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  • In a landmark judgement titled Prabha Tyagi vs Kamlesh Devi the Hon’ble Supreme Court has held that every woman in a domestic relationship has a right to reside in a shared household even in the absence of any act of domestic violence. She cannot be evicted from such a household. This right can be enforced under section 17(1) of the Protection of Women from Domestic Violence Act, 2005, irrespective of whether she is an aggrieved person or not. 
  • The issue at hand arose out of an application filed under section 12 of the DV Act by a woman, after the death of her husband, against her mother in law and father in law seeking a residence order to reside in the property of her late husband, return of her streedhan, etc. The lower Court allowed most of the reliefs and directed that the respondents will not obstruct the aggrieved daughter in law from enjoying the property of her late husband.
  • This order of the lower Court was reversed by the appellate Court on the ground that the aggrieved woman had never lived with the respondents and that she used to live in a separate city with her husband. Thus, there was no shared household between the parties. Another reason that was cited for the reversal was that there was no subsisting domestic relationship between the parties. This reasoning was seconded by the Uttarakhand HC. Aggrieved, the appeal was filed before the Apex Court. 
  • The Apex Court observed that it is not mandatory for the aggrieved person to actually reside with those persons against whom the allegations of domestic violence have been levelled. If a woman has the right to reside in a shared household under section 17 of the DV Act (right of residence in shared household) and such woman becomes an aggrieved person or a victim of domestic violence, she can seek relief under the provisions of the DV Act including the right of residence. 
  • Reference was made to the decision of the Apex Court in VD Bhanot vs Savita Bhanot (2012) SCC wherein it was observed that the wife who had shared a household in the past but was no longer residing with her husband, can file a petition under section 12 of the Act if subjected to domestic violence. 
  • It was observed that the expression ‘right to reside in the shared household’ is not restricted to actual residence, but also includes constructive residence. A woman cannot be excluded from the shared household even if she has not actually resided therein, and this is why the expression ‘shall not be evicted or excluded from the shared household’ has been intentionally used in section 17(2) of the Act. if a woman is sought to be evicted or excluded from the shared household, she would become an aggrieved person in which case section 17(2) would apply. 
  • The Apex Court also observed that it is not necessary that at the time of filing of an application by an aggrieved person, the domestic relationship should be subsisting. Even if an aggrieved person is not in a domestic relationship with the respondent in a shared household at the time of filing of an application under section 12 of the DV Act, but has at any point of time lived or has the right to live and has been subjected to domestic violence on account of domestic relationship, she is entitled to file an application under section 12 of the DV Act. This has also been observed in the case of Satish Chander Ahuja vs Sneha Ahuja (2021) SCC. 
  • It was also observed that section 12 of the Act does not make it mandatory for a Magistrate to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order under the Act. The order can be passed in the absence of the same. 
  • Thus, the order of the Uttarakhand HC as well as the Additional District Judge, Dehradun was set aside and the order of the Special Judicial Magistrate was affirmed. The appeal was, hence, allowed. 
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