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SUPREME COURT OF INDIA
Deepak Gupta, Aniruddha Bose, JJ.
AISHWARYA ATUL PUSALKAR – APPELLANT
VERSUS
MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY & ORS. – RESPONDENTS
CIVIL APPEAL NO. 7231 OF 2012
Decided on : 27-04-2020
(A) Protection of Women from Domestic Violence Act, 2005 – Section 19 – Hindu Adoptions and Maintenance Act, 1956 – Section 18 – Maharashtra Housing and Area Development Act, 1976 – Sections 79 and 95-A – Right to accommodation – Removal of appellant from her matrimonial home through statutory mechanism contained in Section 95A of 1976 Act – When a builder has discharged his obligation by accommodating original owners in redeveloped portion as per such a scheme, a lady married into that family would not be entitled to invoke writ jurisdiction of High Court to enforce her right to matrimonial home citing provisions of the statute, if her husband does not permit her to reside in allocated portion – She does not have any independent claim on title or interest to that property having its genesis in that statute – Her claim of right to reside in her matrimonial home is sought to be projected by her as collateral to statutory right of her husband to be rehoused or rehabilitated in new building – But her right to reside in her matrimonial home stands detached from and is independent of statutory scheme under the Act – Neither MHADA, nor builder can have any further legal obligation to rehouse her – She is staking her claim as a constructive beneficiary of redevelopment scheme – Right she is seeking to enforce, though flows from a set of events on the basis of which her husband can claim rehabilitation, is actually anchored to an independent legal principle under Family Law – She was an occupier under Section 2 (25) of 1976 Act, but such occupier status was dependent upon her husband’s independent right as part owner of property – Her right flowing from her matrimonial status cannot get diffused with her right of rehousing or rehabilitation under statutory scheme – Her right to reside in her matrimonial home does not flow from t1976 Act. (Para 8)
(B) Hindu Adoptions and Maintenance Act, 1956 – Section 18 – Protection of Women from Domestic Violence Act, 2005 – Section 19 – Maharashtra Housing and Area Development Act, 1976 – Sections 79 and 95-A – Right to accommodation – Removal of appellant from her matrimonial home through statutory mechanism contained in Section 95A of 1976 Act – Appellant’s right to reside in her matrimonial home has a legitimate basis – A married woman is entitled to live, subsequent to her marriage, with rest of her family members on husband’s side, in case it is a joint-property – If she resides in an accommodation as an independent family unit with her husband and children, matrimonial home would be that residential unit – This right is embedded in her right as a wife – A Magistrate having jurisdiction under Section 19 of said Act is empowered to pass a residence order to protect a victim of domestic violence from being removed from her shared household – But for a husband to compel his wife to live in a separate household, which is not her matrimonial home, order from appropriate legal forum would be necessary – There cannot be forcible dishousing of a wife from her matrimonial home – Though she was dishoused as an occupier applying provisions of 1976 Act, claim of her rehousing is based on her status as wife of respondent – Such claim has to be adjudicated upon by Civil Court or Family Court or any other forum law may prescribe – Such right of appellant cannot be diffused with right of her husband under 1976 Act, whose family property, part of which he is owner, has been reconstructed – Appellant should be given choice of occupying that flat as her residence – In the event, appellant wants to establish her right to reside in her matrimonial home with her husband, she shall be at liberty to approach Family Court or any other forum of competent jurisdiction – But in such a situation, she would not be entitled to claim any right specifically in respect of Flat. (Paras 9, 11, 13 and 14)
Facts of the Case:
Original writ petitioner, who is the appellant in this proceeding seeks to enforce her right to reside in her matrimonial home. The location of the house where she wants to establish her right to reside is comprised in two flats (nos.601 and 602) in a building situated in metropolis of Mumbai. The family of her husband (respondent no. 8) were originally the owners of the said plot, on which stood a residential building. Bombay High Court in the judgment under appeal sustained the plea of the respondents that the right which the writ petitioner (appellant before us) was seeking to establish could not be enforced invoking jurisdiction of the Court under Article 226 of the Constitution of India.
Findings of the Court:
Appellant shall vacate her existing accommodation for which expenses appears to have been and continues to be incurred by the Respondent No. 8. The fact of incurring such expense has been pleaded in the additional affidavit filed on behalf of Respondent No. 8, verified on 29th August 2019.
Result : Appeal disposed of with directions.
JUDGMENT
Aniruddha Bose, J.
The original writ petitioner, who is the appellant in this proceeding seeks to enforce her right to reside in her matrimonial home. The location of the house where she wants to establish her right to reside is comprised in two flats (nos.601 and 602) in a building situated on plot No. 118, Dr. M.B. Raut Road, Shivaji Park, Dadar, in the metropolis of Mumbai. The family of her husband (respondent no. 8) were originally the owners of the said plot, on which stood a residential building known as "Usha". We find from an additional affidavit filed in this proceeding affirmed on 29th August 2019 by the respondent no. 8 that the said building was originally owned by three branches of the "Pusalkar" family in equal proportion. The branch of the respondent no. 8 stemmed from Shivram Dattatryea Pusalkar, carpet area of 1100 sq.ft. comprised of their share. On death of said Shivram Dattatreya Pusalkar, his share devolved in equal proportion to his widow Shobhana Shivram Pusalkar (since deceased), their daughter Gayatri Pratap Puranik and the respondent no. 8. That building upon demolition was redeveloped by a firm of builders, BUILDARCH. Such redevelopment was done after obtaining a no objection certificate from the Mumbai Building Reforms and Reconstruction Board (Board) in terms of the provisions of Maharashtra Housing and Area Development Act, 1976 (1976 Act). Under a scheme approved under the provisions of the said Act, during the period of redevelopment, the occupants were required to shift to transit or temporary accommodations. The appellant's contention is that such exercise of redevelopment had been undertaken in pursuance of a statutory scheme framed under Section 79 of the 1976 Act which has provisions for rehabilitation of dishoused occupiers. The members of the family of the appellant after her marriage, comprising of her husband and mother-in-law appear to have had shifted to the transit accommodation in the year 2000. The appellant-writ petitioner remained in the original building with her two minor sons. Respondent No. 8, Atul Shivram Pusalkar, however, has claimed that both their sons are major by age now and are working with him in his business. Respondent No. 8 has also stated that one of his two sons is residing with him.
2. As the appellant had continued to reside in the old building, the MHADA authorities issued a notice upon her under Section 95-A of the 1976 Act. The said provision stipulates :-
"95-A. (1) Where the owner of a building or the members of the proposed co-operative housing society of the occupiers of the said building, submits a proposal to the Board for reconstruction of the building, after obtaining the written consent of not less than 70 per cent of the total occupiers of the building and a No Objection Certificate for such reconstruction of the building is issued by the Board to the owner or to the proposed co-operative housing society of the occupiers, as the case may be, then it shall be binding on all the occupiers to vacate the premises:
Provided that, it shall be incumbent upon the holder of such No Objection Certificate to make available to all the occupants of such building alternate temporary accommodation.
(2) On refusal by any of the occupant to vacate the premises as provided in subsection (1), on being approached by the holder of such No Objection Certificate for eviction of such occupiers, it would be competent for the Board, notwithstanding anything contained in Chapters VI and VII of this Act, be liable for summary eviction.
(3) Any person occupying any premises, land, building or structure of the Board unauthorisely or without specific written permission of the Board in this behalf shall, notwithstanding anything contained in Chapter VI and VII of this Act, be liable for summary eviction.
(4) Any person who refuses to vacate such premises or obstructs such eviction shall, on conviction, be punishable with imprisonment for a term which may extend to one year o
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