Regardless of proprietary rights, woman can live in matrimonial home: Bombay High Court

Recently, the Bombay high court held that under the Protection of Women from Domestic Violence Act, 2005, any woman has a right to reside in her matrimonial home or shared household, irrespective of whether she has any proprietary rights or not.

Single judge bench of Bombay High court, Justice Shalini Phansalkar Joshi was hearing a writ petition filed by Roma Rajesh Tiwari, a 38-year-old woman, against an order dated 30.05.2017 of a family court canceling a previous order of maintaining a status quo regarding a flat in Mulund, which she claimed was her matrimonial home.

In the present case, earlier Rajesh Dinanath Tiwari (Respondent) filed for a decree of divorce. After which the petitioner opposed and filed a written statement stating how she was being tortured by her husband, his brother-in-law, and sister-in-law. They harassed her during the days of her pregnancy and even after her daughter was born.

Meanwhile, the petitioner was thrown out of the said matrimonial home on December 8, 2013, and was forced to move to her parental home in Colaba. The petitioner after which filed a complaint to the Police and the State Women’s Commission. Following which a female police officer accompanied her to the matrimonial home on February 2014, but still she was not allowed in. The petitioner after which made another attempt in March 2014 with the help of Mulund Police but again failed.

Thereafter, the petitioner then filed a case seeking an interim injunction against her husband and his family members preventing them from throwing her out the matrimonial home. After hearing both parties on the issue, the family court granted interim relief of status-quo to the petitioner and issued a notice to the husband. The petitioner’s husband and her in-laws were prevented from throwing her out from the matrimonial home.

After which, another application seeking cancellation of the earlier order was filed by respondent (husband). The application filed by the husband contended that the petitioner was already married to another man, hence this marriage to the petitioner was null and void ab initio which means that she has no right to claim relief with regard to the property.

The Bombay high court referred to Section 19 of the Protection of Women from Domestic Violence Act (DV Act) which provides for ‘Residence Orders’. The ‘Statement of Objects and Reasons’ of the said Act reads as follows-

‘This Act seeks to provide for the rights of women to secure housing. It also provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household. This right is secured by a residence order, which is passed by the Magistrate’

Therefore, it is clear that this ploy is adopted by the Respondent just to deprive the petitioner of her rightful claim to reside in the ‘shared household’, which is the Flat at Mulund. This Court cannot fall victim to the tricks or ploys played by the Respondent-husband in such cases, the court said.

Thus, it allowed the writ petition and restored the earlier order of a family court.


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