Domestic Violence Act | Divorced Wife Can't Be Evicted From 'Shared Household' Except With Procedure Established By Law: Kerala High Court

Justice A. Badharudeen observed:

“Therefore, it is held that a divorced woman cannot claim right of residence in a shared household. But divorced women staying in a household at the time of divorce or after divorce 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.”

The husband in the case had obtained a divorce on the grounds of desertion on 31.12.2022. An appeal filed against the order of divorce filed before the High Court was dismissed. During the pendency of the Appeal, the wife filed a petition under the Domestic Violence Act seeking, among others, orders to prohibit the husband from evicting her and their minor child from the shared household. The Magistrate Court, after hearing the contentions of the husband that there was no shared household at any point in time ordered the wife to vacate the house within a month.

This case was filed by the wife against the order of the Magistrate. She relied on the Supreme Court decision, Prabha Tyagi v Kamlesh Devi (2022) to argue that even if there was no 'actual residence', she had the right to reside in the shared household. Further, if she is residing in the shared household, she cannot be evicted except in accordance with the procedure established by law.

The Court extensively examined the Supreme Court decision. It had laid down that a woman in a domestic relationship has a right to a shared household even if she never resided in that house. It had said that a person can file a petition under the Domestic Violence Act even if at the time of the application, the domestic relationship was not subsisting. The Court held that this decision does not lay down a ratio that a divorced woman can seek residence in a shared household on the basis of an earlier domestic relationship with the husband. The Court held that a divorced woman cannot claim the right of residence in a shared household.

The Court further held that a divorced woman staying in the shared household at the time of divorce or after the divorce can be evicted only through the procedures established by law. The Court added that even a trespasser can be evicted only through lawful procedure. The Court made this observation as the wife was ordered to evict the premises in a petition filed by her before the Magistrate. The husband has to initiate legal proceedings to get them evicted.

Thus the Magistrate's order asking the wife to vacate the premises was set aside.

Counsel for Petitioner: Advocates Rajesh Sivaramankutty, Arul Muralidharan

Counsel for Respondent: Advocates Varghese C. Kuriakose, Amritha J., M. P. Prasanth

Case No: Crl. Rev. Pet 463/ 2024

Case Title: Jayasree v Indrapalan and Another

Citation: 2024 LiveLaw(Ker) 388