Rights of women in Divorce in India

RIGHTS OF WOMEN IN DIVORCE IN INDIA

Author: Deepanshi Kalra

INTRODUCTION

Women in India are presumed to be dependent on their husbands at the time of their marriage. They don’t have access to jobs or any adequate escape for independency after their divorce. Some of these constraints are loosened by the rights which they can claim after their divorce.

RIGHT TO ALIMONY AND MAINTENANCE

Women have the right to alimony after marriage. If women are not given a sufficient amount as alimony they can approach the court for maintenance. The alimony is a lump sum amount given after divorce and if on regular time intervals the amount is paid as per a scheduled date then it is maintenance. Alimony if is not adequate to meet her expenses then the wife can ask for maintenance until her remarriage.

The right of women in divorce includes her basic right to ask for an allowance so that she could maintain herself. Maintenance means a particular sum which the husband pays to the wife after their divorce so that it is convenient for her to maintain herself. Maintenance constitutes the necessities to sustain oneself. After the divorce women might not have any means for independent living so they could claim maintenance. This right is available to women in India. In case the husband is neglecting this right, the women can seek remedy for the same under section 125 Cr. P.C.

However, under section 125(4), it is mentioned that if both the spouses are not living together through mutual consent then the women cannot ask for maintenance. But if a divorce decree enabled them to live separately, a claim for maintenance by wife can be initiated. Some personal laws like Parsi and Christian laws have the provision of maintenance as well. Section 125 Cr. P.C. is a criminal claim in case the wife is denied maintenance and this is applied to all laws equally.

There are various grounds under which women could be awarded maintenance:

• The husband has treated her with cruelty.
• The husband has neglected her willfully or deserted her.
• The husband is suffering from any virulent leprosy or venereal disease.
• The husband has any other wife living at that time.
• The husband keeps a concubine in the house or resides with that concubine somewhere else.
• The husband has converted to another religion/ceased to be a Hindu.
• The husband is suffering from insanity ( mental state and unsound mind)
• If the wife has not heard anything about the husband for at least seven years; Presumption of death.
• Any other justification for separation of the husband and wife which valid in the eyes of law.

RIGHT TO RESIDENCE

The woman has the right to a residence after she is divorced. The matrimonial home in which the couple resided belongs to both husband and wife she can claim her right to residence even if the house is under the husband’s possession or a rental or ancestral property.

RIGHT OF STREEDHAN

Streedhan constitutes the gifts in forms of wealth, jewelry, property, etc which the bride is given at the time of her marriage.  She has sole ownership right over the Streedhan and it is different from dowry as it is voluntarily given to the bride. The wife is at liberty to retain her Streedhan as she has sole ownership over it. She could use her Stree Dhan to alienate, sell, or gift, whatever she wants. This right of women is protected under section 27 of the Hindu Marriage Act,1955, and also Section 14 of the Hindu Succession Act. After the divorce, the wife can retain her Streedhan and there is no condition attached to it.

CHILD CUSTODY RIGHTS

After the couple is separated, the child sufferation is transpicuous. The breakdown of marriage leads to the separation of every element attached to it. The children are compelled to choose sides as well and remain with either of their parents.

 The guardian and the wards act, 1890 and the Hindu minority and guardianship act. 1956 deals with the rights of child custody. Under the Hindu minority and guardianship act, 1956  the mother will have the custody of a child who is below the age of 5 years.

The natural guardian of a child is generally considered as a father otherwise mother. In case the child’s custody is not suitable for the father in that case or if it is not better than that of the mother’s then any indefeasible right can be claimed. Depending upon the welfare and security of the child, the custody can be shifted on either of father or mother.

Categories of child custody:

1. Physical custody
2. Joint custody
3. Legal custody
4. Third-party custody

Both the parents are entitled to their children’s custody as also the primary caretaker of them. However, this decision is taken by the court keeping in my the security and well being of the child. In deciding the custody of the children the principle of – ‘the best interest of the child’ is considered and accordingly custody of the child is granted.

RIGHT TO ANCESTRAL PROPERTY

If the woman is part of the joint family property she will have the right over the property even after divorce. This right to retain her property cannot be taken from her.

CONCLUSION

Women are at liberty even after their divorce and are not subjugated by any boundary when it comes to enforcement of their rights. Rights in the form of maintenance, child custody, property, retaining her gifts, etc. are all available to her. Some of these rights have been developed over the years and legislations interpreted differently which paved a way for women to seek justice. Law ensures that their right is granted to them and are protected in case they seek a remedy.