SOURCE - https://articles.timesofindia.indiatimes.com/2011-07-13/mumbai/29768332_1_sessions-court-dv-act-sessions-judge
Divorce pending, man can’t drive estranged wife out of home: HC
MUMBAI: A pending divorce case would not absolve a man of his duty to provide a residence to his wife who had complained of domestic violence, the Bombay high court has ruled.
Hearing an application filed by a 27-year-old Nagpur resident, Sheela Pawar, who was allegedly locked out of her matrimonial house, Justice A P Bhangale dismissed her husband's plea that he had a tenant staying in one of his rooms. The high court has directed 30-year-old Nilesh Pawar to allow his estranged wife and their son to stay on the second floor of their two-storey home.
"We assume, for the sake of argument, that the alleged tenant occupies the second floor premises following an unregistered agreement; prima facie, it itself would not form any legal basis to claim the right as a tenant," said Justice Bhangale. "Merely because the divorce proceedings are pending, the wife, who was allegedly subjected to domestic violence, cannot be deprived of claiming residence in the shared household."
The court pointed out that the objective of the Domestic Violence Act, 2005 was "to provide more effective protection to helpless and shelterless victims and to ensure the rights of women guaranteed under the Constitution". The judge said when a victim of domestic violence files a complaint, the magistrate has to pass an order expeditiously.
Sheela married Nilesh in 2008 and they have a son. Sheela said while she stayed with her husband, she was subjected to harassment with him making constant demands for money to buy a four-wheeler. On April 5, 2010, the husband's family locked her out of their house; Sheela lodged a complaint under the DV Act against her husband and mother-in-law and urged the court to pass an interim order to allow her and her son to return to her matrimonial house. The magistrate ordered Nilesh to provide her accommodation on the second floor of their building.
Challenging the order in a sessions court, Nilesh furnished an affidavit filed by a man claiming to be a tenant on the second floor of the Pawar home. The additional sessions judge quashed the magistrate's order; Sheela moved the HC.
The high court held that the sessions court had errored by relying on an unregistered tenancy agreement. The court added that a magistrate's interim order in a DV case should be interfered with only if such an order was "arbitrary, capricious, perverse or contrary to the settled principles of law". The HC struck down the order and restored possession of the second-floor residence to Sheela .
(Names of couple changed)
