Can residential orders be taken when rcr is filed by wife

she can file dv, it doesnt matter rcr pending or not,, dv is under diffirent act of law,

she cant force entry in your parents named home?

as in your case, flat is in yours and bro name jointly.. and you never live in this flat with your wife during matrimonial life, then this flat cant be considered as matrimonial home? so residential order cant be made for this flat,

the rented accomodation in whicj u r living , is the right place to pass residetinal order,, but this will not done by court since rcr and divorce is ON, and this not practical. dv court can pass order for  some money to get her a rented place of same standard in which she lived her after marrige life with you..

Dear Querist,

1. A Residence Order under the DV Act cannot be passed vis-a-vis in laws property the Supreme Court has held in the case of Taruna Batra. 

The Relevant Excerpts are : " The Court held that the house belonged to the mother–in-law of the respondent and hence the respondent cannot claim right to live in the said house. The court also held that the house could not be said to be a 'shared household' within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 as it neither belonged to the husband nor was it joint family property. Accordingly, the appeal was allowed.It laid down, that only in three instance can the wife claim the husband’s house as the matrimonial home, they being; if the property was in the name of the husband; or if the husband was paying rent of the property; or if the husband was a member of a joint family and the property being undivided."

2.  Contest other cases dliigently keeping in mind that even if she suceedss in the RCR and gets a decree - you cant be forced to live with her - however by virute of O.21 R 32/33 she can get your property attached and sold as a punitive measure, and court can also order you to pay maintenance in default of performance of decree.

Good Luck !

Bharat Chugh

*Advocate Supreme Court of India/Delhi High Court

Bharat Sir,

From your above reply , if i say that "Property document" on father/mother's name then wife can not demand RTR in the same household..then would i be correct in my understanding ?

If the property is in the Father's or mothers name she cannot demnad RTR as it does not come under shared household. Also if the wife is a working women and is drawing a HRA still she cannot demand RTR . .

thank you sir for your kind reply....appreciate your advice

Hello rahul sir,

thank you for your kind advice, i wanted to ask that the flat which i mentioned, which is owned by me and my brother jointly, on loan, i had stayed there in the past for 4 months along with my parents, after that, me and my wife moved to a rented accomodation, where  we lived for 3 months, after that she went away. hence i want to know

since we had stayed there for 4 months prior to moving into a rented accomodation, can she take residential orders and by order of court, forcefully vacant the tenant in the flat and  seek accomodation there

Dear Bharat sir,

Thank you for your kind and informative advice on my query, appreciate your advice, as you mentioned that under 

   "however by virute of O.21 R 32/33 she can get your property attached and sold as a punitive measure, and court can also order you to pay maintenance in default of performance of decree" 

i am curious to know that in the event of me not honouring the decree of RCR passed against me, can she get my JOINT property attached which is also half owned  by my brother and myself,.is this possible? if yes, how can the court possibly self off only my share of the property as no third person can buy only half of a single bedroom flat except my brother, who is the joint owner.

can she attach my fixed deposits and other  savings accounts?

also how can the maintainance be also calculated in RCR decree as section 125 case is also put up in family court, will there be two maintainence cases, and will the amount to be paid is higher in RCR cases than in 125 cases?

i would indeed appreciate your kind advice on my query. thank you in advance.

you have replied that since RCR and divorce is ON, this would not be practical to pass residential order, rather DV court can pass order for some money to get her a rented place of same standard in which she lived her after marriage life with his husband.

Request provide any supported order of Hon'ble Supreme Court or any other court, if available with you.

I shall be highly obliged.