The Bombay High Court recently (WRIT PETITION NO.10696 OF 2017, Roma Rajesh Tiwari vs Rajesh Dinanath Tiwari) held that " a woman has right to reside in her matrimonial home or shared household, irrespective of 'whether she has any right, title or interest in the said household or not'."
In the present case, the Respondent has filed a Petition for a decree of nullity on the ground that his marriage with the Petitioner is null and void and, in the alternate, for a decree of divorce. In the said Petition, the present Petitioner-wife appeared and resisted the same vide her written statement, stating that she has been subjected to mental and physical torture by the Respondent, his brother, his brother-in-law and sister-in-law, even during pregnancy, she was constrained to live in constant fear. After the birth of the daughter also, she is not spared from the harassment, ill-treatment and cruelty
She also contended that she was thrown out of the matrimonial home and was compelled to move to her parental home at Colaba on 8th December 2013. Then, she informed the said fact to the Colaba Police Station and also to the Maharashtra State Commission for Women etc. She also conveyed that she want to return back to her matrimonial home and eventually, on 3rd February 2014, accompanied by a woman police, she went to her matrimonial home. However, she was not allowed to enter into the house. Again she made such attempt on 29th March 2014 with the help of Mulund Police. The said attempt was also not successful
However the petitioner must have some roof over her head and except for her matrimonial home, she cannot have such
roof and, therefore, she sought the relief of interim injunction, restraining the Respondent-husband and his family members from dispossessing her from her matrimonial home.
The Family Court thought it fit to grant the relief of status-quo. It was directed that the Respondent-husband shall not disturb her possession in that house
Then, the Respondent filed an application for vacating the impugned order of the status-quo, contending that the Petitioner was already married and there is no legal dissolution of the said marriage. Hence, her marriage with the Respondent during subsistence of her marriage is null and void ab initio. She is not his legally wedded wife. It was further stated that, the said house belongs to his father and it is his self-acquired property. Hence, she has no right to reside in the house of his father.
The Family Court, after hearing learned counsel for both the parties, vide its impugned order, vacated the status-quo by holding that the said premises belongs to the father of the Respondent.
" As the necessary question raised for consideration in this Writ Petition is, 'whether the Petitioner is having the right of residence in her matrimonial home?', one has to go through the provisions of the Protection of Women from Domestic Violence Act, 2005. Section 19 of the said Act provides for 'Residence Orders'. The 'Statement of Objects and Reasons' of the said Act is very illustrative as to why this Section 19 was inserted or why this very Act was passed.
Clause 4(iii) of the 'Statement of Objects and Reasons' lays down that,
'This Act seeks to provide for the 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. This right is secured by a residence order, which is passed by the Magistrate'.
Thus, the 'Statement of Objects and Reasons' of the Act makes it clear that, this D.V. Act is enacted to secure the right of a woman to reside in her matrimonial home or shared household, irrespective of the question 'whether she has any right, title or interest in the said household or not'.
Now what is 'shared household' is also defined in Section 2(s) of the D.V. Act, as follows :-
“ 'Shared Household' – 'a household, where a person aggrieved lives or at in 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..... 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'.”
Section 19 of the said D.V. Act provides for 'Residence Orders'. It lays down that,
“When any application under Section 12 is made with a complaint of domestic violence, while disposing of such application, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order; (a) restraining the respondent from dispossessing, or, in any other manner, disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household'.”
The Court observed that
" In this case, admittedly, till the dispute started between the Petitioner and Respondent, both of them were very much residing in the flat at Mulund and, therefore, as they have lived together in the said flat as a 'couple', as a 'husband and wife', in a domestic relationship, it becomes her 'shared household', as stated in the definition of Section 2(s) of the D.V. Act. In such a situation, whether the said flat belongs to or owned by the Respondent- husband, is totally irrelevant.
As regards the contention of the Respondent that, he has left the said house and gone to reside at New Bombay, which is again a routine defence taken by the husbands in such proceedings, there is nothing on record to show that he has actually shifted his residence Therefore, it is clear that, this ploy is adopted by the Respondent just to deprive the Petitioner from her rightful claim to reside in the 'shared household', which is the Flat at Mulund. This Court cannot fall victim to the tricks or ploys played by the Respondent-husband in such cases."
Based on the above findings and observations Justice DR. SHALINI PHANSALKAR-JOSHI held that
" Accordingly, the Writ Petition is allowed. The impugned order passed by the Trial Court on 30th May 2017 of vacating the order of status-quo, is set aside. The earlier order of status-quo passed by the Family Court, Mumbai, on 29th September 2014 is restored. "
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