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Synopsis

A Bench of Justice Sandipkumar C. Morea, of the Bombay High Court (Aurangabad Bench), has held that a divorced wife can claim a residence order only if she is occupying the shared household.

The above case pertained to a revision application filed by parents of the husband, against the order of the sessions court modifying the order of the magistrate court, which directed the husband and his parents to give wife an accommodation in the shared household.

In the above case, the marriage was dissolved in 2018 and one month prior to the decree of the divorce, the wife had left the house. The husband had then waited for his wife for 2 years, and subsequently performed a second marriage.

The counsel for the applicants argued that the wife cannot enforce the orders since the marriage between wife and her husband had been dissolved and more particularly on 10.07.2018 when the learned Civil Judge passed a decree of dissolution of the marriage between the wife and her husband. They further argued that,

“Being a divorced wife, cannot claim residence order or she cannot enforce the earlier residence order, which was passed during the subsistence of her marriage with respondent No. 2”

The court referred to Section 17 of the Domestic Violence Act and stated that

“divorced wife was included in the definition of aggrieved person under the Act only if she was found occupying the shared household and cannot be evicted therefrom without any due process of law”

The court further noted that

“Under such circumstances and considering the peculiar facts of this case, I come to the conclusion that Sakshi 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.”

The High Court rejected the contention of the wife that the divorce was obtained through fraud and an appeal is filed and noted that:

“The appeal will be decided in due course and this Court cannot sit as an appellate authority for the same and at this juncture the decree of divorce dated 10.07.2018 is not at all set aside. Therefore, mere pendency of an appeal will not come into way of the present applicants for challenging the impugned orders herein”

Case Title: Umakant Havgirao Bondre & Anr. versus Sakshi & Anr.