Though the appellant was dishoused as occupier applying provisions of 1976 Act, claim of her rehousing is based on her status as wife. Such right cannot be diffused with right of her husband under 1976 Act, whose family property, part of which he is owner, has been reconstructed. Writ Court not appropriate forum for granting relief.
[Case Brief] Aishwarya Atul Pusalkar V/s Maharashtra Housing & Area Development Authority & Ors.
Aishwarya Atul Pusalkar V/s Maharashtra Housing & Area Development Authority & Ors.
Civil Appeal No. 7231 of 2012
Supreme Court of India
Hon’ble Justice Aniruddha Bose
Hon’ble Justice Deepak Gupta
Constitution of India, Maharashtra Housing and Area Development Act 1976, Protection of Women from Domestic Violence Act 2005,Hindu Adoption and Maintenance Act 1956, Essential services Maintenance Act 1968.
- BRIEF FACTS AND PROCEDURAL HISTORY
- The original writ petitioner, who is the appellant in this proceeding seeks to enforce her right to reside in her matrimonial home. The location of the house where she wants to establish her right to reside is comprised in two flats (nos.601 and 602) in a building situated on plot No.118, Dr. M.B. Raut Road, Shivaji Park, Dadar, in the metropolis of Mumbai.
- The family of her husband (respondent no. 8) were originally the owners of the said plot, on which stood a residential building known as “Usha”. An additional affidavit filed in this proceeding affirmed on 29th August 2019 by the respondent no. 8 that the said building was originally owned by three branches of the “Pusalkar” family in equal proportion.
- The branch of the respondent no. 8 stemmed from Shivram Dattatryea Pusalkar, carpet area of 1100 sq. ft. comprised of their share. On death of said Shivram Dattatreya Pusalkar, his share devolved in equal proportion to his widow Shobhana Shivram Pusalkar (since deceased), their daughter Gayatri Pratap Puranik and the respondent no. 8.
- That building upon demolition was redeveloped by a firm of builders, BUILDARCH. Such redevelopment was done after obtaining a no objection certificate from the Mumbai Building Reforms and Reconstruction Board (Board) in terms of the provisions of Maharashtra Housing and Area Development Act, 1976 (1976 Act). Under a scheme approved under the provisions of the said Act, during the period of redevelopment, the occupants were required to shift to transit or temporary accommodations.
- The members of the family of the appellant after her marriage, comprising of her husband and mother-in-law appear to have had shifted to the transit accommodation in the year 2000. The appellant-writ petitioner remained in the original building with her two minor sons.
- As the appellant had continued to reside in the old building, the MHADA authorities issued a notice upon her under Section 95-A of the 1976 Act.
- The appellant thereafter had shifted to a temporary accommodation as directed by an order of a Single Judge of the Bombay High Court. This application was taken out in connection with an appeal arising out of a matrimonial proceeding pending between the appellant and respondent no. 8 at that point of time.
- There have been certain parallel developments pertaining to the appellant’s matrimonial dispute with her husband. In the Family Court, the husband- respondent no. 8 had been granted a decree of judicial separation in the year 1997. His plea for divorce was not accepted by the Family Court. The decree of judicial separation was passed on 30th July, 1997.
- Both the appellant and the respondent no.8 appealed against the said judgment and decree before the Bombay High Court. The High Court in a common judgment delivered on 2nd July, 2001 had allowed the appellant’s appeal, and set aside the decree of judicial separation.
- The appellant thereafter filed the writ petition in the Bombay High Court. The present appeal has been resisted by the MHADA Authorities, the builder (respondent no. 7), her husband (respondent no.8) and the appellant’s sister-in-law, respondent no. 9.
- The Bombay High Court in the judgment under appeal sustained the plea of the respondents that the right which the writ petitioner (appellant before us) was seeking to establish could not be enforced invoking jurisdiction of the Court under Article 226 of the Constitution of India.
- Accordingly, the appeal was filed before the Supreme Court of India.
- ISSUES BEFORE THE COURT
- Whether any relief can be granted to the appellant in this appeal?
- RATIO OF THE COURT
- The Court recognized the appellant’s right to reside in her matrimonial home, such right had a legitimate basis. Even though the enforcement mechanism adopted by her to enforce her right was not legally acceptable, a brief discussion on the right she was seeking to enforce was considered necessary to understand the scope of her claim.
- The Court observed that a married woman is entitled to live, subsequent to her marriage, with rest of her family members on the husband’s side, in case it is a joint-property. If she resides in an accommodation as an independent family unit with her husband and children, the matrimonial home would be that residential unit. That right is embedded in her right as a wife.(Implicit in section 18 of the HAMA)
- The Protection of Women from Domestic Violence Act, 2005 has recognized the concept of “shared household” in terms of Section 2(s) of this statute. Alienating an immovable asset to defeat the right of a victim lady under the said Act can constitute domestic violence, coming, inter-alia, within the ambit of the expression “economic abuse” under Section 3(iv) of 2005 Act.
- The Court observed that a Magistrate having jurisdiction under Section 19 of the said Act was empowered to pass a residence order to protect a victim of domestic violence from being removed from her shared household. But for a husband to compel his wife to live in a separate household, which was not her matrimonial home, an order from appropriate legal forum would be necessary. There cannot be forcible dishousing of a wife from her matrimonial home.
- The Court observed that though she was dishoused as an occupier applying the provisions of the 1976 Act, claim of her rehousing was based on her status as wife of the respondent no. 8. In Court’s opinion, such claim has to be adjudicated upon by the Civil Court or the Family Court or any other forum the law may prescribe. Such right of the appellant cannot be diffused with the right of her husband under the 1976 Act, whose family property, part of which he was the owner, has been reconstructed.
- The Court observed that the Bombay High Court has in substance non-suited her on the ground that the Writ Court was not the appropriate forum for granting her relief. The Court did not per se find any error in such approach.
- The Court while considering the fact that the dispute was pending for a very long time, decided to provide certain directions in exercise of its jurisdiction under Article 142 of the Constitution of India which we hope will conclude the dispute. This Court shall do so having regard to the fact that the builder and the husband of the appellant have uniformly stated that Flat No. 101 in Om Apartment was available to accommodate the appellant. For this reason, in our opinion, the appellant should be given the choice of occupying that flat as her residence.
- DECISION OF THE COURT
- The Court held that the course to be taken by her shall be guided by the direction that may be given by a Court of competent jurisdiction, which the appellant may approach. Till the time the appellant retains possession of the present residential accommodation, which period shall not exceed eight months, the respondent no.8 shall continue to pay rent thereof and her possession thereof shall not be disturbed unless of course, a Court of competent jurisdiction issues any other direction at the instance of the appellant.
- With these directions, the appeal was disposed of. All connected applications were disposed of. Interim orders, if any, shall stand dissolved. There shall be no order as to costs.