Can Women seek right to residence in husband or in-laws property after divorce?
It's a common practice among women, advised by their lawyer to seek residence in shared household during the pendency/after divorce to build pressure on husband family to follow their dictate.In an important judgement recently the Mumbai High Court has ruled that a woman who leaves her matrimonial or shared home before divorce can't claim the right to residence later.A divorced wife can claim a residence order under provisions of the Domestic Violence Act only if she is occupying the shared household and not after leaving the matrimonial home long back prior to her divorce, held the Bombay High Court.It quashed the orders of a magistrate who in 2021 had directed a 22-year old woman's aged in-laws to provide her with a room and bathroom in their house.The high court single judge bench of Justice S C More said, "It has been decided that divorced wife can claim residence order only if she is occupying the shared household".The old in-laws had moved the Aurangabad bench of Bombay High Court claiming that since there is divorce between their son and his wife and 'she cannot claim the residence order as of right.'Her husband had in 2016 filed for divorce and in July 2018 their marriage was dissolved the HC noted. She, however, sought execution of a February 2018 order, before the magistrate and in her pending DV complaint of 2007 and in 2021 order in her favour was passed-directing her husband and in-laws to provide her with a room with electricity and a bathroom.Her lawyer opposing her in-laws plea said the Magistrate's order was correct. The lawyer said, considering the scope of Domestic Violence Act, 2005, the aggrieved person-the wife has every right to reside in the shared household despite there being a decree of divorce passed against herself.He also said since she has already by a February 2018 order-before the divorce was granted-permitted to reside in the matrimonial home, the magistrate's order cannot be set aside now.The HC noted in mid-2018, after residing for a few months with in-laws she had left 'during the subsistence of her marriage'. The Bombay HC referred to an order of Kerala HC which had decided 'directly on the issue involved in this matter'.The main question decided by Kerala HC was 'whether a divorced woman is entitled to invoke the provisions of the Domestic violence Act as against her husband'.The right to reside in a shared household is specifically conferred under section 17 of the DV Act to woman in a 'domestic relationship'."There can be no order to put a divorced woman in possession of a shared household from where she had separated long back and the relief can only be of restraining dispossession'.The HC also noted that the Kerala High Court while deciding a question of law on as to 'whether a divorced woman is entitled to invoke the provisions of the DV Act as against her husband had 'specifically categorically" held courts are barred from passing order to put a divorced woman in possession of a shared household from where she had separated long back and the relief can only be of restraining dispossession.The magistrate ought to have considered the in-laws pleas that since their son and daughter-in-laws' plea that since their son and daughter-in-law were divorced she lost the right to reside in the shared household.The HC held that the young woman 'being a divorced wife is not entitled to claim residence..in the 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".HC also held that "mere pendency" of an appeal against divorce decree "will not come in way of present applicants ( her in-laws)".Holding that the magistrate had erred, the HC quashed the 2018 and 2021 orders, but said, she can claim rent.Dr. Ajay Kummar Pandey
( LLM, MBA, (UK), PhD, AIMA, AFAI, PHD Chamber, ICTC, PCI, FCC, DFC, PPL, MNP, BNI, ICJ (UK), WP, (UK), MLE, Harvard Square, London, CT, Blair Singer Institute, (USA), Dip. in International Crime, Leiden University, the Netherlands )Advocate & Consultant, Supreme Court of India & High Courts4C Supreme Law International, Delhi, NCR. Mumbai & DubaiTel: M- 91- 9818320572. Email: editor.kumar@gmail.comWebsite: www.ajaykr.com, www.4Csupremelawint.com
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