Legal Advice

Can wife claim residence order under the DV Act after the decree of divorce?

Question: Sir my marriage is performed under Hindu marriage act on 10th May 2018. I came to my mother house on 18th Feb 2019. My husband filed a divorce case under 13(1)(a) saying that I am harassing him to stay separately. I filled a maintenance case under 125 crpc. His allegation is not true. Actually, he has an illegal affair with some other lady. I noticed it and asked him with some photos, messages which I got on his mobile. Sir, how can I get residential order to stay in my husband own house? Sir if a divorce case is disposed of then the wife will have a right to reside in his husband house? what we have to do if husband opposes it? (wife residing without his interest) Under DV Act residence order, the wife will have the total right to stay in his husband house? (without husband interest)


You should file an application under section 12 of the domestic violence act. Section 17 of the domestic violence act provides the right to reside in the shared household. As well as the court has the power to pass residence order under section 19. Your husband has an illegal relationship with another woman. This evidence is sufficient to prove that you are an aggrieved person under the domestic violence act.

The domestic violence act includes physical, sexual, verbal, emotional and economic abuse. The quarrel between spouse due to extramarital relationship amounts to verbal and emotional abuse. Therefore you are an aggrieved person because your husband has been committing domestic violence.

You are entitled to get residence order under Section 19 of the domestic violence act. Therefore, in the application under section 12, you should also claim residence order, protection order and monetary relief under the DV act. Section 18-22 provides several reliefs to the agreed person. An aggrieved person can seek more than one relief in the same application.

Right to reside in husband’s home

The residence order is most effective because it secures the right of residence in the matrimonial home. Section 125 of the code of criminal procedure and the Hindu Marriage Act have no such remedy. The wife has no right or title in the husband’s property despite that she can claim a right to residence under section 19 of the DV Act.

Husband is the natural guardian of the wife. Hindu Marriage is not a contract and cohabitation is an integral part of marriage. The husband will commit matrimonial cruelty if he refuses to cohabit with his wife. therefore, the wife has the right to reside with the husband in her matrimonial home.

Can wife claim residence order under the DV Act after the decree of divorce

The court will entertain your application under section 12 DV act even after granting of the divorce. Decree of divorce does not cease the right provided to an aggrieved person under the domestic violence act. In Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 SCC 736 the Supreme Court has held that domestic violence once committed subsequent decree of divorce would not absorb husband from his liability for offences under the domestic violence act. Therefore, the application under section 12 is maintainable even after the decree of divorce.

Your application under section 12 will be maintainable even after the decree of divorce. What will happen if the Court has passed residence order but subsequently the aggrieved person gets decree of divorce? In this situation, the order under DV act will remain in force. The husband cannot absolve himself from the liability to provide residence to his wife. In this condition, he will provide you with alternate accommodation.

Wife has the right to reside with dignity in a shared household

When the court grants residence order in favour of aggrieved person she has the right to reside in a shared household with full dignity. The husband cannot expel the wife from the home or cannot enter in that person of the house where the wife is living. Residence order has a prohibitory nature, It prohibits the respondent to interfere in the Peaceful living of an aggrieved person.

If the order comes in your favour you will have complete right to reside in the husband’s home. He cannot throw you away from the house. If he does anything to dispossess you from the house you can invoke section 31 of the domestic violence act.

Shivendra Pratap Singh


High Court Lucknow