Is wife entitled to stay in Matrimonial Home, if Separation is Filed?

The wife has an indefeasible right to reside in the property of your husband as long as they are husband and wife. Till the time the divorce is granted by the court, the wife cannot be evicted from the husband’s house.

“The courts at the place where the wife takes shelter after leaving or being driven away from the matrimonial home due to acts of cruelty committed by the husband or his relatives, would, depending on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Constitution,” the Supreme Court’s three-judge bench of Ranjan Gogoi, CJ, L. Nageswara Rao, and SK Kaul, J. observed.

The Supreme Court stated on September 14, 2021 that “living together was not a compulsory exercise as it invoked its constitutional powers to separate a couple through a decree of divorce even as the woman resisted dissolution of the marital tie,” despite the fact that it is not required for a couple to remain together while the separation process is underway.

In the event, mutual divorce is filed and partners iron out their differences, they can stay together, even when the proceedings are going on or withdraw their consent from divorce if they wish to do so.

Legally, a wife can stay with her husband or at his place of residence even if a petition for divorce has been filed by any of the spouses. However, both parties should not maintain any sexual relationship.

Reasons:

There may be various reasons why any one partner might want to stay together, even during the course of divorce proceedings:

To have the sense of normality

For the sake of children

Financial Necessity

Other legitimate reasons for cohabiting 

In Bradley v. Bradley, it was held that divorce proceedings were allowed in the above mentioned circumstances on the basis that the petitioner had no other alternative living arrangements.

Proving that we are living separately despite living in the same house?

Staying together, but not being together is a separate phenomena and can be understood by these 2 different case laws. In Hollens v Hollens, the wife’s divorce petition was allowed to proceed despite the fact that parties have been living under the same roof, given that the wife and her husband had neither spoken, eaten or slept together during that time. On the contrary, in Mouncer v Mouncer, though the parties had separate sleeping arrangements, the wife still cooked for the husband and they continued to eat together.

In this latter case, the court however ordered that a divorce could not be granted.

Therefore, following the above stance, couples should consider completely separating their activities, which means not only sleeping arrangements but finance, laundry, and dining. This is, of course, not an exhaustive list.

Our lawyers at Lead India will guide you through the legalities and implications of living together while ongoing divorce proceedings.