“THE MAGIC THING ABOUT HOME IS THAT IT FEELS GOOD TO LEAVE, AND IT FEELS EVEN BETTER TO COME BACK”
– Wendy Wunder
INTRODUCTION
“Having a place to go is a HOME.” Home is not merely bricks and mortar; it is a treasure chest of living. When a person starts to earn, he is galvanized to have his own home. Having a roof over one’s head is itself a blessing. For families, a house represents stability and emotional grounding. However, due to legal disputes, financial distress, or governmental actions, this stability can be disturbed, creating psychological, emotional, and social challenges. This is mainly done through house removal proceedings. A House removal proceeding, in the US, means Deportation, i.e., when the court orders a person to leave the United States. However, in India, it is a legal action or a process of evicting someone from their residential property. It could be done by landlords for non-payment of rent, foreclosure by financial institutions, or by the government because of urban redevelopment, road expansions, or acquisition for government projects.
LEGAL FRAMEWORK IN INDIA
Laws relating to home removal proceedings are different in different statutes, based on the facts of the case. A combination of central laws, state-specific tenancy acts, and judicial precedents govern it. These laws aim to balance the rights of property owners, tenants, and other stakeholders while ensuring procedural fairness and protecting vulnerable individuals. Removal by co-owners, spouses, or parents, sharing property is governed under the Hindu Marriage Act, Hindu Adoption and Maintenance Act, The Code of Civil Procedure, Bharatiya Nagarik Suraksha Sanhita, Specific Relief Act, Domestic Violence Act, etc. In comparison, other cases are governed under the Transfer of Property Act, The Land Acquisition, Rehabilitation, and Resettlement Act, etc[1].
- Bharatiya Nagarik Suraksha Sanhita, 2023[2]—Section 144 empowers the court to pass an interim order directing a person to maintain his parents, wife, or children[3]. Therefore, maintenance is granted to ensure necessities, including shelter. In Mohd. Ahmed Khan v Shah Bano Begum, 1985, the Supreme Court stated that divorced Muslim women’s claim for maintenance can be determined under this section[4]
- Hindu Marriage Act, 1955[5]– This act applies to Hindus, Jains, Sikhs, Christians, and Buddhists. Sections 10 and section 13 of this act provide that in case of judicial separation, a person can be asked by the court to leave the spouse’s house[6].
- Hindu Adoption and Maintenance Act, 1956[7]– It provides that a spouse, children, and aged parents have the right to claim maintenance, including the provision of a home.
- The Specific Relief Act, 1963[8]– This Act empowers any party involved in a suit to seek specific relief. It aims to provide remedies for the protection of individual civil rights rather than enforcing penal laws. Under its provisions, a person may seek remedies such as specific performance of a contract, injunctions, claims for damages, and other reliefs arising from a breach of contract or violation of legal rights. Furthermore, Section 5 of this act allows parties to file suits for ejectment, enabling the removal of individuals unlawfully occupying a property without legal entitlement.[9]
This act empowers the court to grant an injunction under sections 36 to 42 of SRA against the person to prevent him from interfering in any property of another person without any right.[10].
There are different kinds of injunction under this act which are as follows: –
- Temporary Injunction: It is a type of injunction that is imposed for a short period and it can be provided at any stage of proceedings.
- Perpetual Injunction: It is a court order issued in favour of the plaintiff to restrain the defendant from performing any act that infringes upon the plaintiff’s rights. This type of injunction is granted through a decree during the hearing.
- Prohibitory Injunction: Also called preventive relief, it is a court order issued against the defendant to avert them from initiating or continuing any act that infringes upon the plaintiff’s rights. Its primary purpose is to restrain the defendant from repeating, continuing, or committing such wrongful acts.
- Mandatory Injunction: Mandatory injunction is an injunction that is granted by the court to restrain the defendant from continuing to do some wrongful act by ordering the defendant to undo the things that have been done or to restore the things to their former conditions.[11]
- The Transfer of Property Act, 1882[12]– It governs the relationship between tenants and landlords under which eviction proceedings can be initiated. Under this:
- Lease Agreements (Section 105)- It defines lease agreements between landlords and tenants.
- Termination of Lease (Section 111)- It specifies the conditions for the lease such as lapse of time, etc.
- Notice to Quit (Section 106)- This mandates a minimum notice period for terminating a lease[13].
- The Domestic Violence Act, 2005[14]– It provides relief to women who are victims of domestic violence including the right to reside. This act empowers the court to pass an interim order against the respondent to restrain him from dispossessing or disturbing the possession of women in a shared house[15].
- The Land Acquisition, Rehabilitation, and Resettlement Act, 2013[16]—This act governs cases where house removal occurs due to government acquisition of land for public purposes.
However, while giving judgments, the court must consider the financial condition, requirements, and the relationship between the parties, the impact it will have on children, the alternative options of accommodation, etc.
THE RIPPLE EFFECTS OF HOUSE REMOVAL PROCEEDINGS ON FAMILIES
- Psychological impact– The prospect of losing one’s home is a deeply distressing experience for any family. It often triggers feelings of anxiety, stress, depression, sadness, grief, etc.
- Financial impact—Financial strain often accompanies house removal proceedings, causing a significant burden for families. Finding a new residence, renting costs, travel expenses, etc. may lead to a depletion of savings.
- Educational Disruption-Eviction may result in moving to new places thereby causing children to switch schools which disrupts their learning. Making new friends, adapting to the new environment, etc. causes anxiety in children.
- Health issues– Home removal proceedings can take a toll on the physical health of a person. The constant stress of finding accommodation, moving to new places, etc. can cause stress and anxiety, heighten blood pressure, and various other kinds of disorders thereby affecting the physical as well as mental health of a person.
CONCLUSION AND SUGGESTIONS
Having a house is one of the most important necessities for survival. Home removal proceedings are not just a legal process but it flips the life of a person upside down. It makes a person economically, socially, and emotionally weaker. Parents grapple with the burden of failing to provide a stable roof, their faces etched with guilt and despair. It leads to heightened anxiety, depression, and academic decline, underscoring the lasting scar it leaves on overall development. For many, manoeuvring through the Mariana trench of eviction proceedings intensifies the ordeal. This is when the role of legal aid and pro bono services becomes preponderant. Expansion and Creation of legal aid clinics that provide free or low-cost legal representation would help tackle this issue as it would help tenants fight the legal battle without worrying about the expenses. Various Law Colleges across India also have legal aid cells on their college campuses where budding lawyers get a chance to help people by giving free legal services. The ‘Right to Counsel Law’ should be implemented in India as it is in cities like New York so that the aspirational idea mentioned in Article 39A of the Indian Constitution about providing free legal aid is accomplished[17]. Conducting workshops and educating the tenants about their rights can help them to prevent legal missteps. Also, implementing policies and mandating landlords to give valid reasons for evicting a tenant or setting an upper limit on increasing the rent can prevent exploitative practices by landlords. Therefore, a multi-pronged approach is essential. In the end, hope exists like the capacity of the sun in winter and a holistic legal and social framework can help families in fighting legal battles thereby upholding their fundamental right to housing.
Author(s) Name: Riddhima Shukla (S. S. Khanna Girls’ Degree College, Prayagraj (Affiliated to the University of Allahabad))
Reference:
[1] Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Code of Civil Procedure 1908; Bharatiya Nagarik Suraksha Sanhita 2023; Specific Relief Act 1963; Protection of Women from Domestic Violence Act 2005; Transfer of Property Act 1882; Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013.
[2] Bharatiya Nagarik Suraksha Sanhita 2023.
[3] Bharatiya Nagarik Suraksha Sanhita 2023, s 144.
[4] ‘Mohd Ahmed Khan v Shah Bano Begum (1985) 2 SCC 556.
[5] Hindu Marriage Act 1955.
[6] Hindu Marriage Act, 1955.
[7] Hindu Adoption and Maintenance Act 1956.
[8] The Specific Relief Act 1963.
[9] The Specific Relief Act 1963, s 5.
[10] The Specific Relief Act 1963, ss 36 to 42.
[11] Legal Upanishad, ‘House Removal Proceedings: Effects on India’ < https://legalupanishad.com/house-removal-proceedings-effect-on-india > accessed 19 January 2025.
[12] The Transfer of Property Act 1882.
[13] The Transfer of Property Act 1882, ss 105, 106, 111.
[14] The Domestic Violence Act 2005.
[15] Government of India, ‘The Hindu Marriage Act, 1955’ (2024) < https://cdnbbsr.s3waas.gov.in/s3ec03333cb763facc6ce398ff83845f22/uploads/2024/09/2024091127.pdf > accessed 23 January 2025.
[16] Land Acquisition, Rehabilitation and Resettlement Act 2013.
[17] Constitution of India, art 39A.
