Does the wife have residential rights despite absence of DV?
There are certain questions which need to be answered in law and regularly court clarify or interpret laws that are already provided in statutes so that problems that are happening in society should be resolved successfully.
Recently, one judgment was passed by the Supreme Court of India that clears interpretation of residential rights provided to women under Domestic Violence Act, 2005. There are many womens who live away from her matrimonial house and many women who does not live with their in laws during the time of filing DV Complaint and here, one major question that comes in mind of women that is – “Should I will be able to get residential right or not?”
Therefore, I have researched and found one of the best judgements where the court has clarified the meaning of shared household and residential rights of women. In para 30 of the judgements in case of ‘Prabha Tyagi Vs. Kamlesh Devi (2022)’ court says that-
“Further, though, the expression ‘shared household’ is defined in the context of a household where the person aggrieved lives or has lived in a domestic relationship either singly or along with Respondent, in the context of Sub-section (1) of Section 17, the said expression cannot be restricted only to a household where a person aggrieved resides or at any stage, resided in a domestic relationship. In other words, a woman in a domestic relationship who is not aggrieved, in the sense that who has not been subjected to an act of domestic violence by the Respondent, has a right to reside in a shared household. Thus, a mother, daughter, sister, wife, mother-in-law and daughter in-law or such other categories of women in a domestic relationship have the right to reside in a shared household de hors a right, title or beneficial interest in the same. Therefore, the right of residence of the aforesaid categories of women and such other categories of women in a domestic relationship is guaranteed Under Sub-section (1) of Section 17 and she cannot be evicted, excluded or thrown out from such a household even in the absence of there being any form of domestic violence. By contrast, Subsection (2) of Section 17 deals with a narrower right in as much as an aggrieved person who is inevitably a woman and who is subjected to domestic violence shall not be evicted or excluded from the shared household or any part of it by the Respondent except in accordance with the procedure established by law. Thus, the expression ‘right to reside in a shared household’ has to be given an expansive interpretation, in respect of the aforesaid categories of women including a mother-in-law of a daughter-in-law and other categories of women referred to above who have the right to reside in a shared household.”
Now, in para 33 court has given an example so that you can understand whether a wife who is living away has residential right in shared household or not-
“In support of this interpretation, another example may be noted. A woman on getting married, along with her husband may proceed overseas on account of professional or job commitments. Such a woman may not have had an opportunity of residing in the shared household after her marriage. If, for any reason, such a woman becomes an aggrieved person and is forced to return from overseas then she has the right to reside in the shared household of her husband irrespective of whether her husband (Respondent) or the aggrieved person (wife) has any right, title or beneficial interest in the shared household. In such circumstances, parents-in-law of the woman who has returned from overseas and who is an aggrieved person cannot exclude her from the shared household or any part of it except in accordance with the procedure established by law. Another situation is a case where, immediately after marriage, the wife actually resided in the shared household while her husband proceeded overseas. When such a woman is subjected to domestic violence, she cannot be evicted from the shared household except in accordance with the procedure established by law. “
Here, is the brief summary of the whole judgment for better understanding-
Facts: The aggrieved person (Appellant) filed a complaint alleging domestic violence against her in-laws she suffered after the demise of her husband. As alleged she was denied her stridhan and also her rights in her deceased husbands’ estate. The application filed by aggrieved person was partly allowed and Respondents were directed to pay monetary compensation for insulting and maligning the aggrieved person, besides making available articles of Stridhana. In the appeal preferred by Respondent No. 1, (mother-in-law of the aggrieved person), judgment of the Trial Court was set aside. Thereafter High Court in the impugned judgment held that the aggrieved person had only filed an application alleging domestic violence and since the same was not accompanied by a report, the conditions of Section 12(1) of the D.V. Act were not satisfied. Further, the aggrieved person was residing separately from the Respondents from the day of her marriage and there was no domestic relationship between the aggrieved person and the Respondents, therefore, no relief could be granted under the provisions of the D.V. Act. Hence the present appeal by an aggrieved person.
Held, while allowing the Appeal:
Section 12 of the D.V. Act states that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act.  While the object and purpose of the D.V. Act is to protect a woman from domestic violence, the salutary object of Sub-section (1) of Section 17 is to confer a right on every woman in a domestic relationship to have the right to reside in a shared household.  The D.V. Act is a piece of Civil Code which is applicable to every woman in India irrespective of her religious affiliation and/or social background for a more effective protection of her rights guaranteed under the Constitution and in order to protect women victims of domestic violence occurring in a domestic relationship. 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 D.V. Act. When such a girl child or woman becomes an aggrieved person, the protection of Sub-section (2) of Section 17 comes into play. 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 D.V. Act. If a woman becomes an aggrieved person or victim of domestic violence, she can seek relief under the provisions of the D.V. Act including her right to live or reside in the shared household under Section 17 read with Section 19 of the D.V. Act. Hence, the Appellant herein had the right to live in a shared household i.e., her matrimonial home and being a victim of domestic violence could enforce her right to live or reside in the shared household under the provisions of the D.V. Act and to seek any other appropriate relief provided under the D.V. Act. This is irrespective of whether she actually lived in the shared household. Even though as on the date of filing of the application before the Magistrate Under Section 12 of the D.V. Act the Appellant was not actually living in the shared household; she nevertheless lived in a domestic relationship with her husband and further had the right to reside in a shared household as a daughter-in-law. The Appellant-aggrieved person had to leave the shared household on account of harassment and mental torture given to her by Respondent – mother-in-law and her family. She had to leave the same and fend for herself. Thus, as an aggrieved person, the Appellant could not have been excluded from the shared household as there was no valid reason to do so. As the Appellant had a right to reside in the shared household as she was in a domestic relationship with her husband till he died in the accident and had lived together with him therefore she also had a right to reside in the shared household despite the death of her husband in a road accident. The aggrieved person continued to have a subsisting domestic relationship owing to her marriage and she being the daughter-in-law had the right to reside in the shared household. An aggrieved person on her own or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act but the proviso states that when a Domestic Incident Reported is received by the Magistrate from the Protection Officer or the service provider, in such a case, the same shall be taken into consideration. Therefore, when an aggrieved person files an application by herself or with the assistance of an advocate and not with the assistance of the Protection Officer or a service provider, in such a case, the role of the Protection Officer or a service provider is not envisaged. Although, the expression ‘shall’ is used in the proviso, it is restricted to only those cases where a Protection Officer files any Domestic Incident Report or, as the case may be, the service provider files such a report. When a Domestic Incident Report is filed by a Protection Officer or a service provider, in such a case the Magistrate has to take into consideration the said report received by him. But if such a report has not been filed on behalf of the aggrieved person then he is not bound to consider any such report. Therefore, the expression ‘shall’ has to be read in the context of a Domestic Incident Report received by a Magistrate from the Protection Officer or the service provider as the case may be in which case, it is mandatory for the Magistrate to consider the report. But, if no such report is received by the Magistrate then the Magistrate is naturally not to consider any such Domestic Incident Report before passing any order on the application.  High Court was not right in holding that the application filed by the Appellant herein was not accompanied by aw21 Domestic Incident Report and therefore under the proviso to Sub-section (1) of Section 12 of the D.V. Act, the Magistrate had no authority to issue orders and directions in favour of the Appellant. The three questions raised in this appeal are answered as under: (i) Section 12 does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the D.V. Act. It is clarified that even in the absence of a Domestic Incident Report, a Magistrate is empowered to pass both ex parte or interim as well as a final order under the provisions of the D.V. Act.; (ii) It is not mandatory for the aggrieved person, when she is related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family, to actually reside with those persons against whom the allegations have been levelled at the time of commission of domestic violence. If a woman has the right to reside in the shared household Under Section 17 of the D.V. Act and such a woman becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of D.V. Act including enforcement of her right to live in a shared household; (iii) There should be a subsisting domestic relationship between the aggrieved person and the person against whom the relief is claimed vis-Ãƒ-vis allegation of domestic violence. However, it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting.