Legal Advice

Domestic violence case: wife refuses to allow husband’s second wife to reside in property gifted by father

Query

My father gifted this house to me after my marriage. This house is registered in my name and I'm the sole owner. My husband also lives with me in this house. He has an illicit relationship with another woman and clandestinely married her. That lady also wants to live with us in my house. I am refusing and resisting to bring that lady in my house. My husband does not want to leave this house and also does not want to give divorce. When that lady came to know that I am resisting her entry in my house she has filed a domestic violence complaint. The magistrate has a residential order thereby directing me to provide a portion of house to her for living. My advocate says that I have to file a writ petition because the Magistrate has no power to grant such a relief. Please give me some advice.

Advice

You cannot file a writ petition in the high court against the said order because you have an efficacious remedy under the Domestic Violence Act. Section 29 of the Domestic Violence Act provides a right to appeal against the order of Magistrate. You should file an appeal in the sessions court. 

If the aggrieved person has a remedy in the subordinate court he cannot approach the high court in writ jurisdiction without exhausting that remedy. The high court shall not entertain your writ petition and may dismiss it at the stage of admission. 

The second wife (aggrieved person) never stayed in your home. Therefore, she cannot claim that it is her shared household. According to Section 2(s) of the Domestic Violence Act, it is mandatory for claiming residence order that the aggrieved person must live in that house or at any stage has lived in a domestic relationship either singly or along with the respondent.

As the second wife never lived in your house, it cannot be considered a shared household under the Domestic Violence Act, and she has no right to claim any residential relief in regards to your property. It would be more appropriate to file an appeal instead of a writ petition in this case. The appellate court may admit your appeal and potentially set aside this order.

Shivendra Pratap Singh

Advocate

High Court Lucknow

Domestic Violence

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