Prior to the enactment of the Protection of Women from Domestic Violence Act, 2005 (“the DV Act”), remedies for domestic violence against women in India were available under Section 498-A of the Indian Penal Code, 1860. Section 498-A provides imprisonment and a fine for cruelty by husband or the relatives upon a woman. However, no emergency reliefs for the welfare and protection of a woman facing violence were available under it. As an illustration of the need to recognize the rights of married women and the obligations of the husband to maintain them, the Supreme Court of India (“SC”) in B.R. Mehta v. Atma Devi and Ors., observed that it was time that wives in India had a right of occupation in the matrimonial home, in the event of a strained marital relationship.
In order to implement General Recommendation No. XII of the United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (“CEDAW”) and provide emergency reliefs to survivors of domestic violence, the DV Act came into force on 26 October 2006. It is a secular social welfare legislation that provides effective protection to the rights guaranteed under Articles 14, 15and 21 of the Constitution of India for multiple emergency reliefs such as protection orders, residence orders, monetary reliefs, custody orders, compensation orders and interim, ex parte orders in respect of all the aforementioned reliefs.
2. Right to Residence
Of the afore-mentioned emergency reliefs, the present piece of work deals with the interpretation of the term “shared household” under the DV Act under the right of residence. The DV Act’s right of residence is similar to the concept of shared residence in Singapore’s Women's Charter.Section 17 of the DV Act that provides for the right to residence begins with a non-obstante clause and provides for the right to reside in a shared household irrespective of any act of domestic violence. Section 19 provides for residence orders. It comprises of two rights - right to reside in a shared household or the right to seek residence orders.
2.1. Shared Household: Meaning
The definition of a shared household under the DV Act is provided in two parts: one that defines what it “means” and another that lists what it “includes”. The use of both words “means” and “includes” in the definition has been held by Courts to be exhaustive. However, the second part of the definition of shared household provides what shared household includes and it is only enumerative and not exhaustive. A perusal of Section 17 of the DV Act shows that irrespective of whether a person is an aggrieved woman under the DV Act, a right is conferred on her to reside in a shared household even in the absence of any act of domestic violence.
2.2. Shared Household: Trajectory of Interpretation
The trajectory of the interpretation of the term “shared household” under the DV Act can be traced by studying three landmark judgments of the SC in the cases of (i) S.R. Batra and Anr. v. Taruna Batra, (ii) Satish Chander Ahuja v. Sneha Ahuja and (iii) Prabha Tyagi v. Kamlesh Devi. Each judgment is progressive in comparison to its previous counter-part and the SC has interpreted the provisions of the DV Act in a manner so that the protection is made available to women in the widest amplitude.
The first judgment is the case of S.R. Batra where the SC observed that the words “lives or at any stage had lived” if interpreted literally would mean that all places where the parties i.e., the husband and the wife live together at any point in time come within the purview of the term shared household merely because the parties had stayed there together for some time in the past. The court restricted the definition of shared household under the DV Act to “house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member.” based on the observation that anything to the contrary would be absurd and lead to chaos.
Following the decision in S.R. Batra , various High Courts have held that the properties owned by the parents-in-law or allotted to the husband under a service occupancy agreement cannot be termed as shared household under the DV Act as the son/husband is only a permissive licensee and if the son/husband cannot claim any legal right to stay in the house then the wife also cannot make any such claim against the parents-in-law or employer. The judgment came as a major blow to rights to daughters-in-law to enforce the right to reside in a shared household against in-laws.
The SC overturned the decision in S.R. Batra case in Satish Chander, and observed that the concern expressed in the earlier case was not valid, as the right to live in a household under the DV Act should have some permanency. The judgment in Satish Chander was in consonance with the existing traditions in India where it was expected of a married couple to continue to reside with the parents-in-law i.e., mother and the father of the husband in the home owned by the parents-in-law . The Court however proceeded with a note of caution that such a right to residence was not an indefeasible right when the daughter-in- law is pitted against ailing and aged parents-in-law and there exists a need to balance the interest of both the parties in case of a dispute.
A year later, in the case of Prabha Tyagi the SC took note of the terms “lives or at any stage has lived” under Section 2(s) of the DV Act and interpreted that shared household means such a household where an aggrieved person was living with the respondents at the time of the filing of the an application under the DV Act or such a household where an aggrieved person had been excluded from living in in the recent past. The SC went a step ahead and provided an expanded interpretation of the term right to residence. It invoked the concept of “constructive residence” and held that “if a women has the right to reside in the shared household under Section 17 of the DV Act and such a women becomes an aggrieved person or victim of domestic violence, she can seek reliefs under the provisions of the DV Act including enforcement of her right to live in a shared household.”
The High Court of Madras, in the case of Vandhana v. Srikanth, had already distinguished the judgment in S.R. Batra and recognized that a woman may not be able to enter her matrimonial home immediately after marriage for various reasons, such as a honeymoon or ceremonial obligations, even before the decision in Prabha Tyagi case.The Court observed that a strict interpretation of Section 2(f) and 2(s) of the DV Act would leave women without remedies despite a valid marriage. Therefore, a shared household must include a household where an aggrieved person has a right to live, regardless of physical residence. The Madras High Court distinguished the judgment in S.R. Batra to prevent husbands from taking advantage of the decision by alienating property before disputes arise in order to deny the wife a shared household under the DV Act, as seen in the case of P. Babu Venkatesh v. Rani.
Further, in another progressive judgment the High Court of Madras in M. Palani v. Meenakshi, protected the rights of a female who had sexual relationship with a male (akin to today’s concept of live-in relationships) on the ground that the DV Act does not contemplate that any particular period in which the parties must have been living or lived together. The Court observed that since the parties had consensual sex an inference of a domestic relationship between the parties can be drawn and therefore an application under the DV Act is maintainable. The judgment, however, only deals with award of maintenance and does not go on to determine what could have comprised of shared household between the parties.
The progressive interpretation of the term shared household by the Courts in India is appreciated particularly in the background of the patriarchal set-up that accords little or no protection to women who are themselves unaware of the existing rights under the law. Envisaging the various scenarios that may render women helpless despite existing laws, the SC’s interpretation provides a progressive trajectory that achieves the objects of effective protection of the rights guaranteed under the Constitution of India of survivors of domestic violence.
The Supreme Court has recognized live-in relationships under the DV Act, allowing women in such relationships who meet the conditions laid down in the case of Indra Sarma to have the right to reside not only in the house owned or rented by their partner but also that of his parents, under the concept of constructive residence. However, there is a restriction of permanency, as laid down in the case of Satish Chander, for the man in such situations.
The blog is authored by Harshita Singhal, an advocate working in the area of gender justice.