Woman who leaves matrimonial house before divorce can't claim right to reside in the house even if appeal pending Bombay High Court

Team SoOLEGAL 6 Oct 2022 12:07pm

Woman who leaves matrimonial house before divorce can't claim right to reside in the house even if appeal pending Bombay High Court

New Delhi: The Aurangabad bench of the High Court of Bombay, in a criminal revision application, held that a divorced wife, even if an appeal under divorce is pending, would not be entitled to the right of residence conferred under section 17 of the Domestic Violence Act (D.V.Act) since the said right is not available to her as she was not in a domestic relationship anymore. For residence order, a divorced wife was included in the definition of aggrieved person under the act only if she was found occupying the shared household and as such cannot be evicted therefrom without following the due process of law.


Section 17 of the Domestic Violence Act (D.V.Act) which confers the right to reside in a shared household, reads as follows:


“17. Right to reside in a shared household-

(1)  Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title, or beneficial interest in the same.

(2)   The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law”.


Brief background facts of the case are as follows:

·         The criminal revision was filed by the in-laws of the complainant's wife.

·         The shared household was owned by the father-in-law of the complainant's wife.

·         The marriage between husband and complainant wife was already dissolved by a decree of divorce.

·         The complainant's wife filed an Appeal against the divorce decree on the ground of fraud, which was pending.


In the instant matter, the lower court had passed an order giving residence right to the complainant's wife, of one room on the ground floor with the facility of attached WC, toilet, and electricity in the shared household which was owned by the father-in-law. Subsequently, her marriage was dissolved. The criminal revision application was filed by the parents of the husband, being the in-laws, of the complainant under the DV Act challenging the impugned orders on the ground that a divorced wife cannot claim the right to residence in a shared household.


The court while deciding the rights of a divorced wife under the D.V.Act opinioned that

a)    A divorced wife would not be entitled to the right of residence conferred under section 17 of the DV act;

b)    A divorced wife would not be entitled to implementation of an earlier residence order under the D.V Act passed when she was having a status of a wife, in light of changed circumstances of a subsequent divorce;

c)    A divorced wife, who does not have a shared household, can seek an alternative remedy such as rent for accommodation from her husband.

Accordingly, the Single Bench of the High Court quashed the impugned order passed by the lower court granting right of residence to a divorced woman in her in-law’s house. 

Tagged: Woman    matrimonial house  
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