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sanjeev pawar (service)     13 October 2012

Can residential orders be taken when rcr is filed by wife

Dear members,

first i would like to thank you for your kind guidance to my past quries, i futher want to know, after my wife filed RCR and i filed for divorce, she filed CRPC 125 against me and demanded money, the proceeding for divorce and RCR are yet to begin, only counselling stage has passed, now, she is at present staying with her mother, i fear that she will now file for DV and ask for residential orders. i am presently staying with my parents, who own that house, i have a joint ownership flat in the name of my brother and myself, after marriage i had stayed in that flat, and later moved on to a rented accomodation, i fear that she might take residential orders and come to stay with me forcefully.

I want to know:

can residential orders be taken under DV when RCR case is going on (RCR filed by wife), and she is staying at her mothers place.

Can she come with residential orders to stay with me at my parents home which is owned by my father?

I have flat which is owned jointly by me and my brother, that flat is at present, given on rent and my brother takes the income of that flat, and pays the EMI too. can she forcefully vacate that flat from the tenant and stay in that flat.

if a tell the court that i am ready to give her a rented accomodation, is it ok? will the court accept that or give her orders to stay in that flat only

i have already filed for divorce, hence can i take a stand that i dont want to stay with her as divorce has been filed by me?

can someone please guide me on this matter, as i dont want to live with her at any cost, i am contesting the RCR sent by her, and dont want it be ex partee,

she is contesting the divorce case filed by me. she does not want MCD

in case she wins the RCR decree, can she forcefully come to stay with me, or take DV residential orders and forcefully enter my parents home.

I would indeed appreciate your kind guidance in this matter

thanks and regards


 8 Replies

rahul (director)     13 October 2012

she can file dv, it doesnt matter rcr pending or not,, dv is under diffirent act of law,

she cant force entry in your parents named home?

as in your case, flat is in yours and bro name jointly.. and you never live in this flat with your wife during matrimonial life, then this flat cant be considered as matrimonial home? so residential order cant be made for this flat,

the rented accomodation in whicj u r living , is the right place to pass residetinal order,, but this will not done by court since rcr and divorce is ON, and this not practical. dv court can pass order for  some money to get her a rented place of same standard in which she lived her after marrige life with you..


1 Like

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     13 October 2012

Dear Querist,

1. A Residence Order under the DV Act cannot be passed vis-a-vis in laws property the Supreme Court has held in the case of Taruna Batra. 

The Relevant Excerpts are : " The Court held that the house belonged to the mother–in-law of the respondent and hence the respondent cannot claim right to live in the said house. The court also held that the house could not be said to be a 'shared household' within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 as it neither belonged to the husband nor was it joint family property. Accordingly, the appeal was allowed.It laid down, that only in three instance can the wife claim the husband’s house as the matrimonial home, they being; if the property was in the name of the husband; or if the husband was paying rent of the property; or if the husband was a member of a joint family and the property being undivided."

2.  Contest other cases dliigently keeping in mind that even if she suceedss in the RCR and gets a decree - you cant be forced to live with her - however by virute of O.21 R 32/33 she can get your property attached and sold as a punitive measure, and court can also order you to pay maintenance in default of performance of decree.

Good Luck !

Bharat Chugh

*Advocate Supreme Court of India/Delhi High Court

Never Give Up (Fighter)     13 October 2012

Bharat Sir,

From your above reply , if i say that "Property document" on father/mother's name then wife can not demand RTR in the same household..then would i be correct in my understanding ?

stanley (Freedom)     13 October 2012

If the property is in the Father's or mothers name she cannot demnad RTR as it does not come under shared household. Also if the wife is a working women and is drawing a HRA still she cannot demand RTR . .

sanjeev pawar (service)     13 October 2012

thank you sir for your kind reply....appreciate your advice

sanjeev pawar (service)     13 October 2012

Hello rahul sir,

thank you for your kind advice, i wanted to ask that the flat which i mentioned, which is owned by me and my brother jointly, on loan, i had stayed there in the past for 4 months along with my parents, after that, me and my wife moved to a rented accomodation, where  we lived for 3 months, after that she went away. hence i want to know

since we had stayed there for 4 months prior to moving into a rented accomodation, can she take residential orders and by order of court, forcefully vacant the tenant in the flat and  seek accomodation there


sanjeev pawar (service)     13 October 2012

Dear Bharat sir,

Thank you for your kind and informative advice on my query, appreciate your advice, as you mentioned that under 

   "however by virute of O.21 R 32/33 she can get your property attached and sold as a punitive measure, and court can also order you to pay maintenance in default of performance of decree" 

i am curious to know that in the event of me not honouring the decree of RCR passed against me, can she get my JOINT property attached which is also half owned  by my brother and myself,.is this possible? if yes, how can the court possibly self off only my share of the property as no third person can buy only half of a single bedroom flat except my brother, who is the joint owner.

can she attach my fixed deposits and other  savings accounts?

also how can the maintainance be also calculated in RCR decree as section 125 case is also put up in family court, will there be two maintainence cases, and will the amount to be paid is higher in RCR cases than in 125 cases?

i would indeed appreciate your kind advice on my query. thank you in advance.

Bikramjit Das   16 October 2017

you have replied that since RCR and divorce is ON, this would not be practical to pass residential order, rather DV court can pass order for some money to get her a rented place of same standard in which she lived her after marriage life with his husband.


Request provide any supported order of Hon'ble Supreme Court or any other court, if available with you.


I shall be highly obliged. 

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