Delhi High Court: An appeal was filed by the wife under Section 19 of the Family Courts Act against a judgment and order of a Family Court in Delhi rejecting the appellant’s application under Sections 17 and 19 of the Protection of Women from Domestic Violence Act, 2005, seeking the right of residence. The bench of Suresh Kumar Kait and Neena Bansal Krishna, JJ. held that the appellant was unable to establish that the house at Punjabi Bagh Extension, Delhi was ever a shared household and there is no error in the impugned order dated 29-02-2023 calling for interference.
The marriage between the appellant (wife) and respondent (husband) took place on 29-08-1999. Two children were born from the marriage, a daughter on 18-11-2004, and a son on 13-07-2010. The appellant alleged cruelty and demands of dowry by the respondent and his parents. Despite moving to rented accommodation to save the matrimonial relationship, the alleged mistreatment continued. The appellant claimed that the respondent deliberately removed himself from their matrimonial home. After the birth of their son in 2010, the respondent left the appellant and their children at her parental home and never took them back. The son has been diagnosed with various conditions, and the appellant is seeking the right of residence in a specific property. The respondent filed for divorce in 2014. The appellant, in response, filed an application under the Protection of Women from Domestic Violence Act, claiming a right of residence in a property.
Counsel for the respondent denied allegations of cruelty, dowry demands, and deliberately removing the appellant from the matrimonial home. The respondent asserted that the appellant deserted him since 2010 and is living with her parents. The financial instability due to the pandemic forced the respondent to change his rented accommodation. The respondent contended that the Punjabi Bagh property is not a shared household and that the rented accommodation is the matrimonial home. The respondent claimed that the appellant received a share in her father’s property, which was not disclosed to the court.
The Court considered an objection raised by the respondent regarding the wife’s right to maintain the application under the Domestic Violence Act (DV Act) due to the parties residing separately since 2010. Relying on Prabha Tyagi v. Kamlesh Devi, (2022) 8 SCC 90 , the. Court stated that Section 17 of the Domestic Violence Act provides every woman in a domestic relationship the right to reside in a shared household, irrespective of experiencing domestic violence.
The Court noted that the appellant did not mention filing other relevant applications under the Hindu Marriage Act or seeking maintenance under Section 125 of Criminal Procedure Code. The Court also noted that the definition of “shared household” and the provisions of Sections 17 and 19 of Domestic Violence Act make it clear that to show “shared household” the parties must show the place where they have lived together in the past, which in the present case was first in Punjabi Bagh and then the rental accommodation in Kirti Nagar.
The Court remarked that “the appellant is claiming a right of shared residence in Punjabi Bagh Extension, Delhi which is the house of the brother of the respondent which had been purchased by him vide Sale Deed dated 18-03-2010. Therefore, the said property was purchased two years after the parties shifted to the Kirti Nagar rental accommodation in February, 2008. There is no averment whatsoever in the entire pleading or in any application that the house of the brother of the respondent is a “shared household”. In the absence of there being any averment of her having ever lived in Punjabi Bagh Extension, the appellant cannot claim “Right to residence” in the said house.”
The Court concluded that the appellant claimed a right of shared residence in a property purchased by the respondent’s brother two years after the parties shifted to rented accommodation. The Court found that the appellant has not lived in the claimed shared household and dismissed the appeal, stating that the appellant failed to establish the Punjabi Bagh property as a shared household without expressing an opinion on the merits of the case, leaving it for adjudication between the parties.
[Sonia Khurana v Pradeep Khurana, 2024 SCC OnLine Del 506, decided on 25-01-2024]
Advocates who appeared in this case:
Appellant In person with Mr. Prabhjit Jauhar & Ms. Ajunee Singh, Advocates
Mr. Sanjay Vashistha, Mr. Vishal Kumar & Mr. Aman Tripathi, Advocates for respondents
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