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 Respondenthusband,
is totally irrelevant. As stated above, Section 19(a) of the
D.V. Act makes it clear that, whether or not the Respondent has a
legal or equitable interest in the shared household, the Court can
pass a residence order, restraining the Respondent from
dispossessing, or, in any other manner, disturbing the possession of
the aggrieved person – Petitioner-wife herein. Therefore, much
emphasis laid by the Family Court on the fact that the flat at Mulund
belongs to the Respondent's father and not to the Respondent, is
totally misplaced. The question of title or proprietary right in the
property is not at all of relevance, when the provisions of the D.V.
Act; especially Section 19 thereof, are to be considered. As a matter
of fact, it needs to be emphasized that, as the wife's right to reside in
the matrimonial home was being defeated on this very ground that
the house does not belong to the husband or does not stand in his
name, this D.V. Act was brought in the Statute Book with the specific
and clear language and the unequivocal Clause that the 'title of the
husband or that of the family members to the said flat', is totally
irrelevant. It is also irrelevant whether the Respondent has a legal
or equitable interest in the shared household. The moment it is
proved that it was a shared household, as both of them had, in their
matrimonial relationship, i.e. domestic relationship, resided
together there and in this case, upto the disputes arose, it follows
that the Petitioner-wife gets right to reside therein and, therefore, to
get the order of interim injunction, restraining Respondent-husband
from dispossessing her, or, in any other manner, disturbing her
possession from the said flat.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10696 OF 2017
Roma Rajesh Tiwari V Rajesh Dinanath Tiwari
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 12TH OCTOBER 2017.
1. Rule. Rule is made returnable forthwith. Heard finally, by
consent of learned counsel for the Petitioner and Respondent.
2. This Petition is directed against the order dated 30th May 2017
passed by Family Court No.4, Mumbai, in the Petition bearing No.A-
630 of 2014. By the impugned order, the Family Court has vacated
the order of status-quo granted on 29th September 2014 in respect of
Flat No.502, situate at Nilgiri Apartment, Lok Everest Co-op.
Housing Society Ltd., Cement Company, J.S.D. Road, Mulund (West),
Mumbai – 400 080.
3. Brief facts of the Petition are to the effect that, Respondent
herein 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. Along with the written statement, she also filed an
application at Exhibit-13, stating that she has been subjected to
mental and physical torture by the Respondent, his brother, his
brother-in-law and sister-in-law. After marriage, she also found that
Respondent’s first wife Shashi too, was similarly harassed by the
Respondent and his family members and was forced to leave the
matrimonial home. As per the case of the Petitioner, 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, illtreatment
and cruelty.
4. It is the case of the Petitioner 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.
According to her, all possible attempts are being made by the
Respondent and his family members to throw her out of her
matrimonial home. They are also threatening her of dire
consequences. It is her case that, she 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.
5. On 29th September 2014, on the appearance of Respondent
before the Family Court, it was contended by him that, Petitioner
has barged into the flat owned by the father of the Respondent;
whereas, on behalf of the Petitioner, it was contended that the
Respondent has terrorized her by his behaviour and is not allowing
her to move out of the house. It was further stated that, she was
threatened that if she moves out of the house, she will not be allowed
to re-enter the house.
6. In view of these allegations, counter-allegations, claims and
counter-claims, the Family Court thought it fit to issue show cause
notice to the Respondent herein as to why injunction sought for
should not be granted against him; however, meanwhile, 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 till further orders and parties shall approach the
Marriage Counselor.
7. After the Respondent appeared in the matter through
Advocate, he applied, vide Exhibit-26, for vacating the impugned
order of the status-quo, contending that the Petitioner herein was
already married with one Yogesh Pandey and there is no legal
dissolution of the said marriage. Petitioner has filed Petition for
divorce by mutual consent from Yogesh Pandey. However, that
Petition is withdrawn. Hence, her marriage with the Respondent
during subsistence of her marriage with Yogesh Pandey is null and
void ab initio. She is not his legally wedded wife. Hence, she has no
right to reside in the house of his father.
8. As regards the adverse allegations made against him in the
application, the Respondent denied them totally. He denied all the
alleged incidents of domestic violence and contended that, it is the
Petitioner, who is creating the nuisance and harassment. She has
filed a complaint against him and his family members for the offence
punishable under Section 498, r/w. Section 34, of IPC at Colaba
Police Station and Mulund Police Station. It was further stated that,
she has willfully and voluntarily left the matrimonial home and
threatened to teach him a lesson. In such circumstances, he has no
option but to file the Petition for dissolution of marriage. It was
further stated that, the order of status-quo, therefore, passed on 29th
September 2014, in this fact situation, needs to be vacated;
especially because the said house belongs to his father and it is his
self-acquired property.
9. This application came to be resisted by the present Petitioner
contending that, she has no other premises to live and, therefore,
she had to take shelter in the house of her parents. She has right to
stay in the said house, as it is her matrimonial home and hence
Respondent has no right to dispossess her from the said home. She,
therefore, requested that this order of status-quo be made absolute.
10. 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.
Respondent himself is residing separately at New Bombay. Having
regard to the Share Certificate of the said flat, it was held that, as
the flat exclusively belongs to the father of the Respondent and
there was nothing produced on record to show that the Respondent
has any interest or title in the property along with his father, the
Petitioner herein has no right to claim any relief in respect of the
property, which stands in the name of Respondent's father. She can
agitate her legal right against the Respondent only and, therefore,
since the property is in the name of the Respondent's father, the
Family Court vacated the status-quo order passed earlier.
11. In the present Writ Petition, the submission of learned counsel
for the Petitioner-wife is that the flat might be standing in the name
of the Respondent's father, but, it being a matrimonial home of the
Petitioner-wife, she is entitled to reside therein and she cannot be
dispossessed or restrained from entering in the said house.
According to learned counsel for the Petitioner, the impugned order
passed by the Family Court, therefore, vacating the order of statusquo,
only on the count that property stands in the name of
Respondent's father, is not legal and correct.
12. Per contra, learned counsel for the Respondent has supported
the said order by submitting that, as per the settled position of law,
the wife can have right of residence only in the property owned or
possessed by her husband and not by his relatives. It is urged that
the Respondent is presently residing at New Bombay and, therefore,
Petitioner also cannot have right to reside in the flat at Mulund.
13. 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'.
14. 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'.
15. 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, or, owned or tenanted by
either of them, in respect of which either the aggrieved
person or the respondent or both jointly or singly, have
any right, title or interest or equity 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'.”
16. 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'.”
[Emphasis Supplied]
17. These words 'whether or not the respondent has a legal or
equitable interest in the shared household' are of utmost
significance, when the right of the aggrieved person, i.e. the wife, is
to be decided so far as her residence in shared household is
concerned.
18. 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 Respondenthusband,
is totally irrelevant. As stated above, Section 19(a) of the
D.V. Act makes it clear that, whether or not the Respondent has a
legal or equitable interest in the shared household, the Court can
pass a residence order, restraining the Respondent from
dispossessing, or, in any other manner, disturbing the possession of
the aggrieved person – Petitioner-wife herein. Therefore, much
emphasis laid by the Family Court on the fact that the flat at Mulund
belongs to the Respondent's father and not to the Respondent, is
totally misplaced. The question of title or proprietary right in the
property is not at all of relevance, when the provisions of the D.V.
Act; especially Section 19 thereof, are to be considered. As a matter
of fact, it needs to be emphasized that, as the wife's right to reside in
the matrimonial home was being defeated on this very ground that
the house does not belong to the husband or does not stand in his
name, this D.V. Act was brought in the Statute Book with the specific
and clear language and the unequivocal Clause that the 'title of the
husband or that of the family members to the said flat', is totally
irrelevant. It is also irrelevant whether the Respondent has a legal
or equitable interest in the shared household. The moment it is
proved that it was a shared household, as both of them had, in their
matrimonial relationship, i.e. domestic relationship, resided
together there and in this case, upto the disputes arose, it follows
that the Petitioner-wife gets right to reside therein and, therefore, to
get the order of interim injunction, restraining Respondent-husband
from dispossessing her, or, in any other manner, disturbing her
possession from the said flat.
19. 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.
Not a single document to that effect is produced on record to show
that he has taken those premises in New Bombay on rent or he has
purchased them. Neither the Ration Card, Electricity Bill, Gas Bill
etc., not an iota of document is produced on record to show that he
has shifted his residence. Conversely, in the application for
anticipatory bail filed in the Sessions Court in Mumbai, bearing
No.149 of 2014, his address is shown as that of the Flat in Mulund.
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.
20. The Family Court has not considered all these aspects;
especially, the very clear provisions of the D.V. Act and,
straightway, vacated the order of status-quo, without adverting to
the contention raised by the Petitioner, that she was residing
therein, it being her matrimonial home or the shared household.
The impugned order, therefore, passed by the Family Court cannot
be called as just, legal and correct. Hence, it needs to be set aside.
21. Accordingly, the Writ Petition is allowed. The impugned order
passed by the Trial Court on 30th May 2017 below Exhibit-26 in
Petition No.A-630 of 2014, 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, below Exhibit-13 in Miscellaneous
Application No.198 of 2014, is restored.
22. At this stage, it is submitted that, now the stage before the
Family Court is of recording of evidence and it is in process. In view
thereof, this order of status-quo will continue till decision in the
Petition pending before the Family Court.
23. On the request of learned counsel for the Respondent,
considering the peculiar facts of the case, hearing of the proceedings
before the Family Court is expedited, subject to condition that both
the parties and their counsel extend utmost co-operation to the Trial
Court and not seek unwanted adjournments.
24. The Trial Court is directed to decide Petition No.A-630 of 2014
as expeditiously as possible and, preferably, within a period of six
months from today.
25. It is made clear that, all the observations made here-in-above
are for the purpose of deciding this Writ Petition only, and the
Family Court is not to be swayed by them at the time of final
hearing.
26. Rule is made absolute in the above terms.
[DR. SHALINI PHANSALKAR-JOSHI, J.]
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