Husband not liable under Domestic Violence Act to pay instalment for under construction flat: Bombay High Court

The Bombay High Court recently held that a flat/property still under construction and not in the possession of either of the spouses cannot be considered a "shared household" under the Protection of Women from Domestic Violence Act, 2005. [Srinwati Mukherji v State of Maharashtra and Ors]

Hence, a husband cannot be compelled to pay installments for such a flat jointly booked by both spouses, the Court said.

Justice Manjusha Deshpande was dealing with a plea filed by a woman seeking directions to her estranged husband to pay the pending installments for the flat. However, the Court found that the property lacked the essential elements required to invoke the protection under the Act.

It observed that the statutory protection against dispossession under the DV Act is meant to apply only to premises that are both in existence and capable of occupation.

“The prayer made by the Petitioner would not be maintainable since the property/flat, is still under construction and not in possession of either of the parties, therefore, it would not fall within the purview of “Shared Household”, as defined under Section 2(s) of the DV Act,” the single-judge ruled.

The petitioner, aged 45, had sought directions against her husband to clear the outstanding dues for a residential flat in Mumbai's Malad, jointly booked in 2020 as part of a reconciliation effort.

The couple had married in 2013 and were intermittently cohabiting until the husband moved to USA for work. Following allegations of domestic violence, an interim maintenance order was passed in 2023.

However, the husband allegedly stopped paying rent and defaulted on maintenance, prompting further proceedings.

When the developer demanded the next installment for the Malad flat, the woman approached the High Court, claiming it as the shared household. She sought a direction that the payments be made by the husband towards the under-construction flat.

Earlier, the Additional Chief Metropolitan Magistrate had partly allowed her plea by restraining the husband from creating third-party rights in the flat. However, it refused to compel him to pay the installments. This rejection was later upheld by the Sessions Court.

Challenging the decision of the trial court, she argued that the flat was booked in their joint names, with most installments already paid. She said that she had a right to reside there even if construction was incomplete.

The husband opposed the plea. He argued that the flat was never occupied by either party, was not ready for possession and had not been mentioned in the original domestic violence complaint.

The Court, while acknowledging that the law allows for a broad interpretation of "shared household" to protect aggrieved persons, held that such protection cannot be extended to a property that is not yet habitable. Therefore, the Court upheld the lower courts’ refusal to grant relief and dismissed the petition.

Advocate Archit Jaykar along with advocate Bhoomi Upadhyay appeared for the petitioner-wife.

Additional Public Prosecutor Dhanlakshmi S Krishnaiyar appeared for the State.

Advocate Raghavendra S Mehrotra along with advocates Irfan Shaikh, Maddhat Shaikh and Mohini Tekale instructed by Lawkhart Legal appeared for the husband.

[Read Order]