Women Leaving Matrimonial Home Before Divorce Can’t Claim Right To Residence Later: HC

Aurangabad: A woman who leaves her matrimonial home before being granted divorce cannot later seek “right to residence” under the Protection of Women from Domestic Violence Act, 2005 (DV Act), even if her appeal against the divorce decree is pending, the Aurangabad bench of Bombay High Court has ruled.

The court was hearing a case in which the husband and his family claimed that the wife was very rude and left home on her own accord a few months after their marriage on June 10, 2015.

The woman had moved a magistrate’s court, which ordered the husband to pay interim maintenance of Rs 2,000 per month and rent of Rs 1500 per month to his wife for making her own living arrangements under the DV Act.

The wife challenged this order before Sessions a court, which modified the order and directed the husband and his parents to provide her accommodation in the shared household, which was in the name of the husband’s father.

The husband’s parents then approached the high court, where Justice Sandip Kumar More said it is now settled that “even if the shared household stands in the name of in-laws, the wife can very well claim a residence order in respect of such a shared household.”

However, since the couple’s marriage had been dissolved in July 2018, the husband’s parents claimed that the divorced wife cannot claim a residence order or enforce an earlier residence order that was issued during her marriage to their son.

The woman contended that the husband obtained divorce through fraud, and filed an appeal against it.

Justice More ruled that that Section 17 of DV Act does allow the woman right to residence, but it’s only true when the woman continues to reside in the shared household before divorce.

“As such, the divorced wife cannot resort to the earlier residence order when her marriage with her husband has been dissolved by a divorce decree passed by the court having proper jurisdiction and especially when she had already left their shared household four years ago. Under the circumstances, she is not even entitled to the relief of restraining dispossession since she is not in possession of the shared household,” the court stated.

“Mere pendency of an appeal will not come in the way of the present applicants challenging the order passed by the magistrate,” Justice More added.

“Therefore, I come to the conclusion that she, being a divorced wife, is not entitled to claim a residence order or the implementation of an earlier residence order in the light of changed circumstances, i.e., after her subsequent divorce for occupying the shared household after leaving the same long ago and prior to her divorce. I am of the opinion that the Magistrate has definitely erred in directing the applicants to provide one room to her in the shared household,” Justice More held.