In a significant ruling under the Domestic Violence Act, the Bombay High Court has held that a woman cannot claim a right to an under-construction flat as a “shared household” when she has never resided in it.
Justice Manjusha Deshpande on July 4 dismissed a petition filed by a 45-year-old woman seeking directions to her estranged husband or his employer to pay pending installments for a flat in Malad, Mumbai.
The petitioner claimed protection under Section 2(s) of the Protection of Women from Domestic Violence (DV) Act, 2005, asserting that the flat, booked in 2020 and jointly registered in her name, was a “shared household.” She sought payment of the remaining consideration to prevent the developer from cancelling the agreement. However, the court rejected the plea, noting that the flat was still under construction, not in possession of either party, and had never been occupied by the petitioner.
The woman had filed a DV complaint in May 2022 alleging emotional and physical abuse after her husband, a software engineer based in the US, allegedly had an extramarital affair. She claimed that during a brief reconciliation attempt in 2020, her husband agreed to return to India and booked the flat as a gesture of commitment. Later, he returned to the US and unilaterally told the developer to cancel the purchase.
Although a Magistrate had granted her interim maintenance of Rs45,000 per month in February 2023, the husband defaulted, prompting her to seek enforcement. When the developer demanded the next installment, she approached the courts to direct her husband to pay or risk cancellation of the agreement.
However, the Court observed that under the DV Act, a “shared household” must be an existing, habitable residence in which the woman has lived during the domestic relationship. “The flat is not yet in possession, and neither party has resided there. The petitioner cannot compel the respondent to complete a real estate transaction under the DV Act,” Justice Deshpande ruled.
Referring to Sections 17 and 19 of the Act, the Court clarified that the purpose is to protect a woman from being evicted from a residence she actually occupies, not to create rights over a property still under construction. “There is no case made out for interference under Article 227 of the Constitution,” the Court concluded, upholding the orders of the Magistrate and Sessions Court and dismissing the petition.
