Divorced wife not entitled to residence order under PWDVA: Bombay HC

A divorced woman is only entitled to claim a residence order when she is found to be occupying the shared household, the single-judge bench observed. 

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ON September 30, the single-judge bench of Justice Sandipkumar C. More, in the Aurangabad bench of the Bombay High Court, observed that a divorced woman is not entitled to claim a residence order under Section 17 of The Protection of Women from Domestic Violence Act, 2005 ('PWDVA').

In this case, the marriage between the two respondents was solemnised in 2015. However, a dispute arose between the two and the wife started residing in her maternal house in 2016.

The wife then filed a criminal miscellaneous application against her husband and his parents under the PWDVA. A court of judicial magistrate, first class directed the husband to pay her interim alimony of Rs. 2,000 per month, along with Rs. 1,500 per month for residential accommodation, in November 2017.

The aforesaid order was challenged by the wife before an Additional Sessions Judge by way of a criminal appeal. Through an order in 2018, the judge granted permission to the wife to occupy the shared household with immediate effect.

In the meanwhile, a divorce petition filed by the husband in 2016 was pending before a Court of Civil Judge (Senior Division). Through an order dated July 10, 2018 passed in the said marriage petition, the marriage between the two respondents was dissolved.

Despite the divorce decree, the wife filed an application in the pending proceedings under the PWDVA and prayed for executing the 2018 order for providing her accommodation in the shared household.

The application was allowed through a subsequent order in 2021. The same was challenged before the Bombay high court.

Justice More relied on the judgment of the division bench of the Kerala High Court in Ramachandra Warrior versus Jayashree & Anr. (2021) and observed that the wife is not entitled to claim a residence order after her subsequent divorce, and also because she had left the shared household long back prior to the pronouncement of her divorce decree.

The division bench had specifically dealt with the question of whether the divorced wife is entitled to invoke the provisions of PWDVA against her husband. In the context of the right to residence, the bench held that the divorced wife is not entitled to invoke section 17 as the same is only available to a woman in a domestic relationship.

However, the divorced wife was included in the definition of 'aggrieved person' under section 17(2) only if she was found to be occupying the shared household. She can only be evicted from the shared household in accordance with the procedure established by law.

Thus, the divorced wife can only claim the residence order when she was found occupying the shared household, it was held.

Further, the Kerala high court had clearly observed that the court cannot pass any order to put a divorced woman in possession of a shared household from where she had separated long back. The relief can only be of restraining dispossession.

In furtherance of this, Justice More also noted that the wife is not even entitled to the relief of restraining dispossession as she was not in possession of the shared household.

Click here to view the full judgment of the Bombay High Court.