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Residence order under domestic violence act

Question: My husband and my in-laws want to throw me out from the matrimonial home. I have some confrontations with my husband and in-laws because they committed extreme cruelty against me. They are very greedy and don’t like any resistance from me. My father tried his best to convince them but didn’t yield any satisfactory result. I have been living at my parental home and no longer wish to live there. I want to live in the matrimonial home along with my husband because I don’t want to lose his faith. Hence, I have filed a case against them under domestic violence and a maintenance case under section 125 crpc.
Question in: Domestic Violence
advocate shivendra

Shivendra Singh

Advocate

High Court Lucknow

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Residence order under the domestic violence act protects women’s right to reside in a shared household. If an aggrieved person has been expelled from the shared household then she can claim residence order under Section 19 of the DV Act. The Magistrate may pass a residence order thereby restrain her dispossession from the shared household. Section 19 gives wide power to the Magistrate to secure the woman’s residence in the shared household.

An aggrieved person can claim residence order under domestic violence act

You are entitled to get a residence order under section 19 of the Protection of Women from Domestic Violence Act (DV Act). Section 17 of the DV Act entitles an aggrieved person to reside in a shared household. No person can disturb her possession or commit violence intending to dispossessing her from home.

A wife doesn’t hold title or interest in the matrimonial home, therefore, the husband used to throw her out from his home upon creeping disputes. In this situation, section 17 protects the interest of women by providing them with the right to reside in a matrimonial home. Right to shelter is also a fundamental right under Article 21 of the constitution and section 17 enforces this right. 

Claim residence order as a relief in the application

You should claim residence order under the domestic violence act. However, have already filed an application under section 12 of the DV Act so no need to file another application but amendment the application. You should file an amendment application and seek residence order as an additional relief under DV Act. The court has the power to allow such an amendment before passing of order or judgment.  

Right to reside in the shared household

A woman has the right to reside in a shared household due to her domestic relationship. Her husband or in-laws cannot take away her right merely on creeping disputes. According to Section 17, every woman in a domestic relationship has the right to reside in the shared household. She has the right even she has no title, right or beneficial interest in the shared household.

The right to residence is an independent right of a woman who is living in a domestic relationship. It does not depend upon the existence of proprietary rights of women. Section 17 does not confuse with the property right of women and provides them with accommodation despite that women have no ownership in the house. 

You are entitled to reside therein, therefore, you can seek residence order under the domestic violence Act. The court may pass specific order under section 19 such as:

  • Direct the respondent to remove themselves from the shared household.
  • Restraining them from entering any portion of the shared household in which you reside.
  • Restraining them from selling, alienating or disposing of the shared household.
  • Direct them to secure the same level of alternate accommodation for you. 

The right to residence is not absolute. Therefore, it has some specific limitations. To get the residence order, the wife has to prove that she has been living or had lived together in the shared household under domestic relationship.

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If a wife never lived in the shared household, then she cannot claim residence order under section 19 of the DV Act [Manmohan Attavar v. Neelam Manmohan Attavar, (2017) 8 SCC 550]

Meaning of shared household

Section 2(s) defines a shared household. In S.R. Batra v. Taruna Batra, (2007) 3 SCC 169; the Supreme Court has held that

As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a 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.

Hence, you are entitled to seek a residence order under section 19 of the DV Act. The court may that order if it satisfies that 

  • Respondents have committed the act of domestic violence.
  • You have lived with them in a domestic relationship.
  • The house comes under the purview of a shared household.
  • It is in the interest of justice to pass such an order. then the court may pass a residence order.
  • The court may restrict the entry of respondents if it thinks that they may commit domestic violence.

Query 1: Can I claim a residence order against the father-in-law who is the owner of the house? 

My husband is living in Gurugram and I am living with my in-laws in Hisar. They are compelling me to live with my husband so that they can sell this house. My father in law is the owner of the house so could I claim residence order. [Query from Haryana]

Answer: You cannot claim the right to a residence against your father in law because this house does not come under the purview of “Shared Household”. Section 2(s) of the DV Act defines a shared household. An aggrieved person can claim any relief if she lives or at any stage has lived in the house together with the respondent in a domestic relationship. According to that section, the shared household includes:

  • A house owned or tenanted by either an aggrieved person or respondent or both of them.
  • Wherein the aggrieved person and respondent jointly or singly have any right, title, interest or equity.
  • A house of Joint family of which the respondent is a member. 

You can seek relief under the DV Act only against the respondent with whom you are living in a domestic relationship. Section 2(f) of the DV Act defines the domestic relationship. Domestic relationship means the relation of two persons by consanguinity, marriage, or through a relationship in the nature of marriage or family members living together as a joint family.

According to section 2(f), you are not living in a domestic relationship with your in-laws. This house is the self-acquired property of your father in law. Your husband is living in Gurugram and this house is not a joint family property. You cannot prove that this house is a shared household. Therefore, you cannot seek a residence order against this house which is owned by your father in law.

Query 2: Could the first wife claim a residence order against the respondent who is not an owner of the house?

I am the second wife of my husband and the owner of the house. His first wife is also residing with us in the same house. The first wife has filed a complaint under section 12 DV Act for a residence order. If the court may pass such an order then she will not leave my house. Please guide me.

Answer: The first wife cannot claim the right to residence in this house. You are the owner of this house, therefore, this house will be regarded as a shared household towards you and your husband. The first wife is not an interested party so far as relates to this house. This application is infructuous and the court should not entertain it.

The first wife cannot claim that it is a shared household because it is not owned or tenanted by her husband. Even her husband has no right or interest in this house hence, she cannot invoke section 17/19 of the DV Act.
If you are not a respondent in her application then you should approach the court for making you a party. You should inform the court and produce evidence that you are the owner of this house. When the court satisfies that it is not a shared household under the DV Act then it will dismiss her application.

Query 3: Whether I am entitled to reside with my husband who is living with his girlfriend?

My husband left me ten years ago due to some differences. I have a twelve years old child who is living with me. We never applied for divorce and living separately for ten years. In the meantime, he has started to live with a woman who is working in his office. Now I want to live with him so could I get any relief under the DV Act. 

Answer: You are a legally wedded wife and have lived with him in the shared household. Therefore, you are entitled to get the residence order under section 19 of the DV Act. Your husband is living with his girlfriend. This fact does not affect your right to residence provided under Section 17 of the DV Act.

You should move an application under section12 of the DV Act and claim residence order along with other relief. Two important facts are in your favour. Firstly, you have lived with him in a domestic relationship under the shared household. Secondly, the said domestic relationship still exists because your marriage has not been dissolved.

If he is not ready to live with you in the same house, wherein he is living with his girlfriend then he has to provide you with alternate accommodation. Alternate accommodation is an alternate relief or substitute of the right to the residence. He will either provide a house or rented accommodation of similar standard. 

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