Right of W to Reside in the Matrimonial Home

The right of the W to reside in the matrimonial home is essentially tied to

her right to maintenance.
This right has been explained by the apex court in the case of B.P. Achala
Anand v. Appi Reddy [ AIR2005SC986]. This was a dispute between a
landlord and W of his tenant. The tenant, in whose name alone the lease of
the house was taken, was in arrears of rent. The landlord initiated eviction
proceedings. W, suspecting that H would desert her, filed an application for
impleadment. This application was rejected. Her revision petition was
allowed. Meanwhile, H deserted W and children, and started living in a
lodge. They eventually divorced by mutual consent. The Supreme Court, in
the appeal filed by W, held that W living in a property rented by H was
entitled to assert the same rights as that of a tenant (subject to the
compliance of all the obligations of a tenant) as long as she remained
married to him.
Stating the right of the W to reside in the matrimonial home, the court
opined that A Hindu wife is entitled to be maintained by her husband. She is
entitled to remain under his roof and protection. She is also entitled to
separate residence if by reason of the husband's conduct or by his refusal to
maintain her in his own place of residence or for other just cause she is
compelled to live apart from him. Right to residence is a part and parcel of
wife's right to maintenance.
The courts have time and again sought to clarify that the right of residence
is merely a maintenance right as against H, and ensures that W is not left
destitute upon separation from H. Therefore, the courts have cautiously
tried to avoid converting this maintenance right into a proprietary interest,
thus ensuring that it is capable of being exercised only as a right in

personam against the H, but not as a right in rem against third parties. This
is reflected in the case of S.R. Batra v. Taruna Batra as well, wherein the W
had sought a right of residence in a property owned by her parents-in-law,
which had also served as her matrimonial home. In this case as well, the
Court held that W could not assert her right to maintenance against third
parties, and the obligation to provide for her fell solely on H.
In the case of Anukriti Dubey v. Partha Kansabanik [Del HC 2016], after W
was deserted by H, the landlord began eviction proceedings. These
proceedings were contested by W. The High Court of Delhi held that her
right to accommodation and residence cannot be enforced as against the
landlord.
Similarly, in the case of Ajay Kumar v. Baljit Kaur [160 2009 DLT 401], the
brother of H was co-owner of the matrimonial home and wanted to effect
partition. The W on the other hand insisted that as it was her matrimonial
home, she had a right to reside therein and could not be forced to shift to
another place. On the other hand, a suit for partition in respect of the said
property had been filed by the brother of H. The question of the mode of
division or sale of property was pending consideration. While stating that a
matrimonial home is a place where both the parties seek to reside and the
object of protecting the same is that the W should not be left homeless by
any action of the H, the Court held that held that the W cannot have a right
of living in a particular property and the same cannot become a clog on the
property denying the right of H to deal with the property when he is willing
to provide an alternative matrimonial home. It has to be appreciated that the
claim of the respondent is not to any title, but of residence in the home. Thus,
H and his brother cannot be restrained from alienating the property.
Further, in the case of Eveneet Singh v. Prashant Chaudhari [Del HC 2011]
it was held that the right of residence which a wife has does not mean the

right to reside in a particular property. It may, of course, mean the right to

reside in a commensurate property. (Also see, Shumita Sandhu v. Sanjay
Singh Sandhu).
Allowing W to assert her right to residence in one particularly
property, or allowing her to assert the right to residence by overriding/
sacrificing the rights of a third party would amount to granting her a
proprietary interest. H's marital obligation to provide shelter to W should not
be transformed into a clog upon or interest in the home with a varying
duration.
Therefore, while the right of the W to a residence, and Hs consequential
obligation to provide the same cannot be disputed, this same right cannot be
allowed to extend to the Ws prerogative to decide which property she gets
accommodation in, as long as the alternative accommodation that H is
willing to provide is of the same standard as her matrimonial home, and
allows her to maintain her lifestyle, especially when the property which she
insists should be her matrimonial home is owned by H, a third party, or if
there is a third party interest in that property.
Even if the property is owned solely by the H, the W cannot insist on staying
in the matrimonial home upon separation, or when the divorce proceedings
between the parties are pending, if H is willing to provide alternative
accommodation, in view of the Hs right as sole owner to deal in such
property.