Past Cohabitation Is Enough: Bombay High Court Affirms Expansive Section 17 PWDVA Right to Reside; Denial of Access as Economic Abuse; Residence Order Tailored to Will-Based Share

Introduction

This commentary analyzes the judgment of the High Court of Judicature at Bombay, Nagpur Bench, in Criminal Revision Application No. 240 of 2022, titled Ashish s/o Chandrakant Chauhan v. Mohini wd/o Mukesh Chauhan and another, decided on 16 September 2025 by Urmila Joshi-Phalke, J. The case concerns the scope and enforcement of a woman’s right to reside in a shared household under Section 17 of the Protection of Women from Domestic Violence Act, 2005 (PWDVA), the meaning of “aggrieved person” and “domestic relationship,” and whether refusal of access to the shared household constitutes “domestic violence” in the form of economic abuse.

The dispute arose in a joint family setting where the late husband of Non-applicant No. 1 (Mohini) and the Applicant (Ashish) were brothers. The mother had executed a Will in 2004 bequeathing the ground floor of the family home to Ashish and the first floor to the deceased brother, Mukesh. Mohini had cohabited in the family home until March 2004, thereafter living separately; she sought re-entry after Mukesh’s death in 2008 but was denied by Ashish. She then approached the Magistrate under Section 12 of the PWDVA. The Magistrate rejected her application in 2014; the Additional Sessions Judge allowed her appeal in 2022 and permitted residence in the shared household. Ashish sought revision before the High Court.

The key legal issues were:

• Whether a woman who had earlier lived in the household but was not living there at the time of filing is an “aggrieved person” in a “domestic relationship” for purposes of PWDVA.
• Whether the right to reside under Section 17 of PWDVA depends on current residence or subsisting cohabitation.
• Whether denial of access amounts to “domestic violence” as “economic abuse.”
• How residence relief should be tailored where inter se rights under a Will have allocated specific portions of the property.
• Whether an asserted “divorce deed” (not a court decree) affects PWDVA maintainability.

Summary of the Judgment

The High Court partly allowed the revision. It affirmed the appellate court’s conclusion that Mohini (and her minor son) is entitled to reside in the shared household under the PWDVA, holding that:

• Past cohabitation suffices: Under Sections 2(a), 2(f) and 2(s), a woman who “is, or has been” in a domestic relationship and “lives or has lived” in a shared household can invoke the PWDVA; actual residence or continuing domestic relationship on the date of application is not required.
• Denial of access to the shared household constitutes “domestic violence” by way of “economic abuse” under Section 3, because it restricts continued access to a resource to which the aggrieved is entitled by virtue of the domestic relationship.
• The alleged “divorce deed” of 2007 was not substantiated and, in any case, dissolution of a Hindu marriage can be effected only by a decree of a competent court (Hindu Marriage Act, Section 13). Hence, this did not defeat maintainability.

However, moulding the relief to reflect the Will executed by the mother (bequeathing the first floor to the deceased husband), the Court modified the appellate order: instead of the ground floor, Mohini and her minor son are entitled to reside in the first floor of the house. “Rest of the order is maintained,” which leaves intact the other aspects of the appellate decision, including the costs direction.

Detailed Analysis

Precedents Cited and Their Influence

• S.R. Batra v. Taruna Batra, (2007) 3 SCC 169 (relied on by the Applicant):
  Batra had been understood to read “shared household” narrowly, suggesting that it must be a house belonging to or taken on rent by the husband or the joint family of which the husband is a member. The Applicant invoked Batra in support of limiting the wife’s right to reside and to challenge the characterization of the property as a “shared household.”
  The High Court did not accept the Applicant’s reliance, instead applying the statutory definitions and later Supreme Court guidance to give a broader, text-faithful interpretation of “shared household.” The approach is consistent with the modern trend of reading PWDVA purposively.
• Prabha Tyagi v. Kamlesh Devi, (2023) 8 SCC 90 (relied on by the Non-applicants and followed by the Court):
  The Supreme Court clarified that:
  • “Domestic relationship” under Section 2(f) is comprehensive—covering persons who live or have, at any point of time, lived together in a shared household when related by marriage or other listed relations.
  • Every woman in a domestic relationship has a right to reside in a shared household under Section 17(1), regardless of title; she cannot be evicted or excluded except by due process.
  • When such right is resisted or denied, the woman becomes an “aggrieved person,” and residence can be protected under the PWDVA.
  The High Court explicitly invoked Prabha Tyagi to affirm an expansive reading of Section 17 and the definitional clauses, thereby recognizing residence rights based on past cohabitation and the protective, non-proprietary nature of those rights.
• Smt. Bharati Naik v. Ravi Ramnath Halarnkar and Anr., 2010 (3) Bom C.C. 871 (Bombay High Court):
  This decision was relied upon to interpret the words “has been” and “have been” in the PWDVA definitions. The Court emphasized that these expressions purposefully include past relationships or experiences, so that the Act’s protections are not limited to relationships subsisting on the date of the application. The present judgment adopts this purposive, woman-protective interpretation, rejecting the contention that lack of contemporaneous cohabitation defeats maintainability.

Together, these authorities support the Court’s refusal to confine PWDVA remedies to current co-residence and its recognition that Section 17 confers a statutory right to reside independent of proprietary title, with denial of access amounting to domestic violence by economic abuse.

Legal Reasoning

The Court’s reasoning unfolds along four main axes:

1. Textual fidelity to the PWDVA’s inclusive definitions:
   • Section 2(a) defines “aggrieved person” as any woman who is, or has been, in a domestic relationship and alleges domestic violence. The use of “has been” brings past relationships within the ambit.
   • Section 2(f) defines “domestic relationship” as one between persons who live or have, at any point of time, lived together in a shared household. The phrase “at any point of time” expressly covers past cohabitation.
   • Section 2(s) defines “shared household” as a household where the aggrieved lives or has lived in a domestic relationship, and explicitly includes households owned or tenanted by either party, and also property of a joint family of which the respondent is a member, “irrespective of whether the respondent or the aggrieved person has any right, title or interest.”
   Reading these provisions together, the Court held that neither subsisting cohabitation nor present physical residence at the time of filing is required for invoking PWDVA reliefs.
2. Section 17’s substantive right and Section 12’s procedural gateway:
   • Section 17(1) confers a right to reside in the shared household on “every woman in a domestic relationship,” regardless of title or beneficial interest.
   • When that right is resisted or denied, the woman becomes an “aggrieved person” and may move the Magistrate under Section 12 for appropriate orders (including a residence order under Section 19, though Section 19 is not expressly quoted, it underpins residence relief).
   The Court endorsed the appellate court’s acceptance of shared household status and ordered residence accordingly.
3. Denial of access as “domestic violence” via “economic abuse”:
   • Section 3’s Explanation encompasses “economic abuse,” including deprivation of economic or financial resources and “restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship, including access to the shared household.”
   • By refusing Mohini and her son entry to the shared household after her husband’s death, the Applicant restricted her access to a facility she was entitled to by virtue of the domestic relationship, thereby constituting domestic violence.
4. Tailoring relief to inter se property arrangements:
   • While the PWDVA right to reside does not depend on title, the Court moulded relief to align with the 2004 Will (ground floor to Ashish; first floor to Mukesh), thereby minimizing conflict and respecting existing civil arrangements without denying the protective right.
   • The appellate order granting the ground floor was hence modified to the first floor. The rest of the order stood affirmed.

On the “divorce deed” defence, the Court found no proof of dissolution and reiterated the legal position that under the Hindu Marriage Act, marriage can be dissolved only by a court decree. Even apart from that, the Act’s language (“has been”) would prevent such a defence from defeating maintainability where the applicant had previously lived in a domestic relationship and is now denied her Section 17 right.

Impact and Significance

• Reaffirmation of broad access to PWDVA protection: The decision cements, within the Bombay High Court’s jurisdiction, that a woman’s right to reside in a shared household under Section 17 does not depend on current cohabitation or physical possession at the time of filing. Past cohabitation at “any point of time” suffices to invoke protection.
• Recognition of denial of access as domestic violence: It squarely recognizes that exclusion from the shared household is “economic abuse,” thereby enabling residence orders even absent physical violence. This is significant for cases where control is exercised through property access rather than overt physical acts.
• Practical calibration of relief: By aligning residence with the floor bequeathed to the deceased husband, the Court demonstrates that PWDVA relief is protective, not proprietary—courts may tailor orders to reduce friction, respect civil arrangements, and yet safeguard the woman’s statutory right to reside.
• Discouraging extra-legal divorces: The judgment reiterates that a “divorce deed” is legally ineffectual for Hindus; dissolution must be by decree. This clarifies that family members cannot rely on private instruments to oust PWDVA rights.
• Guidance for Magistrates and Sessions Courts: The ruling encourages trial courts to adopt a purposive, text-driven approach, to:
  • Focus on whether the applicant ever lived in the household in a domestic relationship.
  • Examine denial of access as economic abuse.
  • Mould residence orders to the factual matrix (e.g., particular portions of a dwelling) while ensuring effective protection.

Complex Concepts Simplified

• Aggrieved person (Section 2(a)): Any woman who is, or has been, in a domestic relationship with the respondent and alleges domestic violence. “Has been” means past relationships are covered.
• Domestic relationship (Section 2(f)): A relationship between two persons who live or have lived together in a shared household, when related by marriage, consanguinity, adoption, or as members of a joint family. The phrase “at any point of time” means even past cohabitation qualifies.
• Shared household (Section 2(s)): The household where the aggrieved person lives or has lived in a domestic relationship. It may be owned or tenanted by either party; it also includes joint family property of which the respondent is a member—regardless of whether the woman has any legal title.
• Right to reside (Section 17): Every woman in a domestic relationship has a statutory right to reside in the shared household, independent of title, and cannot be evicted or excluded except by due process. This is a protective occupancy right, not a proprietary right.
• Residence orders (Section 19): Though not expressly quoted in the judgment, residence relief typically issues under Section 19—directing that the woman be allowed to reside in the shared household or alternate suitable accommodation, sometimes specifying a portion or imposing restrictions on the respondent.
• Economic abuse (Section 3): Includes depriving the aggrieved person of resources she is entitled to by virtue of the domestic relationship, such as access to the shared household. Denial of entry or exclusion is a recognized form of economic abuse.
• Divorce deed vs. court decree: For Hindus, marriage dissolution requires a court decree under the Hindu Marriage Act. A private “divorce deed” carries no legal effect and cannot be used to defeat PWDVA rights.
• Effect of Wills and title: PWDVA rights are independent of title; however, courts may tailor residence orders to cohere with existing title arrangements (e.g., allocating a floor consistent with a Will), thereby balancing competing interests without denying protection.

Case Facts and Procedural Trajectory (At a Glance)

• Family house: Plot No. 465, Anand Nagar, Nagpur. Will dated 29.09.2004 by mother: ground floor to Ashish (Applicant); first floor to Mukesh (deceased husband of Non-applicant No. 1). Mother died on 05.02.2007.
• Cohabitation: Mohini lived in the shared household after marriage until March 2004; thereafter lived elsewhere. First-floor construction began in 2007 with mother’s consent; Mukesh died in January 2008 before completion.
• Post-death: Mohini sought to re-enter the shared household; Ashish denied access.
• Proceedings: Section 12 PWDVA application before JMFC (rejected on 07.10.2014); Criminal Appeal No. 162/2017 before Additional Sessions Judge allowed on 17.08.2022 permitting residence in the shared household (specified ground floor) and directing costs.
• Revision: High Court modified residence to first floor in line with the Will; otherwise affirmed the appellate order (16.09.2025).

Practical Implications and Guidance

• For aggrieved women: Evidence that you lived in the household “at any point of time” (e.g., marriage certificates, addresses, testimony, neighbours, photographs) will suffice to establish the “domestic relationship” and “shared household.” Denial of access post-separation or post-bereavement can constitute economic abuse, enabling residence orders.
• For respondents/in-laws: Proprietary title alone cannot be used to evict or exclude; however, courts may accommodate title by specifying a particular portion for residence. A will or partition can guide the precise moulding of relief but cannot negate the right to reside.
• For Magistrates: Adopt a purposive, text-grounded approach: prioritize whether the applicant ever lived in the household in a domestic relationship; consider denial of access as economic abuse; tailor the residence order to the property layout and inter se rights, ensuring safety and habitability. Where necessary, consider directions for access, non-interference, and police aid for implementation.
• Children’s residence: Minors typically reside with the mother as part of the protective umbrella; the present order expressly permits the son to reside with her.

Conclusion

The Bombay High Court’s decision in Ashish s/o Chandrakant Chauhan v. Mohini wd/o Mukesh Chauhan and another reinforces a central tenet of the PWDVA: a woman’s right to reside in a shared household under Section 17 arises from the fact of the domestic relationship and past cohabitation—she “has lived” there—rather than from subsisting cohabitation or proprietary title. By recognizing denial of access as “economic abuse,” the judgment ensures that non-physical forms of domestic control are addressed. The Court’s calibrated approach, placing the aggrieved woman in the first floor consistent with the Will, exemplifies how courts can harmonize protective occupancy rights with existing civil arrangements without diluting the Act’s remedial purpose.

Key takeaways:

• “Has lived at any point of time” means past cohabitation suffices to invoke PWDVA.
• Right to reside under Section 17 is independent of title and not contingent on present residence.
• Excluding a woman from the shared household can constitute domestic violence as economic abuse.
• Courts may tailor residence orders to specific portions of property, consistent with wills or partitions, while preserving protection.
• Private “divorce deeds” do not dissolve Hindu marriages; they cannot defeat PWDVA claims.

In short, this decision advances a robust, purposive construction of the PWDVA, ensuring that widows and other women in domestic relationships are not rendered homeless by technical objections about current residence or private instruments, while demonstrating judicious balancing of inter se property arrangements through tailored residence orders.

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Case details: Bombay High Court (Nagpur Bench); Criminal Revision Application No. 240 of 2022; Coram: Urmila Joshi-Phalke, J.; Closed on 21/08/2025; Pronounced on 16/09/2025; Neutral citation: 2025:BHC-NAG:9202.