An estranged wife has a right to stay in her husband's house and is entitled to maintenance from him under the Domestic Violence Act even if the estrangement had occurred prior to the enactment of the law, the Supreme Court has ruled.
A bench of Justices Altamas Kabir and J Chelameshwar passed the ruling while dealing with a matrimonial dispute of a couple who are senior citizens of the capital.
The apex court concurred with the findings of the Delhi High Court that provisions of the Protection of Women from Domestic Violence Act, 2005, (PWD) can be invoked by a woman or other victims even if the alleged violence was perpetrated prior to the enactment.
"In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005," Justice Kabir writing the order said.
V D Bhanot and Savita Bhanot, who were married on August 23, 1980, chose to live separately from July 2005 due to certain differences.
The apex court further said that the husband shall provide a suitable portion of his residence to the wife for his living together with all necessary amenities to make her stay habitable.
"The said portion of the premises will be properly furnished according to the choice of the respondent to enable her live in dignity in the shared household."
On November 29, 2006, Savita filed a petition filed a petition before the magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005.
The magistrate directed the husband to pay the wife a monthly sum of Rs 6,000 and allow her to live on the 1st Floor of House No D-279, Nirman Vihar, New Delhi, which she claimed to be her permanent matrimonial home by invoking Sections 18 and 19 of the Act.
It was further directed that if the husband was not able to comply with the order, a reasonable accommodation in the vicinity of Nirman Vihar be made available to the wife or alternatively pay her Rs 10,000 per month towards rent to enable her find a house of her own choice.
Dissatisfied with the order the wife appealed before the additional sessions judge who dismissed her appeal on September 18, 2009.
The appeal was dismissed on the ground that since Savita "had left the matrimonial home on July 4, 2005, and the Act came into force on October 26, 2006, the claim of a woman living in domestic relationship or living together prior to October 26, 2006, was not maintainable".
The Delhi High Court after considering the constitutional safeguards under Article 21 of the Constitution, vis-a-vis, the provisions of Sections 31 and 33 of the PWD Act, 2005, overruled the decision and took a view that to protect rights of women under Articles 14 (equality), 15 (non discrimination) and 21 (liberty) of the Constitution, Parliament enacted the Act to provide effective protection to women.
Accordingly the single judge held that a petition under the provisions of the PWD Act, 2005, is maintainable even if the acts of domestic violence had been committed prior to the coming into force of the said Act, notwithstanding the fact that the couple were not living together.
Aggrieved the husband appealed in the apex court.
Concurring with the high court's view the apex court said, "We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the coming into force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof.
"We, therefore, modify the order passed by the High Court and direct that the Respondent be provided with a right of residence where the Petitioner is residing, by way of relief under Section 19 of the PWD Act, and we also pass protection orders under Section 18 thereof."
The bench said consequently the sum of Rs 10,000 directed to be paid to the wife for obtaining alternative accommodation in the event the husband was reluctant to live in the same house shall stand reduced from Rs 10,000 to Rs 4,000 which shall be paid to her in addition to the Rs 6,000 earlier ordered for her maintenance.
"In other words, in addition to providing the residential accommodation to the respondent, the petitioner shall also pay a total sum of Rs 10,000 per month to the respondent towards her maintenance and day to day expenses.
"In the event, the aforesaid arrangement does not work, the parties will be at liberty to apply to this court for further directions and orders. The special leave petition is disposed off accordingly," the order said.
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