Woman has right of residence where husband lives: HC

Granting supremacy to the right of residence of women under the Protection of Women from Domestic Violence Act,the Delhi High Court has held that a woman can never be charged with trespass if she insists on staying with her husband in a house taken on rent.

3 min readNew DelhiApr 20, 2012 03:58 AM IST First published on: Apr 20, 2012 at 03:58 AM IST

Granting supremacy to the right of residence of women under the Protection of Women from Domestic Violence Act,the Delhi High Court has held that a woman can never be charged with trespass if she insists on staying with her husband in a house taken on rent.

Coming to the rescue of a woman against whom an FIR for trespass was lodged on the directives of trial courts,Justice Suresh Kait said that prosecuting a woman for attempting to reside with her husband in the same house would defeat the objectives of the law.

“In my opinion,the court cannot ask the aggrieved person to vacate the house,although the house may be on rent. She also cannot be directed to vacate the house without due process of law. The second direction of the (trial) court to register a case against the aggrieved person on not vacating the house of her husband is not only bad in law but is also against the mandate of the Act,” he said.

Justice Suresh Kait noted that a woman’s right to reside with her husband did not depend on the fact whether the latter stayed in an ancestral or an owned house or a property hired on rent.

“The petitioner (woman),being legally wedded wife,has a right to live with the husband whether he lives in an ancestral house or self-acquired house or rented house. Therefore,if the respondent (husband) does not allow the aggrieved person then by taking shelter of the court,the magistrate may pass the order so that she may enter the house or she would not be thrown out from the house of her husband without due process of law,” the court ruled.

Quashing the FIR lodged against the woman at the Defence Colony police station,the court relied on a Supreme Court judgment that stated: “The Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share…”

Justice Kait subsequently allowed the woman’s petitions filed through senior advocate Vikas Pahwa and set aside the filing of the FIR and the trial court’s orders against her.

The woman,married for the last 37 years,had moved a magisterial court in September 2010 under the Domestic Violence Act. She claimed that while her husband,in collusion with the landlord of the house,got the property vacated but when she got to know about the man renting another house,she also moved into the house with the help of a Protection Officer.

But citing a memorandum of understanding,which the woman claimed had been fraudulently executed,the magisterial court and a sessions court held that she could not stay in the house anymore. On her failure to vacate it,an FIR was ordered to be lodged against her.