Rule. Made returnable forthwith.

1. The petitioner wife has challenged the order of the Judge, Family Court No.3, Bandra, Mumbai dated 14th March, 2013 allowing the application of the respondent husband to use and occupy one bedroom and to allow him to use facilities like kitchen, hall, w.c and bathroom in flat Nos. B-101 and 102, Wilfred Apartments Co-operative Housing Society Ltd., Plot No.112, St. Leo Road, Bandra(W), Mumbai-400 050. The petitioner has not challenged the order of prohibitory injunction restraining her from selling, disposing off, transferring, letting out, alienating in any manner, the above mentioned matrimonial house and also restraining her from selling or disposing off or part with the articles existing in the house property.

2. In this writ petition the Court is only called upon to see whether an estranged husband who is prima facie shown to be violent can be allowed into the matrimonial home where the wife resides with her children.

3. The concept of a “battered wife's right of protection against violence” has been considered in common law in England just as the concept of a “deserted wife's' equity” was. In common law a battered wife had a right to be protected from the physical violence of her husband. She would be entitled to a right of injunction for her protection in her matrimonial home.

4. These injunctions were granted upon the principle of justice, equity and good conscience.

5. This right came to be statutorily recognised in the U.K under the Domestic Violence and Matrimonial Proceedings Act 1976 (D.V.Act).

Under Section 1 of the D.V. Act, an injunction could be issued (termed as a matrimonial injunction). The breach of the injunction empowered the Police to arrest the violator.

Under Section 3 of the D.V. Act, Section 1(2) of the Matrimonial Homes Act, 1967 came to be amended. The order of regulating the exercise of the right of occupation by a spouse in the dwelling house came to be substituted by the order of prohibiting, suspending or restricting such a right.

Under Section 4 of the Act, in the case of spouses, who are joint owners of the matrimonial home, the right to occupy it or to prohibit, suspend or restrict the other party could be granted by an order of the Court.

6. Both the spouses are entitled to an equal right in the matrimonial home. This is upon the precondition that both live there peacefully, happily and lovingly. Even in unhappy marriages parties continue to have such rights unless there is violence which has always been protected against by Courts in common law and later under statutory provisions.

7. The specific statutory provision in India has been under Section 19(1)(b) of the Protection of Women from Domestic Violence Act, 2005 (D.V.Act) in which various injunctions are granted in favour of a woman in respect of her residence titled “Residence orders”.

The relevant part of Section 19 runs thus:

“19. Residence orders. – (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order –

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same,