‘No re-entry’: Delhi High Court rejects 81-year-old woman’s bid to return to matrimonial home

“Where the wife voluntarily establishes a separate residence or has access to alternate accommodation, a direction or restoration to a previously occupied premises is not automatic and may be declined,” the court observed while noting that the petitioner moved to another accommodation willingly.

‘Not roofless, no domestic violence’

The Delhi High Court has made the following observations regarding the petitioner’s claim to re-enter the matrimonial home:

• The petitioner was living in the said property after marriage, but it does not qualify as a “shared household” since she voluntarily and consciously shifted in April 2023 to an alternate residence belonging to the husband.
• Since then, she has settled in the residence where her daughter was previously living and continues to have shelter.
• If the shifting was only temporary, the petitioner would not have affixed the name plate showing her name outside the property.
• All the factors collectively indicate that the petitioner has chosen a conscious place of residence, not a temporary displacement.
• Compelling the restoration in the present case would disturb the settled possession of the current occupants and convert the protective law into a rule for re-entry to any past residence.
• Allowing such re-entry would amount to travelling beyond the legislative intent of the Protection of Women from Domestic Violence (DV Act).

• The alleged denial of re-entry into the property premises does not constitute domestic violence like economic abuse, since there was no forcible dispossession, coercion, or making the petitioner roofless.
• An alternative accommodation of the same standard is available with the petitioner; therefore, she is not entitled to an order directing re-entry into the property in question.
• The petitioner is not roofless, and there is no perversity, infirmity or jurisdictional error in the orders of both the previous courts.
• If the relief sought by the petitioner is provided, it would convert a property dispute into a domestic violence proceeding, which is impermissible.

The Act, objective, restoration

The court has made extensive observations regarding the objective of the DV Act and cautioned about its misuse. The court pointed out the following:

• Section 19 of the DV Act empowers the magistrate to pass residence orders to ensure that an aggrieved woman does not remain roofless or left without a safe place of residence.
• The object of this Act is protective and remedial and not to confer a right upon the aggrieved person to insist upon residence in a particular property when suitable alternate accommodation of the same standard is available and offered.
• The relief under Section 19 is “discretionary and equitable”.
• The Protection of Women from Domestic Violence Act (DV Act) balances the rights of the aggrieved woman with the rights of other occupants and owners.
• The Act provides more effective protection of the rights of women guaranteed under the constitution who are the victims of violence of any kind occurring within the family.
• The court generally grants restoration to a woman when the household was genuinely shared in a domestic relationship, and her shifting was not voluntary, permanent separation.
• The court also focuses on the fact that there is no serious safety risk in returning the person to the sharedhousehold and the request is bona fide.

• The court should ordinarily consider restoration unless the woman has permanently settled somewhere by choice or safety concerns, or restoration is impracticable.

‘Sheleterless’

Appearing for the petitioner, advocate Suhail Sehgal argued that his client is an elderly lady, aged about 81 years and has been deprived of the right to reside in the shared household by her husband for more than two years. The other key arguments submitted by Sehgal were:

• The petitioner resided uninterruptedly for 60 years in the said property and left home only for her surgery and recuperation in April 2023.
• She is shelterless since she was forcibly prevented from entering and was not allowed to come inside her house when she returned to her matrimonial home after residing with her daughter.
• The petitioner is now living with her grandson at Gurugram, as the petitioner’s husband also filed an eviction case, leading the daughter to go back to her father’s house.
• However, the petitioner was prevented from entering the property; therefore, she had to go live with her grandson in Gurugram.
• The petitioner left the matrimonial home only temporarily for the purpose of her treatment and had the intention of returning to her matrimonial home.
• The trial court’s order, as well as the appellate court, ignored the fact that the petitioner was not staying at her daughter’s place but in Guguram with her grandson.
• The said property is a shared household of the petitioner and therefore the previous orders should be set aside, and the petitioner should be directed to re-enter her shared household

‘Genuine sufferers, misusers’

Representing the estranged husband, advocate Sudershani Ray submitted that the present case is a property dispute between the parties, which has been filed under the DV Act. The other key arguments were as follows:

• The petitioner’s husband has two properties, and his wife voluntarily left the property in question and shifted to another property with her daughter, where she continues to reside.’
• There was no act of domestic violence or forcible dispossession, and the material placed on record does not support the petitioner’s allegations of forceful eviction.
• The petitioner has taken contradictory stands before different forums regarding her place of residence and has attempted to mislead the court.
• Both the other courts have correctly appreciated the facts and have rightly held that the petitioner was not without shelter and was residing in the other property owned by her husband.
• The DV Act is being misused to advance the interest of the petitioner’s daughter in an ongoing property dispute, pending before this court, rather than for protection against domestic abuse.
• The property where the daughter was residing was given by the petitioner’s father only as a licensee. However, he came to know that the house was illegally occupied by a tenant and that his daughter was illegally receiving the rent in cash from the said property without any lease agreement.
• Subsequently, in January 2023, the said property became vacant as the petitioner’s father wanted to lease the said premises or himself enter therein.
• The DV Act is meant for the benefit of the genuine sufferers and not for misusers.
• The petitioner has filed the case to help her daughter to get a share in the property, who had already filed a suit for partition.
• The petitioner’s husband has given permissive use of the other property to the petitioner and her daughter, and such possession continues even today.

‘Daughter’s place, husband’s property’

• It was placed on record that the petitioner got married to her husband in 1964, and has been residing in her matrimonial home since that time until 2023.
• The couple had three children- two sons and one daughter. It was claimed that the husband is not willing to give any share in the property to the daughter.
• In April 2023, the petitioner moved to her daughter’s house along with her baggage, considering a post-care treatment after her surgery.
• Subsequently, the petitioner’s health started improving, and she went to her marital home, where she was denied re-entry.

• Consequently, the petitioner filed a complaint alleging emotional, mental and economic abuse at the hands of her husband before the trial court, which dismissed the petition.
• The trial court found that the petitioner was currently residing at her daughter’s place, which also belongs to her husband.
• The trial court observed that the husband was not in actual possession of the property (daughter’s palace) where the petitioner is currently residing, but he certainly had constructive possession since he is the owner of the property.
• The trial court held that the petitioner cannot insist on residing in the said property when her husband has already offered a suitable accommodation.