L A W  &  J U S T I C E

Controversy on Women’s Rights
Joginder Singh Toor

Supreme Court judgment in S.R.Batra’s case has stirred an other controversy on women’s rights granted recently under the Protection of Women from Domestic Violence Act,2005. Does it nullify their rights?. Is a big question.

Way back in 1987 the Supreme Court of India in Atma Devi’s case observed that “In England the rights of the spouses to the matrimonial home are governed by the Matrimonial Homes Act,1967, no such right exists in India.” And expressed hope “it may be that with change of situation and complex problems arising, it is high time to give the wife or the husband a right of occupation in a truly matrimonial home, in case of the marriage breaking up or in case of strained relationship between the husband and the wife.” Later on, The Vianna Accord of 1994 and the Beijing Declaration, 1995 acknowledged the domestic violence as a human rights issue, leading member States of the United Nations to take legislative measures. As a result of which The Protection of Women from Domestic Violence Act, 2005 came into force on October 17,2006 giving certain rights to women in domestic relationship who live or have at any point of time lived together in a "shared household" with a respondent, who naturally has to be a man. Every woman in a domestic relationship has been given a right to reside in the shared household whether or not she has any right, title or beneficial interest in the same.

Smt. Taruna Batra was married to Amit Batra and both started living in the house of the parents of the husband. The marital relations were not happy. Husband Amit Batra filed a divorce petition. His wife allegedly in retaliation filed a criminal case regarding breach of trust for misuse of dowry articles, cruelty by demanding dowry and intimidation. An F.I.R. u/s 406, 498A/506 and 34 IPC was registered on the complaint of the wife. The wife shifted to her parent’s residence. The husband shifted to his own house. Both leaving the parent’s house. The wife Taruna Batra rethought and came back to stay in the house she was living which belongs to her in laws, not the husband. The house was closed. She, allegedly with the help of her parents broke open the door and entered the house and started living therein. The question arose whether she has a right to live in the in-laws house and sought protection under the aforesaid Act and asserted her right to live in the shared household even if she had no right, title or interest in the household. The Supreme Court of India was abreast of the litigation, having culminated from the suit filed by the wife claiming right to live in the shared accommodation belonging to the mother-in-law which was granted by way of ad-interim injunction by the Trial Court. The husband filed appeal and the First Appellate Court set aside the order holding that she had no right to the properties other than that of her husband. The matter went to the Delhi High Court and the order passed by the Trial Court was upheld and that of the lower Appellate Court set aside. The learned Judge of the Delhi High Court was of the view that mere change of the residence by the husband would not shift the matrimonial home, particularly when the husband had filed a divorce petition against his wife. The wife was entitled to continue to reside in  in-laws house where she had been living with her husband and was treated as a "shared accommodation". The Supreme Court of India plainly said We cannot agree with this submission. "If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband’s father, husband’s paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband’s relatives will be shared households and the wife can well insist in living in all these houses of her husband’s relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd."

It is well settled that any interpretation which leads to absurdity should not be accepted. The interpretation given by the Supreme Court in this case filed by the mother-in-law S.R.Batra has been resented by women in general and welcomed by the other side drawing sharp lines. The questions could be judged from other angles if some other judgments of the Supreme Court on the question as to what does residence mean. Residence such as a stay in a friend’s or relatives house or a stay in a hostel, in a ship, in a foreign country on a visit and similar other stoppages are considered as fleeting or passage residence giving no right. In Jagir Kaur's case the Supreme Court of India said that "a person resides in a place if he through choice makes it his abode permanently or temporarily and whether a person has chosen a particular place as his abode depends upon the facts of each case. A mere passage-residence would not be sufficient in law."

The question arises as to what is the nature of the residence of a son in parents house. If the house happens to be ancestral or joint Hindu family property, the son has a right by birth in the property equal to that of his father, mother and with effect from 9.9.2006 sisters also. But if the house happens to be the self-acquired property of the father or the mother, the son has a right only during his minority i.e. up to the age of 18 to be maintained by the parents which include the place of residence. After he attained majority, he lives in the house with the permission of the parents and is considered as a licensee and in case the permission is withdrawn and he is asked to leave the house, he has no option but to leave.  In case he stays on he is trespasser and in case he persists in staying on, he has to pay compensation to the parents known as mesne-profits. In such a situation the right given by the aforesaid Act to a woman to continue living in a place where she has been living with her husband, termed in the Act as a shared accommodation, has to be interpreted in consonance with already existing legal position and other laws. The whole matter requires a thorough consideration.

[Jogindersingh_toor@yahoo.com]

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