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


In a powerful, pertinent and penetrating observation, the Division Bench of Kerala High Court comprising of Justice K Vinod Chandran and Justice MR Anitha has just recently on 18 March 2021 in a latest, learned, laudable and landmark judgment titled Mr Ramachandra Warrior vs Jayasree in Crl. Rev. Pet. No. 3079 of 2009 minced just no words to state in simple, straight and suave language 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.” In other words, it made it amply clear that the said right is available only to a woman in a domestic relationship. However, it was also clarified that a divorced wife occupying a shared household can be evicted only in accordance with law.

To start with, this brief, brilliant, bold, blunt, and balanced judgment authored by Justice Vinod Chandran for himself  and Justice MR Anitha sets the ball rolling by first and foremost observing in the opening para that, “The above revision is placed before us by virtue of a reference order made by a Single Judge finding conflict in the decisions rendered by two other Single Judges in Sulaiman Kunju v. Nabeesa Beevi [2015 (3) KHC 5] and Bipin v. Meera [2016(5)KHC 367]. The apparent conflict is with respect to the rights of a divorced woman to invoke the provisions of Protection of Women from Domestic Violence Act, 2005 (‘DV Act’ for brevity). In the course of hearing, from facts, we perceive a further question, which is as to whether the order of residence obtained by a wife in a shared household would seize automatically on a divorce being granted subsequently. This question arises both from the facts of this case and Sulaiman Kunju. In Bipin there was no order of residence sought by the divorced wife, but the declaration was insofar as a divorced woman being entitled to invoke the provisions of DV Act as against her husband. The declaration if applicable to the other reliefs that could be obtained under the DV Act, would equally apply to an order of residence sought under S.19, is the argument of the respondent herein.”

While further opening up more, it is then stated in para 2 that, “Considering the complexity of the questions raised and its ramifications, particularly in seeking an order of residence, we requested Sri.S Sreekumar and Sri. P.Vijaya Bhanu Senior Counsels who were present in Court at the time of the earlier hearing to assist us. Smt. C.G Preetha appeared for the appellant/husband and Sri. Shaji Thomas appeared for the respondent/wife. Going by the dictum of Kallara Sukumaran v. Union of India [1987 (1) KLT 226] the reference being of the case itself, we need to answer the questions posed first and then decide the revision itself.”

As we see, after analyzing the arguments presented by both sides and having a bare perusal of the case laws, the Division Bench then observes in para 8 that, “Having gone through the precedents of the Hon’ble Supreme Court, we pertinently notice that in none of these decisions the question arose, as to whether a divorced wife would be entitled to seek a residence order so as to continue living in the shared household, which was shared at the time of the subsisting marital relationship ie, when the relationship was cordial or rather it had not broken down completely. We specifically observe so since rare would be cases where the spouses approach the Family Court to file and contest a divorce petition, when they are living together in the same house. But we are conscious that there could be such instances also since human conduct can never be put in a strait jacket. If after divorce the wife is allowed to invoke the right conferred under S.17 then it could lead to absurd results. But 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.”

While citing the relevant case law, the Division Bench then makes it a point to mention in para 9 that, “In this context we refer to Satish Chander Ahooja v. Sneha Ahooja 2021(1) SCC 414 wherein a three Judge Bench of the Hon’ble Supreme Court examined the Statement of Objects and Reasons of the DV Act and opined that the enactment was a mile stone for protection of women in the country. The learned Judges noticed that domestic violence in this country is rampant and often the woman resigns to her fate, suffering violence and discrimination, while discharging the different roles she plays in a family. Often the women are cowed down, for reason of the patriarchal society still demanding her to be subservient to the man coupled with the social stigma attached to any measure of retaliation. The Statement of Objects and Reasons, it was observed, refer to three International Conventions recommending participating States to take measures including legislation to protect women against violence; even that occurring within the family.”

Be it noted, it is then stated in para 11 that, “The interpretation of the provisions of the DV Act also should advance the cause it seeks to serve; that of destitute women subjected to domestic violence. The DV Act attempts to fulfill an amalgamation of civil rights available to an aggrieved woman, with the intention to protect women against violence of all kind, including that occurring within the family, especially in the context of the civil laws having not addressed the phenomena in its entirety (Kunapareddy v.Kunapareddy Swarnakumari [2016(11)SCC 774]). This overwhelming social function which the Act attempts to fulfill restrains us from denying a divorced woman the right to approach a Magistrate under the DV Act. Especially when the remedy under the Civil Laws, either before the civil Court or the Family Court, for reason of the cumbersome procedure and the delay in realizing the cause, would frustrate the very life of a woman deserted by her husband; even if it is by permissible legal modes.”

It is also worth noting that it is then stated in para 12 that, “Having found, on the strength of binding precedents that even a divorced woman could avail the remedy under the DV Act, we are still faced with the question of whether a divorced woman can seek an order of residence under S.19, as per the right conferred under S.17. The reliefs available under the DV Act are protection orders under S.18, residence orders under S.19, monetary reliefs under S.20, custody orders under S.21, compensation orders under S.22 as also interim and ex parte orders under S.23. As has been held by the Hon’ble Supreme Court in Kunapareddy the remedies provided under the DV Act enable realization of a number of civil rights available to a distressed woman. Pertinently with respect to the right of residence there is specific conferment of that right under the DV Act itself by S.17. As we noticed, the precedents we discussed above did not specifically deal with the question of a divorced woman enforcing the right of residence under S.17. We have not discussed the numerous decisions of the various High Courts produced before us, because most of them, again, are on the aspect of whether a divorced woman would fall under the definition of ‘aggrieved person’. We have come across two decisions of Single Judges of the High Courts of Bombay and Chhattisgarh High Courts,(Bharati Naik v. Ravi Ramnath Halamkar and another[2011 CriLJ 3572] and Ajay Kumar Reddy and others v. State of Chhattisgarh and another [2018 CriLJ 1155]), where the specific question of a residence order claimed by a divorced wife came to be considered. In both the said cases the divorced wife was living in the shared household, when the Magistrates Court was approached, under the DV Act.”

What cannot be missed out is then stated clearly in para 13 that, “As we noticed, the right to reside in a shared household is specifically conferred under S.17 of the DV Act, which is a non obstante provision and 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.”

We discern a perceptive legislative exercise having gone into the design of the specific provision. 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 the shared household, she cannot be put back in possession. 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 for a residence order under S.19, can continue only till she is evicted by due process of law.”

As a corollary, the Division Bench then enunciates in para 14 that, “In this context, we also notice 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. In addition, the Court will also 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. Thus the legislation advances the cause of destitute and derelict women and ensures that they are not left to the vagaries of life only for reason of a divorce obtained by the husband.”

Going ahead, it is then stated in para 15 that, “Now we come to the second question, which has to be looked at on the particular facts as available in the instant case as also Sulaiman Kunju. In both the instances, the complainant was in a domestic relationship as a wife at the time the application was filed before the Magistrate’s Court under the DV Act. In the present case an order granting residence was passed by the Magistrate and the same confirmed in appeal by the impugned orders dated 14.05.2007 and 27.04.2009. Annexure-VIII judgment of this Court in Mat. Appeal No.136 of 2008, dissolving the marriage at the instance of the petitioner-husband, came to be passed on 22.08.2017, long after the residence order was passed. Hence the impugned orders have to be tested as on the date of application. We have already noticed the decision of the Hon’ble Supreme Court in Ramesh Kumar, wherein the Hon’ble Supreme Court permitted ‘cautious cognizance’ of the subsequent changes of law and fact to mould the relief; travelling beyond the rights and obligations of the parties as obtained at the commencement of the lis. We are of the opinion that the present case is not one, where such cognizance can be taken, especially when there is available a remedy to the petitioner-divorced husband under S.25(2), which is extracted here under:

“25. Duration and alteration of orders- (1)x x x (2) If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.”

Hence the respondent-husband is entitled to approach the Magistrate Court for alteration, modification or revocation of the order passed on the ground that there is a change in circumstances.”

Going one step still ahead, it is then observed in para 16 that, “Now we come to the merits of the matter. The complainant approached the Magistrate and there is a report filed by the Protection Officer also. The marriage of the parties was solemnized on 01.04.1998 and a daughter was born in the wedlock. The wife complained of constant ill-treatment at the hands of the husband and on 09.01.2007 she was evicted from the matrimonial home. The husband filed objection contesting the marriage, but admitting to have lived together for four days and denying the parentage of the child born. It was also alleged that they were residing separate for almost 9 years and the present residence of the husband named ‘Subhadra Nivas’ was not the matrimonial home or the shared household.”

More significantly, the Division Bench then remarkably observes in para 22 that, “Looking at the facts and the law as discussed above, we are of the opinion that the respondent was entitled to file the application before the Magistrate’s Court as she was in a domestic relationship with the respondent at that point of time. We have also held that on the facts and circumstances the order passed against the revision petitioner is perfectly in order. We do not find any reason to interfere with the impugned orders considering the rights of the parties as obtaining at the time of initiation of the lis. As we noticed above, we find that the judgment in Sulaiman Kunju has not been correctly decided, wherein the facts were identical; of the wife having applied under the DV Act, when there was a subsisting domestic relationship. As we already noticed, we are not intending to take cognizance of the subsequent facts and circumstances, especially of the dissolution of marriage by Annexure-VIII; since there is ample remedy available for the revision petitioner as per the DV Act itself. Sub-section (2) of S.17 enables the respondent to seek for eviction in accordance with law. Like wise, subsection (2) of S.25 enables the revision petitioner-respondent to approach the Magistrate on satisfactory grounds of change in circumstances requiring alteration, modification or revocation of any order passed under the DV Act.”

Most significantly, the Division Bench then on the basis of what is stated above has no hesitation to hold in para 23 that, “On the above reasoning, we answer 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.”

Finally, it is then held in the last para 24 that, “Going by the above declaration, we find the application filed by the wife against the husband before the Family Court to be maintainable, since she was in a domestic relationship at the time the jurisdiction was invoked. We find the impugned orders to be perfectly legal and sustainable. We reserve the right of the revision petitioner-husband to approach either the Civil Court as permitted under sub-section (2) of S.17 or the Magistrates Court, which passed the order, under sub-section (2) of S.25. If under S.25(2) any modification or revocation is caused, we make it clear that the Magistrate would be entitled to pass further orders on the application under S.12 for monetary relief including maintenance under S.125 of the Code of Criminal Procedure or compensation under S.22 of the DV Act. We answer the question referred as above and dismiss the revision with the above reservations.”

On the whole, it is a very convincing judgment which answers all the questions very convincingly, correctly and cogently as we have already stated above in detail in para 23. It goes without saying that the Division Bench of Kerala High Court in this case has thus made the legal position of a divorced wife with regard to right of residence amply clear. The wife had the upper hand as she was still in a ‘domestic relationship’ with her husband due to which the application filed by her was found to be maintainable. Nothing more remains to be said on this!

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