Domestic violence -right to residence
Guest
(Querist) 26 February 2016
This query is : Resolved
Is it necessary for a woman (widow) to physically continue to live at husbands owned home to be able to claim right of residence?
In following situation situation
1. She works out of city for her govt job continuously so cant stay at home regularly
or
2. She does not live in husbands home even for a day after marriage due to some discords and husband has died
3. Due to torture and harassment by his family living with her husband she prefers not to stay at matrimonial home in order to safeguard her well being.
Her husband died 9 years back but his brothers family continue to occupy the house and don't allow her to enter or in other words grabbed the property quoting they have a will but which is not probated or authenticated yet.
Guest
(Expert) 26 February 2016
Not the right to live, but the need to contest the genuineness of will is paramount in this case. The right to live in her husband's house would automatically be sustained if the will is proved to be fake or made under presure.
Guest
(Querist) 26 February 2016
But sir what about domestic violence act as will probate once rejected and now civil trial is on for will. She has also filed declaration suit for will to be null an void. DVA act relief is required for her to stay in her husbands home, meanwhile
Guest
(Expert) 26 February 2016
Dear Dr. Gupta,
Dates are relevant in the case, i.e., the date of death of the husband, date of expulsion from the house, whether that happened before or after the death of husband.
Once she is able to get the will declared as null & void her rights can get restored with retrospective effect. She can even claim past dues, if any spent as rent for her abode from the illegal occupants and/or ask for rent of the house of her husband from the occupants. But cases have to be fought in a very systematic way, not by clubbing with one another. Event of success is also like ladder by stepping one after the other.
So far as her dv case is concerned, that has a separate entity and can be fought for violence/attocities against her, although one of the reason can be for not allowing her to stay in her matrimonial house. But intermingling of a case of will of her husband may create more confusions than a cause of help for her, rather that confusion can be taken advantage of by the opposite lawyer.
Rajendra K Goyal
(Expert) 27 February 2016
Whether the property is self acquired / ancestral of husband.
Wife is the legal heir of the share of the husband after him and no need of her living in the property for such right.
She should file a case of partition and challenge the will if any.
Guest
(Querist) 27 February 2016
Sir my questions ere basically:
1. Since domestic violence act is additional remedy for relief to women in distress can it be stalled if any other civil matter Is pending in other court or le pendente ?
2. section 17 of DV act gives right to woman to reside in her shared accommodation. But in this case she is virtually owner after death of her husband in 2005 as being sole class I heir. So is not she automatic give right of residence?
3. Will is matter of title or ownership of house and DVA talks of not ownership but right to live/residence
4.The property is owned solely by her late husband.
5. is is important for wife to stay in home or mark her physical presence there? The lady was out of Delhi due to servcie postings. Whenever she came for few days she was misbehaved and tortured so she stopped living there.After husband death no question for hr to go there and live as they wont allow and if by force could threaten her life in night.
6. The will probate was taken back by court in 2011 after she filed a petition.Now retrial is on.
My main question was- can a widow of house owned by her husband as self acquired property can be stopped and denied right of residence under DVA if any other matter is pending?
Guest
(Expert) 27 February 2016
Dear Dr. Gupta,
Based on the information provided by you, I have already expressed my opinion. Examination of the documents, including the contents of the petitions/ reliefs sought and the earlier judgment about the will, etc., are quite necessary for arriving at further opinion in the case.
