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Prem (Manager)     03 August 2010

Residential Rights in DV Case

Judge had ordered for interim residential rights even after proving (i) The matrimoinal home is a self earned property of my mother (ii) Wife resides in her mother's own house which is in the next street of her work place (iii) Wife left matrimonial home on her own and after 6 months filed DV (Divorce, RCR, CrPC 125, 498A etc happened in between).

The order states the following "Eventhough the shared household is a self earned property of respondent 2 (my mother), since respondent 1 (myself) has a share in it, the petitioner should be allowed in the shared house hold within 30 days of this order"

Please suggest me some strategy for appealing. Should i do it in sessions court or high court?


 11 Replies

Adv Archana Deshmukh (Practicing Advocate)     03 August 2010

You'll have to file the appeal in the sessions court.

Prem (Manager)     03 August 2010


What is the probability that i get a setaside order? Would you like to recommend any strategy for appealing? Please suggest...

Adv Archana Deshmukh (Practicing Advocate)     03 August 2010

Every case is to be handled as per its own facts. The facts of the case, the evidence on record all this is to be considered while talking about the probabilities of the decision. A case is not decided on one point alone. However,in respect of residential orders, there is a decision of the SC, where the SC has held that a wife cannot enforce residencial order in the house owned by her mother in law.

Vijayendra Navale (Advocacy )     04 August 2010

Does  a undivorced  muslim women can claim a residential claim under Domestic Violence act ?

Adv Archana Deshmukh (Practicing Advocate)     04 August 2010

Yes, of course she can.

Vijayendra Navale (Advocacy )     06 August 2010

Thanks for reply madam,

Let u explain, in this case the position of women is she is a undivorced muslim women. Means she left her first muslim husband and didn't took divorce from him and subsequently she married to another muslim person through Register Marriage. Now the second husband is absconding. And she had seeked a residential claim U/sec - 19 of DV,Act against the relatives of second husband. I have filed the objections relying on U/sec- 13(2) of Mohammedan Law, which states that.. during the subsistence  of first marriage the wife is not permitted to marry..and such marriage is viod.And also U/sec - 256 of Sharaith Act it states the same. I have taken this defense on behalf of the relatives of second husband  that the second marriage itself is viod. Am i  correct?

 Earnestly waiting for u r reply. 

                                                                     Thanking you,  


Adv Archana Deshmukh (Practicing Advocate)     06 August 2010

You can take that defence, but remember that the DV Act is applicable to women in live in relationship too..


I totally agree with adv. Archana in her response to question posed by Mr. Prem.  I want to add that the wife has got a right to residential premises owned by mother in law not for the reason what was said in trial court, but on the basis that her husband is living in the same place.  If husband is living in his mother's premises, then his wife is also entitled to shared household.  The facts of Tarun Batra and the law decided by Supreme Court are not applicable in your case.

Prem (Manager)     06 August 2010

Thanks for the clarification Adv.Archana & Adv.Prabhakar.

Vijayendra Navale (Advocacy )     09 August 2010

Hi Archana if u have any citation on this facts ...please send...Thanks. 


Correction for aam adami's usage:


Mumbai and Delhi HC Favours MIL - do you agree Sir !

Justice Shiv Narayan Dhingra of the Delhi High Court recently held that a daughter in-law cannot book her in-laws under the Domestic Violence Act, if the parents are not living with their son and his wife.

“There can be no domestic relationship of the wife of the son with the parents when the parents are not living with the son, and there can be no domestic relationship of a wife with the parents of her husband when the son, along with the wife, is living abroad.” The court concluded that to constitute a family and domestic relationship means staying / living together under the very same roof.

“Once a son grows up and he starts earning, marries, makes his separate home and sires children, the burden of his wife cannot be put on to the shoulders of his father or brother.” Thus in the present case the daughter in-law had filed a case under the Domestic Violence Act, against her father in-law; mother in-law; brother in-law; along with her husband with whom she was staying abroad.

The woman succeeded in the lower court in attaining an order to grant her a monthly payment of Rs. 50,000 ($1082) towards maintenance. The Delhi High Court came to the in-laws' rescue in an appeal filed by the aggrieved in-laws in setting aside the lower court’s order and passing a judgment in favour of the in-laws.

In converging circumstances, the Bombay High Court has defined the concept of a matrimonial household. A house owned by a woman’s in-laws, cannot be considered a ‘shared household’. In accordance with Section 2 of the Domestic Violence Act, it protects the right of residence of estranged women in a shared household.

In the present case, the mother in-law had challenged the lower court’s decision of granting a bedroom in the matrimonial household and had restricted the entry of the in-laws (only to the extent granted to fulfil parental obligation). The mother in-law challenged the interim order in the Sessions Court which rejected her plea and approached the Bombay High Court.

The in-laws based their argument on a Supreme Court judgement which states “interim protection cannot be granted to a wife when the house belongs to the in-laws.” They contended that a separated / estranged daughter in-law had no right to enter the matrimonial home as it didn’t belong to the daughter in-law and neither her husband. 

Justice V.M. Kanade stayed the order passed by the lower court and stated “It was difficult to accept that a house owned by in-laws could be treated as a shared household. It is difficult to consider a woman’s matrimonial home as shared household if it is not owned by the husband.”

The courts are definitely moving away from the old school thought of mostly favouring the daughter in-law in matters relating to domestic violence. Both the judgements were given in the month of July this year.

The Judges are changing with the times, to aspects pertaining to matters of domestic violence. Lately it seems the courts are being broadminded in their approach as we have previously seen the Supreme Court ruling that live-in relationships are fine and also the fact that divorce has been made easy, by adding of an additional ground. "



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