‘shared household’ as defined in section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’. Thus a relationship with married person cannot be considered as relationship in the nature of marriage.

The Court also said that all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the four conditions mentioned above must be satisfied, and this has to be proved by evidence. If a man has a ‘keep’ that he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, be a ‘relationship in the nature of marriage’.