That by this Web Site and its contents, no work is being solicited or advertised directly or indirectly. The contents are only informative and not advisory in any manner. The visit to this Web Site and/or acting on the basis of its contents, does not construe a contract between Legal Consultus and such Visitor/Viewer/User (s).
This is further clarified that this website is not a source or a form of advertising or solicitation nor is it intended to be so. The contents of this website should not be construed as legal advice. The Visitor/Viewer/User (s) should not consider this information to be an invitation for a lawyer-client relationship and should not rely on information provided herein. The transmission, receipt or use of this website does not and shall not constitute or create a lawyer-client relationship.
Legal Consultus holds no obligation or liability to any such visitor/viewer/user to this Web Site.
The hyperlinks or links shown in the Web Site are merely informative and ought not to be construed as our approval of the contents of those hyperlinks or links.
The visitor/viewer/user to this website acknowledges and reaffirms that the respective visitor/viewer/user has read and understood the disclaimer as provided hereinabove. That the respective visitor/viewer/user wishes to know more about Indian laws and Legal System on its own accord and using the website unconditionally. The visitor/viewer/user further acknowledges that there has been no inducement, invitation or solicitation of any nature whatsoever from Legal Consultus or any of its team or members to create a lawyer-client relationship through this website.
Any act done or carried on by anybody on the basis of the contents of the Web Site and/or loss or injury caused therefrom will not fasten any duty, responsibility or liability on the Legal Consultus.
The contents of the Website are Free Legal Information.
Legal Consultus is the author of this Web Site, its contents, logo and design and holds the copyright under the Indian Copyright Act, 1957.
This Disclaimer is being issued in the interest of all the visitor/viewer/user (s) to the Web Site and all are deemed to have read and understood its contents.
The right of residence: An anlysis of section 2 (s) of The protection of women from domestic violence act, 2005
Right of residence is one of the basic rights and the same is extended to the women citizen of the country. The present article is an effort to discuss the issue of right of residence of a woman victim under the Protection of Women from Domestic Violence Act, 2005 (herein after to be referred as "The Act").
The Protection of Women from Domestic Violence Act, 2005 is a secular legislation and has been enacted for the benefit of women in India irrespective of their religious affiliations like the provisions of Section 125 of the Code of Criminal Procedure, 1973. Section 1 of the Act that prescribes the extent of applicability of the Act makes no reservations based on religion. In the past, there was no express provision of law available in India as far as concerned with the aspect of right of residence to women, who have been made subject to the domestic violence. However, with the enactment of The Protection of Women from Domestic Violence Act, 2005, which gives statutory recognition to the salutary principle, that was sought to be advanced through judge made laws, in the absence of legislation has given protection and provided shelter in the form of the present law. The provisions of the Act deal with aspect of domestic violence suffered by a woman. The aggrieved person can claim monitory relief, protection order, residence order, and custody order under the Act. Section 2 (s) of the Act provides the right to residence for the women who fall under the purview of the definition of the Act.
The idea, behind enacting such provision, is that a husband is bound to provide his wife a roof over her head and that she has a right to live in that house without the fear of violence.
Previously, it was only the judicial precedents, which protected such legal rights of the destitute women in the absence of express provision of law in India.
1 Aryasomayajula Shivani, Associate Advocate with Legal Consultus, is an alumnus of Amity University and practicing law mainly in the Supreme Court of India and the Delhi High Court.
The Andhra Pradesh High Court in "Bharat Heavy Plates and Vessels Ltd., Visakhapatnam", had categorically recognized such obligation cast upon the husband and extensively discussed the equitable considerations accruing therefrom in favour of the wife and granted her the right to reside in her 'matrimonial home', though at the relevant point of time there was no such legislation akin to the Act.
The Act came into existence and was primarily enacted to grant statutory protection to victims of violence in the domestic sector who had no proprietary rights owing to which the civil law protection could not be availed by them.
CONCEPT OF SHARED HOUSEHOLD:
The provisions as laid down in the Act vis-ā-vis shared household must be understood and appreciated in light of the prevalent culture and ethos in our society. The broad and inclusive definition of the term 'shared household' in the Act is in consonance with the family patterns in India, where married couples continue to live with their parents in homes owned by parents. Section 2 (s) of the Protection of Women from Domestic Violence Act, 2005 reads as under:-
"2 (s)-"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."
Though the term 'Joint Family' has not been defined under the Act but the practice of residing together as joint family is undoubtedly the most common amongst those who subscribe to the tenets of Hindu religion and the concept of 'Hindu Undivided Family (HUF)' is well recognized. However, the institution of joint family seems to be a
2 AIR 1985 AP 207
characteristic feature of the Indian sub-continent, and even adherents of Islam have been known to reside together in common households. The practice of living in joint family and having common-households is not alien to the Indian society, perhaps unlike many other western civilizations.
INTERPRETATION BY THE COURT OF LAW:
Various Courts of India have dealt with the issue and interpretation of the 'shared household' concept, some of which have been discussed here in.
A very prominent and valid point of discussion and interpretation of Section 2 (s) of the Act came up before Hon'ble the Supreme Court of India in the matter titled as "S. R. Batra Vs. Tarun Batra".
The Hon'ble Supreme Court of India was pleased to observe in paragraph 30 of the judgment that the definition of 'shared household' in Section 2(s) of the Act was not happily worded and appeared to be a result of clumsy drafting which necessitated the Court to provide a sensible interpretation to avoid chaos in the society.
In paragraph 29 of the judgment the Supreme Court adverted their consideration to Section 17(1) of the Act and opined that the wife would be entitled to claim a right of 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.
In the instant case, the Court held that the property in question neither belonged to the husband nor was it taken on rent by him and neither was the said property a joint family property of which the husband was a member. The said property was exclusively owned by the mother-in-law and thus could not be treated as a 'shared household'.
The Delhi High Court, while dealing with the matter titled as Navneet Arora Vs. Surinder Kaur has discussed at length the concept of Shared Household. The Division Bench of the Delhi High Court in Para 35 of the judgement observed that:
3 (2007) 3 SCC 169. 4 213 (2014) DLT 611
We may also note that the Act secures 'right of residence' for an 'aggrieved person' in a 'shared household' which may belong to the 'joint family' of which 'respondent' is a member, irrespective of whether the 'respondent' or the 'aggrieved person' has any right, title or interest in the 'shared household'."
The Division Bench of the Delhi High Court in Para 119 of the judgement further observed that:
Reverting back to the facts of the instant case, before Navneet Arora married Gurpreet Singh, he was living as one family with his parents Harpal Singh and Surinder Kaur. His brother Raman Pal Singh and his sister Sherry were also residing in the same house. The kitchen was one. The two sons and their father were joint in business and the kitchen used to be run from the income of the joint business. They were all living on the ground floor. Sherry got married and left the house. Navneet married Gurpreet. Raman Pal married Neetu. The two daughter-in-laws joined the company not only of their husbands but even of their in-laws in the same joint family house i.e. the ground floor of B-44, Vishal Enclave, Rajouri Garden, New Delhi. All lived in commensality. Navneet never left the joint family house. She was residing in the house when her husband died. She continued to reside there even till today. Under the circumstances her right to residence in the suit property cannot be denied, and as regards issues of title, we have already observed that the right of residence under the Protection of Women from Domestic Violence Act, 2005, the same would have no bearing. She may enforce it in civil proceedings. But her right of residence in the shared household cannot be negated."
The Orissa High court also held that non-giving share in property to widowed daughter-in law is well within the ambit of a Domestic Violence.
In the case of Gangadhar Pradhan vs Rashmibala Pradhan5 after considering definition of 'domestic violence' given in Section 3 of the Act, and its Explanation (iv) explaining the economic abuse, it has been held that aggrieved person (wife) had acquired right of her deceased husband in joint family property and she is entitled to get maintenance till she gets her share in the said properties. In absence of getting a share in the ancestral joint family properties, she is deprived of her "economic and financial resources" to which she is legally entitled to get.
Thus, it can be easily ascertained from the present discussion that the courts in India have, after dispelling the shortcomings in Section 2 (s) of the Act concluded that a victim of the Domestic Violence is entitled to have the right of residence in the joint family property under the provision as laid down in the Section 2 (s) of the Protection of Women from Domestic Violence Act, 2005. However, the same would have no bearing on the share or title over the joint family property. The victim may have to approach and enforce such right of share or title over the property in the civil court.