Whether wife can claim right of residence in house of mother in law as per domestic violence Act?

Perusal of both the impugned judgments and orders
shows that the house at Mahsul colony, Nanded is in the name
of Kevalabai w/o Madhavrao Mahurkar, who is the mother of
present respondent. Both the courts below, on the basis of
available evidence have recorded a finding concurrently that the
said house, at no point of time, was the matrimonial house.
Further said house was not shared by the present applicants
with the respondent. Therefore, merely because the
respondent has any right of succession in the said house, that
will not entitle the present applicants to claim the right of
residence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL REVISION APPLICATION NO. 235 OF 2013
Sandhya w/o Sanjay Mahurkar,

VERSUS
Sanjay s/o Madhav Mahurkar,

CORAM : V.M.DESHPANDE, J.
DATED : 13 th January, 2015
Citation;2015 ALLMR(CRI)1393

Rule. Rule is made returnable forthwith. With the
consent of the learned counsel for the parties taken up for final
hearing.
2] I have heard Shri Vilas P. Savant, learned counsel for
the applicants and Smt. A.N.Ansari, learned counsel for sole
respondent.
3] Proceedings under the provisions of the Protection of
Women from Domestic Violence Act, 2005 were initiated by the
present applicants against the respondent. The said
proceedings were filed in the court of Judicial Magistrate, First
Class at Nanded. The said proceeding was registered as
Miscellaneous Criminal Application No. 318 of 2009. In the said
proceedings, the applicants claimed maintenance and also the
right of residence in the house.
4] On being notice, the respondent put his appearance
and filed his written statement. The material allegations made
in the application were denied by the respondent.
5] The learned Magistrate partly allowed the application
vide judgment and order, dated 5.5.2010. By the said order,

the learned Magistrate granted Rs.800/per
month to each of
the applicants by way of maintenance from the date of the
application. By the said order, he has also directed the
respondent to pay Rs.1,500/per
month from the date of the
order towards the rent to the applicants.
6] The order dated 5.5.2010 was challenged by the
present applicants by filing the appeal in the Sessions Court.
The said appeal was registered as Criminal Appeal No. 52 of
2010. It appears that the respondent was satisfied with the
finding and the order passed by the learned Magistrate and he
did not question the said order. Thus, so far as the order,
dated 5.5.2010 visavis
the respondent/husband is concerned,
the same has attained finality.
7] The learned lower appellate court, after hearing the
parties to the appeal, was pleased to dismiss the appeal vide
judgment and order, dated 7.9.2013. Against these concurrent
findings, the present applicants are before this court. Learned
counsel for the applicants vehemently submitted that both the
courts below committed a wrong in not granting the right of
residence in the house which is situated at Mahsul colony at
Nanded. He submitted that in the said house the present
respondent has his share and in that view of the matter the
applicants being the wife and children of the

respondent/husband, they have every right to reside in the said
house.
8] Perusal of both the impugned judgments and orders
shows that the house at Mahsul colony, Nanded is in the name
of Kevalabai w/o Madhavrao Mahurkar, who is the mother of
present respondent. Both the courts below, on the basis of
available evidence have recorded a finding concurrently that the
said house, at no point of time, was the matrimonial house.
Further said house was not shared by the present applicants
with the respondent. Therefore, merely because the
respondent has any right of succession in the said house, that
will not entitle the present applicants to claim the right of
residence.
9] Apart from the fact that the said house was never
shared by the applicants along with the respondent, the house
admittedly stands in the name of Kevalabai and she was never
made party in the proceedings. Therefore, the present
applicants want the order to share such house which is
exclusively owned and possessed by Kevalabai behind her
back. Both the courts below have considered the said aspect
rightly and have rejected the claim of right of residence.
Though the right of residence is rejected, the learned trial court
has taken care of the interest of the applicants by directing the

respondent to pay Rs.1,500/per
month to the applicants, so
that they will be able to procure the rented house at Nanded. It
is not the case of the applicants either before the learned
appellate court or before this court that Rs.1,500/per
month is
insufficient amount. In that view of the matter, there is no merit
in the Criminal Revision Application, and hence, the Revision
Application is dismissed. Rule discharged.
[V.M.DESHPANDE, J.]

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