Woman who leaves matrimonial house before divorce can't claim right to reside in the house even if appeal pending: Bombay High Court

The Aurangabad bench of the Bombay High Court on Friday held that a woman, who leaves her matrimonial house before her divorce, cannot later seek "right to residence" under the Protection of Women from Domestic Violence Act, 2005 (DV Act) even if her appeal against the divorce decree is pending [Umakant Havgirao Bondre vs Sakshi @ Sonali Suraj Bondre].Single-judge Justice Sandipkumar More quashed the order passed by a lower court granting right to residence to a woman in her in-laws' house and also granting access to electricity, bathroom, toilet etc. in the house.The judge noted that Section 17 of the DV act allows right to residence but the same is only when the woman continues to reside in the shared household before the divorce. "As such, Sakshi (the divorced wife) cannot take resort to the earlier residence order when her marriage with her husband has been dissolved by a divorce decree passed by the Court having proper jurisdiction and especially when she had already left her shared household four years back. Under the circumstances, she is not even entitled for the relief of restraining dispossession since she is not in possession of the shared household," the bench opined. .The Court was hearing a revision application filed by in-laws challenging orders of a Magistrate that allowed the divorced wife to reside in the shared household, which was the matrimonial house, which stood in the name of her now estranged father-in-law. The in-laws pointed out that a family court had dissolved the marriage of their son and his estranged wife by a detailed order passed on July 10, 2018. They further pointed out that an appeal filed by the wife challenging the said order is pending before the High Court. They contended that now that the marriage is dissolved, the wife cannot seek right to residence, especially because she had left their matrimonial house months before the divorce decree was ordered. The counsel for the divorced wife argued that divorce decree has been challenged by way of appeal filed by her on the ground that it was obtained by fraud, and the appeal is still pending consideration..The bench noted that the wife had actually left the matrimonial house much prior to the divorce. It also noted that the wife failed to produce any material on record to indicate that she was forced to leave the matrimonial house by the husband or in-laws.Mere pendency of an appeal will not come into way of the present applicants for challenging the order passed by the Magistrate, the High Court said. "Therefore, I come to the conclusion that she being a divorced wife, is not entitled to claim residence order or implementation of earlier residence order in the light of changed circumstances i.e. after her subsequent divorce for occupying the shared household after leaving the same long back and prior to her divorce. I am of the opinion that the Magistrate has definitely erred in directing the applicants to provide one room to her in the shared household," the bench held. With these observations, the bench allowed the revision plea filed by the in-laws. .[Read Order]