Right to Reside in a Shared Household under the PWDVA, 2005
RIGHT TO RESIDE IN A SHARED HOUSEHOLD UNDER THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
Domestic violence against women is an alarming issue which concerns the society at large. It is a world wide phenomenon and has been discussed on International platforms such as Vienna Accord of 1994 and the Beijing Declaration and Platform for Action (1995). The United Nations Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) recommended that States should act to protect women against violence of any kind, especially that occurring within the family. Also, the National Family Health Survey in its 2005-2006 report found out that, "Victims of domestic violence are abused inside what should be the most secure environment-their own homes-and usually by the persons they trust most." According to the International Center for Research on Women (ICRW) in 1999, four out of ten women in India have experienced violence at home and 45% of women have suffered at least one incident of physical or psychological violence in their lifetime.
Domestic Violence has an adverse effect on the women concerned. The violence they face translates into a life long emotional trauma and takes a toll on their health. In most cases she is abused physically, mentally, emotionally, economically and sexually which in turn makes the woman develop low self esteem, makes her lack confidence, lack of trust in relationships, depression, health problems etc.
Even though women go through so much in the abusive relationship yet most of the times they continue to suffer in silence. This is because of the societal pressure, family image, economic dependence, hope that the husband would change, for the well being and security of her children, fear of no shelter at her disposal etc. Therefore, concrete efforts were required to curb this menace; an urgent need was felt to enact a special legislation for the women regarding domestic violence. On 26th October 2006 the much awaited, Protection of Women from Domestic Violence Act, 2005 (the "PWDVA") came into effect. The PWDVA is the first significant attempt in India to recognize domestic abuse as a punishable offence. The Preamble of the Act commences with the line "An Act to provide for more effective protection of the rights of women..." To uphold the significant opening lines of the preamble, the PWDVA provides for reliefs, remedies, stakeholders which are inter alia - Protection orders under Section 18, Residence orders under Section 19, Monetary Reliefs under Section 20, Custody Orders under Section 21, Compensation orders under Section 22, Protection Officer and Service Providers.
However, the most significant remedy for the aggrieved woman under this Act is the one under Section 17 where the woman has a right to reside in a shared household. This is because most of the times there is a fear of "no roof" on her head and that stops a woman from walking out of an abusive relationship. She doesn't want to avail the option of going to her parental home because she doesn't want to bring a 'bad name' or be called a burden on her parents or it is possible that her parents would refuse to take her back. In this connection the preceding Section 17 is legally path breaking since it introduces the right of every woman in a domestic relationship to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
If we trace the change in the right to shared household, then prior to the existence of the PWDVA, 2005 a woman could seek relief for maintenance under The Hindu Adoptions and Maintenance Act, 1956 (the "HAMA"). HAMA was enacted to amend and codify the law relating to adoptions and maintenance among Hindus, and it defines maintenance in Section 3(b) to include - "In all cases, provision for food, clothing, residence, education and medical attendance and treatment." The definition under Section 3 (b) is inclusive and includes the basic amenities. Supreme Court time and again has strengthened that 'Maintenance' encompasses a provision for residence.
The Apex Court in Komalam Amma v. Kumara Pillai Raghavan Pillai and Ors, and B.P. Achala Anand v. S Appi Reddy and Anr observed that,
"A Hindu wife is entitled to be maintained by her husband. She is also entitled to separate residence if by reason of the husband's conduct or by his refusal to maintain her in his own place of residence or for other just cause she is compelled to live apart from him. Right to residence is a part and parcel of wife's right to maintenance. The right to maintenance cannot be defeated by the husband executing a will to defeat such a right.The right has come to be statutorily recognized with the enactment of the Hindu Adoption and Maintenance Act, 1956. Section 18 of the Act provides for maintenance of wife. Maintenance has been so defined in clause (b) of Section 3 of the Hindu Adoption and Maintenance Act, 1956 as to include therein provision for residence amongst other things. For the purpose of maintenance the term 'wife' includes a divorced wife."
But, HAMA was not sufficient. Even though 'maintenance' included residence but the purpose was not solved for women who did not have a place to reside because of long period of trial and high expense. A need for urgent and immediate relief was felt.
The reason for which the right to shared household was explicitly mentioned in the PWDVA was because of the growing trend of throwing out the distressed woman along with her children from the shared household and the need for an immediate relief for residence. Now a husband cannot dispossess his wife from her shared household when a dispute is going on. Hence, "Right to shared household" prevents dispossession and provides immediate relief.
Under Section 2(s) PWDVA, "A 'shared household' means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household."
Under Section 17 of the PWDVA, the woman has the right to reside in the above described 'shared household', whether or not she has any right, title or beneficial interest in the same. A residence order under Section 19 PWDVA is in relation to a shared household. In addition, for safety a woman can take Protection Order to stay in the same household.
A woman's right under Section 17 is protected under the Constitution of India. Women's rights are protected by the general principle of equality under Article 14 and Article 15(3) where the State has been given the special right to make provisions for women and children. The Constitution of India has time and again created stipulation for protective discrimination of socially and economically backward class. The right of shared household is a part of Article 21 where everyone is granted the right to live with dignity.
Also, the Apex Court in U.P. Avas Evam Vikas Parishad and another Vs. Friends Co-op. Housing Society Ltd. and another held that, "Right to shelter is a fundamental right, which springs from the right to residence assured in Article 19(1) (e) and right to life under Article 21 of the Constitution."
In Vikram Deo Singh Tomar v. State of Bihar, the Apex court held that
"It shows a particular regards for women and children, and notwithstanding the pervasive ethos of the doctrine of equality it contemplates special provision being made for them by law. This is only to be expected when an enlightened constitutional system takes charge of the political and socio-economic governance of a society, which has for centuries witnessed the relegation of women to a place far below their due. We live in an age when this Court has demonstrated, while interpreting Article 21 of the Constitution, that every person is entitled to a quality of life consistent with his human personality. The right to live with human dignity is the fundamental right of every Indian citizen. And, so, in the discharge of its responsibilities to the people, the State recognizes the need for maintaining establishments for the care of those unfortunates, both women and children, who are the castaways of an imperfect social order and for whom, therefore, of necessary provision must be made for their protection and welfare."
Talking about the role that judiciary has played in respect of the right of a woman to shared household; it may be evaluated as not so consistent. There has been a difference of opinion, one being, that she has a right to live in the shared household and the other being that if the property does not belong to the husband nor was it taken on rent by him nor is it a joint family property of which he is a member then the wife cannot claim her 'right to shared household' in the same.
A few glaring examples of such kind of inconsistencies are, S.R. Batra v. Taruna Batra, where the Supreme Court held that the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the 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. The property in the present case neither belonged to the husband nor was it taken on rent by him nor was it a joint family property of which he was a member, it was the exclusive property of his mother. Hence, it cannot be called a 'shared household'. So, a wife could not claim residence in the property as it belonged to the mother-in-law.
This judgment was highly criticized as it poses a problem for women who are living in a situation of violence and in a shared household with their in-laws. The definition of 'shared household' in the PWDVA clearly states that a shared household is a household where the aggrieved person lives or at any stage has lived in a domestic relationship. Taruna Batra had lived in the property in question in the past; hence the said property was her shared household. But the court overlooked all of that and decided that the property in question neither belonged to the husband nor was it taken on rent by him nor was it a joint property of which the husband was a member. It was the exclusive property of the mother-in-law. Hence, according to the Apex court it cannot be called a shared household as it was not fulfilling the criteria of the section. After S.R. Batra v. Taruna Batraa trail of cases followed on the same lines.
In spite of S.R. Batra v. Taruna Batra there have been cases where the Judiciary has interpreted the provisions with an open mind and has considered the plight of the aggrieved woman. In Vandana v. Mrs. Krishnamachari & Ors the Madras High Court provided a broad interpretation to "shared household" and "domestic relationship" as defined under Section 2(s) and Section 2(f) of the PWDVA, respectively. The respondent-husband contested the right of the aggrieved wife to reside in the shared household under Section 17 of the PWDVA because the parties had not "lived together" in the shared household for even a single day after their marriage. The parties disputed even the very fact of marriage. The Court, upholding the right of the aggrieved wife to reside under Section 17, held that she has a de jure right to live in the shared household because of her status as a wife in the domestic relationship.
Also, Madras High Court in P. Babu Venkatesh & Ors. v. Rani upheld a residence order on behalf of a wife. The Court found that her husband transferred the house under his mother's name, intending to defeat his wife's right to reside there, and prior to his wife's dispossession, both parties resided jointly in the household. The Court also held that pending divorce proceedings did not affect grants of relief under the PWDVA.
Tracing the lacuna in the right to shared household, it is often seen that women feel insecure and scared going back in the same household where she was abused. It gets difficult for her to segregate herself entirely from the perpetrators by living in the same household. At the same time, for example if there are three floors in a given shared household it is convenient for the woman to stay separately on one floor under the right to shared household. It is pertinent to mention here about the 'Right to alternate accommodation'. Under Residence Orders, the Court can direct the respondent to secure the same level of alternate accommodation for aggrieved person as enjoyed by her in the shared household. This gives her an added alternative.
The truth is that even before the PWDVA came into effect; right to shelter was a fundamental right, which came from the right to residence given under Article 19(1) (e) and right to life under Article 21 of our Constitution. The 'right to shared household' is a revolutionary concept that came into life with the enactment of the PWDVA. Section 17 was considered to be ground breaking since it introduced the right of every woman in a domestic relationship to reside in the shared household, whether or not she has any right, title or beneficial interest in the same, it also gives the same right to a relationship in the nature of marriage, adoption or family members living together as a joint family.
India certainly has a long way to go since women are still not protected by way of matrimonial property laws. But the concrete form of this right to reside offers the pathway to formulate new laws and amend the existing ones to secure the rights of the ones whose lives are torn apart by the trauma of domestic violence.
Surbhi Singh
Survivors' Group Coordinator
Lawyers Collective Women's Right Initiative
Endnotes
1. National Family Health Survey 2005-2006 (NFHS-3) India Reports - http://hetv.org/india/nfhs/index.html
2. http://www.icrw.org
3. Section 17 of the PWDVA,2005 - Right to reside in a shared household
(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
4. Section 3(b)(i), The Hindu Adoptions and Maintenance Act, 1956
5. AIR 2008 SC 154
6. (2005) 3 SCC 313
7. MULLA, Principles of Hindu Law, Vol. I, 18th Edition, 2001, para 554 and 555
8. Section 2(s) PWDVA, 2005
9. Article 21. Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law.
10. AIR 1996 SC 114
11. Article 19 (1) (e) - (e) To reside and settle in any part of the territory of India;
12. AIR 1988 SC 1782
14. Section 2(s), PWDVA
15. Shammi Nagpal Vs. Sudhir Nagpal, Director of Hotel Taj-President, Indian Hotels Company Ltd. and Commissioner of Police [2008(5)BomCR149], Vimalben Ajitbhai Patel Vs.Vatslabeen Ashokbhai Patel and Ors [2007 (6) KLT 1233.]
17. Lawyers Collective, Landmark Judgments and Orders - http://www.lawyerscollective.org/wri/projects-activities/domestic-violence-landmarks.
18. (2008) 2 MLJ 591 (Mad)
19.Section 19, PWDVA