Introduction

Under the Protection of Women Against Domestic Violence Act, 2005 (hereinafter called as “PWDV Act”), a Residence Order preserves a woman’s right to stay in a shared household. If a person has been ejected from a shared household, she may obtain a residence order under Section 19 of the Domestic Violence Act.

The PWDV Act was enacted in 2005 with the intention of upholding women’s right to a dignified life in order to further the goals of justice and equality.

The term “Domestic Violence” has been given a more inclusive definition under section 3 of the said Act. The section states that any of the following acts, omission or commission, or even conduct of the husband (accused) may constitute domestic violence:

• harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse;
• harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security;
• has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b);
• otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

In addition to physical and sexual abuse as defined u/s 3 of the said Act, the definition also extends to verbal and emotional abuse.

The PWDV Act, 2005 provides explicit provisions for women to invoke and seek restitution of their rights and liberties which can be availed by filing an application under section 12 of the said Act. One such provision available to women under the Act is the Residence Order, for which any woman can apply to the Magistrate Court of appropriate jurisdiction under section 12 of the PWDV Act, 2005.

Analysis

The Residence Order is defined as the order granted by the Magistrate while disposing off an application in terms of section 19 (1) of the Protection of Women from Domestic Violence, 2005 Act. The sub-section 1 of this section lays down that the Magistrate, on being satisfied that domestic violence has taken place, may pass a residence order granting one or all of the following reliefs to women:

1. Restrain the husband from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the husband has a legal or equitable interest in the shared household;
2. direct the husband to remove himself from the shared household;
3. restrain the husband or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
4. restrain the husband from alienating or disposing off the shared household or encumbering the same;
5. restrain the husband from renouncing his rights in the shared household except with the leave of the Magistrate; or
6. direct the husband to secure the 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 the circumstances so require.

This sub-section, however, clearly states that no order shall be passed under Clause b of this section against a woman, thereby indicating that reliefs under this clause are gender specific. The Section further lays down secondary provisions, which the Magistrate is empowered to grant, in addition to the residence order, to the women seeking relief under this section. They are as follows:

1. Under sub-section 3 of this section, the Magistrate may direct the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence;
   (To all intents and purposes, an order issued under this subsection shall be treated as an order issued under Chapter VIII of the CrPC (Criminal Procedure Code, 1973). Thus, failure to comply with an order issued by a Magistrate would attract punishment under Section 122 of the CrPC, 1973.)

2. Under sub-section 6 of this section, the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties;
3. Under sub-section 7, the Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order in favour of the Applicant woman;
4. Under sub-section 8, the Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled.

Provisions

Pertaining provisions for women seeking a Residence Order under the PWDV Act, 2005, landmark judgements have been rendered in the following instances:

1. Removal of Husband from the Household
   1. The Hon’ble Apex Court in Samir Vidyasagar Bhardwaj Vs. Nandita Samir Bhardwajobserved that “Where working wife is living along with two grown-up daughters, and they all say on affidavit about the inimical conduct of the husband, the court would be justified in passing appropriate orders thereby removing the husband from the household while invoking the provision of Section 19 (1)(b) of the Act to meet the ends of Justice.”
   2. The deserted woman’s equity was considered by the House of Lords in the National Provincial Bank Ltd. Vs. Ainsworth–
   3. The House of Lords held that the rights of a deserted wife were their personal rights and as such that they could not be treated as in any sense constituting a clog on the property of the husband so as to run with the land as in the case of reality; and that, accordingly, a deserted wife could not resist a claim from a genuine purchaser of the matrimonial home from her husband whether the purchase took place after or before desertion.
   4. Lord Hodson stated: “The duration of the right if it were held to affect the land would be uncertain. It would not survive divorce nor would it necessarily survive a judicial separation by order of the court which puts an end to the duty of cohabitation on both sides.” Thus concluding: “Having done the best I can to analyze the nature of the right which the wife has against her husband which is fundamentally the right relied on by the husband, I conclude that it does not operate as a clog on the land which protects her by operating as a mere equity against anyone but a purchaser for value without notice”.

Whereas Lord Upjohn observed: “The cases that I have already cited show that, provided the wife’s marital rights are adequately safeguarded in some such way, the court would not normally refuse to evict a wife if the husband wants to deal with his property. Or he may return and resume cohabitation when the domestic forum resumes exclusive jurisdiction. Or the wife may change her position. She may commit a matrimonial offence which may lead the court to refuse her the right to continue under her husband’s roof; she may obtain a decree of judicial separation which at all events brings the husband’s desertion to an end.

1. The Hon’ble Madras High Court in Sri Raja Bommadevara Raja Lakshmi Devi Amma Garu Vs. Sri Raja B. Naganna Naidu Bahadur Zamindar Garu and Anr

“The obligation of a husband to maintain his wife is described as one arising out of the status of marriage. It is a liability created by the Hindu Law in respect of the jural relations of the Hindu family. When there is no contract between the parties to a marriage, as among Hindus, a suit for maintenance is not a suit based upon contract, but it is a suit arising out of a civil relation resembling that of a contract, which is specially provided for in Article 128 of the Limitation Act”.

1. The Privy Council in Ganga Bai Vs. Janki Baiobserved that “Under Hindu Law, a widow cannot assert her right of residence in a house which has been sold by her husband during his lifetime, unless a charge is created in her favour prior to the sale. The right which a Hindu wife has during her husband’s lifetime is a matter of personal obligation arising from the very existence of the relation and quite independent of the possession by the husband of any property, ancestral or self acquired.”
2. A Division Bench of the Hon’ble Bombay High Court, dealing with the right to residence of a wife in the matrimonial home in Abdur Rahim Undre Vs. Smt. Padma Abdur Rahim Undre,observed that the marriage between the parties was subsisting in law but had broken down beyond repairs. The husband filed a suit inter alia for injunction, restraining the wife from entering the matrimonial house. The Court held that an injunction subject to certain terms and conditions could be granted. The parties, on account of a seriously estranged relationship between them, could not be forced to live together. The flat was big enough to allow the parties to live there separately. The Court earmarked separate portions for the husband and the wife to live separately and restrained the wife from entering the portion in occupation of the husband, who was an eminent surgeon, so that he could have a peace of mind to enable him to discharge his duties as a surgeon more efficiently. In addition, the husband was directed to pay a certain amount of money by way of maintenance to the wife.

Further the court held that a deserted wife in occupation of the tenanted premises cannot be placed in a position worse than that of a sub-tenant contesting a claim for eviction on the ground of subletting. Having been deserted by the tenant-husband, she cannot be deprived of the roof over her head where the tenant has conveniently left her to face the peril of eviction attributable to default or neglect of himself. We are inclined to hold – and we do so – that a deserted wife continuing in occupation of the premises obtained on lease by her husband, and which was their matrimonial home, occupies a position akin to that of an heir of the tenant-husband if the right to residence of such wife has not come to an end. The tenant having lost interest in protecting his tenancy rights as available to him under the law, the same right would devolve upon and inherit in the wife so long as she continues in occupation of the premises. Her rights and obligations shall not be higher or larger than those of the tenant himself. A suitable amendment in the legislation is called for to that effect. And, so long as that is not done, we, responding to the demands of social and gender justice, need to mould the relief and do complete justice by exercising our jurisdiction under Article 142 of the Constitution. We hasten to add that the purpose of our holding as above is to give the wife’s right to residence a meaningful efficacy as dictated by the needs of the times; we do not intend nor do we propose the landlord’s right to eviction against his tenant to be subordinated to wife’s right to residence enforceable against her husband. Let both the rights co-exist so long as they can.

1. The Hon’ble Apex Court in P. Achala Anand Vs. S. Appi Reddy & Anr.observed that a deserted wife who has been or is entitled to be in occupation of the matrimonial home is entitled to contest the suit for eviction filed against her husband in his capacity as tenant subject to satisfying two conditions: first, that the tenant has given up the contest or is not interested in contesting the suit and such giving up by the tenant-husband shall prejudice the deserted wife who is residing in the premises; and secondly, the scope and ambit of the contest or defence by the wife would not be on a footing higher or larger than that of the tenant himself. In other words, such a wife would be entitled to raise all such pleas and claim trial thereon, as would have been available to the tenant himself and no more. So long as, by availing the benefit of the provisions of the Transfer of Property Act and Rent Control Legislation, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her right to residence as a part of right to maintenance subject to compliance with all such obligations including the payment of rent to which the tenant is subject. This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and the right to occupy the house as part of right to maintenance coming to an end.
2. The Hon’ble Apex Court in Samir Vidyasagar Bhardwaj V. Nandita Samir Bhardwajobserved that where the husband and wife were joint registered owners and both had sufficient alternate accommodations, on the basis of affidavits of two daughters of the parties who were in their twenties supported the version of their mother regarding cruelty, it was held that the order directing removal of husband from the common household could not be interfered with.

The Apex Court has also weighed in on the applicability of the provisions PWDV Act, 2005 in a retrospective effect in V.D. Bhanot v. Savita Bhanot, 2012. The Hon’ble Apex court observed that if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to seek reliefs under PWDV Act, 2005.”

1. Right to reside in a shared household in case of tenancy
2. The Hon’ble Apex Court in Satish Chander Ahuja V/S Sneha Ahujaobserved that in cases where 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 the 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 “husband”, i.e., one who is husband within the meaning of Section 2(q) of Act, 2005.
3. The Apex Court in Prabha Tyagi vs Kamlesh Devielaborated the women’s right to live in a shared household and articulated the Residence order under the Domestic Violence Act by answering the following questions:
4. The meaning of Shared Household:

The Hon’ble Apex Court defined ‘shared household’ as “the living of a 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 the household have to be looked into to find out as to whether the parties intended to treat the premises as a shared household or not. As noted above, Act 2005 was enacted to give a higher right in favour of women. The Act, 2005 has been enacted to provide for more effective protection of the rights of women who are victims of violence of any kind occurring within the family. The Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Section 2(s) read with Sections 17 and 19 of Act, 2005 grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not.”

The Apex Court further opined that the definition of shared household as noticed in Section 2(s) does not indicate that a shared household shall be one which belongs to or taken on rent by the husband. We have noticed the definition of “husband” under the Act. The husband in a proceeding under Domestic Violence Act can be any relative of the husband. In the event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household.

1. Right to reside in the house when the Complainant has not lived in the house in question even for a day

The expression “The right to reside in a shared household” cannot be restricted to actual residence. In other words, even in the absence of actual residence in the shared household, a woman in a domestic relationship can enforce her right to reside therein. The aforesaid interpretation can be explained by way of an illustration. If a woman gets married then she acquires the right to reside in the household of her husband which then becomes a shared household within the meaning of the D.V. Act. In India, it is a societal norm for a woman, on her marriage to reside with her husband, unless due to professional, occupational or job commitments, or for other genuine reasons, the husband and wife decide to reside at different locations. Even in a case where the woman in a domestic relationship is residing elsewhere on account of a reasonable cause, she has the right to reside in a shared household. Also a woman who is, or has been, in a domestic relationship has the right to reside not only in the house of her husband, if it is located in another place which is also a shared household but also in the shared household which may be in a different location in which the family of her husband resides.

Furthermore, If a woman in a domestic relationship seeks to enforce her right to reside in a shared household, irrespective of whether she has resided therein at all or not, then the said right can be enforced under Sub-Section (1) of Section 17 of the D.V. Act. If her right to reside in a shared household is resisted or restrained by the husband(s) then she becomes an aggrieved person and she cannot be evicted, if she has already been living in the shared household or excluded from the same or any part of it if she is not actually residing therein.

Thus, a woman cannot be excluded from the shared household even if she has not actually resided therein that is why the expression ‘shall not be evicted or excluded from the shared household’ has been intentionally used in Sub-Section (2) of Section 17. This means if a woman in a domestic relationship is an aggrieved person and she is actually residing in the shared household, she cannot be evicted except in accordance with the procedure established by law. Similarly, a woman in a domestic relationship who is an aggrieved person cannot be excluded from her right to reside in the shared household except in accordance with the procedure established by law. Therefore, the expression “right to reside in the shared household” would include not only actual residence but also constructive residence in the shared household i.e., right to reside therein which cannot be excluded vis–vis an aggrieved person except in accordance with the procedure established by law. If a woman is sought to be evicted or excluded from the shared household she would be an aggrieved person in which event Sub-Section (2) of Section 17 would apply.

1. Is a Domestic Incident Report (DIR) mandatory?

The question arose before the Hon’ble court that whether a Magistrate can pass any order under the PWDV Act, 2005 in the absence of a Domestic Incident Report, particularly when an application is filed before it by the aggrieved person by herself or through a legal counsel.

The Hon’ble Apex Court held that is not the intention of the proviso. Although, the expression ‘shall’ is used in the proviso, it is restricted to only those cases where a Protection Officer files any Domestic Incident Report or, as the case may be, the service provider files such a report. When a Domestic Incident Report is filed by a Protection Officer or a service provider, in such a case the Magistrate has to take into consideration the said report received by him. But if such a report has not been filed on behalf of the aggrieved person then he is not bound to consider any such report. Therefore, the expression ‘shall’ has to be read in the context of a Domestic Incident Report received by a Magistrate from the Protection Officer or the service provider as the case may be in which case, it is mandatory for the Magistrate to consider the report. But, if no such report is received by the Magistrate then the Magistrate is naturally not to consider any such DIR before passing any order on the application. As already noted, this could be in a case where an aggrieved person herself approaches the Magistrate or the services of an advocate is engaged to present an application seeking one or more reliefs under the D.V. Act or for a valid acceptable cause/reason a Domestic Incident Report has not been filed by a Protection Officer or a service provider, as the case may be.

1. Right to reside in a shared household even in the absence of any act of Domestic Violence.

The Apex Court observed that Sub-Section (1) of Section 17 is a right conferred on every woman in a domestic relationship irrespective of whether she is an aggrieved person or not. In other words, every woman in a domestic relationship has a right to reside in the shared household even in the absence of any act of domestic violence by the husband.

The right of residence of a mother, daughter, sister, wife, mother-in-law and daughter-in-law or such other categories of women in a domestic relationship and such other categories of women in a domestic relationship is guaranteed under Sub-Section (1) of Section 17 and she cannot be evicted, excluded or thrown out from such a household even in the absence of there being any form of domestic violence.

1. Whether it is mandatory for the aggrieved person to reside with those persons against whom the allegations have been levelled?

The Apex Court held that it is not mandatory for the aggrieved person to have actually lived or resided with those persons against whom the allegations have been levelled at the time of seeking relief. If a woman has the right to reside in a shared household, she can accordingly enforce her right under Section 17(1) of the D.V. Act. If a woman becomes an aggrieved person or victim of domestic violence, she can seek relief under the provisions of the D.V. Act including her right to live or reside in the shared household under Section 17 read with Section 19 of the D.V. Act.

Furthermore, a woman has the right to live in a shared household i.e., her matrimonial home and being a victim of domestic violence could enforce her right to live or reside in the shared household under the provisions of the D.V. Act and to seek any other appropriate relief provided under the D.V. Act. This is irrespective of whether she actually lived in the shared household.

 III.  Instances where personal laws clash with the remedies sought under the PWDV Act of 2005-

The question arose before the Hon’ble Bombay High Court in Ali Abbas Daruwala v/s Shehnaz Daruwala as to whether Muslim women can seek relief under the 2005 PWDV Act, 2005.

The petitioner raised an objection as to the maintainability of the application on which the order was passed by the Family Court on the grounds that it is not sustainable for the reason that the parties are governed by the Muslim Personal Law and as per the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Hon’ble High Court thus held that parties being governed by Muslim Personal Law is not an impediment in the wife invoking the jurisdiction of the Court under the provisions of the Domestic Violence Act and there is no embargo of the said Court to confer the relief on the women who is an ‘aggrieved person’ within the scope and meaning of the Act merely because she belongs to Muslim religion.

Through this judgment, the Hon’ble Bombay High Court emphasised that the reliefs under the PWDV Act, 2005, are not restricted to a specific faith and that women of all faiths may seek relief under it.

Webliography

1. the-laws.com
2. https://www.livelaw.in/top-stories/supreme-court-shared-household-domestic-violence-relationship-enforce-prabha-tyagi-vs-kamlesh-devi-2022-livelaw-sc-474-198984
3. https://www.livelaw.in/top-stories/supreme-court-shared-house-hold-domestic-violence-prabha-tyagi-vs-kamlesh-devi-2022-livelaw-sc-474-198966
4. https://www.livelaw.in/top-stories/shared-household-includes-property-of-relatives-of-husband-164513

• BY ABHISHEK KUNCHIKOR