Unpossessed Flat Can’t Be a Shared Household: Bombay High Court Denies Estranged Wife’s Claim Under DV Act for Under-Construction Property

“Right to Reside Cannot Extend to Properties Never Inhabited”:  In a significant pronouncement Bombay High Court dismissed the writ petition of an estranged wife who sought direction for her husband to pay pending installments towards a jointly booked under-construction flat, invoking the Protection of Women from Domestic Violence Act, 2005 (DV Act). Justice Manjusha Deshpande ruled that “shared household” under Section 2(s) of the DV Act must involve actual or constructive residence in an existing household. Since the flat in question was still under construction and had never been occupied, the Court held, “Right to reside in a shared household cannot be enforced in respect of a house that has never been a residence.”

This judgment clarifies the legal boundaries of ‘shared household’ and residence rights under the DV Act, especially in cases involving prospective properties yet to be delivered.

The petitioner, Srinwati Mukherji, married to Respondent No. 2 in 2013, filed a Domestic Violence complaint against her husband in 2022 citing domestic abuse and abandonment. During a brief reconciliation in 2020, the couple had jointly booked a high-value flat in Mumbai with a registered agreement for sale. However, the husband subsequently left for the United States, discontinued marital support, and ceased payment of house rent and loan installments.

The petitioner contended before the High Court that since the flat was booked in their joint names and was intended to be their matrimonial home, it qualified as a “shared household” under Section 2(s) of the DV Act. She sought directions under Section 19(d) and (e) of the DV Act to compel her husband to pay pending installments or deduct them from his salary to protect her residence rights.

However, both the Additional Chief Metropolitan Magistrate (ACMM) and the Sessions Court had rejected her plea, observing that a flat never occupied by the petitioner or the husband cannot be deemed a “shared household.” Aggrieved, the petitioner approached the High Court under Article 227 of the Constitution of India.

The primary legal question was whether an under-construction, unoccupied flat could be treated as a “shared household” under the DV Act to enforce residence rights and payment obligations under Section 19.

Justice Manjusha Deshpande highlighted, “The statutory scheme of the DV Act is to secure protection against eviction from an existing shared household, not to compel financial commitments towards a property that has never been in possession of the parties.”

The Court explained that Section 2(s) of the DV Act defines “shared household” as one where the aggrieved person “lives or has at any stage lived” in a domestic relationship. Citing the statutory language, the Court observed, “The phraseology clearly contemplates actual residence or constructive residence in an existing and habitable household, not a future or prospective property under construction.”

The petitioner relied on the Supreme Court’s judgment in Prabha Tyagi v. Kamlesh Devi (2022 SCC OnLine SC 607), which upheld a broad interpretation of “shared household.” However, Justice Deshpande distinguished the present case: “The doctrine of constructive residence presupposes a right to reside in an existing household and cannot extend to unpossessed flats yet to be handed over by a developer.”

Interpretation of Shared Household: No Fictional Extension to Under-Construction Property

Rejecting the petitioner’s reliance on the Prabha Tyagi judgment, the Court categorically held, “The right of residence under the DV Act is to protect against dispossession, not to enforce payments towards an uninhabited, incomplete flat.”

Justice Deshpande elaborated, “The flat at Auris Serenity is neither habitable nor in possession of either party. The aggrieved person’s right to residence envisaged under Section 19 is designed to prevent eviction from an existing shelter—not to ensure future homeownership through forced installment payments.”

Referring to earlier decisions, including Manmohan Attavar v. Neelam Manmohan Attavar (2017) 8 SCC 550 and Satish Chander Ahuja v. Sneha Ahuja (2021) 1 SCC 414, the Court underscored that for a property to qualify as a shared household, there must be “actual or constructive residence with a reasonable degree of permanence.”

Financial Enforcement Beyond the Scope of DV Act

The Court also clarified the limited remedial scope of Section 19 of the DV Act. Justice Deshpande stated, “Section 19 safeguards against forced eviction and ensures continued residence or alternative accommodation—it does not confer authority to impose financial obligations for completion of housing purchases, particularly where no residential occupation has occurred.”

Observing the welfare nature of the DV Act, the Court noted, “The Act provides protective remedies for shelter—not a blanket enforcement mechanism for property acquisition financing.”

Accordingly, the Court upheld the decisions of the ACMM and Sessions Court, which had refused to compel the husband to pay remaining installments, though had restrained him from alienating or encumbering the said property pending litigation.

Summarising its ruling, the High Court concluded, “In absence of possession or habitation, the claimed flat does not fall within the scope of ‘shared household’ under the DV Act. There exists no legal foundation to compel a respondent to pay installments of an under-construction property merely on the basis of joint booking.”

Consequently, the writ petition was dismissed, with the Court firmly holding, “Reliefs under Section 19 are confined to securing shelter for the aggrieved woman—not to enforce completion of future property transactions.”

This judgment offers crucial jurisprudential clarity on the limited applicability of the DV Act to unpossessed properties, preserving its primary purpose of providing immediate protective shelter.

Date of Decision: 04th July 2025