Bombay High Court ruled that an under-construction flat not in possession of either spouse doesn’t qualify as a “shared household” under the DV Act. Hence, the husband cannot be forced to pay pending EMIs.
Mumbai: Today, on July 7, in a significant ruling, the Bombay High Court has clarified that a flat or property which is still under construction and not in the possession of either of the spouses cannot be treated as a “shared household” under the Protection of Women from Domestic Violence Act, 2005.
The judgment came in the case, where Justice Manjusha Deshpande ruled that a husband cannot be forced to pay the installments of a flat that is still being built and not yet occupied by either spouse.
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The woman, aged 45, had filed a plea in the High Court seeking directions for her estranged husband to clear the outstanding payments for a flat located in Malad, Mumbai. This flat had been jointly booked by the couple in 2020 as part of an attempt to reconcile their marriage.
The couple had tied the knot in 2013 and lived together on and off, before the husband moved to the United States for work.
Later, the woman filed a domestic violence complaint against him. Following that, in 2023, an interim maintenance order was passed in her favour.
However, the woman claimed that her husband stopped paying the rent and defaulted on the maintenance payments as well.
When the builder of the Malad flat asked for the next installment, she approached the High Court and claimed that the flat was their “shared household”.
She wanted the Court to order her husband to continue paying the pending installments.
Earlier, the Additional Chief Metropolitan Magistrate had allowed part of her application and restrained the husband from creating any third-party rights over the under-construction property.
But at the same time, the Magistrate refused to direct him to pay the remaining dues. This order was later confirmed by the Sessions Court, which also refused to interfere.
The woman then challenged this decision in the High Court. She argued that the flat was purchased in both their names, and most of the payment had already been made.
Even though the flat was not fully constructed, she claimed she had the right to live in it and thus it should be considered a “shared household”.
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The husband, however, strongly opposed her petition. He argued that neither of them had ever lived in the flat, the possession had not been handed over yet, and the property was not even mentioned in the woman’s original domestic violence complaint.
While deciding the matter, the High Court carefully examined the definition of “shared household” under Section 2(s) of the Domestic Violence Act.
Justice Manjusha Deshpande pointed out that the law is meant to provide protection to women who are being harassed or threatened with dispossession from an existing and occupied residence. She observed:
“The prayer made by the Petitioner would not be maintainable since the property/flat, is still under construction and not in possession of either of the parties, therefore, it would not fall within the purview of ‘Shared Household’, as defined under Section 2(s) of the DV Act.”
The Court further clarified that although the Domestic Violence Act allows for a wide interpretation of “shared household” to give maximum protection to aggrieved women, this cannot be stretched to include a flat that is still under construction and not livable.
The Court explained:
“The statutory protection against dispossession under the DV Act is meant to apply only to premises that are both in existence and capable of occupation.”
Therefore, since the Malad flat was neither completed nor occupied by the husband or the wife, the Court found no legal basis to compel the husband to pay the remaining installments.
The Court held that the lower courts were right in denying this relief to the petitioner and dismissed the woman’s appeal.
Representing the petitioner-wife were Advocate Archit Jaykar and Advocate Bhoomi Upadhyay.
Additional Public Prosecutor Dhanlakshmi S Krishnaiyar appeared for the State. Advocate Raghavendra S Mehrotra, along with advocates Irfan Shaikh, Maddhat Shaikh and Mohini Tekale from Lawkhart Legal, appeared on behalf of the husband.
Case Title:
Srinwati Mukherji v. State of Maharashtra and Others
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