June 20, 2018
Section 19 of Protection of Women against Domestic Violence Act, 2005 (Domestic Violence Act) provides for the remedy of Residence Order. It states that a Magistrate may on being satisfied that domestic violence has taken place pass a residence order.
The statutory provision also enumerates the types of residence order that can be passed which inter alia includes:
- Restraining respondent from disturbing or dispossessing the aggrieved person from shared household;
- Directing the respondent to remove himself from the shared household;
- Restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
- Restraining the respondent from alienating or disposing off the shared household;
- Restraining the respondent from renouncing his rights in the shared household; or
- Directing respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same if circumstances so require;
Herein below we discuss some case laws and judicial dictum which aid in rendering a broader understanding of the subject:
What is a Shared Household?
Section 2(s) of the Domestic Violence Act defines shared household as a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or alongwith 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.
In the case of S.R. Batra & Another Vs. Smt. Taruna Batra, the Supreme Court with reference to definition of shared household under Section 2(s) of the Domestic Violence Act stated that the definition of ‘shared household’ in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting requires to be interpreted in a sensible manner.
The Court held that under Section 17(1) of the Act wife is only entitled to claim a right to 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 case, the property in question neither belonged to the husband nor was it taken on rent by him nor was it a joint family property of which the husband was a member. It was the exclusive property of mother of husband and not a shared household.
Right of Women to Reside in her Matrimonial Home
In a recent case of Roma Rajesh Tiwari vs Rajesh Dinanath Tiwari, the Bombay High Court elaborated on the right of women to reside in her matrimonial home or shared household. The Court observed that the ‘Statement of Objects and Reasons’ of the Act makes it clear that, this Domestic Violence Act is enacted to secure the right of a woman to reside in her matrimonial home or shared household, irrespective of the question ‘whether she has any right, title or interest in the said household or not’.
It is also irrelevant whether the Respondent has a legal or equitable interest in the shared household. The moment it is proved that it was a shared household, as both of them had, in their matrimonial relationship, i.e. domestic relationship, resided together there and in this case, upto the disputes arose, it follows that the Petitioner-wife gets right to reside therein and, therefore, to get the order of interim injunction, restraining Respondent-husband from dispossessing her, or, in any other manner, disturbing her possession from the said flat.
Can order be passed directing respondent to remove himself from the shared household?
Yes, under Section 19(1) (b) of Domestic Violence Act order can be passed directing the Respondent to remove himself from the shared household. Thus, the Magistrate is empowered to pass an order directing the respondent to remove himself from the shared household.
Sabita Mark Burges vs Mark Lionel Burges– In this case, the Bombay High Court held that no matter that a man may alone own a particular house, he has no right to be violent against his wife or the woman he lives with and if the Court sees any violence he must be restrained from entering upon the residence essentially to secure the wife and children against further violence and similar disputes.
Object behind enactment of Section 19 of Domestic Violence Act – In Sabita Mark Burges case, the Bombay High Court very succinctly explained the object behind residence order as-
It is common observance that the applications for grant of injunction in respect of the residence and possession of the respondent is essentially seen by Courts upon the proprietary rights of the parties. Since in most cases wives do not own matrimonial homes, they are statutorily given rights therein which were not given to them by Courts under the principles of common law so that they have a right to peaceful enjoyment of their matrimonial home. Section 19 of Domestic Violence Act came to be enacted in the first place granting essentially the wives/women peace against domestic violence in their residence, their title notwithstanding. This statutory grant is upon the sublime principle of human rights prevailing over proprietory rights. It may bear repetition to state that both are equally entitled to the said flat unless one of them is violent.
Order directing husband to remove himself from shared household to be exercised sparingly
Manju Sharma vs. Ramesh Sharma- The District Court of Delhi while substantiating on Section 19(1)(b) of Domestic Violence Act opined that the law empowers the court to direct the removal of respondent from the shared household, however, such power is to be exercised sparingly and in exceptional circumstances.
In this aforementioned case, the wife was awarded interim protection and respondent was restrained from perpetrating any kind of domestic violence on the aggrieved person during the proceedings. However, the respondent breached the said order on two occasions. He continued perpetrating domestic violence on the aggrieved person despite the protection order granted in favour of the aggrieved person. Hence, considering the facts of the case, the Court passed directed the respondent husband to remove himself from the shared household under Section 19(1)(b) of Domestic Violence Act.
Whether women members of the Family can be removed from shared household u/Section 19(1)(b) of DV Act?
No, the Proviso to Section 19 clearly states that no order under Section 19(1)(b) of Domestic Violence Act can be passed against any person who is a woman.
Meenavathi vs Senthamarai Selvi– In this case it was held that in the guise of passing an order under Section 19(1)(b) of Domestic Violence Act, such women members of the family cannot be directed to be removed from the shared household.
A similar observation was made by the High Court of Madras in the case of Uma Narayanan vs Mrs. Priya Krishna Prasad, wherein the Court observed that under Section 19(1)(b) of Domestic Violence Act, the Magistrate is empowered to pass an order directing the respondent to remove himself from the shared household. While enumerating the directions that could be passed under Section 19(1)(b) of Domestic Violence Act and with particular reference to the direction that could be issued under Section 19(1)(b) of Domestic Violence Act the said proviso has been incorporated just to protect the interest of a woman member of the family who is living in such a shared household. Such a provision in the proviso has been incorporated only for the aforesaid limited purpose. In a shared household which may belong to a joint family women members may also be living and in the guise of passing an order under Section 19(1) (b) of the Act, such women members of the family cannot be directed to be removed from the shared household but such a direction can be issued only against male members.
Provision of Alternate Accommodation u/ Section 19 of DV Act
Section 19(1)(f) of Domestic Violence Act states that the respondent can be directed to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household.
In the case of Ajay Kumar Jain v. Baljit Kaur Jain, the court observed that a wife cannot have right to live in a particular property and the same cannot become a clog on the property denying the right of the husband to deal with the property when he is willing to provide an alternative matrimonial home to her. It was also held that she cannot insist on residing in the suit property alone when the husband had offered a suitable alternative arrangement for her.
 AIR 2007 SC 1118
 WRIT PETITION NO.10696 OF 2017
 CRL.O.P.(MD)No.12092 of 2008
 Criminal Original Petition No.9277 of 2008
 160 (2009) DLT 401 (DB)