The Aurangabad bench of the Bombay High Court recently held that a woman who leaves her matrimonial house before the divorce, cannot later claim her right to residence under the Protection of Women from Domestic Violence Act, 2005 even if her appeal against the divorce decree is pending.
The High Court bench comprising Justice Sandipkumar More quashed the order passed by the lower court allowing her right to residence in her in-laws house. The lower court had also granted her access to the electricity, bathroom, toilet, etc. in the house.
The single judge bench noted that Section 17 of the DV Act allows the right to residence but only when if the woman continues to reside in the shared household before the divorce.
Justice More stated, “As such, Sakshi (the divorced wife) cannot take 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 her shared household four years back. Under the circumstances, she is not even entitled for the relief of restraining dispossession since she is not in possession of the shared household.”
The High Court was hearing a revision application filed by the in-laws against the lower court Magistrate order which allowed the woman to reside in her matrimonial house which stood in the name of her now estranged father-in-law.
The appellants submitted that the court had dissolved the marriage of their son and his estranged wife with a detailed order passed on July 10, 2018. In-laws also mentioned that the appeal filed by her is pending before the High Court.
They argued that the wife cannot seek the right to residence as the marriage is dissolved and she had left their matrimonial home months before the divorce.
The counsel appearing for the estranged wife contended that she has challenged the divorce decree on the ground that it was obtained by fraud and the appeal is still pending consideration.
Noting that she actually left the matrimonial house much before the divorce, the bench observed that she was unable to produce any material on record to show that she was forced to leave the matrimonial house by her husband or in-laws.
While noting that mere pendency of an appeal will not come into way of the present applicants for challenging the order passed by the Magistrate, the bench noted, “Therefore, I come to the conclusion that she being a divorced wife, is not entitled to claim residence order or implementation of 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 back 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.“
