Can Divorced Wife Claim Right To Residence Under Domestic Violence Act?

The Supreme Court in  a recent judgment [Satish Chander Ahuja vs. Sneha Ahuja] held that a woman can claim right to residence in the houses owned by relatives as well. This means that, she can seek residence order with respect to property which belongs to in-laws, if she and her husband lived there with some permanency after marriage.

What happens after divorce of a married couple? Can a woman file a domestic violence complaint after divorce? Can she seek residence order even after the marriage is dissolved? These are some of the doubts which have arisen after the Supreme Court delivered this judgment.

As per the definition clause in the DV Act, "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. 

Further, "domestic relationship" is defined to mean a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by  consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family; 

"Shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. This definition was interpreted in the Ahuja judgment by overruling restrictive interpretation in SR Batra vs. Taruna Batra (2007) 3 SCC 169.

Section 19 confers a woman the right to reside in a shared household. "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." Section 12 enables an aggrieved person to present an application to the Magistrate seeking one or more reliefs under this Act. Section 19 empowers the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order. Residence orders can be any of the following kind: (a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household; (b) directing the respondent to remove himself from the shared household; (c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides; (d) restraining the respondent from alienating or disposing off the shared household or encumbering the same; (e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or (f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require.

There are divergent views expressed by High Courts on the issue whether a woman can file a complaint under Domestic Violence Act after divorce. Most of them refer to following two Supreme Court judgments in this regard.

Subsequent Divorce Will Not Deny Benefit To Which Aggrieved Person Is Entitled: SC In Juveria Case

In Juveria Abdul Majid Patni Vs. Atif Iqbal Mansoori [2014(10) SCC 736] , the Supreme Court was examining the correctness of an order of Sessions Court which dismissed an application filed under the Domestic Violence Act as not maintainable. Examining the provisions of the Act, the court held that an act of domestic violence once committed, subsequent decree of divorce will not absolve the liability of the respondent from the offence committed or to deny the benefit to which the aggrieved person is entitled under the Domestic Violence Act, 2005 including monetary relief under Section 20, Child Custody under Section 21, Compensation under Section 22 and interim or ex parte order under Section 23 of the Domestic Violence Act, 2005.

In the above judgment, the Court had also noticed its earlier decision in Inderjit Singh Grewal vs. State of Punjab and another, (2011) 12 SCC 588. In that case, the Supreme Court had held that 'Application to Magistrate" under the Domestic Violence Act challenging a 'sham' divorce was not maintainable. The court had quashed the complaint filed by the wife. 

In Juveria, the court said that the law laid down in Inderjith is not applicable for thep purpose of determination of the issues involved in it.

Rajasthan HC

In Sabana @ Chand Bai & Anr vs Mohd.Talib Ali [2013], the Rajasthan High Court considered this issue. The Division Bench held that it "is not necessary that the applicant-woman should have a marriage or relationship in the nature of marriage existing and subsisting with the respondent as on the date of coming into force of the Act or at the time of filing of the application under Section 12 of the Act before the Magistrate for one or more reliefs as provided for under the Act. In other words, the aggrieved person, who had been in domestic relationship with the respondent at any point of time even prior to coming into force of the Act and was subjected to domestic violence, is entitled to invoke the remedial measures provided for under the Act." The Special Leave Petition filed against this judgment was dismissed in limine by the Supreme Court in 2018.

Telangana HC

A division bench of Telangana High Court, in Mohd. Kaleem vs Waseem Begum, held that it is not necessary that the woman should have a marriage subsisting and existing with the respondent at the time of filing of an application under Section 12 of the Act. Mere grant of a divorce would not absolve the petitioners from the criminal misdeeds allegedly committed by them during the existence of a domestic relationship between the parties. The bench held that the domestic relationship between the aggrieved person and respondent did not cease upon her obtaining a divorce and the DVC is maintainable in relation to the past acts of domestic violence allegedly committed by the respondent.

Punjab and Haryana HC 

The Punjab and Haryana High Court in Neha Chawla vs Virender Chawla [2019], held that there is no such rule that divorce between a couple would absolutely debar a wife from invoking provisions of Domestic Violence Act and that in certain exceptional circumstances, a wife, despite her divorce, may still be able to make out a case for grant of relief. However, on facts, the court observed that the complaint filed by the woman against her brothers-in-law under provisions of Domestic Violence Act, filed after a decade of dissolution of her marriage with her husband and also after death of her husband, especially when no FIR for any offence u/s 406 or 498-A had ever been lodged at the instance of wife, has has to be held as an abuse of process of law.

In an earlier judgment, Amit Agarwal And Ors vs Sanjay Aggarwal [2015]. the High Court had held that domestic relationship between the aggrieved person and the respondent must be present and alive at the time when the complaint under Domestic Violence Act is filed. Taking note of the definition of the 'aggrieved person and 'domestic relationship', Justice Anita Chaudhary made these observations: "The use of the word is any woman 'who is' or 'has been'. Both the expressions are in the present tense. The legislature has not used the word 'who was' or 'had been'. This means the domestic relationship has to be in the present and not in the past. The definition requires that on the date Act come into force, the woman should be in domestic relationship. "The definition clearly speaks of a domestic relationship between two persons who live or have at any point of time lived together in a shared household and are related by marriage or through a relationship in the nature of marriage. This definition also speaks about the existence of a relationship by marriage or a relationship in the nature of marriage at the time. The expression used is 'are related' by marriage. The expression by the legislature is not 'were related'. From the bare reading of these two provisions it is apparent that the intention of the legislature is to protect those women who are living in a domestic relationship. " It is to be noted that , in this case, the complaint under the DV Act was preferred after the decree of divorce had been granted.  

Calcutta HC

In Prabir Kumar Ghosh & Ors vs Jharna Ghosh [2015], the Calcutta High Court has held that a divorced wife cannot claim right to residence under section 17 and consequently a residence order under section 19. However, the Court observed that a divorce decree does not disentitle a women from being an "aggrieved person" under the Act of 2005.  According to the court, Section 17 right to residence could not be claimed since it is restricted to a woman in a domestic relationship and not to one who had been in such a relationship, e.g., a divorced wife.  Continuity of joint residence in a shared household or domestic relationship inter se is not a sine qua non for the perpetration of domestic violence to an aggrieved person in the form 'economic abuse' under the Act, the Court had observed.

Kerala HC

Justice K. Harilal of Kerala High Court, in Sulaiman Kunju Vs. Nabeesa Beevi (2015) 3 KLT 65, has held that a divorced wife is not entitled to get any of the reliefs under Section 19 [Residence Orders]. The judge noticed that the second limb of the definition of 'domestic relationship'  specifically signifies that the first limb attracts when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. It was held that a divorced wife does not satisfy the second limb of the definition of the domestic relationship.

In 2016, Justice Sunil Thomas, in Bipin vs. Meera, held that even a divorced wife is entitled to initiate proceedings under Sections 18, 19, 20, 21 and 22 of D.V Act to seek appropriate reliefs. "Any act of violence which satisfies the definition of Section 3 of the Act and has a rational nexus to the past matrimonial relationship, or which arises therefrom or as a sequel to that relationship should conceptually fall within the provisions of Domestic Violence Act…" , the court had held.

Bombay HC

In 2019, the Bombay High Court in  Sadhana vs. Hemant, held that domestic violence complaint is not maintainable if there was no domestic relation on the date of filing of the complaint under the DV Act. In another case [ Atmaram vs. Sangita], the court held that wife is entitled to reliefs under the Domestic Violence Act if she continued to cohabit with her husband(ex) post-divorce.

Gujarat HC

In Kanji Parmar vs. Urmila [2019], the Gujarat High Court held that a divorced wife who has remarried cannot invoke provisions of Domestic Violence Act against her erstwhile husband. The Court, taking note of Juveria, opined that, after divorce takes place between husband and wife, the provisions under "the Act" cannot be invoked.

Many HCs Followed SC's Juveria Judgment To Hold That A Complaint After Divorce Is Maintainable

The Andhra High Court in Challa Sivakuma vs..Challa Anita, referring to Juveria judgment, held that the plea of non- existence of domestic relationship at present cannot be taken as an exception to entertain the quash petition. The Gauhati HC, in Rahul Biswas vs Khusbu Das [2019] , observed that one can invoke the provisions of the D.V. Act despite Civil Court decree of divorce, if such incident of domestic violence, subsists prior to the filing of the petition. The Chattisgarh High Court, in Ajay Kumar Reddy & Ors vs State Of Chhattisgarh [2017] held that, in case of divorcee wife, the complaint by the divorcee wife under the provisions of the Act, shall be maintainable so far it relates to divorced husband for lawful responsibilities arising out of the marriage that existed between them at one point of time. The Madras High Court, in Varalakshmi vs Selvam [2019] held that once the marriage is admitted and the decree of divorce is admitted, even the divorced wife is also entitled to file a petition under Domestic Violence

Conclusion

Although it was held by the Supreme Court in Juveria that a divorce decree could not extinguish the benefits and liabilities flowing out of Domestic Violence Act, many High Courts have expressed discordant notes by distinguishing it. Some High Courts have followed the Supreme Court judgment as it is, but some others have observed that a Domestic Violence Complaint filed after divorce is not maintainable. Even in Juveria, the Supreme Court has not examined whether a divorced wife, if held to be an 'aggrieved person' for the purpose of Domestic Violence Act, can claim right to residence under Section 17, in the house belonging to her ex-husband/ In-Laws. ? I hope that this controversy will be soon resolved in an appropriate case.