Aishwarya Atul Pusalkar V - S Maharashtra Housing and Area Development Authority and Others
Aishwarya Atul Pusalkar V - S Maharashtra Housing and Area Development Authority and Others
Brief Facts :-
Aishwarya Atul Pusalkar, the appellant seeks to enforce her right to reside in her matrimonial
home. In 1997, Aishwarya pusalkar and her husband, Atul shivram pusalkar filed a divorce suit
in Family Court which was rejected. The Building in which they were living before, Aishwarya,
her husband, and her mother-in-law was named Usha. In between the divorce suit, a firm of
builders BUILDARCH was given permission by the Mumbai Building Reforms and
Reconstruction Board of reconstructing the residence into OM Apartments and in terms of the
MHADA Act, 1976 they were required to shift to a transit or temporary accommodations.
Aishwarya stayed in the Old building with her two sons and then MHADA issued a notice
against her to vacate that place otherwise she will be charged with one year imprisonment or a
maximum five thousand fine. Aishwarya then shifted to a temporary accommodation by the
order of Bombay High Court, apartment rents were initially paid by the Builder but eventually
had to be deducted from her husband. Aishwarya was demanding residence in 2 Flats of OM
Apartments. In 2000, Bombay High Court finalized their Divorce hearing, which was after
Aishwarya shifted to temporary accommodation.
Issues Involved :-
1. Her complaint was that her husband did not allow her to live in her matrimonial
accommodation while the divorce proceedings were ongoing and not finalized.
2. Being the legally wedded wife of Atul, Aishwarya had a right to reside along with her husband
in the temporary alternate accommodation and permanent alternate accommodation allotted to
him either along with the remaining co-owners or independently.
3.Her case is that it is composite statutory obligation of MHADA, the builder and her husband to
rehouse her in her matrimonial home
Judgement :-
When a builder fulfills his obligation by migrating the original owners to the redeveloped portion
under such a scheme, a woman married into that family is not entitled to use the High Court's
writ jurisdiction to enforce her right to a matrimonial home under the provisions of the said
statute if her husband refuses to allow her to live in the allocated portion. She has no
independent claim to title or interest in the property that is based on that statute. Her claim to
the right to live in her marriage home is being utilized as collateral for her husband's legal right
to be rehoused or rehabilitated in the new structure.But her right to reside in her matrimonial
home stands detached from and is independent of the statutory scheme under the said Act. Her
right to reside in her matrimonial home does not flow from the 1976 Act.
A married woman is entitled to live, subsequent to her marriage, with the rest of her family
members on the husband’s side, in case it is a joint-property. If she resides in an
accommodation as an independent family unit with her husband and children, the matrimonial
home would be that residential unit. This right is embedded in her right as a wife. It is implicit
under the provisions of Section 18 of the Hindu Adoption and Maintenance Act, 1956 in
situations that statute is applicable.
The Protection of Women from Domestic Violence Act, 2005 has recognised the concept
of “shared household” in terms of Section 2(s) of this statute. Alienating an immovable asset to
defeat the right of a victim lady under the said Act can constitute domestic violence, coming,
inter-alia, within the ambit of the expression “economic abuse” under Section 3(iv) of 2005 Act.