No absolute right to re-enter matrimonial home under Domestic Violence act if wife voluntarily shifts to alternate residence: Delhi High Court

The Delhi High Court has ruled that the Protection of Women from Domestic Violence Act, 2005 does not confer an absolute or indefeasible right upon an aggrieved woman to insist on residence in a particular property once she has voluntarily shifted to alternate accommodation, especially when such accommodation continues to be available.Dismissing a petition filed by an 81-year-old woman seeking re-entry into her matrimonial home, Justice Ravinder Dudeja clarified that the relief of residence under Section 19 of the DV Act is discretionary, protective and equitable, and cannot be used to revive a past residential arrangement abandoned by choice.The Court observed:“The relief under Section 19 is discretionary and equitable… Compelling the restoration in the present case would disturb the settled possession of the current occupants and convert a protective statute into a rule for re-entry to any past residence and thus would amount to travelling beyond the legislative intent.”

Background of the CaseThe petitioner, an elderly woman aged about 81 years, had challenged orders passed by the Metropolitan Magistrate and the Appellate Court declining her plea for a residence order under Sections 19 and 23 of the Domestic Violence Act.She had been married in 1964 and had resided in her matrimonial home at Green Park, Delhi for several decades. Three children were born from the marriage.According to her, she moved out of the matrimonial home in April 2023 to stay with her daughter at Safdarjung Enclave for medical treatment and post-operative care.

She submitted that the move was temporary and that she had no intention of permanently leaving her matrimonial home.However, when she attempted to return to the Green Park property in July 2023, she was denied entry by her husband, son, and grandson.On this basis, she filed a complaint under the DV Act alleging emotional, economic and mental abuse, and sought restoration of residence in the matrimonial home.The Metropolitan Magistrate dismissed her application, holding that she was already residing in an alternate accommodation at Safdarjung Enclave, which was also owned by her husband.The Court observed that even if the husband was not in actual possession, he retained constructive possession as the owner and could provide the said property as suitable accommodation.The Appellate Court upheld this and added that allowing the petitioner to resume visiting the Green Park house, where she had also made claims of domestic violence against family members living in the house, would only fuel conflicts and result in in further litigation. Petitioner’s Case Before High CourtBefore the High Court, the petitioner submitted that she had been residing in the matrimonial home for over six decades and that her departure from the premises was only temporary for the purposes of medical treatment. She argued that upon being denied re-entry, she was effectively rendered shelter-less. It was further submitted that the alternate accommodation at Safdarjung Enclave could not be treated as a viable residence, as disputes existed regarding its possession and availability.It was further argued that the courts below erred in treating the alternate accommodation as sufficient, particularly when the husband himself had claimed lack of possession in separate proceedings.Respondents’ StandThe respondents argued that the dispute was essentially a property dispute being projected as a case under the DV Act.They argued that the petitioner had voluntarily shifted to the Safdarjung Enclave property and continued to reside there, and therefore could not be said to be without shelter.

They submitted that there was no act of forcible dispossession or domestic violence on their part. It was further submitted that the present proceedings had been initiated only to support parallel civil disputes relating to property claims.It was further submitted that the proceedings were being used to indirectly advance the daughter’s claim in ongoing civil litigation.Court’s AnalysisThe High Court framed key issues, including:

The Court also referred to the object of the DV Act as reflected in its preamble, noting that the legislation is intended to provide effective protection to women against domestic violence and not to adjudicate property disputes between parties.Shared Household Must Be Subsisting, Not HistoricalThe Court acknowledged that the petitioner had lived in the Green Park property for a long duration. However, it held that the concept of a shared household under the DV Act must be assessed in the present context and cannot be based solely on past residence.Relying on judicial principles, the Court observed that:“A shared household must be a subsisting sharehood in presenti, not one surviving merely in historical memory.”Voluntary Shifting Defeats Claim For RestorationThe Court found that the petitioner had voluntarily shifted to the Safdarjung property, as evident from her own pleadings and affidavits, as well as from police complaints wherein she had consistently mentioned the Safdarjung address. These aspects, along with other documentary material placed on record, clearly indicated that the relocation was a conscious and voluntary act.It held that the relocation was not shown to be the result of coercion or violence.The Court noted:“Such shifting is not shown to be compelled by violence or coercion… These factors collectively indicate conscious place of residence, not a temporary displacement.”The Court emphasized that the DV Act is intended to ensure that a woman is not rendered roofless or destitute, and not to confer a right to insist on residence in a specific property.It held:“The object of the statute is protective and remedial and not to confer an indefeasible right… to insist upon residence in a particular property when suitable alternate accommodation… is available.”No Domestic Violence Made OutThe Court found that the denial of re-entry in the present case did not amount to economic abuse or domestic violence, as the petitioner was not rendered shelter-less and continued to have access to alternate accommodation. It was further noted that there was no material to suggest any forcible dispossession from the premises.Balance of Rights Under DV ActThe Court also stressed that residence orders must balance competing rights of the aggrieved woman and the owner/occupants of the property.It cautioned that granting restoration in such circumstances would:“Disturb the settled possession of the current occupants and convert a protective statute into a rule for re-entry to any past residence…”Applying the above principles, the Court held that although the Green Park property may have earlier been a shared household, it did not qualify as a shared household in presenti. The petitioner having voluntarily shifted to alternate accommodation and continued to have shelter, the denial of re-entry did not constitute domestic violence, and she was therefore not entitled to a residence order under Section 19 of the DV Act.Scope of High Court’s InterferenceThe Court further held that its jurisdiction under Section 482 CrPC is limited and can be exercised only in cases of perversity or illegality.Finding no such error in the orders passed by the courts below, the Court refused to interfere.Concluding that the petitioner was not without shelter and that the statutory object of the DV Act stood satisfied, the Court dismissed the petition.It held:“The petitioner is not roofless… and the relief sought would effectively convert a property dispute into a domestic violence proceeding, which is impermissible.”Case Details

(Vatsal Chandra is a Delhi-based Advocate practicing before the courts of Delhi NCR.)