Rights of wife, if any, in the matrimonial home would have to be protected against alienation and encumbrance and renouncement of title by the Respondent-husband
In an application for residence under Section 19 of the D.V. Act, an alternative premises being a residential home would be required to be provided to the aggrieved party under Section 19(1)(f) thereof. If the spirit of the object of the FC Act and the procedure under section 9 of the FC Act is to be heeded, in such a case, a reasonable offer of an alternate accommodation made to the wife or the woman in a domestic relationship who requires a right to reside in a particular premises is to be considered and accepted. If such an offer is made and found reasonable so as to comply with sub- section (f) of Section 19 of the D.V. Act, no order can or need be passed under sub-section 19(a)(b) or (c) thereof. Of course, an order under sub-section (d) or (e) may be passed as circumstances require.
Of course, granting the wife both the Versova flat and the two 12th floor flats in the same building would give her the most an equitable and almost equal half share of their shared residence or matrimonial home and may bring to a final end their dispute with regard thereto.
32. Though, therefore, the order allowing the wife to enter into the matrimonial home where the husband resides with his second wife (specially in view of the fact that he was, at least once, an alcoholic) would not meet the ends of justice, the offer of the husband for an unencumbered, exclusive, alternative
premises would; it would be in compliance of the purport and import of this specific legislation. The wife would be entitled to reside peaceably in the two flats on the 12th floor of the same building or in their Versova flat to the exclusion of the husband, his servants and agents. Further her rights, if any, in the matrimonial home would have to be protected against alienation and encumbrance and renouncement of title by the Respondent-husband. Once such an offer is made and is seen to be a reasonable offer, the wife would not be entitled to insist upon residing in the shared household only and not be evicted or excluded therefrom.
Bombay High Court
Mrs.Sabah Sami Khan vs Adnan Sami Khan on 21 October, 2010
Bench: R. S. Dalvi
