IMPORTANT POINT
The right to reside in a shared household under the D.V. Act does not require actual residence at the time of filing, but pending related proceedings can affect the propriety of subsequent applications.

JUDGMENT :

An estranged wife in domestic relationship is the petitioner herein. She filed Ext.P3 Miscellaneous Case bearing no.69/2021, seeking maintenance under Section 125 of the Code of Criminal Procedure ('Cr.P.C.' for short). In that M.C, the petitioner/wife filed Ext.P8 Miscellaneous Petition bearing no.1052/2022 seeking various reliefs under Sections 18, 19, 20 , 21 and 22 of the Protection of Women from Domestic Violence Act, 2005 , ('D.V. Act' for short). In Ext.P8 Miscellaneous Petition, yet another petition was filed as M.P.No.827/2023 (Ext.P10) seeking a residence order, enabling the petitioner/wife to reside in the house of the respondent/husband, where the children are residing. By virtue of the impugned Ext.P12 Order, Ext.P10 petition seeking residence order was declined, on the premise that the petitioner/wife was not residing in the residential house belonging to the respondent/husband at the time of filing the application; and also for the absence of a specific averment that the said residential house is the shared household of the petitioner/wife. Ext.P12 Order is under challenge in this Original Petition.

2. Heard the learned counsel for the petitioner and the respondent. Perused the records.

3. Learned counsel for the petitioner placed heavy reliance upon a recent judgment of the Hon'ble Supreme Court in Prabha Tyagi vs. Kamlesh Devi [ 2022 KHC 6542 :: 2022 (8) SCC 90 ], to contend that it is not the requirement of law that the aggrieved person under the D.V. Act should be residing in the shared household at the time of filing the petition. A 'right to live' in the shared household would suffice in seeking relief in terms of the provisions of the D.V. Act. On the strength of the judgment in Prabha Tyagi (supra), it was also contended that a women who is in domestic relationship, but living elsewhere on account of a reasonable cause, has a right to reside in the shared household and that there is no legal requirement to have a subsisting domestic relationship to enable the aggrieved person to make an application under the D.V. Act. Thus, according to the learned counsel for the petitioner, the Family Court, Ernakulam, seriously erred in dismissing Ext.P10 petition by virtue of Ext.P12 Order, only for the reason that the petitioner was not residing in the residential house of the respondent at the time of filing the application and that there is no specific averment in Ext.P10 that the residential house is the shared household of the parties.

4. Refuting the above allegations, learned counsel for the respondent/husband pointed out that Ext.P10 application is not one in terms of Section 19 of the D.V. Act. In Ext.P10, what is espoused is not the right or necessity of the petitioner/wife to reside in the shared household; instead, what was highlighted is that there is nobody to take care of the children, who were residing along with the father of the respondent/husband, especially after the death of respondent's father. Learned counsel invited the attention of this Court to the various legal proceedings pending by and between the petitioner and the respondent, including the one seeking custody of the children. According to the learned counsel, the attempt is to gain the custody of the children in a circuitous manner, by camouflaging a claim under the D.V. Act. Learned counsel would highlight that all the matrimonial disputes have been settled by and between the petitioner and the respondent and a compromise agreement was, in fact, executed, based upon which money and gold ornaments were returned to the petitioner/wife. However, actuated by greed, the petitioner/wife had ventured several experimental litigations, including the instant Ext.P10 application seeking a residence order in the alleged shared household.

5. Having heard the learned counsel for the respective parties, this Court finds little merit in the instant Original Petition. It is true that in Prabha Tyagi (supra), the Supreme Court categorically decla