Asking for ancestral flat under right to residence dv
swati
(Querist) 17 March 2015
This query is : Resolved
Hello Sir,
In my DV case filed in Nov 2014, I have asked for ancestral flat where my husband had a share. But after dispute started between us, he and my father-in-law gifted it to my Brother in law in August 2014.
See citation No. 1 & 2 - Alienation of property
I lived with my in-laws in their self acquired flat before we moved to rental flat. Before we moved to rental flat I had requested my husband that we should together live in the ancestral flat but my husband and his family kept telling me since last 4 years that it was sold so we moved to rental flat. Husband not taking any responsibility. Now I have been living in rental flat since last 3 1/2 years and paying rent from my salary and taking care of myself and my son from my salary. My husband currently lives with his parents and visits us once in a while.
See citation No. 1 & 2 - Sec 17 Right to Live - physical presence not required
My lawyer gave following citations to Judge. I will appreciate experts views on this.
1) Madras High Court - P.Babu Venkatesh vs Rani on 25 March, 2008
Husband sold property to Mother after the dispute arose between himself and his wife. The learned Judicial Magistrate No.6, Salem passed the residence order in favor of the wife with respect to this property. The Madras High Court upheld the order passed by the learned Judicial Magistrate No.6, Salem in Crl.M.P. No.5231 of 2007 dated 31.12.2007.
2) Delhi High Court - Preeti Satija vs Raj Kumari And Anr. on 15 January, 2014
Often, sons move out, or transfer properties or ownership rights, or shares in immovable properties, at the hint of trouble or discord with their wives, in favour of their relatives. Likewise, the parents of the husband often in such cases "disown" them after the son moves out from the common or "joint" premises owned by either or both his parents, when there is outbreak of marital discord. Courts have to be cautious in their approach, while entertaining and short circuiting suits for possession, which are in effect directed against the plaintiffs' daughter-in law, or else the right of residence in shared households would be a mere chimera, a teasing illusion which the law grandly promises, but is seldom, if ever, able to enforce.
3) Madras High Court - Vandana Vs. Jayanthi Krishnamachari ( O.A No. 764/2007)
If there is a relationship which has legal sanction, a woman in that relationship gets a right to live in the shared household. Therefore, she would be entitled to protection under Section 17 of the Act, even if she did not live in the shared household at the time of institution of the proceedings or had never lived in the shared household at any point of time in the past.
Though the offer made by the learned counsel for the respondents/defendants to pay a reasonable amount towards rent appears to be fair and reasonable, the right guaranteed under the Protection of Women from Domestic Violence Act, 2005, cannot be negated by such offers, however, reasonable they may be.
It seems the judge is finding ways to not pass a interim residence order even after all the above citations are given. He has been postponing passing of the order almost since last 5 dates which is almost 1 1/2 month.
I will appreciate experts views on this.
Thanks
Swati
Dr J C Vashista
(Expert) 17 March 2015
@ Swati,
Are you really hhhhhhhhhhhh as stated in your profile or want to conceal your identity with fake name/occupation?
Citations are not provided here.
Devajyoti Barman
(Expert) 17 March 2015
we dot make comment on decisions.
if you have specific query on a particular cae then ak it.
SAINATH DEVALLA
(Expert) 17 March 2015
Swathi,
I presume U r not the real querist. For some time U have been posting different queries in various threads.OK, comming to UR present query,Husband had a share in the ancestral property,but actually not documented in his name.The victim whoever she is is not entitled for a share or right over the property,presently.
Rajendra K Goyal
(Expert) 17 March 2015
Wait for some more time till the orders are passed. There may be rush of work with the court.
ajay sethi
(Expert) 17 March 2015
if inorder to evade court orders property has been transferred by your husband in favour of brother in law you would have right to stay in said flat as per the judgments cited by you
ajay sethi
(Expert) 17 March 2015
wait for orders to be passed by court on your application
T. Kalaiselvan, Advocate
(Expert) 18 March 2015
You want an interim order or a full judgement to your case? All the citations you have mentioned no doubt are relevant to residential rights, but there is no compulsion on judge to act on it to the present case in hand where the circumstances may be different. Therefore you may wait for the judgement of court in your case.
swati
(Querist) 21 March 2015
Hi,
My interim order came and it is the most ridiculous order probably anyone would pass.
The judge gave me 2 rooms in the 2BHK 700 sq.ft self-acquired flat of my Father-in-law instead of the ancestral flat which is gifted to my BIL by husband and FIL after the dispute started.
I am pretty sure this is a managed order. My husband and FIL are restrained from entering in the 2 rooms I would occupy.
Thoughts from the experts is expected to see if such order is really something that fits under DV law.
My next question : Can I give this 2 rooms on rent b'se practically it seems impossible for me to go and stay in this 2 rooms?
Thanks
Swati
