This article is written by Deepanshi Sharma. The article discusses the right to live in a matrimonial shared household.
Who can claim under the Domestic Violence Act
The Protection of Women From Domestic Violence Act, 2005 (hereinafter referred to as the Act) protects all women in domestic relationships who are living alone or together or have lived, at any point of time, in a shared household with the respondents. A domestic relationship includes a relation by blood, adoption, marriage as well as relationships in nature of marriage. Members of a joint family also come within the meaning of a domestic relationship under the Act. While all other relations can be easily deciphered, a relation “in the nature of marriage” needs further clarification.
In the case of Indra Sarma v V.K.V. Sarma, the apex court noted that to understand if a couple is related in a “nature of marriage” due regard has to be given to all the interpersonal facets of this relationship. The case laid a non-exhaustive list of factors that contribute to such a relationship which included the duration of the stay, financial relation supporting each other, the entrustment of responsibilities, sexual and emotional intimacy and most importantly, acts of socialising in public as a husband and wife. As a result, some cases of “live-in relations” (not all of them) would be included in it (Velusamy vs. D. Patchaiammal, para 34). Based on these factors, a woman and a man residing together would, or would not, qualify as being in a relationship in the “nature of marriage”.
What is a “shared household”?
Every woman has a right to live in the shared household according to section 17 of the Act. A shared household as defined by the Act includes a household which is-
- Owned and rented jointly by the aggrieved woman and the respondent (related person); or
- Owned and rented separately by the aggrieved women and the respondent, but in respect to which the aggrieved women or the respondent has an interest, title, right, or equity; or
- Joint family’s home in which the respondent is a member, even without the aggrieved person or respondent having any interest, right, or title in it such a house.
A shared household, therefore, does not have to be owned or co-owned by the person who has been violated.
Although the definition of a “shared household” is worded very loosely, the Supreme Court in S.R. Batra and Anr. v Smt. Taruna Batraheld that this definition has to be given an interpretation that does not lead to absurdity. The Court held that a “shared household” would not include the house owned by the parents of the husband in which the aggrieved happened to live.
In a matrimonial setup
In India, there is no law which deals specifically with a matrimonial house. Therefore, a matrimonial house is neither defined nor is there any right regarding it per se. However, owing to the general right to a shared household under the Act, a wife has a right to reside in the shared household with her husband. This would imply that there is a right to live in a house owned/rented by the wife and husband (together or separately), or a house in which the husband has a right, title or interest in, including the joint family house in which the husband is a member.
However, the right to reside would not extend to a house owned/purchased by the parents or relatives of the husband as he has no subsisting right in it. For instances, houses owned (not inherited) by the mother-in-law or sister-in-law would not be a shared household.
Allowing the wife (or husband) to stay in such a house is purely at the discretion of the house owners. Parents-in-law have no obligation to give residence to their daughter-in-law in a house owned by them. Therefore, a claim to reside in a house owned by the in-laws/relatives of the husband is bound to fail.
Denial of residence in the shared household is domestic violence
Right to live in the shared household is an economic right of women. Denial of access to such a shared household by any action, omission/commission, or conduct of the husband/male partner or any of his relatives is considered to be economic abuse according to the Domestic Violence Act (section 3 explanation 1(iv)(c))
Right to reside in a shared household during a divorce proceeding
The right to live in the shared household subsists as long as the domestic relationship is present. A divorce is the dissolution of the marital relationship. Therefore, the right to live in a shared household would naturally come to an end from the time of divorce. However, anytime before such divorce, the protection from domestic violence would exist, including the right to stay in the shared household.
Whom to approach if you face/find out about domestic violence/forced eviction from the shared household
Contact the Protection Officer
Every district in India has at least one person designated as the Protection Officer who works solely for the purpose of handling and enquiring about the cases of domestic violence. The Protection Officer works under the control and supervision of the Magistrate. The post is mostly given to women to guarantee easy communication.
Any person who believes that domestic violence is happening/has happened/is about to happen should provide such information to the Protection Officer. No suit or proceedings can be initiated against the person who informs the Protection Officer about domestic violence in good faith.
To know the contact details of Protection Officers of each city, click here.
Contact a registered society working for women’s rights
Many registered societies or companies work for the objective of protecting the rights and interests of women through provision of legal aid, medical or financial assistance et cetera. These societies, if registered with the state government as service providers, have the power to record domestic incidents and forward it to the Magistrate or Protection Office, get the aggrieved person medically examined, and ensure her residence in a shelter home.
A Magistrate or a police officer
A Magistrate or a police officer can also be approached to give information about a domestic incident.
Reliefs that can be claimed in case of expulsion from shared household
Residence order
In case of forced removal from the shared household or refusal to allow entry into such household, the aggrieved party can apply for a residence order. This can be done with the help of above-mentioned authorities.
On such application, the magistrate may pass an order of any of the following discussed below.
- Restraining the opposite party from forcing the aggrieved party out of the shared household, or from her stopping her access to it;
- Directing the opposite party to remove himself from the shared household (This can only be passed against a male respondent);
- Restraining the opposite party or any of his/her relatives from entering a portion of the shared household where the aggrieved person resides;
- Restraining the opposite party from selling or dispossessing the shared household or restricting its free access;
- Restraining the opposite party from renouncing his right in the shared household without the Magistrate’s permission;
- Directing the opposite party to get an alternative accommodation of the same level as the shared household, or pay the rent for the same (if circumstances require so); Or
- Any other additional conditions or order that the Magistrate believes is reasonably necessary.
In additions to these, the magistrate can also direct the officer-in-charge of the nearest police station to grant protection to the aggrieved women, or provide assistance to her, or the person who applied on her behalf, for its implementation.
Shelter home
The aggrieved women shall also be provided with a safe shelter home upon her request to the Protection Officer or the service provider. This does not exhaust her possibility of availing any other of the reliefs available.
The shelter home has a duty to provide shelter on the order of these authorities.
Other reliefs that can be claimed against domestic violence
Protection order
The Magistrate on being satisfied that domestic violence has taken place/is taking place/is about to take place can pass a protection order in favour of the aggrieved person. The magistrate can restrain the respondent from:
- Committing domestic violence;
- Aiding or abetting domestic violence;
- Entering the place of employment, or school in case the aggrieved is a child, or any other place frequently visited by the aggrieved person;
- Attempting to communicate with the aggrieved person in any possible way;
- Alienating any assets, operate any bank accounts or lockers used/held/enjoyed together by the aggrieved person and the respondent, or singly by the respondent, without the permission of the Magistrate;
- Causing violence to the aggrieved person, her dependants, relatives or anyone who provide her assistance to handle the domestic violence; or
- Committing any other action as specified in the protection order.
Custody order
Temporary custody of the child can be provided to the aggrieved party or the person who makes the application on her behalf at any stage of the hearing. The magistrate shall refuse any visits if he is of the opinion that such a visit would be harmful to the interest of the child/children. However, if it is not the case, specific rules regarding visits by the respondent may be given in the custody order, if necessary.
Monetary relief
An order for a reasonable, fair, and adequate relief to meet the expenses or losses incurred by the aggrieved party, her kids, or relatives due to the domestic violence. Such losses may include-
- The loss of earnings;
- The medical expenses;
- Loss due to destruction, damage or removal of any property from the control of the aggrieved person;
- Maintenance for the aggrieved party as well as her children, including or in addition to maintenance provided under the Criminal Procedure Code.
Ps. losses for which relief can be claimed are not limited to the mentioned list.
Compensation
In addition to the above-mentioned reliefs, the Magistrate can order the respondent to pay compensation for the injuries caused. Such injuries include, among other things, mental torture and emotional distress due to domestic violence.
Alternative claim under The Hindu Adoption and Maintenance Act
Under The Hindu Adoption and Maintenance Act, a Hindu wife can claim maintenance which includes, among other things, residence from her husband during her lifetime. This right to claim maintenance subsists even if she is living separately from her husband if he-
- Is guilty of abandoning her without a reasonable cause and without her consent or against her wish;
- Is guilty of willfully neglecting her;
- Has treated her with cruelty, which caused her to leave due to a reasonable apprehension of harm or injury;
- Is suffering from violent form of leprosy;
- Has any other living wife;
- Keeps a concubine in the house where the wife was living, or habitually lives with a concubine somewhere else;
- Has changed his religion from Hinduism;
Or there is any other cause justifying her living separately. However, if the wife is unchaste or has converted into another religion, she would not be entitled to separate residence and maintenance from her husband.
