In Part I and Part II of our article series on domestic violence, the author simplified the understanding of domestic violence laws in India and discussed the various types of reliefs that the victim (woman) is entitled under the law which varies with facts and circumstances of the cases.
Woman’s right to residence is threatened whenever there is a complaint of domestic violence filed by her. In Part-III, the author brings a detailed analysis of the aggrieved woman’s right to residence, meaning of shared household and residence orders under the Protection of Women from Domestic Violence Act
What is Right to Residence?
The statement of objects and reasons of PWDVA sets out that the aim of the law enacted is to secure the right of a woman to reside in her matrimonial home or shared household, irrespective of the fact whether she has any right, title or interest in the said household or not.
It is provided for under Section 17 of the Act that every woman in a domestic relationship shall have a right to reside in the matrimonial or shared household irrespective of the title in the household. This is one of the most important features of the PWDVA that aims at securing the aggrieved woman’s right to secure housing and alternate accommodation while the domestic violence proceedings are going-on.
Thus, the aggrieved woman cannot be evicted or excluded from the shared household except in accordance with the procedure established by law. Although personal laws and Section 125 of the CrPC provide for maintenance provisions which may include the right of residence in certain cases yet the right of residence under PWDVA is a separate, independent and higher right conferred upon the aggrieved woman to prevent her vagrancy and destitution.
For better understanding of the nature and ambit of right of residence, it is important to comprehend the meaning of shared household and how the courts have interpreted it over the time.
What is a Shared Household?
Shared household, as defined in Section 2(s) of the PWDVA is a household where the aggrieved woman lives in a domestic relationship with the respondent (To know more what a domestic relationship means, refer to Part-I).
The definition of shared household is comprehensive enough to include the household where the parties have lived together in the past as well. It therefore means that, the woman’s right of residence is not curtailed even if she was dispossessed or temporarily absent from the shared household on the date of making application under Section12 of PWDVA.
It seeks to safeguard the interest of the women in cases where women are dispossessed of the shared household deliberately to deny them the benefit of the right to live in a shared household.
It is also important to note that not all properties owned by the respondent directly come under the definition of shared household but only those households or dwelling houses where the aggrieved woman and respondent live or have lived together with some permanency is a shared household. To ascertain whether a particular house is a shared household or not, the court considers the intention of the parties and the nature of living including the nature of the household.
Depending upon the facts and circumstances of each case, the definition of shared household shall include:
1. Any household whether owned or tenanted either jointly by the aggrieved person and the respondent and owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title or interest;
2. Any household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. (Satish Chander Ahuja v. Sneha Ahuja 2020)
What are Residence Orders?
If an aggrieved woman is threatened with dispossession by the respondent or there is an element of threat involved in living with the respondent, she can obtain a Residence Order under Section 19 of PWDVA. These orders can be either prohibitive or mandatory in nature, depending upon the facts and circumstances of each case.
It is prohibitive when the Magistrate restrains the respondent from:
1. Entering any portion of the shared household in which the aggrieved woman resides;
2. Dispossessing the aggrieved woman from the shared household;
3. Alienating or disposing off the shared household; or
4. Renouncing his rights in the shared household except with the permission of the Court.
These orders can be mandatory in nature when the Magistrate directs the respondent to:
1. Remove himself from the shared household;
2. Provide alternate accommodation for the aggrieved woman; or
3. Pay rent for the alternate accommodation for the aggrieved woman.
Thus, the effect of these orders is that the aggrieved woman in any circumstance will not be rendered homeless, either she would be allowed to stay in the same house or if the circumstances so require, the respondent shall provide for an alternate accommodation or pay rent in lieu of it. It is pertinent to mention that the Residence order cannot be passed by the Magistrate against a woman as per the proviso to Section 19(1) of PWDVA.
The Apex Court in Satish Chander Ahuja v. Sneha Ahuja (2020) has held that the right to residence under Section 19 is not indefeasible in nature especially in cases where it is filed against aged in-laws and courts must attempt to strike a balance between the rights of the aggrieved woman and senior citizens while deciding such cases.
The police officer, protection officer, NGO or Magistrate, whoever receives the complaint of domestic violence, is under an obligation to apprise the aggrieved woman about her right of obtaining relief in the form of residence order from the court.
How to obtain a Residence Order?
To obtain an order for secure housing in the form of Residence Order, the aggrieved woman, protection officer or any person on behalf of the woman may file an application, supported by an affidavit before the Magistrate under Section12 of PWDVA. The Magistrate after being satisfied that domestic violence has occurred may pass Residence Order under Section19 of PWDVA in a time bound manner.
NOTE: If a victim of Domestic Violence is unable to visit the nearest Police Station, District Court, District Legal Services Authority or State Women Commission due to spur in COVID-19 cases, she can contact the nearest protection officer through phone (List of protection officers with contact numbers is here: http://ncwapps.nic.in/frmListStatePO.aspx) for seeking help or dial women helpline number 181 or 1091 in case of emergency.The information contained in this article is for awareness building and should not be taken as a legal advice.
(Bhawna is an Advocate and Researcher with Delhi State Legal Services Authority. She tweets at @BhawnaGandhi_)
Part I : Understanding the Domestic Violence Laws in India
Part II- Discussing the protection and remedial measures for domestic violence cases
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