[Domestic Violence] Woman has right to reside in shared household of deceased husband even if she did not live there before: Supreme Court

The Supreme Court has held that every woman in a domestic relationship has a right to reside in the shared household of her husband even after the death of her husband [Prabha Tyagi v. Kamlesh Devi].

Pertinently, a bench of Justices MR Shah and BV Nagarathna also held that a woman can enforce the right irrespective of whether she actually lived in the shared household before.

"Even when the marital ties cease and there is no subsisting domestic relationship between the aggrieved woman and the respondent against whom relief is claimed but the acts of domestic violence are related to the period of domestic relationship, even in such circumstances, the aggrieved woman who was subjected to domestic violence has remedies under the DV Act", the apex court held

The Court noted that under the Protection of Women from Domestic Violence Act, there should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-à-vis allegation of domestic violence is raised.

However, even in the absence of actual residence in the shared household, a woman, who was at some point of time, in a domestic relationship can enforce her right to reside there.

"In other words, even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under Section 12 of the D.V. Act but has at any point of time lived so or had the right to live and has been subjected to domestic violence or is later subjected to domestic violence on account of the domestic relationship, is entitled to file an application under Section 12 of the D.V. Act", the Court said in its judgment.

The judgment thus underscored that to determine a domestic relationship between the parties, courts should not only consider the subsisting relationships in present, but also past domestic relationships.

The judgment was passed on an appeal moved by a woman who had filed an application under Section 12 of the Domestic Violence Act after the death of her husband, against her mother-in-law and father-in-law, seeking residence order to reside in the property of her late husband, return of stridhan etc.

A Magistrate had partly allowed the application and ordered that the appellant and her child shall not be restricted from enjoying the property of her deceased husband. The Domestic Incident Report (report) by the Protection Officer was not sought by the appellant and the same was not filed before the Magistrate.

On an appeal moved by the respondent, the order of the Magistrate was reversed by the Sessions Court primarily on the ground that the appellant had never lived with the respondents and that she used to live in a different city with her husband.

The Sessions Court order was later upheld by the Uttarakhand High Court prompting the instant appeal before the Supreme Court.

The top court was posed with the following three questions raised by counsel for the appellant and Amicus Curie, Advocate Gaurav Aggarwal:

1. whether it is mandatory to file a report to invoke the relief under the Domestic Violence Act;

2. whether it is mandatory for the aggrieved person to reside with the persons against whom the relief is claimed; and

3. whether there should be a subsisting domestic relationship between the aggrieved person and persons against whom the relief is claimed.

The top court answered the first question in negative, ruling that Section 12 of the Act does not make it mandatory for the Magistrate to consider the reports filed by protection officer or service provider, and an order can be passed by the Magistrate even if there is no report on record.

The objective and purpose of the act shall be defeated if the magistrate is mandated to consider the report, in spite of an application or complaint by the aggrieved person, the judgment noted.

The apex court answered the second question in the negative as well and held that it is not mandatory for the aggrieved person to actually reside with the persons against whom the relief is claimed at the time of commission of domestic violence.

An aggrieved person can be in a domestic relationship with the perpetrators and Section 17(1) of the Act confers a right to every woman to reside in a shared household , if she is in a domestic relationship, irrespective of the fact whether she is aggrieved under the Act or not, the Court held.

When the woman is restricted from her right to reside in the shared household, then she can file an application under Section 12 of the Act.

"It is held that it is not mandatory for the aggrieved person to have actually lived or resided with those persons against whom the allegations have been levelled at the time of seeking relief. If a woman has the right to reside in a shared household, she can accordingly enforce her right under Section 17(1) of the DV Act," the bench ruled.

Answering the third question, the top court observed that the term "domestic relationship" is of wide amplitude and must be so in the Indian context.

The Bench stated that domestic relationships would include family members living together when they are related by consanguinity, marriage or adoption and also those persons who are living together or jointly as a joint family such as foster children who live with other members who are related by consanguinity, marriage or by adoption.

"In the Indian societal context, the right of a woman to reside in the shared household is of unique importance. The reasons for the same are not far to see. In India, most women are not educated nor are they earning; neither do they have financial independence so as to live singly. She may be dependent for residence in a domestic relationship not only for emotional support but for the aforesaid reasons," the Court observed.

The definition of domestic relationship was widened by the Supreme Court adhering to the objectives and reasons of the Act.

While considering the societal realities, the top court further held that the term 'joint family' cannot mean joint family as under the Hindu Law and its interpretation has to be wider.

"Therefore, the expression ‘joint family’ cannot mean as understood in Hindu Law. Thus, the expression ‘family members living together as a joint family’, means the members living jointly as a family. In such an interpretation, even a girl child/children who is/are cared for as foster children also have a right to live in a shared household and are conferred with the right under Sub-Section (1) of Section 17 of the DV Act", the top court held.

The Court accordingly held that the appellant in the instant "continued to have a subsisting domestic relationship owing to her marriage" and being the daughter-in-law "had the right to reside in the shared household"

The judgments of the High Court and Sessions Court were held to be wrong and overruled and the the Magistrate's order was upheld.

Advocate KK Srivastava appeared for the respondents.

[Read Judgment]