READ ORDER | Wife Has Right To Residence Under DV Act Even If She Opposes Husband’s Plea For Restitution Of Conjugal Rights: Delhi High Court

The Delhi High Court has observed that the right of residence under the Domestic Violence Act, 2005 is exclusive to and isolated from any right that may arise under Section 9 of the Hindu Marriage Act, 1955, which pertains to restitution of conjugal rights.

Justice Chandra Dhari Singh was dealing with a plea filed by a couple, challenging the order of the Additional Sessions Judge confirming the residence Orders in favour of their son’s wife, Respondent No.1.

Case:

Marriage between the Respondent No.1 Daughter-in-Law and the son of the Petitioners, Alok Gupta, was solemnized on January 30, 1990 according to Hindu rites and rituals and Petitioner No. 1 (since deceased) and Petitioner No. 2 (hereinafter “Petitioner”) are the mother-in-law and father-in-law, respectively, of the Respondent.

The relationship between the Respondent wife and her in-laws was cordial in the beginning, however, it started to deteriorate with time. The Respondent left her matrimonial home in September, 2011.

Consequently, more than 60 cases, both civil and criminal, were filed by the parties against each other. One of these cases were initiated by the Respondent-wife under the Protection of Women from Domestic Violence Act, 2005 and during the proceedings the Respondent claimed right to residence in the property in question.

In 2013, the Metropolitan Magistrate had held that the Respondent wife was entitled to the right of residence in the first floor of the said property. This order was upheld by the Appellate Court, observing that the Respondent no. 1 had been living in the said premises since her marriage and her husband was the 50 percent share holder to the house which gave her the right to continue to live there.

The Petitioners had argued that their son attempted to join the Respondent several times and after continuous refusal by the Respondent he filed for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 and the Respondent contested the petition and sought its dismissal, which was a testament to her reluctance to live with her husband.

Thus, it was contended that since the Respondent wife did not wish to live with her husband and refused to join him therefore, she could not have claimed a right to residence in her matrimonial home.

Delhi High Court

The Delhi High Court noted,

The existence of the strained relationship between the Petitioner and the Respondent has been well established by the fact that there are more than about 60 criminal and civil cases pending between the parties. The Respondent approached the learned Metropolitan Magistrate under the DV Act wherein she also filed an interim application seeking the relief of right of residence.

Refusing to interfere with the lower court order and said, 

The right of residence under the DV Act is exclusive to and isolated from any right that may arise under Section 9 of the Hindu Marriage Act, 1955 and thereby, the learned Appellate Court’s observation in this regard has also been correctly made.

The Court was of the view that the Appellate Court had rightly appreciated that the Respondent wife had a right to live at her husband’s co-owned property and that that there was a real apprehension that the Petitioners would have removed her from the house and also the fact of likelihood of filing of cases against the Petitioners could not have affected her right to live at her matrimonial house.

In view of the aforesaid, the Court concluded that there was no ground to interfere with the Order dated 5th December, 2013.

“Keeping in view the arguments advanced, facts and circumstances before the Court, findings of the learned Metropolitan Magistrate as well as the observations made by the Appellate Court, this Court does not find any error in the Order dated 1st November, 2013, whereby the right of residence was granted in favour of the Respondent, as well as in the Order dated 5th December, 2013 upholding the Order dated 1st November, 2013,” the Court ordered.

Accordingly, the plea was dismissed.

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