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Wife not entitled for right to residence in shared household if domestic violence not proven


The supreme court bench comprising of Justice L Nageswara Rao and Justice MR Shah passed a landmark judgement while hearing a Special Leave Petition seeking right to residence in a shared household under Domestic Violence Act, 2005.

Jan 2019, the apex court bench, in the matter of Abhijit Saha and Ors, upheld the impugned order of Calcutta High Court, which dismissed the order of learned Additional District and Sessions judge. The bench however passed the order to pay maintenance for the child.

“The respondent No.1 is also directed to pay Rs. 4,000/- p.m. as maintenance to the child w.e.f. May, 2013.”

Calcutta High Court in the matter of Abhijit Saha and Ors, did not observed any concrete evidence which proves Domestic Violence on the wife. The bench of Justice Sankar Acharya observed that:

“Her witness Ganesh Ghosh deposed about his knowledge derived from opposite party Sangita Saha but Sangita did not state any fact as she narrated to Ganesh Ghosh. As a result, most of the statements of Ganesh Ghosh have become ‘hearsay’. There is no evidence in substance to establish that the petitioners of this case told the opposite party for going out of her residence.”

In this matter, the learned Additional District and Sessions judge has passed a order for right to residence in the shared household and maintenance amount of Rs 2,500 to the aggrieved wife and Rs 4,000 for the child. The husband then approached the Calcutta High Court.

Calcutta High Court said that domestic violence has serious impact if proven. The bench also said that, the aggrieved wife has failed to establish incidents of Domestic violence, torture on her.

“In the instant case the plea of domestic violence is under consideration only on the basis of sole, solitary uncorroborated oral testimony of the aggrieved wife (opposite party herein). In the eye of law plea is not proof. Allegations of domestic violence are grave in nature and have serious impact if really proved.”

The bench also said that, the learned Additional District and Sessions Judge overlooked the medical treatment and conduct towards the aggrieved wife.

The husband and sister in law of opposite party arranged for her medical treatment for her giving birth to her daughter and she successfully gave birth to her only child.

The bench of Justice Sankar Acharya at Calcutta High Court bench, set aside the district court judgement based on their observation. In the impugned judgment the bench of Calcutta High Court also mentioned as:

Unless it is satisfactorily established that domestic violence has taken place neither any protection order under Section 18 nor any residence order under Section 19 nor any order for monetary relief under Section 20 nor any compensation order under Section 22 of the Protection of Women from Domestic Violence Act, 2005 should be passed.

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