IMPORTANT POINT
Right of residence in shared household – Husband is bound to provide suitable accommodation to his wife in shared household.

ORDER :

UDAY UMESH LALIT, J.

1. Leave granted.

2. These appeals arise out of the common Judgment and Order dated 15.11.2018 passed by the High Court of Delhi at New Delhi in Criminal M.C. No.3391 of 2017 and in Criminal M.A. No.13845 of 2017, by which the High Court affirmed (i) the order dated 26.10.2016 passed by Mahila Court in proceedings initiated by the appellant under Section 12 of the DV Act(The Protection of Women from Domestic Violence Act, 2005) and (ii) the order dated 15.04.2017 passed by Additional Sessions Judge-2, (North), Rohini Courts, Delhi in Criminal Appeal No.30 of 2016.

3. The facts leading to the passing of the order dated 26.10.2016, as captured in the aforementioned order dated 15.04.2017 are as under:-

“The short history of the litigation between the appellant and the respondents, as brought on record, is that Sh. Mahipal Gupta (respondent No.1 herein) was married to one Ms. Geeta Gupta and two issues, one son namely Arnav Gupta and a daughter Garima were born out of their wedlock and after the demise of Ms. Geeta Gupta on October 10, 2004, the respondent No.1 married the appellant Mrs. Neelam Gupta and both were residing in the premises in question that basically was owned by Ms. Geeta Gupta, the first wife of the respondent No.1.

After some time of the marriage of the appellant, Ms. Neelam Gupta with her second husband Sh. Mahipal Gupta turned sour and parties were before the courts of law as Ms. Neelam Gupta, the appellant had filed a petition for protection of her rights of her residence etc., under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as the DV Act) and claimed a right of residence claiming such property as shared household and vide order dated 17-06-2008, the Ld. Trial Court had passed a protection order of the residence to the appellant in such premises. The appellant has also filed a civil suit No.295/2009 qua such premises and she had obtained an interim injunction against here husband from her dispossession form the premises in question.

Thus, the appellant had two protective orders qua the property in question, one under the DV Act and another under the injunction suit.

Sh. Arnav Gupta, respondent No.2, the son of the first wife of respondent No.1 (the husband of the appellant herein) filed the partition suit qua the premises in question that got decreed and even the final decree was made executable vide orders dated 03-04-2013 of the Hon’ble High Court, in the Chamber Appeal against the orders dated 06-08-2011, vide which the application of the appellant (Ms. Neelam Gupta) seeking impleadment in the suit of partition under Order 1 Rule 10 CPC was dismissed and such appeal was also dismissed thereby the final decree passed in the CS (OS) 858/2010, made executable, subject to the vacation/variation of order dated 17-06-2008 in DV Act.

The appellant herein, had also preferred an RFA (OS)/96/2013 against the final decree that was also dismissed vide order dated 19-02-2014 passed by the two judges’ bench of HMJs Sh. Pradeep Nandrajog and Jayant Nath, J.J. of Hon’ble High Court, with the observations:

‘Under the Protection of Women from Domestic Violence Act, 2005 the appellant would certainly be entitled to a shared residence being her matrimonial home or in lieu thereof her husband to provide her with a suitable reasonable accommodation in accordance with law.

The vacation/variation contemplated by the impugned order would mean the appellant’s possessory rights cannot be disturbed with respect to the flat in question unless the husband obtains an order from the learned Metropolitan Magistrate to offer an alternative accommodation to the appellant in accordance with law’.

3. In the above-noted brief history and the relevant facts of the case, the respondent No.2 Sh.Arnav Gupta, (the Decree Holder) filed an application for variation of the protection orders dated 17-06-2008 that was disposed of vide orders dated 26-10-2016, against which the appeal has been prefe