1. Divorce proceeding — Application under Section 19(1)(b) of the Protection of Women from Domestic Violence Act for removal of husband from shared household. (Para 2 , 4 )
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2017 Supreme(SC) 886
SUPREME COURT OF INDIA
Kurian Joseph, R. Banumathi, JJ.
Samir Vidyasagar Bhardwaj - Appellant
Versus
Nandita Samir Bhardwaj - Respondent
Civil Appeal No. 6450 of 2017 (Arising out of SLP(C) No. 4385 of 2017)
Decided On : 09-05-2017
Advocates:
Advocate Appeared:
For the Appellant : Ms. Vandana Sehgal
For the Respondent: Udit Gupta, Ravi Kumar Tomar
Advocate Appeared:
For the Appellant : Ms. Vandana Sehgal
For the Respondent: Udit Gupta, Ravi Kumar Tomar
Under Section 19(1)(b) of the Protection of Women from Domestic Violence Act, 2005, a court may direct a husband to remove himself from the shared household, regardless of co-ownership, if satisfied that domestic violence has occurred, to ensure the aggrieved party's undisturbed residence.
Headnote:Protection of Women from Domestic Violence Act, 2005–Section 19(1)(b)–Domestic violence–Interim order–Divorce Petition has been filed on ground of cruelty and respondent-wife had alleged in application seeking interim relief that she had been subjected to mental and physical cruelty due to which living under one roof with appellant-husband has become impossible–Even daughters who have filed their respective affidavits have supported stand taken by their mother–Family Court passed interim order directing appellant-husband to remove himself out of matrimonial house and not to visit the same till the decision of divorce petition–Property is a shared household of parties– Both appellant and respondent are independent and having their own source of income–Family Court arrived at a finding that prima facie material was available on record to accept allegation of respondent-wife on domestic violence–Exercise of discretion by Family Court cannot be said to be perverse warranting interference–Judgments passed by Courts below upheld–Appeal dismissed. (Paras 6, 7, 10, 11, 12 and 13)
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2. Husband contends co-owner cannot be evicted from shared household and final relief cannot be granted at an interim stage. (Para 5 , 7 )
3. Court found prima facie evidence of domestic violence and noted that both parties are independently employed with the husband having alternative accommodation. (Para 10 , 12 )
4. Under Section 19(1)(b) of the Protection of Women from Domestic Violence Act, a court may direct a spouse to remove themselves from a shared household. (Para 11 , 12 )
5. Appeal dismissed; interim order directing husband to remove himself from the matrimonial home affirmed; Family Court directed to expedite the divorce petition. (Para 13 )
6. Can a husband be ordered to leave the matrimonial home even if he is a co-owner of the property?
Yes, under Section 19(1)(b) of the Protection of Women from Domestic Violence Act, the court may direct a husband to remove himself from the shared household if it is satisfied that domestic violence has taken place. (Para 11 , 12 )
7. What is the primary objective of an order passed under Section 19 of the Protection of Women from Domestic Violence Act?
The order seeks to maintain the continued and undisturbed residence of the aggrieved party within the shared household. (Para 11 )
8. When is the exercise of discretion to remove a spouse from a shared household considered justified?
Such discretion is justified when there is prima facie material on record to accept allegations of domestic violence, ensuring the aggrieved party's right to a shared household. (Para 12 )
JUDGMENT :
R. Banumathi, J.
Leave granted.
2. An order passed by the High Court of Bombay in Writ Petition(C) No. 169 of 2017 dated 11.01.2017 wherein the High Court affirmed the interim order passed by the Family Court in and by which the appellant-husband has been directed to remove himself from his own home and not to visit there until the divorce petition is finally decided is under challenge.
3. This case presents a very unpleasant tale of a couple having daughters who are in their early twenties witnessing a bitter matrimonial battle between their parents. The appellant and the respondent herein tied nuptial knot on 05.05.1992. The couple resided in two flats being Flat No. 102 and Flat No. 103 situated in the building known as "Hi Ville" 29th Road, Bandra (West), Mumbai. The said two flats were sold by the couple and they purchased a flat bearing No. 201 situated in "Aashna" Building, 8, St. Martin Road, Bandra (West) Mumbai by way of Agreement for Sale dated 22.11.2010. The said flat was purchased in the joint names of the appellant and the respondent herein where they have been residing with their two daughters till date.
4. After more than two decades of marital life, on 09.07.2015 respondent-wife filed a petition under Section 27(1)(d) of the Special Marriage Act for divorce against the appellant being Petition No. A-1873 of 2015 in the Family Court at Bandra, Mumbai. The respondent has sought various other reliefs including a direction to be given to the appellant to move out of the matrimonial home and handover vacant and peaceful possession of the same to the respondent and to pay a maintenance of Rs. 1,00,000/- and other consequential reliefs apart from seeking dissolution of marriage. An application being I.A. No.162 of 2015 was filed by the respondent-wife under Section 19(1)(b) of the Protection of Women from Domestic Violence Act, 2005 (for short `the Domestic Violence Act') praying for issuance of mandatory injunction against the appellant-husband to move out of the matrimonial house and handing over the vacant and peaceful possession of the house. In addition to the above, she had also sought for alimony/maintenance and the expenses of marriage of her daughters.
5. When the application was taken up by the Family Court, the respondent-wife did not press for other reliefs and she pressed only for the relief of mandatory injunction to direct the appellant-husband to move out of the matrimonial house. The application was resisted by the appellant herein denying all the allegations stating therein that identical relief with regard to injunction having been sought in the Divorce Petition, the same cannot be granted at an interim stage. The appellant had also contended before the Family Court that he being the owner of the flat, cannot be deprived from using his house. It is also the case of the appellant-husband that the allegations made by the respondent-wife are not supported by way of anything on record and that the wife owns a flat jointly with her mother at Tardeo and another one on pagadi basis.
6. The Divorce Petition has been filed on the ground of cruelty and the respondent-wife had alleged in the application seeking interim relief that she had been subjected to mental and physical cruelty due to which living under one roof with the appellant-husband has become impossible. Even the daughters who have filed their respective affidavits have supported the stand taken by their mother namely the respondent. The counsel further stated that the husband was owing a flat jointly with his mother and is just five minutes walking distance from the matrimonial home and that no inconvenience would be caused to him.
7. The Family Court passed the interim order on 13.12.2016 directing the appellant-husband to remove himself out of the matrimonial house and not to visit the same till the decision of the divorce petition. Aggrieved by the interim order passed by the Family Court, the appellant-husband approached the High Court b
