Right of Residence in Shared Household Not Absolute, Police Cannot Forcibly Restore Possession Without Judicial Order: Patna High Court Clarifies Residence Rights Under DV Act

“Police Cannot Become a Recovery Agency to Restore Possession of House Without Court’s Authority”: in a significant verdict dealing with the interplay between matrimonial rights under the Protection of Women from Domestic Violence Act, 2005 (DV Act), and protection against police excess, the Patna High Court laid down guiding principles on the rights of women to residence in a shared household. Justice Bibek Chaudhuri ruled that a woman has no absolute right to forcibly take possession of the shared household with the help of police without a court order, especially when there is a competing right of elderly in-laws.

“Rendering police help to break open the lock of the entrance door without any order of the court is per se illegal and in excess of police power,” the Court categorically stated.

Right to Residence Subject to Welfare Balance Between Parties

The case arose from a complex web of litigation between one Nancy Kashyap and her estranged husband, Kastub Sourabh, whose previous marriage with another woman was subsisting at the time of marriage with Nancy, thereby making the marriage void under Section 11 of the Hindu Marriage Act, 1955.

Despite the void marriage, the Court upheld the limited right of Nancy under the DV Act by recognising her status under “relationship in the nature of marriage”, but clarified that this right is not absolute.

Quoting the Supreme Court’s authoritative decision in Satish Chander Ahuja v. Sneha Ahuja, the Court observed:

“Right to residence under Section 19 is not an indefeasible right especially when the woman is pitted against aged in-laws. A balance must be struck between the rights of the aggrieved woman and the peaceful life of elderly in-laws.”

Consequently, the Court affirmed the orders of the Chief Judicial Magistrate and Appellate Court directing the husband to provide the woman with an alternative equivalent accommodation under Section 19(1)(f) of the DV Act rather than occupying the ancestral home of the in-laws.

Court Expresses Shock at Police Action, Holds “No Judicial Sanction” for Forceful Entry

A crucial aspect of this case was the manner in which Nancy allegedly broke into the matrimonial home with the help of police, without any court-sanctioned order.

Justice Bibek Chaudhuri did not mince words:

“No person can take the law into their own hands. A lady may have the right to residence but that right must be enforced through proper judicial process, not by forcing entry into the household through police muscle.”

The Court condemned the police for acting without any FIR or court order and without any judicial monitoring:

“Police rendered unauthorised help in forcibly restoring possession of residential property to a person claiming residence rights, amounting to blatant misuse of power.”

On Void Marriage: No Valid Marital Rights, Only Limited DV Act Protection

A unique facet of the case was the acknowledgment by Nancy’s own affidavit of her husband’s subsisting prior marriage. The Court declared:

“Where a person marries during the subsistence of a valid prior marriage, the second marriage is void ab initio under Section 11 of the Hindu Marriage Act.”

Nevertheless, by referring to the judgment in D. Velusamy v. D. Patchaiammal (AIR 2011 SC 479), the Court clarified:

“Despite the void marriage, the aggrieved woman may still claim limited protection under the Domestic Violence Act under the category of ‘relationship in the nature of marriage’.”

Constitutional Writ Power Maintains Relevance in Police Excess Cases

Rejecting the preliminary objection regarding maintainability of the writ petition under Article 226, the Court affirmed:

“Constitutional Courts are the sentinels of civil liberties. Where allegations concern police atrocities or excess power, writ jurisdiction remains maintainable despite the existence of alternate statutory remedies.”

Conclusion of the Court’s Decision

✅ Criminal Revision filed by Nancy Kashyap dismissed — orders directing her to reside in alternative accommodation upheld.

✅ Writ Petitions by in-laws and husband allowed in part — police action of forcibly restoring possession to wife without judicial order condemned.

✅ Contempt Petition (MJC) disposed of — liberty granted to file for contempt if future police excess arises.

✅ Police reminded to proceed lawfully with respect to pending dowry and cruelty cases but cannot effect dispossession or possession through extra-judicial methods.

“Petitioner-wife is directed to vacate the shared household within four weeks and shift to the alternative accommodation arranged by the husband. Police excess condemned and writ allowed in part.”

This judgment is a milestone for clarifying the scope of residence rights under the DV Act, the limited rights arising from void marriages, and the crucial importance of following judicial process rather than relying on police force to resolve family disputes. It strikes a delicate balance between protecting vulnerable women from domestic violence and safeguarding the dignity and rights of elderly in-laws.

Date of Decision: 18th July 2025