Several cases come before the Hon’ble Supreme Court and Hon’ble High Court in which the main issue is the ‘Right of Residence’ of the wife in the property of the husband or in the house in which she was residing with her husband. Whether there is a right of the wife in the property of the husband during a pending dispute between them or after the final disposal of the case. Recently the Bombay High Court Aurangabad Bench has ruled that a woman who leaves her husband’s home pending divorce proceedings loses the right to later seek ‘right to residence’ in the same home. If she plea against the divorce is pending under the Protection of women from Domestic Violence Act,2005.
Landmark Judgement in Umakant Havgirao Bondre & Anr. Vs. Sakshi @ Sonali & Anr. on 30.09.2022
Brief facts of the Case
- The applicants in the proceedings are the parents of respondent no. 2 (husband) and in-laws of respondent no. 1(wife). The marriage of the respondents was solemnized in June 2015, but a year later, following disputes between them, respondent no. 1 left the home and went to live with her parents.
- Initially, a case was filed by respondent no. 1 under Section 12 of the Domestic Violence Act, 2005, wherein the Magistrate directed respondent no. 2 to provide interim maintenance of Rs 2,000/- per month and also a monthly amount of Rs 1500/- as rent for the wife to make arrangement for her residence independently vide order dated 09.11.2017, which was later challenged by way of appeal by respondent no. 1. The Learned Court modified the earlier order to include giving her accommodation in the shared household vide order dated 12.02.2018.
- Learned Counsel for the applicants pointed out that in the meantime and after respondent no. 1 started residing in the shared household, there was a settlement between respondent no. 1 and her husband i.e. respondent no. 2, and accordingly respondent no. 1 went for cohabitation with her husband to Pune on 11.06.2018. However, after that also respondent no. 1 continued her rude behavior as earlier and left the house of Pune willingly and started residing with her parents at her maternal house.
- Further, according to learned Counsel for the applicants, a divorce petition filed by the husband of respondent no. 1 against her was also pending in the Court of Civil Judge (Senior Division), Udgir, and vide order dated 10.07.2018 passed in the said marriage petition, the marriage between respondent no. 1 and her husband was dissolved.
- That despite the dissolution of marriage, respondent no. 1, to harass the applicants, applied in the pending proceeding under the Domestic Violence Act and prayed for the execution of earlier order dated 12.02.2018 passed by the learned Additional Sessions Judge, Udgir for providing her accommodation in the shared household. The said application was opposed by the present applicants and also by the husband of respondent no. 1 on the ground that after the dissolution of the marriage between respondent no. 1 and her husband, she lost the right of residence. However, learned Magistrate, Udgir allowed the said application partly and directed the applicants and husband of respondent no. 1 to provide one room on the ground floor of the shared household with the facility of a western bathroom and electricity supply vide order dated 23.10.2021.
- The applicants have therefore challenged the impugned order dated 12.02.2018 whereby respondent no. 1 was permitted to occupy the shared household and also the subsequent order of the concerned Magistrate, Udgir dated 23.10.2021 whereby the applicants as well as present respondent No. 2 – husband are directed to provide one room on the ground floor of the shared household with facility of western bathroom and electricity supply.
- The main ground for challenging the impugned order is that respondent no. 1 cannot enforce these orders since the marriage between both of them has been dissolved long back and more particularly on 10.07.2018 when the learned Civil Judge (Senior Division), Udgir passed an order of dissolution of the marriage between respondent no. 1 and her husband.
The main issues before the Hon’ble High Court were:
- Whether a divorced woman can demand relief under the Domestic Violence Act?
- Whether a divorced woman has a right to residence?
- Whether the Hon’ble High Court can refuse to grant the relief mentioned under (a) and (b) above?
The Hon’ble High Court discussed the above issue by relying upon the following landmark judgments:
In Satish Chander Ahuja vs Sneha Ahuja on 15.10.2020, the Hon’ble Supreme Court observed and cautioned the courts that the right to residence under Section 19 is not an indefeasible right of residence in a shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunt by marital discord between their son and daughter-in-law. While granting relief both in the application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both parties.
Further, the Hon’ble Court placed reliance on the Judgement in Ramachandra Warrior vs. Jayasree and Anr. on 18.03.2021, wherein the learned Division Bench of Kerala High Court was deciding reference made by a Single Judge, finding conflict in the decisions rendered by two other Single Judges in Sulaiman Kunju vs Nabeesa Beevi and Bipin vs Meera. The main question involved in the reference was, whether a divorced woman is entitled to invoke the provisions of the D.V. Act against her husband. Learned Division Bench of Kerala High Court, while answering the aforesaid reference, had also taken into consideration various decisions passed by the various High Courts and Hon’ble Supreme Court, and stated that the right to reside in a shared household is specifically conferred under Section 17 of the D.V. Act, which reads as under :
“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.”
Thus, a divorced woman can file a case under the Domestic Violence Act but cannot claim residence under Section 17. In short, it has been decided that a divorced wife can claim a residence order only if she is occupying the shared household. The court is barred from passing the 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. As such in the case of Umakant Havgirao Bondre & Anr. Vs. Sakshi @ Sonali & Anr., the Hon’ble Court held that the Magistrate has erred in directing the applicants to provide one room to respondent no. 1 in the shared household along with the facility of western bathroom and electricity as respondent no. 1 cannot take resort to the earlier residence order when her marriage with respondent no. 2 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, respondent no. 1 is not even entitled to the relief of restraining dispossession since she does not have possession of a shared household.
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