Divorced woman can file application under DV Act
A divorced woman, who files an application before the Magistrate court as an aggrieved person under the Protection of Women from Domestic Violence Act, 2005 (DV Act), can claim a bunch of remedies, except residence in a shared household.
However, no court appears to have allowed a residence order to a divorced woman in a shared household so far.
The DV Act in a nutshell
The objective of the DV Act is to provide effective protection to the women who are subjected to various kinds of violence occurring within the family and matters connected thereto.
Anyone who comes to know about an act of domestic violence can inform about it to the Police and the Protection Officer. The police officer has a duty to proceed with, if there is a cognisable offence.
The protection officer has to make a Domestic Incident Report and submit it to the Police and Magistrate, provide legal aid to the aggrieved person, make safe shelter home to her and get her necessary medical facility.
The Magistrate shall fix the first hearing within three days, if possible, of the receipt of an application under Section 12 of the DV Act. He can refer the respondent / aggrieved person to undergo counselling.
The Magistrate can issue prohibition orders for protection, residence orders, monetary relief order, custody orders, compensation orders etc. The procedure to be followed in the court proceedings is in accordance with criminal procedure code.
Aggrieved person must have domestic relationship
An aggrieved person in a domestic violence case must be a woman She must be or has been in domestic relationship with the respondent and alleges to have been subjected to domestic violence by the respondent.
The domestic relationship is the relationship between two persons who live or have lived in a shared household when they are related by consanguinity, marriage or through a relationship in the nature of marriage, (commonly known as live-in relationship) or in a joint family as its members.
The shared household is the household, including that of the joint family, in which the aggrieved person lives or has lived with the respondent at any stage in a domestic relationship with some permanency, irrespective of either of them having any right, title, interest or equity in it.
Remedies a Magistrate can provide
An aggrieved person or any one on her behalf can present an application to the Magistrate seeking one or more reliefs, under Section 12 of the DV Act.
A Magistrate, after hearing both parties and on satisfying that the domestic violence has taken place, can issue a protection order prohibiting the respondent from committing any act of domestic violence, aiding or abetting it, attempting to communicate with the aggrieved person, alienate any assets or cause any violence to any person dependant, relative or assisting the aggrieved woman, under Section 18 of the act. A breach of a protection order by the respondent is an offence punishable with imprisonment for a term extendable to one year or with fine.
Other reliefs the Magistrate can issue include Residence Order under Section19, Monetary Reliefs such as on loss of earnings, medical relief etc under Section 20, Custody Orders regarding children under Section 21, Compensation Orders for the injuries, mental torture & emotional distress under Section 22, Interim and ex-parte Orders under Section 23, of the DV Act.
The residence order a Magistrate can issue
The Magistrate while disposing of the application may pass a residence order, under Section 19 of the act, asking the respondent to:
- a) restrain the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household;
(b) direct the respondent to remove himself from the shared household;
(c) restrain the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restrain the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restrain the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) direct 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.
Shared household can be of the relative
In a recent case Satish Chander Ahuja v Sneha Ahuja, the Supreme Court (SC) liberally interpreted the term shared household an held that an aggrieved woman under DV Act can claim residence in the shared household even if it belonged to a relative of the husband, if she and her husband lived there with some permanency.
The SC arrived at this liberal interpretation after overruling the SC’s restrictive interpretation of the shared household in the S R Batra v Taruna Batra judgement. The S R Batra judgement held that a shared household must be one which belongs to the husband or of the joint family in which he is a member but not a house of his relatives.
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 household
Divorce not preventing from filing a DV case
The SC in Juverie Abdul Majid Patni v Atif Iqbal Mansoor (2014 (10) SCC 736) held that when a domestic violence once committed, a subsequent degree of divorce will not absolve the respondent from the liability under the DV Act.
The SC in paragraph 31 of the judgement says, “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 regard to this issue the High Courts of Rajasthan, Telengana, and Punjab hold that a divorced woman can file a case, even in the absence of a subsisting relationship, by following the judgement of the SC.
However the High Courts of Calcutta, Kerala, Bombay and Gujarat have not followed the Juveria judgement of the SC while deciding some cases, probably considering the peculiar facts of the case.
Whether a divorced woman can claim residence
Domestic relationship is a relationship that sustains between the aggrieved person and the respondent.
Whether a divorced woman can file a case for residence in a shared household after her divorce from the respondent and consequently ending domestic relationship is a question that lingers in the mind of many people particularly after the expansive interpretation of the term shared household by the SC in the recent judgment.
The Juveria case has not considered whether a divorced wife has a right to claim shared household. The SC however has not so far spelt out whether a divorce woman can file a case in regard to residence in the shared household after divorce.
Additional reading
- Juverie Abdul Majid Patni v Atif Iqbal Mansoor, available at https://www.lawweb.in/2014/10/whether-decree-of-divorce-absolve.html
- Satish Chander Ahuja v Sneha Ahuja, availalbe at https://indiankanoon.org/doc/62368827/
- The Protection of Women from Domestic Violence Act, 2005, available at https://indiankanoon.org/doc/542601/
