Right to Reside Is Not a Weapon to Block Partition: Delhi High Court Upholds Equal Ownership of Matrimonial Home

“A Shared Household Is Not a Fortress Against Lawful Partition”, In a decisive judgment Delhi High Court dismissed an appeal filed by a wife resisting the partition of a jointly owned matrimonial property, holding that the right to reside under the Protection of Women from Domestic Violence Act, 2005 does not create an indefeasible right to prevent partition.

Division Bench comprising Justice Anil Kshetarpal and Justice Harish Vaidyanathan Shankar held: “The right of residence under the PWDV Act is not an absolute right and does not preclude lawful partition by a co-owner.”

Rejecting the wife’s plea that her greater financial contribution entitled her to a larger share, the Court upheld the Family Court’s preliminary decree declaring equal 50% ownership under Order XII Rule 6 of the CPC, stating:

“Vague claims of higher contribution unsupported by evidence cannot override the statutory presumption of equal shares under Section 45 of the Transfer of Property Act.”

Smita Jina and Amit Kumar Jina were married in 2005 and resided in London before returning to India. During their marriage, they jointly purchased a residential flat in Vasant Kunj, New Delhi, funded through a joint loan. The sale deed was registered in both names, without specification of ownership ratio.

Following their separation in 2020, multiple legal proceedings ensued. While the husband sought partition of the jointly owned property, the wife opposed it, asserting it was her matrimonial home and that her higher monetary contribution should be recognised. She also invoked her right to reside under Section 17 of the PWDV Act, claiming that the Family Court could not pass a decree during the pendency of her domestic violence complaint.

The key legal question was whether, in light of the wife’s claim of higher contribution and residence rights, the Family Court was justified in passing a preliminary decree for partition under Order XII Rule 6 CPC, which allows judgment on admission.

The High Court found the admission in her written statement “clear, categorical and unequivocal”, particularly noting: “The Appellant herself has... expressly stated that the suit property was jointly purchased by her and the Respondent.”

The Bench noted that while she claimed to have contributed more financially, “no material has been placed on record to establish the precise extent of the Appellant’s contribution vis-à-vis the Respondent’s.”

Furthermore, relying on Section 45 of the Transfer of Property Act, the Court ruled: “In the absence of any contrary intention or specification, where property is purchased jointly in the names of two or more persons, the share of each shall be deemed equal.”

Thus, there was no need for a trial on ownership — a preliminary decree could lawfully be passed.

On Right of Residence Under Section 17 PWDV Act

The wife’s central argument was that her right to reside in a “shared household” protected her from partition or eviction.

The Court categorically rejected this, stating:“The right to reside in a shared household... is not indefeasible and is subject to lawful eviction or exclusion as per due process.”

It further clarified: “The provision does not create a proprietary right in favour of the aggrieved person, nor does it preclude lawful civil proceedings such as those for partition.”

The Court distinguished between the right of residence and ownership rights, stating that residence under Section 17 is meant to prevent “unlawful dispossession”, not to “block legitimate claims of co-ownership.”

Highlighting the misuse of protection laws in some cases, the Court emphasized: “Statutory protection under Section 17 of the PWDV Act does not entitle a financially self-reliant woman to indefinitely resist the lawful partition of a jointly owned property.”

On Equities and Settlement Offers

The Court noted that the husband had made a “bona fide and fair” offer to resolve the matter amicably by paying the wife ₹4 crore, or assisting in the purchase of an alternative residence using sale proceeds. However, she declined.

The Court remarked: “The Appellant’s insistence on continuing in exclusive possession of the entire suit property, while simultaneously resisting its partition, cannot be justified either in law or on equitable grounds.”

These were harmonised to support the principle that right of residence does not override title or co-ownership rights, and that civil courts are competent to pass partition decrees even where residence claims exist.

The High Court upheld the Family Court’s decree and dismissed the appeal, concluding:“The conclusions arrived at are well-reasoned, based on a fair appraisal of the pleadings and supported by the statutory framework.”

However, the Bench clarified that the present decision:“...shall not be construed as expressing any opinion on the merits of the proceedings pending before the Family Court, which shall be decided uninfluenced by any observations made in this judgment.”

Date of Decision: August 5, 2025