The Hon’ble Kerala HC pronounced the judgment in the open court stating that “a divorced wife would not be entitled to the right of residence conferred under Section 17 of the Protection of Women from Domestic Violence Act, 2005.
The Hon’ble Division Bench held that the right of residence is available only to a woman in a domestic relationship. However, the Hon’ble court also observed that a divorced wife occupying a shared household can be expelled only by the following law.
The Hon’ble bench while pronouncing the judgment in the present matter referred to Sulaiman Kunju v. Nabeesa Beevi [2015 (3) KHC 5] and Bipin v. Meera [2016(5)KHC 367]. The conflict is concerning the rights of a divorced woman to invoke the provisions of the Protection of Women from Domestic Violence Act, 2005. The Hon’ble Court also considered that “however, a divorced wife living in a shared home can be homeless only under law.” question whether the order of residence obtained by a wife in a shared household would seize automatically on divorce being granted subsequently.
Subsequently, the Hon’ble bench answered the reference as follows:
A divorced wife would not be entitled to the right of residence conferred under Section 17 of Protection of Women from Domestic Violence Act, 2005, for the reason of that right being available only to a woman in a domestic relationship.
A divorced wife would be included under the definition of’ aggrieved person’. A divorced wife occupying a shared household can be evicted only under law. A divorced wife can approach the Magistrate’s Court for an order under Section 19 if she is residing in the shared household. The residence orders passed in such cases would be subject to any proceeding for eviction under law, initiated by the husband, as contemplated under Section 17(2).
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.
Subsequently, the Hon’ble court also highlighted the issue of the divorced wife who is continuing in the shared household at the time of divorce though entitled to seek a residence order under S.19, can continue only till she is evicted by due process of law. While answering the reference, the Hon’ble bench observed that there are no precedents that specifically deal with the question of a divorced woman enforcing the right of residence under S.17. Referring to Section 17 of the Act, the bench additionally also observed that “As per subsection (1), the right to reside in the shared household has been conferred on ‘every woman in a domestic relationship’.
There is substantial variation insofar as the words ‘has been’ ‘had’ or ‘have’ not having been used in the above provision and the right conferred is on a woman in a subsisting relationship. However, sub-section (2) of S.17 and S.19 speaks again of an ‘aggrieved person’, which takes in a divorced wife. A divorced wife continuing in a shared household would be entitled to seek the remedy under S.19 and can be evicted therefrom only under the law (S.17(2)). The order passed under S.19 would be subject to any proceedings under law.
This takes in situations in which the divorced woman, who is at the time of the divorce or thereafter, residing in the common home itself being enabled to approach the Magistrate under the DV Act. Insofar as a divorced wife, who is no longer living in the common home, she cannot be put back in ownership.
The perceptive legislative exercise is in so far as conferring a woman in a domestic relationship, the right of residence in the shared household, while a divorced wife who is continuing in the shared household at the time of divorce though entitled to seek a residence order under S.19, can continue only till she is evicted by due process of law.” In this context, the Hon’ble court also notices that the absurdity pointed out by the learned Counsel for the petitioner, insofar as a divorced wife being allowed to continue in the house of the divorced husband can be avoided by resorting to Clause (f) of S.19, which enables the Court to direct the respondent to secure the same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same. This comes within the scope of maintenance entitled to a distressed woman.
Also, the Hon’ble Court will be empowered to grant compensation as provided under S.22 and continued maintenance, which even a divorced wife who remains unmarried, is entitled under S.125, for which S.20 of the DV Act can be invoked.
The Hon’ble Court also opined that the plaintiff was in a domestic relationship as a wife at the time the submission was made before the Hon’ble Magistrate’s Court under the DV Act. And the application filed by the wife against the husband before the Hon’ble Family Court to be maintainable since she was in a domestic relationship at the time the jurisdiction was invoked.
Case: Mr. Ramachandra Warrior vs Jayasree [Crl.Rev.Pet.No.3079 OF 2009]
