Aishwarya Atul Pulsalkar v. Maharashtra Housing Development Authority & Ors. [2020 SCC Online SC 408]

 


Background of the case:

The Supreme Court of India passed the order on 27th April 2020. Therefore, the writ petition was filed by the appellate under Article 32 of the Constitution of India. According to the provision of Maharashtra Housing & Area Development Act, 1976 appellant was drive out as occupier; the claim of her rehousing was based on her status as a wife. The court diffused such right of her husband under Maharashtra Housing & Area Development Act, 1976. It clearly mentions that family property can be reconstructed according to the owner’s choice. Thus appropriate relief cannot be granted. 

Facts of the case:

The original writ petitioner, who is appellate, seeks to enforce her right to reside in her matrimonial house that comprised in two flats numbers i.e. 601 & 602 in a building situated on plot No.118, Dr. M.B. Raut Road, Shivaji Park, Dadar in the city of Mumbai. The family of her husband (respondent no.8) was the owners of the aforesaid flat on which a residential building known as “Usha” was built. On 29th August 2019 respondent no. 8 filed an affidavit stating that the said building was originally owned by three generations of the “Pusalkar” in equal proportion. According to Respondent no.8 stemmed from Shivram Dattatryea Pusalkar, the carpet area was 1000 sq. ft. On the death of Shivram Dattatreya Pusalkar, his share was distributed in equal proportion to his widow Shobhana Shivram Pusalkar and their daughter Gayatri Pratap Puranik and Respondent No.8.

During a certain time, the builders came for redevelopment. Such redevelopment was done after obtaining a No Objection Certificate from the Mumbai Building Reforms and reconstruction Board according to the provisions of the Maharashtra Housing & Area Development Act, 1976. When the property was approved under the provisions of the said Act, the occupants were required to shift on a temporary basis. The members of the family after her marriage shifted to the transit accommodation in the year 2000 but the appellate remained in the original building with her two minors. The MHADA authorities issued a notice upon her under section 59A of the Act, 1976.

Thereafter the Bombay High Court passed an order on behalf of the appellant to vacate the place on a temporary basis. Thus, an application was made with an appeal arising out of a matrimonial proceeding pending between the appellate and respondent no.8 at that point in time. On 30th July 1997 order was passed by the Family Court for judicial separation. Thus, both appellate and respondent no.8 filed an appeal before Bombay High Court but the same judgment was passed on 2nd July 2020. The appellate filed the writ petition in the Bombay High Court. The present appeal has been resisted by the MHADA Authorities, Respondent No.7 (builder), Respondent No. 8 and, Respondent No.9 ( appellant’s sister-in-law). The Judgment was passed by the High Court that the appeal could not be enforced that invokes the jurisdiction of the court under Article 226 of the Constitution of India. Further, the appeal was filed before the Supreme Court of India.

Issues before the Court:

Whether any relief could be granted to the appellant?

Analysis:

The appellate right to reside in her matrimonial home was legitimate. Thus, the enforcement of her right was not legally acceptable but a brief discussion on her right seeks to enforce her to claim for a remedy that she suffered from her matrimonial house. The protection of Women from Domestic Violence Act, 2005 was recognized on the basis of the shared household in terms of section 2(s) of this statute. It mentions that immovable property can be distributed if women are suffered from domestic violence within the ambit of the expression “economic abuse” under section (IV) of the 2005 Act.

While considering the facts and circumstances, the dispute was pending for a long duration. It decided to provide certain provisions in the exercise of its jurisdiction under Article 142 of the Constitution of India. The court shall give the right to appellate for the choice of occupying that flat as her residence.

Held:

The Supreme Court of India held that the directions may be given by a court of competent jurisdiction due to which the appellant may approach.

Meanwhile, the appellant retains possession of the present residential accommodation. The period shall not exceed 8 months, respondent no.8 shall continue to pay rent and, her possession will not be disturbed unless the competent jurisdiction issues any direction at the instance of the appellant.

While these directions were made, the appeal was disposed of and all applications connected with the case were disposed of. It clearly states that there shall be no order as to costs.

Observation:

The Court observed that a married woman is entitled to live, subsequent to her marriage with the rest of her family members on the husband side as a Joint family but if she resides in accommodation as a neutral family with her husband and children, the matrimonial home would be that residential unit. That right is embedded in her right as a wife. The Court observed that a Magistrate having jurisdiction under Section 19 of the said Act was empowers to pass a residence order to protect a woman under domestic violence act 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, the order from an appropriate legal forum would be necessary. There cannot be forcible order for a wife from her matrimonial home.

Further, she was drive out as an occupier applying the provisions of the Act 1976. In Court’s opinion, such a claim has to be adjudicated upon by the Civil Court or the Family Court or, any other forum the law may prescribe. According to 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 an approach.

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