MEENU BOBBY Vs. BOBBY SATHEESAN

JUDGEMENT

(1.) An estranged wife in domestic relationship is the petitioner herein. She filed Ext.P3 Miscellaneous Case bearing no.69/2021, seeking maintenance under Sec. 125 of the Code of Criminal Procedure ('Cr.P.C.' for short). In that M.C, the petitioner/wife filed Ext.P8 Miscellaneous Petition bearing no.1052/2022 seeking various reliefs under Ss. 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005, ('D.V. Act' for short). In Ext.P8 Miscellaneous Petition, yet another petition was filed as M.P.No.827/2023 (Ext.P10) seeking a residence order, enabling the petitioner/wife to reside in the house of the respondent/husband, where the children are residing. By virtue of the impugned Ext.P12 Order, Ext.P10 petition seeking residence order was declined, on the premise that the petitioner/wife was not residing in the residential house belonging to the respondent/husband at the time of filing the application; and also for the absence of a specific averment that the said residential house is the shared household of the petitioner/wife. Ext.P12 Order is under challenge in this Original Petition.

(2.) Heard the learned counsel for the petitioner and the respondent. Perused the records.

(3.) Learned counsel for the petitioner placed heavy reliance upon a recent judgment of the Hon'ble Supreme Court in Prabha Tyagi vs. Kamlesh Devi [2022 KHC 6542 :: 2022 (8) SCC 90], to contend that it is not the requirement of law that the aggrieved person under the D.V. Act should be residing in the shared household at the time of filing the petition. A 'right to live' in the shared household would suffice in seeking relief in terms of the provisions of the D.V. Act. On the strength of the judgment in Prabha Tyagi (supra), it was also contended that a women who is in domestic relationship, but living elsewhere on account of a reasonable cause, has a right to reside in the shared household and that there is no legal requirement to have a subsisting domestic relationship to enable the aggrieved person to make an application under the D.V. Act. Thus, according to the learned counsel for the petitioner, the Family Court, Ernakulam, seriously erred in dismissing Ext.P10 petition by virtue of Ext.P12 Order, only for the reason that the petitioner was not residing in the residential house of the respondent at the time of filing the application and that there is no specific averment in Ext.P10 that the residential house is the shared household of the parties.