The Bombay High Court has ruled that a flat under construction, which has not yet been handed over or occupied by either party, does not fall within the definition of a “shared household” under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005. The Court dismissed a writ petition seeking a direction for payment of remaining installments for such a property.
The petition challenged orders passed by the Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai, and the Sessions Judge at Dindoshi, which had declined to grant relief under Section 19(d) and (e) of the DV Act. Both the lower courts had held that since the premises were only booked and not in possession, it could not be treated as a shared household.
Background of the Case
The petitioner, who was in a domestic relationship with the respondent following their marriage in 2013, had initially lived with the respondent in rented accommodation in Mumbai. Alleging domestic violence and emotional abuse, she had filed a complaint under the DV Act in 2022. She claimed that despite an interim maintenance order of ₹45,000 per month passed in February 2023, the respondent defaulted on payments.
The property in question was a flat jointly booked by both parties in Malad West, Mumbai. The total consideration for the flat was ₹3.52 crore, and the respondent had availed a loan of ₹3.24 crore. After default in payment of installments, the petitioner approached the Magistrate under Section 19(d) and (e) of the DV Act, seeking direction for payment of two pending EMIs or to compel the respondent’s employer to deduct the same from salary. The Magistrate rejected these prayer clauses but restrained the respondent from creating third-party rights in the property.
An appeal before the Sessions Court was also dismissed, leading to the present writ petition under Article 227 of the Constitution.
Arguments Before the High Court
Counsel for the petitioner argued that the jointly booked flat constituted a shared household under Section 2(s) of the DV Act and that the petitioner was entitled to protection under Section 19. It was submitted that the definition of shared household should be interpreted broadly to include constructive residence, and reliance was placed on the Supreme Court’s judgment in Prabha Tyagi v. Kamlesh Devi [(2022) 8 SCC 90].
It was further contended that, under Section 17(1) of the Act, a woman in a domestic relationship has the right to reside in the shared household, irrespective of her ownership or actual possession, and that the intention of the parties to reside there post-construction should suffice.
In contrast, the respondent argued that the flat was not in possession of either party and no actual residence had occurred. It was submitted that Section 2(s) of the DV Act requires actual or past residence in the shared household, and that the petitioner’s claims could not be sustained in the absence of possession or occupation. Reliance was placed on several precedents, including Manmohan Attavar v. Neelam Manmohan Attavar [(2014) 16 SCC 711] and Satish Chander Ahuja v. Sneha Ahuja [(2020) 11 SCC 770].
Court’s Analysis and Findings
The Court examined the definition of “shared household” under Section 2(s) of the DV Act and emphasized that the right to reside therein, or seek protection under Section 19, arises only when the household is in existence and in possession. While acknowledging that the term had been interpreted broadly in Prabha Tyagi v. Kamlesh Devi to include constructive residence, the Court held that the flat in question was still under construction, with installments unpaid, and possession had not been handed over.
Justice Manjusha Deshpande observed:
“The protection provided under Section 19 of the DV Act is a protection from being evicted from the ‘shared household’ which the aggrieved person has a right to reside under the Act… In the present case, the possession of the alleged ‘shared household’ is not yet handed over, the installments are still not fully paid. It would be stretching it too far to direct the respondent to pay the remaining installments.”
The Court held that the relief sought by the petitioner does not fall under the scope of Section 19(d) or (e), as the flat was neither habitable nor occupied, and was not capable of being considered a shared household.
Conclusion
Finding no illegality or perversity in the concurrent orders of the lower courts, the High Court dismissed the writ petition and discharged the rule. It reiterated that a flat not in possession of either party and still under construction cannot be considered a shared household under the DV Act.
