LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

rifinafa shakti (service)     21 January 2011

residence order in dv act

my friend's ( a senior IAS officer) is facing a case under DV. Brief fact

he was divorced under mutual consent after about 25 years of marriage. Wife initiated divorce proceedings. he initially contested later agreed to. took responsibility of the daughter.

after divorce allowed her wife to visit/stay in the same house thinking her growing daugher would need mother's suport too. also regularly paid some monthly amout to her daughter. Cheques favouring wife;s name

now ex wife and daughter are hands in glove. wife filed dv for maintenance and residence order.

at the time of divorce, mutual consent was not detailed.

ex wife owns a property in gurgaon amounting to appr. 5 crores. have shares and jewellery. daugher is major and practising advocate. Mother daughter duo wants to evict my friend from his house which actually belongs to his mother. they also want to legally attach his other property which he is using partially for rental. ex wife claims residence order citing it as her matrimonial home. earlier to her marriage she was working. after marriage after about 20 years left working on her own. She has also demanded the maintenace amounting to Rs. 50,000/- p.m.

my question.

can a women who is divorced ( initated divorce on her own and took divrce on mutual consent) file a DV case against her ex husband ??

Is a women having her own property  worth 5 crores and capable of earning also entitle for residence order.

Is a women who has taken divorce on mutual consent, entitle for maintenance under DV.

would appreciate a reply from some expert.



 16 Replies

Avnish Kaur (Consultant)     21 January 2011

yes , she can claim unless she has not voluntarily given up this right in agreement for MCD.

is there any rental income/ncome potential? ANY PROOFS OF INCOME GENERATED FROM THIs property?

rifinafa shakti (service)     21 January 2011

nothing is detailed in MCD. Yes there is scope of rental income, a very good rental income a the property is in a posh area of metro. But deliberately the ex wife is not using it for rental purpose and showing it as not livable in order to grab other property of ex husband and secure maintenance.

adv. rajeev ( rajoo ) (practicing advocate)     21 January 2011

If wife has got independent income then she cannot claiim maintenance.  She is a divorcee she cannot file a case under the DV act.

Shubham kumar (Practising Lawyer)     21 January 2011

Agree with advocate rajeev.

rifinafa shakti (service)     21 January 2011

Thanx to all.

But situation is that she has been continuosly visiting/staying in the same house on the pretext of visiing aking care of daughter. my freind keeping in view the welfare of daughter never objected to it. so much so that when his daughter requested to give some amount monthly for the various expenditure, he gave it happily, daughter had requested to issue cheque in the name of mother as she was not having the account, he did that also. for more that last 6 months his ex-wife was continously living in the same house and now slapped the case of DV with the sole purpose of grabbing the property.

I would like to know specifically that if any divorced women has a property of her own and not using it purposely for living or earning income out of it, is she entitle for any RESIDENCE ORDER or maintenance under DV act.

Mutual consent divorce was as per hindu law under section 125 Cr Pc.

Avnish Kaur (Consultant)     21 January 2011

divorced wife cannot file dv on husband, daughter can.

Tajobsindia (Senior Partner )     21 January 2011

@ Avnish,

How a daughter (that also major) can file DV against her father !






Under Dv act.

(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;


(0 "domestic relationship" means a relationship between two persons who live or have, at any point of lime, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship with the nature of marriage, adoption or are family members living together as a joint family;

Tajobsindia (Senior Partner )     21 January 2011

Yah yah, now after errant wife's it is going to be turn of major age daughters coaxed by ex and or soon to be ex mothers to file DV on her fathers'...........

Bilkul pefect family harmony breaking Act yeh hai.....

Ok I take back my que. asked to Avnish.

rifinafa shakti (service)     22 January 2011

Daughter is Co-applicant with Mother.

galsober@yahoo.co.in (def)     22 January 2011


Name of divorced wife from petitioner list has to be challanged.

DV act order requires 3 things:

1) Domestic relationship: U can find holes if there existed no deomestic relationship with her. Justice Dhingra of Delhi HC has nicely explained meaning of domestic relationship, u can easily find that judgment.

2) Shared household: See if there is some escape for u in the story. Againn the above judgment helps. Taruna Batra case of SC may also help. See if ur story falls near that judgment

3) Occurance of Domestic Violence: Fight that Domestic Violence is not proved by litigant

One thing more: Some judgments are there that DV Act has no retrospective effect.

wish u all the best



rifinafa shakti (service)     24 January 2011

Thank you very much goslbar and other member concerned too.

One spec ific thing remains to be clarified. I again repeat.

Is a woman having a property of her own entitle for residence order under DV act.

galsober@yahoo.co.in (def)     24 January 2011

Yes of course. She may be having property in a distant place, away from her shared household (at boys city). It wont be of any use for her as act allows her to live at that very house which she shared with her partner & at which Domestic Violence was done.

Thats why this act has become to obtain property more that anything else!

sanjay (prop)     24 March 2012


                               my wife has filed a d.v case against me. in 2009. we are living seperate from 2001.my divorce application dismissed on jan 2010. in reply i filed a aplication that d v act is not maintainable because act come after my seperation. district court dismissed my application and i filed a appeal in session court. there also dismissed on the basis of v. k. jain high court judgement. now files comes to district judge. now instead of filling a evidence affidavit. she request the judge for interim residence order. judge allow the application now next date fixed on 3 appril for the arguments for interim residence maintance order.i am living on the mercy of my parents house. my earning per month is 13000/- p. m. and i am paying 5500/ interim maintance in 125.pl. suggest what i should do. how i can stop them for this. thanks regards sanjay

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register