Women ‘have the right to live in marital home during divorce’

Family Law|October 24th 2017

Wives have the right to remain in their family homes during divorce proceedings whether or not their soon-to-be-former husband owns the property, the High Court of Mumbai has declared.

The case concerned a husband who had applied to have his marriage declared null and void because he believed she was still married to her first husband. However he doesn’t seem to have been too sure of the latter claim as he made an alternative application for a standard divorce.

He told his wife to leave the property and she subsequently “barged” into his father’s flat in Mulund, a suburb of Mumbai.

During the subsequent court battle, the wife complained about being thrown out of the matrimonial home and a family court initially ruled that she had a right to stay in the flat during the ongoing proceedings. But this decision was later overruled on the ground that there was no evidence the husband owned his father’s flat, wholly or partially, meaning it could not therefore be marital property.

But she appealed to the High Court, which has now ruled in her favour. The husband’s advocate insisted that because he had no ownership in the flat the wife had not right to live there. But her advocate countered that it still constituted marital property, meaning she did have a right to access it under Indian marital law.

Justices at the High Court favoured the woman’s arguments, due to the rights granted by the Protection of Women from Domestic Violence Act. This protects the rights of wives to remain in family property before a settlement has been reached in any divorce – whether or not it was actually owned by the husband.

They noted that the husband too had lived in the Muland flat until the relationship broke down. He had even cited the flat as his home during the initial proceedings. This all meant, the Justices concluded, that the flat did indeed constitute marital property.

Justice Shalini Phansalkar-Joshi explained:

“In such a situation, whether the said flat belongs to or is owned by the respondent husband, is totally irrelevant.

The wife therefore retained her right to live in the Muland flat until the conclusion of the divorce proceedings.

Photo of the Haji Ali Dargah in Mumbai  by Humayunn Peerzaada via Wikipedia under a Creative Commons licence

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