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Wife cannot be compelled to live in a separate household, not her matrimonial home, without judicial order - no forceful dishousing of a Wife: SC

The SC on April 27, 2020 {AISHWARYA ATUL PUSALKAR v. MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY & ORS.} held that the Protection of Women from Domestic Violence Act, 2005 has recognised the concept of “shared household” in terms of Section 2(s) of this statute. It was held that alienating an immovable asset to defeat the right of a victim lady under the said Act can constitute domestic violence, coming, inter-alia, within the ambit of the expression “economic abuse” under Section 3(iv) of 2005 Act. It was held that a Magistrate having jurisdiction under Section 19 of the said Act is empowered to pass a residence order to protect a victim of domestic violence from being removed from her shared household. It was further held that for a husband to compel his wife to live in a separate household, which is not her matrimonial home, an order from appropriate legal forum would be necessary. It was held that there cannot be forcible dishousing of a wife from her matrimonial home.

It was further held by the SC Bench, comprising of Justice Deepak Gupta &  Justice Aniruddha Bose, that  the appellant has right to reside in her matrimonial home. Such right has a legitimate basis. It was observed that though the enforcement mechanism adopted by her to enforce her right is not legally acceptable. It was held that a married woman is entitled to live, subsequent to her marriage, with rest of her family members on the husband’s side, in case it is a joint-property. It was held that if she resides in an accommodation as an independent family unit with her husband and children, the matrimonial home would be that residential unit. It was held that this right is embedded in her right as a wife. It was held that it is implicit under the provisions of Section 18 of the Hindu Adoption and Maintenance Act, 1956 in situations that statute is applicable.

It was held by the SC, in the present case, when a builder has discharged his obligation by accommodating the original owners in the redeveloped portion as per such a scheme, a lady married into that family would not be entitled to invoke the writ jurisdiction of the High Court to enforce her right to matrimonial home citing the provisions of the Maharashtra Housing and Area Development Act, 1976, if her husband does not permit her to reside in the allocated portion. It was held that it is so as she does not have any independent claim on title or interest to that property having its genesis in that statute.

It was further observed by the SC that the position as it stands now is that the decree of judicial separation stands invalidated and as of now, the appellant is the legally wedded wife of the respondent no.8. It was held that she has been out of her matrimonial home since the year 2000. But such right cannot be enforced invoking the writ jurisdiction.

In the present case, the Bombay High Court in the judgment, subject matter of this case, sustained the plea of the respondents that the right which the writ petitioner (appellant before the SC) was seeking to establish could not be enforced invoking jurisdiction of the Court under Article 226 of the Constitution of India.

It was observed by the SC that now the question arises as to whether any relief can be granted to the appellant in this appeal. It was held by the SC that the Bombay High Court has in substance non-suited her on the ground that the Writ Court was not the appropriate forum for granting her relief. It was held that it does not per se find any error in such approach.

However, it was held by the SC that considering the fact that the dispute is pending for a very long time, it is inclined to exercise its jurisdiction under Article 142 of the Constitution of India. It was observed that it does so having regard to the fact that the builder and the husband of the appellant have uniformly stated that Flat No. 101 in Om Apartment is available to accommodate the appellant. For this reason, it was directed by the SC that the appellant should be given the choice of occupying that flat as her residence. It was observed by the SC, if she does not wish to exercise option to occupy Flat No. 101, then she can approach competent court to enforce her right in matrimonial home, and in case, she decides to go to the competent court, for 8 months her possession shall be protected in Flat no. 101 where she is presently residing and the husband was directed to pay rent thereof till 8 months only, and thereafter,  subject to orders, if any, of the competent court. The appeal was accordingly disposed of by the SC. 

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