Wife can seek residence order only in shared household

by | Nov 3, 2019

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Question asked on: 03/11/2019

My husband contracted a second marriage, and that woman has been living with us. The second wife of my husband demanded huge money as maintenance under section 125 of the code of criminal procedure. She is a very much materialistic woman and also dominating my husband. Along with that maintenance petition, she has filed a case under the Domestic Violence Act.

The Honorable Court has decided and ordered to live in my house. I am the owner of the house. Therefore, she has no right to make any claim on my property. What should I do?

Advised by: Mr. Shivendra Pratap Singh, Advocate

The victim of domestic violence can seek residence order under section 17 of the domestic violence act. The residence order gives her a right to reside in the shared household.

As far as your case is concerned, you are the owner of the house. Therefore it does not come under the meaning of Shared household. If the husband is the owner of the house or he has been paying the rent, then the aggrieved person can claim residence order concerning that house. [Avtar Singh Vs Jaswinder kaur 2015 (3) RCR (Crl) 461(P&H)]

In your case, the husband is neither the owner of the house nor has been paying any rent. The observation of the court before passing the residence order is wrong. It should not give such an order, whereas the first wife is the owner of the house.

You did not mention in the question that you have raised your objection regarding the order. If you were the party in the case, you should have to object to the maintainability of the case. However, the court should also have to examine whether the house is a shared household?

Upon receiving the evidence that the first wife is the owner of the house, the court should have to dismiss the case immediately. It infers that the second wife has been living in the house with your consent. Therefore, the second wife has the right to live in the house; even the order is wrong in the law.

In the current situation, you should file an appeal under section 29 of the domestic violence act. The appellate court will set aside the order on the ground that the house is not a shared household under section 2 (s) of the domestic violence act. Section 29 provides 30 days as a limitation period to file an appeal before the court of sessions. At present, you cannot force the second wife to leave your house. 

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Shivendra Pratap Singh

Advocate, Lucknow

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