The main legal point established in the judgment is that a divorced woman is entitled to the right of residence under S.17 of the Protection of Women from Domestic Violence Act, 2005 only if she is in a domestic relationship and can be evicted from a shared household only in accordance with the law.

ORDER :

Vinod Chandran, J.

The above revision is placed before us by virtue of a reference order made by a Single Judge finding conflict in the decisions rendered by two other Single Judges in Sulaiman Kunju v. Nabeesa Beevi [2015 (3) KHC 5] and Bipin v. Meera [2016(5)KHC 367]. The apparent conflict is with respect to the rights of a divorced woman to invoke the provisions of Protection of Women from Domestic Violence Act, 2005 ('DV Act' for brevity). In the course of hearing, from facts, we perceive a further question, which is as to whether the order of residence obtained by a wife in a shared household would seize automatically on a divorce being granted subsequently. This question arises both from the facts of this case and Sulaiman Kunju. In Bipin there was no order of residence sought by the divorced wife, but the declaration was insofar as a divorced woman being entitled to invoke the provisions of DV Act as against her husband. The declaration if applicable to the other reliefs that could be obtained under the DV Act, would equally apply to an order of residence sought under S.19, is the argument of the respondent herein.

2. Considering the complexity of the questions raised and its ramifications, particularly in seeking an order of residence, we requested Sri.S Sreekumar and Sri. P.Vijaya Bhanu Senior Counsels who were present in Court at the time of the earlier hearing to assist us. Smt. C.G Preetha appeared for the appellant/husband and Sri. Shaji Thomas appeared for the respondent/wife. Going by the dictum of Kallara Sukumaran v. Union of India [1987 (1) KLT 226] the reference being of the case itself, we need to answer the questions posed first and then decide the revision itself.

3. Smt. C G Preetha argued for sustaining the dictum in Sulaiman Kunju. If a divorced wife is allowed to reside in the divorced husband's home, even if it be a shared household when the marriage subsisted, it could lead to absurd results. It would almost amount to the Magistrates Court interfering with the order of divorce which in this case has been passed by the High Court itself as is evident from Annexure VIII produced in the revision; as held in Inderjit Singh Grewall v. State of Punjab [2011(12) 588]. The definition of 'aggrieved person' and 'domestic relationship' as available in the DV Act clearly indicates that only a person having subsisting domestic relationship can invoke the provisions of the Act. Sri Shaji Thomas submitted that Annexure VIII order of divorce could not be challenged due to the penurious circumstances in which the respondent is living, along with her daughter. It is pointed out that the definition of 'domestic relationship' takes in every relationship of consanguinity, marriage, a relationship in the nature of marriage, adoption and members of a joint family. If Sulaiman Kunju is upheld it would be absurd insofar as a women having relationship in the nature of marriage, will perpetually have the right to invoke the provisions of the DV Act, while one legally married would be denied that remedy by reason of a divorce granted. The legislative intention is otherwise and the decisions of the Hon'ble Supreme Court and the High Courts lean in favour of the divorced wife, is the argument.

4. Sri. Vijaya Bhanu specifically referred to S.17 by which the right to reside in a shared household isconferred on 'every woman in a domestic relationship'. This requires a subsisting relationship as distinguished from the definition of 'aggrieved person'. The employment of the words 'is or has been' as used in the definition clause of 'aggrieved person' is absent in S.17; which confers the right to reside. S.19 also speaks of restraining the respondent from dispossession (a), directing him to remove himself from the shared household (b) and restraining the respondent or his relatives from entering any portion of the shared household in which the aggrieved person resides (c). S.19 does not enable a divorced wife who is no more living