Can a Wife Enforce EMI Payments on a Flat She Never Lived In?

The Protection of Women from Domestic Violence Act, 2005 (DV Act) was enacted to safeguard the rights of women in domestic relationships from abuse, including emotional, physical, economic, and verbal violence. A significant feature of the Act is the recognition of a woman’s right to reside in the “shared household.” But what if the “shared household” is only a prospective home, still under construction, and neither party has ever lived there?

Factual Background

Srinwati Mukherji married Prateek Thukral in 2013 and shifted from Kolkata to Mumbai. Initially, the couple resided in rented accommodations. Following an estranged relationship and allegations of domestic violence, including emotional abuse and abandonment, Srinwati filed a complaint under the DV Act in May 2022.

Amid attempts at reconciliation, the husband booked a flat in Malad, Mumbai, in both their names. A registered Agreement for Sale was executed in 2020 for a flat worth ₹3.52 crores. A loan of ₹3.24 crores was taken from HDFC Bank, but possession of the flat was never taken by either party. Subsequently, the husband moved back to the USA and defaulted on both EMI payments and the interim maintenance orders passed in 2023.

Issue

• Can a wife claim enforcement of EMI payments from her husband under the DV Act for a flat jointly owned but never inhabited by either spouse?

Petitioner’s Argument

Srinwati sought direction under Sections 19(d) and 19(e) of the DV Act for:

• Payment of the remaining EMIs for the under-construction flat,
• Restraint on the husband from alienating the flat, and
• Alternatively, directing his employer to release EMI amounts from his salary.

She argued that:

• The flat was intended as their future residence and, therefore, qualified as a “shared household” under Section 2(s) of the DV Act.
• Despite not physically residing in the flat, she had constructive rights owing to her joint ownership.
• Supreme Court rulings such as Prabha Tyagi v. Kamlesh Devi (2022) emphasised a broad interpretation of “shared household,” covering even constructive or intended residence.
• The Court should apply a purposive interpretation and recognise her residence rights even in a property not yet occupied.

Respondents’ Counter-Argument

The husband and co-respondents countered that:

• The flat was under construction and not occupied by either party.
• There was no past cohabitation in the said premises—an essential requirement for a property to qualify as a “shared household”.
• As per Section 2(s), the definition requires that the aggrieved person must have “lived” in the household at any point during the domestic relationship.
• Judicial precedents, such as Manmohan Attavar v. Neelam Attavar (2014) and Satish Chander Ahuja v. Sneha Ahuja (2020), highlight the necessity of actual residence or intention of residence, which was absent in this case.
• The petition amounted to enforcing a contractual obligation (i.e., EMI payments) under the guise of a DV claim, which was beyond the DV Act’s scope.

Judicial Reasoning and Decision

Justice Manjusha Deshpande dismissed the writ petition, upholding the lower courts’ reasoning. Key observations included:

• Section 19(d) and (e) provide protection against alienation or renouncement of a “shared household,” but only when the aggrieved woman has a legally recognised right to reside in it.
• For a property to qualify as a shared household, either the woman must currently live there or must have lived there during the domestic relationship.
• The flat in question was still under construction, unoccupied, and had never been inhabited—thus, it failed the threshold set by Section 2(s).
• Citing Manmohan Attavar v. Neelam Manmohan Attavar and Satish Chander Ahuja, the Court reiterated that residence must have some degree of permanence and cannot be merely hypothetical.
• Although the Supreme Court in Prabha Tyagi recognised constructive residence, it did not obliterate the requirement of a tangible connection with the premises.

The Court emphasised that directing a husband to continue with high-value property payments for a flat under construction, which neither party resided in, fell outside the scheme of the DV Act.

Key Highlights of the decision

Justice Manjusha Deshpande observed

“The prayer made by the Petitioner would not be maintainable since the property/flat, is still under construction and not in possession of either of the parties, therefore, it would not fall within the purview of “Shared Household”, as defined under Section 2(s) of the DV Act.

Hence, I do not find any perversity in the findings recorded vide order dated 19.10.2024 passed by the Sessions Judge at Dindoshi, Borivali Division, Goregaon, Mumbai, in Criminal Appeal No.150 of 2024, thereby confirming the order dated 03.06.2024, passed by the Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai, in CC  No.182/DV/2022. The prayer made by the Petitioner is not capable of being granted considering the scope of Section 19(d) and (e) of the D.V. Act.”

Key Takeaways

1. Shared Household Must Be Occupied or Intended for Immediate Occupation: A flat merely booked and not possessed or used for residence cannot automatically become a “shared household.”
2. Constructive Residence Must Be Justified by Circumstances: Even broad interpretations by the Supreme Court (e.g., Prabha Tyagi) do not extend to completely unoccupied, non-habitable future residences.
3. DV Act Is Not a Substitute for Contractual Enforcement: The Act is remedial and protective in nature, not a mechanism to enforce real estate obligations like EMIs or sale agreements.
4. Right to Residence ≠ Right to Ownership: The DV Act confers a right to reside, even without ownership or title. However, this right must relate to an actual or constructive residence during the domestic relationship.

Conclusion

In Srinwati Mukherji v. State of Maharashtra, the Bombay High Court rightly drew a boundary between matrimonial property disputes and statutory domestic violence relief. While the DV Act is a powerful tool to protect victims of abuse, it is not a mechanism to enforce financial commitments on future assets never been occupied or lived in.