ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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A Home of Her Own

A right to her matrimonial home is essential for a deserted or divorced woman who has nowhere to go.

One of the most contentious issues that a divorce generates is the wife’s right to her matrimonial home. While there have been a number of significant court rulings on the provision of residence as part of the maintenance payable to the wife, the right of a divorced woman to the matrimonial home remains unsettled. The Supreme Court in a special leave petition filed by Komal Amma, who was finding it difficult to arrange accommodation following an estrangement from her husband, recently observed that maintenance must necessarily encompass a provision for residence. However, the judges neither set a precedent nor gave a final decision on the matter but sent the case back to the Kerala High Court for re-hearing in the light of its own observations in the historic B P Achala Anand and Mangatmul Punni Devi cases. (The petitioner Komal Amma had appealed against the Kerala High Court’s decision not to give her right to her husband’s property because it had been purchased with his money.)

A precedent is a legal principle created by a court decision that provides an example or authority when similar issues are being judged. In the Achala Anand case the Supreme Court had ruled that if the husband was a tenant of a house and deserted his wife, the landlord could not evict her from the tenanted home as long as she paid the rent and met the conditions of tenancy. The court went on to say that a Hindu wife was entitled to remain under her husband’s roof and protection. She was also entitled to a separate residence if by reason of the husband’s conduct or by his refusal to maintain her in his own place of residence she was compelled to live apart from him. Right to residence is a part and parcel of the wife’s right to maintenance. However, the ruling in the Achala Anand case made it clear that consequent upon the decree of divorce (the couple had filed for divorce by mutual consent) her right to occupy the house comes to an end, unless the settlement for divorce included residence in which case she could claim the tenancy in her own name. In the Mangatmal case the Supreme Court said that maintenance must necessarily encompass a provision for residence and that it is given so that the “lady can live in a manner more or less to which she is accustomed”.

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