Divorced Wife Not Entitled To Right Of Residence Under Section 17 Domestic Violence Act: Kerala High Court

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, the Kerala High Court has held.The Division Bench comprising Justices K. Vinod Chandran and MR Anitha held that the said right is available only to a woman in a domestic relationship. However, the court observed that a divorced wife occupying a shared household can be evicted only in accordance with law. The bench was considering a reference from a single bench which noticed a conflict between two single bench judgments Sulaiman Kunju v. Nabeesa Beevi [2015 (3) KHC 5] and Bipin v. Meera [2016(5)KHC 367]. The conflict is with respect to the rights of a divorced woman to invoke the provisions of Protection of Women from Domestic Violence Act. The court also considered the question whether the order of residence obtained by a wife in a shared household would seize automatically on a divorce being granted subsequently.The bench answered the reference as follows:(i) A divorced wife would not be entitled to the right of residence conferred under S.17 under the Protection of Women from Domestic Violence Act, 2005, for reason of that right being available only to a woman in a domestic relationship.(ii) A divorced wife would be included under the definition 'aggrieved person'. A divorced wife occupying a shared household can be evicted only in accordance with law. A divorced wife can approach the Magistrate's Court for an order under S.19 if she is residing in the shared household. The residence orders passed in such cases, would be subject to any proceeding for eviction in accordance with law, initiated by the husband, as contemplated under S.17(2).(iii) 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.Conflicting JudgmentsIn Bipin, though there was no order of residence sought by the divorced wife, the court had held that a divorced woman is entitled to invoke the provisions of DV Act as against her husband, in Sulaiman Kunju, it was held that a divorced wife is not entitled to get any of the reliefs under Section 19 [Residence Orders]. This was after the court 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. 'Aggrieved person' includes divorced womenReferring to various precedents, the court observed that the definition clause of 'aggrieved person', as per the dictum of the Supreme Court includes a divorced woman and Sulaiman Kunju to that extent is not good lawBut we have to keep in mind that the Hon'ble Supreme Court had time and again held that a divorced wife could invoke the provisions of the DV Act for the purpose of enforcing obligations arising from the past relationship like custody, maintenance and other monetary reliefs, compensation and even orders ensuring personal safety of the wife and children. In that context the definition of 'aggrieved person' cannot be given a restrictive meaning only in cases where a residence order is sought under S.19. The definition clause of 'aggrieved person', as per the dictum of the Hon'ble Supreme Court includes a divorced woman and Sulaiman Kunju to that extent is not good law.A divorced wife who is continuing in the shared household at the time of divorce though entitled to seek for a residence order under S.19, can continue only till she is evicted by due process of law. While answering the reference, the bench observed that there are no precedents which 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 observed thus:"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 '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 in accordance with law (S.17(2)). The order passed under S.19 would be subject to any proceedings in accordance with law. This takes in circumstances in which the divorced woman, who is at the time of the divorce or thereafter, residing in the shared household itself being enabled to approach the Magistrate under the DV Act. Insofar as a divorced wife, who is no longer living in...

Divorced Wife Not Entitled To Right Of Residence Under Section 17 Domestic Violence Act: Kerala High Court

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'However, a divorced wife occupying a shared household can be evicted only in accordance with law.'

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