1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 457 OF 2010 Ujwala Mahesh Jadhav .. Petitioner Vs. Mahesh Wamanrao Jadhav .. Respondent Mr. Imtiyaz I. Patel a/w Mr. A. I. I. Patel for the Petitioner. Ms. Vasanti Bangera for the Respondent. CORAM : MRS. R. S. DALVI, J. DATE : 21st January, 2010. P.C. 1. The petitioner as well as the respondent are present in the Court and represented by the respective advocates. 2. Heard. 3. Rule. Rule is made returnable forthwith. 4. The Petitioner and the Respondent are wife and husband. The husband has filed a petition in the Family Court, Mumbai for divorce which is pending. The order of interim 2 maintenance is passed. The question of residence is in dispute. 5. The respondent is a railway employee. The respondent’s father was also admittedly a railway employee until his retirement. The respondent lived in the railway quarters at Vile Parle at the time of his marriage and before. He continued to live in the same railway quarters at Vile Parle until after the respondent was transferred to Palghar recently. The railway quarters was the family residence for many years. Upon taking instructions from the respondent, who is present in the Court his advocate states that respondent was transferred from time to time to Virar, Vasai, Mahim, Parel and Palghar. The respondent states that, these are the routine transfers. At the time of marriage, the respondent was stationed in Parel. However, when the respondent served in Virar, Vasai and Mahim, he lived in the railway apartment at Vile Parle. Prior to his marriage, he lived with his parents. After his marriage he lived with his wife as well as his parents. Respondent’s father also lived in the same railway quarters. The respondent states that he is in service since the year 1985. His father was in service even earlier. The railway quarters in Vile Parle was their residence in Mumbai when the respondent served in Mumbai as well as out of 3 Mumbai for about 25 years. 6. It will have to be seen whether the railway quarters constitute the matrimonial home being the shared household of the parties under section 17 of the Protection of Women from Domestic Violence Act, 2005 (the Act). 7. The wife would have a right to reside in the shared household. She would of course have no right, title or beneficial interest in the same. Yet, she cannot be evicted or excluded from the shared household or any part of it, except in accordance with the procedure established by the law under Section 17 (2) of the Act. 8. In this case, the share household is a public premises. It is a railway quarter. Not only the wife but, also the husband would have no right to live in the quarter after the husband is transferred. They would have no beneficial interest in the quarters also after transfer of his service. Hence, the wife cannot claim not to be evicted or excluded from such house despite Section 17 (2) of the Act. 4 9. It will have to be seen, what right the wife can exercise if she ever was to be evicted or excluded from such public premises and when she can be evicted therefrom. She would be entitled to a protection order which would be by way of an alternate accommodation. The husband offered her alternate accommodation in Palghar on 30th July, 2008. The wife is from Dadar, Mumbai. She instructs her Advocate to state she lived there since her birth. The parties were married in Mumbai. At the time of marriage, the husband had resided in Mumbai since many years. He continued to reside in Mumbai in the same railway accommodation even thereafter. This was even when the husband was transferred to Virar as well as Vasai. 10. The husband has now been transferred to Palghar. He claims that it is a routine transfer. He now lives in a bachelor's accommodation in Palghar. His Advocate states that he pays Rs. 13000/- for the accommodation and unless he gets Vileparle residence vacated, he would not get any other railway accommodation at Palghar. He has filed his Divorce Petition. The wife defended the Divorce Petition. The Divorce Petition is pending. The wife has offered to live with her husband in Palghar. 5 The husband does not want the wife to live with him. He has offered the accommodation to the wife in Palghar. This would be to live alone and without him. That accommodation is shown in the husband’s affidavit filed on 30th July, 2008. The alternate accommodation offered is as follows. “I say that the present accommodation at Palghar is C/o. Shantaram Mali, Alyali, Palghar (West)”. 11. It is not known what kind of accommodation that is or on what basis it is sought to be acquired. Full particulars of the address is not shown. 12. The wife has rejected this accommodation on the ground that she cannot live in Palghar alone and without her husband. 13. The husband’s Advocate states that the wife’s brother lives in a Bungalow in Palghar. The wife claims an alternate accommodation somewhere in Mumbai. She questions the bonafides of the transfer of the husband. She claims that the petitioner deliberately got himself transferred to Palghar so that she 6 would be rendered shelterless. It is seen that there is some substance in this allegation. The husband claims to have been transferred routinely. However, railway premises in Vileparle was with the family since about 25 years and much prior to his marriage. 14. Therefore, if the husband is even genuinely transferred to a far away place and chooses to return the public premises to the railway authority, he must make some alternate arrangement for the residence of his estranged wife in around the locality or area or at least in the city where she lived. This is not a case of routine transfer of the kind which similarly happened on several occasions earlier. 15. The learned Judge has considered the contention of the parties upon transfer. The learned judge has however, considered it on the premise that the railway quarters is a temporary arrangement guided by the rules of the railways and hence the wife must be vacated. However, the learned judge has not passed order for suitable permanent accommodation within the limits of Mumbai for the applicant as prayed by her. The learned Judge has observed 7 that until the respondent vacates the quarter, her prayer for permanent accommodation cannot be considered and accordingly has rejected her application for suitable permanent accommodation. 16. It is on this premise that the application is rejected. It is on this premise that the learned Judge has fallen in error. 17. Section 17 of the Act enjoins a husband to provide the residence for his wife and confers a corresponding right upon the wife to reside in the shared household. When the shared household is as temporary as is sought to be made, a suitable alternate accommodation must be offered to the wife if the shared household is to be vacated by the husband. That would be in the same city or the same locality and must be offered before she is required to vacate it because under Section 17 (2) of the Act “wife shall not be evicted or excluded from the share household save in accordance with the procedure established by law.” 18. The husband had filed an application for order directing the wife to vacate the railway quarters at Vileparle and 8 order came to be passed on that application on 15th July, 2009 by the Family Court, Mumbai directing the wife to vacate the railway quarters and appointing the Court Receiver to take possession of the railway quarters and hand over the same to the Western Railway Authority, if she fails to vacate. The wife challenged that order in Writ Petition No. 6869 of 2009. She sought leave to withdraw the writ petition with liberty to file an application for appropriate reliefs before the Family Court. She was allowed to withdraw the writ petition and was directed to vacate the railway quarters by 15.12.2009 and to file undertaking on that behalf. The wife thereafter filed her application for permanent accommodation which has been disposed of under impugned order rejecting her application. Hence she is evicted from the shared household which she shared with her husband since her marriage. 19. The impugned order is directly against the spirit of Section 17 (2) of the Act. Though the wife would be required to vacate the railway quarters if the Railway Authority followed due legal process which is under the Public Premises Act and obtained an order of eviction, the husband is required to give her a suitable alternate accommodation in the same city, if she would be made be 9 evicted from the share household. 20. What is suitable alternate accommodation is to be seen. It is settled law that what the wife would be required to be provided by way of her separate residence is about the same kind of premises that the parties have lived in or are habituated to. The obligation to provide residence, which is included in the concept of maintenance, therefore, cannot be like throwing a dog a bone. It would be a similar residence, though smaller as it is to be only for one of the spouses, in about the same locality or at least the same city. 21. The wife claims just that. The husband has offered her a premises without particulars of description at Palghar. Hence, the offer is not bonafide. The wife is not bound to accept a premises in another city where the husband is transfered, if the husband does not allow her to reside with him in such city. In that case it is reasonable for the wife to choose to live in the city where her parents reside and where her matrimonial home had been since many years. The premises where she resided with her husband after her marriage is the shared residence of the parties. She can be 10 evicted therefrom only after due legal process is followed. Ms. Bangera states that the husband is required to pay exorbitant rent to the Railway since he has not vacated the Railway quarters after his transfer. The husband himself is responsible for such payment since he has defaulted in providing shelter to his wife. His transfer itself appears to be obtained on ulterior purpose as alleged by the wife in view of his past transfers and continuation of the same Railway accommodation for decades. 22. Hence, the wife’s eviction, upon her refusal to accept such alternate premises offered by the husband in Palghar before due legal process is followed for such eviction is contrary to the law under Section 17 (2) of the Act. Such an order cannot be sustained and is required to be interfered with and modified keeping in view that the wife must vacate the railway premises as soon as the husband provides her an alternate premises within the limits of Mumbai. Hence, the following order :- :: O R D E R :: 1. The impugned order is set aside. 11 2. The husband shall provide the wife any reasonable alternate premises anywhere within the limits of Greater Mumbai. The wife shall vacate the railway premises as soon as the husband offers her an alternate premises within the limits of Greater Mumbai. 3. The writ petition is allowed and Rule is made absolute accordingly. (R. S. DALVI, J.)