Shared household
Amit
(Querist) 05 January 2013
This query is : Resolved
Hi,
My wife filed DVC on me and all my family members and she's asking for shared household and maintenance. There are other cases like divorce (filed by me), 125 CrPC etc still pending in the family court.
I have my own house (purchased 3yrs prior to marriage) and my parents have their own house.
We (me and my wife) never lived in any of these two houses. We lived far off (in same city) in a rented accommodation.
She's highly educated (masters) and earning 15K to 20K p.m.
In view of the above
(1) Is she entitled to household considering she's earning?
If yes:
(2) Can she ask for a shared household in my house?
(3) Can she ask for shared household in my parents house?
(4) Can we offer her another rented accommodation? What if she objects and is adamant on staying in one of these houses?
(5) My house is divided in two portions and currently rented out to two families. Do we have to give whole house to her or can we give one portion to her?
(6) Can her mother, grandmother and brothers stay in that house?
(7) Are we to give her other facilities like washing m/c etc?
(8) Who pays for her electricity, water charges?
(9) What action to take in case she damages the house or picks up fight (in an attempt to kick out) the tenants in other portion?
(10) My house is close to my parents' house so what if she occasionally comes and starts arguments with my parents?
I may have more questions depending on answers to these.
Thanks
Devajyoti Barman
(Expert) 05 January 2013
1. She can have residence order only in respect of house belonging to you only.
2.yes
3.no
4.yes
5.any of its portion.
6.yes
7.no
8.you
9.lodge complaint against her
10.same as above.
Amit
(Querist) 05 January 2013
Thanks Barman.
From what I read, she's entitled to "shared household" which means "household where aggrieved person lives or has lived". Since we never lived in my house, is it still shared household where she has right to stay?
Considering her income, why is she entitled for household?
I am also surprised that her family members (none of them are dependent on her except probably her mother) can stay in the house. How can they have any right in her matrimonial house?
R.K Nanda
(Expert) 05 January 2013
contact local lawyer.
Raj Kumar Makkad
(Expert) 05 January 2013
1. Yes.
2. Yes.
3. No.
4. Yes. Her objection shall not be tenable before law.
5. As replied above in answer to point no. 5. You need not to allow her to enter in your house rather it is better to provide her rented house so that after divorce there may not remain issue of vacationn of your house.
6. No.
7. No.
8. She herself shall bear.
9. Lodge police complaint.
10. Your parents can lodge police complaint against her and even can get stay order against her such activities.
ajay sethi
(Expert) 05 January 2013
agree with experts
Amit
(Querist) 06 January 2013
Thanks Rajkumar and Ajay.
The experts are contradicting on some points.
Are her family members allowed in the house?
Who pays for house maintenance charges? Once the shared household and maintenance in DVC are finalized, shouldn't it be her responsibility?
Also, if we decide to give her a rented accommodation, how is the location decided? There are three options:
(a) Area where we resided last (expensive)
(b) Area where me and my parents live (medium expensive)
(c) Area of her maternal house (cheap)
Does she have a choice in this? Or can we insist to provide where we like?
V R SHROFF
(Expert) 06 January 2013
Court will decide location / rent/ ned for separat residence or with her parents/ etc.
You are well advised by Experts like Barman. Raj , and I don't find any contradictions.
On Arguments, Court will decide, what u find contra.these are issues, , that can be decided on evidence, requirement of wife [& child] ur & her earning etc.
Raj Kumar Makkad
(Expert) 06 January 2013
You should insist to provide accommodation at the place suiting you and then let the court decide.
ajay sethi
(Expert) 06 January 2013
you cannot deny entry to wife relatives . you can take the plea that you are willing to give her alternative accomodation near her parents place . let the court decide
Amit
(Querist) 01 March 2013
Sorry to reopen this thread.
Just to recap, my wife is asking for residential rights in the house owned by me.
But we never lived in that house.
According to Sec.2(s) of DVA, "shared household" means, where the aggrieved person "lives or has lived".
So,my house can not be considered as a shared household.
But I need judgements to support this. Can someone give some citations?
I searched on indiankanoon.org but not successful.
BTW, I am willing to provide rental house but I do not want her to live in my house.
Raj Kumar Makkad
(Expert) 01 March 2013
Supreme Court of India
S.R. Batra And Anr vs Smt. Taruna Batra on 15 December, 2006
Author: M Katju
Bench: S Sinha, Mark, E Katju
CASE NO.:
Appeal (civil) 5837 of 2006
PETITIONER:
S.R. Batra and Anr.
RESPONDENT:
Smt. Taruna Batra
DATE OF JUDGMENT: 15/12/2006
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
JUDGMENT
MARKANDEY KATJU, J.
Leave granted.
This appeal has been filed against the impugned judgment of the Delhi High Court dated 17.1.2005 in C.M.M. No. 1367 of 2004 and C.MM. No. 1420 of 2004.
Heard learned counsel for the parties and perused the record.
The facts of the case are that respondent Smt. Taruna Batra was married to Amit Batra, son of the appellants, on 14.4.2000.
After the marriage respondent Taruna Batra started living with her husband Amit Batra in the house of the appellant no.2 in the second floor. It is not disputed that the said house which is at B-135, Ashok Vihar, Phase-I, Delhi belongs to the appellant no.2 and not to her son Amit Batra.
Amit Batra filed a divorce petition against his wife Taruna Batra, and it is alleged that as a counter blast to the divorce petition Smt. Taruna Batra filed an F.I.R. under Sections 406/498A/506 and 34 of the Indian Penal Code and got her father-in-law, mother-in-law, her husband and married sister-in-law arrested by the police and they were granted bail only after three days.
It is admitted that Smt. Taruna Batra had shifted to her parent's residence because of the dispute with her husband. She alleged that later on when she tried to enter the house of the appellant no.2 which is at property No. B-135, Ashok Vihar, Phase-I, Delhi she found the main entrance locked and hence she filed Suit No. 87/2003 for a mandatory injunction to enable her to enter the house. The case of the appellants was that before any order could be passed by the trial Judge on the suit filed by their daughter-in- law, Smt. Taruna Batra, along with her parents forcibly broke open the locks of the house at Ashok Vihar belonging to appellant No. 2, the mother- in-law of Smt. Taruna Batra. The appellants alleged that they have been terrorized by their daughter-in-law and for some time they had to stay in their office.
It is stated by the appellants that their son Amit Batra, husband of the respondent, had shifted to his own flat at Mohan Nagar, Ghaziabad before the above litigation between the parties had started.
The learned trial Judge decided both the applications for temporary injunction filed in suit no.87/2003 by the parties by his order on 4.3.2003. He held that the petitioner was in possession of the second floor of the property and he granted a temporary injunction restraining the appellants from interfering with the possession of Smt. Taruna Batra, respondent herein.
Against the aforesaid order the appellants filed an appeal before the Senior Civil Judge, Delhi who by his order dated 17.9.2004 held that Smt. Taruna Batra was not residing in the second floor of the premises in question. He also held that her husband Amit Batra was not living in the suit property and the matrimonial home could not be said to be a place where only wife was residing. He also held that Smt. Taruna Batra had no right to the properties other than that of her husband. Hence, he allowed the appeal and dismissed the temporary injunction application.
Aggrieved, Smt. Taruna Batra filed a petition under Article 227 of the Constitution which was disposed of by the impugned judgment. Hence, these appeals.
The learned Single Judge of the High Court in the impugned judgment held that the second floor of the property in question was the matrimonial home of Smt. Taruna Batra. He further held that even if her husband Amit Batra had shifted to Ghaziabad that would not make Ghaziabad the matrimonial home of Smt. Taruna Batra. The Learned Judge was of the view that mere change of the residence by the husband would not shift the matrimonial home from Ashok Vihar, particularly when the husband had filed a divorce petition against his wife. On this reasoning, the learned Judge of the High Court held that Smt. Taruna Batra was entitled to continue to reside in the second floor of B-135, Ashok Vihar, Phase-I, Delhi as that is her matrimonial home.
With respect, we are unable to agree with the view taken by the High Court.
As held by this Court in B.R. Mehta v. Atma Devi and Ors., [1987] 4 SCC 183, whereas in England the rights of the spouses to the matrimonial home are governed by the Matrimonial Homes Act, 1967, no such right exists in India.
In the same decision it was observed "it may be that with change of situation and complex problems arising it is high time to give the wife or the husband a right of occupation in a truly matrimonial home, in case of the marriage breaking up or in case of strained relationship between the husband and the wife."
In our opinion, the above observation is merely an expression of hope and it does not lay down any law. It is only the legislature which can create a law and not the Court. The courts do not legislate, and whatever may be the personal view of a Judge, he cannot create or amend the law, and must maintain judicial restraint.
There is no such law in India, like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother- in-law.
Here, the house in question belongs to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house.
Appellant No. 2, the mother-in-law of Smt. Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement.
Learned counsel for the respondent then relied upon the Protection of Women from Domestic Violence Act, 2005. He stated that in view of the said Act respondent Smt. Taruna Batra cannot be dispossessed from the second floor of the property in question.
It may be noticed that the finding of the learned Senior Civil Judge that in fact Smt. Taruna Batra was not residing in the premises in question is a finding of fact which cannot be interfered with either under Article 226 or 227 of the Constitution. Hence, Smt. Taruna Batra cannot claim any injunction restraining the appellants from dispossessing her from the property in question for the simple reason that she was not in possession at all of the said property and hence the question of dispossession does not arise.
Apart from the above, we are of the opinion that the house in question cannot be said to be a `shared household' within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the 'Act').
Section 2(s) states:
"`shared household` means a household where the person aggrieved lives or at 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, 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".
Learned counsel for the respondent Smt. Taruna Batra has relied upon Sections 17 and 19(1) of the aforesaid Act, which state:
"17. (1)Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
19. (1) While disposing of an application under sub-section (1) of section 12, 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;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure 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:
Provided that no order under clause (b) shall be passed against any person who is a woman".
Learned counsel for the respondent Smt. Taruna Batgra stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household.
We cannot agree with this submission.
If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband's relatives will be shared households and the wife can well insist in living in the all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.
It is well settled that any interpretation which leads to absurdity should not be accepted.
Learned counsel for the respondent Smt Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband's in-laws or other relatives.
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. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a `shared household'.
No doubt, the definition of `shared household' in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society.
In view of the above, the appeal is allowed. The impugned judgment of the High Court is set aside and the order of Senior Civil Judge dismissing the injunction application of Smt. Taruna Batra is upheld. No costs.
Contempt Petition (C) No. 38/2006
In view of the judgment given above, the contempt petition stands dismissed.
Amit
(Querist) 03 March 2013
Thanks Rajkumar.
But in the above case, the house belonged to in-laws and not husband.
I am looking for a judgement where the house belonged to husband but the couple never lived there. Will it fall under the definition of "shared household"? I want judgements saying it does not.
ajay sethi
(Expert) 03 March 2013
he concept of shared household as defined in the Domestic Violence Act may have to be expanded in view of a recent ruling by the Supreme Court, which noted that it has been drafted in a "clumsy" manner.
In a judgment on the recently notified Protection of Women from Domestic Violence Act 2005, a two-member Bench of the apex court expressed that Section 2(s) of the Act, which gives right of residence to a married woman in a shared household, is not "properly worded and appears to be the result of clumsy drafting." But at the same time, the Judges held, "...we have to give it an interpretation which is sensible and which does not lead to chaos in society."
Significantly, the Bench of Justices SB Sinha and Markandeya Katju also said, "It is only the legislature which can create a law and not the court. The courts do not legislate and whatever maybe the personal view of a judge, he cannot create or amend any law and he must maintain judicial restraint."
The court explained, "...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."
Aggrieved by an earlier order of the Delhi High Court on a petition by Taruna Batra, wife of Amit Batra, his parents — SR Batra and his wife — appealed in the Supreme Court.
- See more at: http://www.indianexpress.com/news/sc-order-calls-for-change-in--shared-household--definition/19624#sthash.iD1QFm5W.dpuf
ajay sethi
(Expert) 03 March 2013
laborating on the shared household concept, it further said, "The property in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which he is a member. It is the exclusive property of appellant number two, mother of Amit Batra. Hence it cannot be called a shared household."
Amit Batra had filed a divorce petition against his wife and as a counter measure the wife filed a case under Sections 406 (criminal breach of trust), 498A (harassment for dowry), 506 (criminal intimidation) and 34 (common intention) under Indian Penal Code. Following which, her in-laws, husband Amit and her married sister-in-law were arrested.
Amit later shifted to his parents' residence and she also shifted to the same place and filed an application for injunction, which was dismissed by the trial court, but the High Court reversed the order of the trial court.
The apex court, however, disagreed with the HC and said, "In our opinion, the above observation is merely an expression of hope and it does not lay down any law."
Also while rejecting the contention of the wife's counsel that in view of the Act, his client cannot be dispossessed from the second floor of the property in question at Ashok Vihar in the Capital, Justice Katju who wrote the judgment added, "We are of the opinion that the house in question cannot be said to be a shared household within the meaning of Section 2(s) of the Act."
- See more at: http://www.indianexpress.com/news/sc-order-calls-for-change-in--shared-household--definition/19624/2#sthash.gGicM4Tn.dpuf
ajay sethi
(Expert) 03 March 2013
in your case parties have never stayed together in said household owned by you . hence would not come under definiton of shared household .
