Divorce Laws for Women in India

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Divorce is a legal procedure that dissolves a marriage, and it can be a challenging and emotionally draining process, especially for women. In India, despite the advances in women's rights, women still face many challenges when it comes to divorce. It is essential to understand a woman's legal rights in divorce in India, the grounds available to her for divorce, the travails of a child custody battle, and the property rights of a wife after divorce. This article will delve into these issues and provide a comprehensive overview of the rights of women upon divorce in India.

What are the Divorce Laws for women in India?

In India, divorce laws are governed by personal laws that are based on religion. The personal laws governing divorce differ depending on the religion of the parties involved. For example:

• Hindu Marriage Act, 1955 governs divorce among Hindus, Buddhists, Jains and Sikhs,

• The Muslim Personal Law (Shariat) Application Act, 1937 and the Dissolution of Muslim Marriage Act of 1939 govern divorce among Muslims,

• The Divorce Act, 1869 governs divorce among Christians,

• The Parsi Marriage and Divorce Act, 1936 governs divorce among Parsis.

Each of these laws has its own provisions and requirements for seeking a divorce, including grounds for divorce, procedures to be followed, and provisions for maintenance and custody of children. To learn more about divorce laws in India and its procedure, you can refer to LawRato Divorce Guides

What are the Legal Rights of a Woman concerning Divorce in India?

In India, a woman's legal rights upon divorce depend on several factors, such as the type of marriage, the grounds for divorce, and the applicable laws. Here are some key rights that may apply:

1. Maintenance: A divorced woman is entitled to maintenance from her former husband. The amount and duration of maintenance depend on various factors, including the woman's financial status, the husband's ability to pay, and the standard of living during the marriage.

2. Child custody: A divorced woman may have the right to custody of her children. The court will decide on custody based on the best interests of the child, taking into account factors such as the child's age, health, and education.

3. Property rights: The property acquired during the marriage is considered to be joint property, and both the husband and wife have an equal share in it. This includes property such as a house or car. The woman can claim her share in the matrimonial property in case of separation or divorce.

4. Alimony: A divorced woman may be entitled to alimony, which is a form of financial support paid by the husband to the wife. The amount and duration of alimony depend on various factors, including the woman's financial needs and the husband's ability to pay.

5. Streedhan: The woman has the right to her Streedhan, and it cannot be taken away by anyone, including the husband or his family.

It's important to note that the legal rights of a woman upon divorce in India can vary depending on the specific case and applicable laws. Divorce can have various legal consequences for a woman in India, which can impact her financial and emotional well-being. Here are some of the legal consequences of divorce for a woman in India:

• Remarriage: The woman has the right to remarry after divorce or the death of her husband.

• Reputation: Divorce can have social implications, and the woman may face social stigma and discrimination in some communities.

• Emotional Impact: Divorce can have a significant emotional impact on a woman, including depression, anxiety, and stress.

A woman needs to understand her legal rights and options during divorce, including the grounds for divorce, child custody, maintenance, and property rights. She can seek legal counsel to ensure that her legal rights are protected and to navigate the legal procedures effectively. While divorce can be a challenging and stressful process, women in India have legal protections to help them through it. To understand your rights as a woman going through a divorce, you can seek legal assistance through LawRato.

What are the Grounds for Divorce in India?

At the outset, it is important to note that the grounds for divorce in India are majorly fault-based, which means that one spouse must prove that the other spouse was at fault for the breakdown of the marriage. However, Indian courts also recognise the irretrievable breakdown of marriage in some cases that allows it to grant a divorce on the grounds that the marriage has irretrievably broken down, without the need to prove any specific fault-based grounds for divorce.

Grounds of Divorce under Hindu Law

As per section 13 of the Hindu Marriage Act, 1955 a Hindu, Buddhist, Jain or Sikh wife can seek divorce from her husband on the following grounds:

1. Cruelty - If the husband has subjected the wife to cruelty or harassment, either physical or mental, the wife can seek a divorce. In the recent case of Smt. Roopa Soni vs. Kamalnarayan Soni(2023), the Hon'ble Supreme Court, while granting a woman a divorce, observed that what constitutes cruelty for a woman in a particular case might not be cruelty for a male. It also stated that a court investigating a case in which a wife requests a divorce must take a comparatively more flexible and comprehensive approach.

2. Adultery - If the husband has had voluntary sexual intercourse with another woman during the marriage, the wife can file for divorce.

3. Desertion - If the husband has deserted the wife for a continuous period of at least two years without any reasonable cause, the wife can seek a divorce.

4. Conversion - If the husband has converted to another religion, the wife can file for divorce.

5. Mental or physical incapacity - If the husband is suffering from a mental disorder or a physical ailment that makes it impossible to live with him, the wife can seek a divorce.

6. Venereal disease - If the husband is suffering from a venereal disease in a communicable form, the wife can file for divorce.

7. Renunciation - If the husband has renounced the world by entering a religious order, the wife can seek a divorce.

8. Presumption of death - If the husband has been missing for at least seven years, the wife can presume him to be dead and file for divorce.

Additionally, Section 13(2) of the Hindu Marriage Act 1955 deals with the grounds on which a spouse can file for divorce on the grounds of desertion. It provides that if a person has deserted their spouse for a continuous period of at least two years immediately before the petition for divorce is filed, the other spouse has the right to seek divorce. Furthermore, if any other wife of the husband, married prior to the act, was alive at the time of marriage, provided that the other wife is alive at the time of petition presentation, or if he has committed acts of rape, sodomy, or bestiality or if her marriage was formally consummated before she turned 15 and, he repudiates it after turning 15, but before turning 18, these are valid grounds for divorce under Section 13(2).

Grounds of Divorce under Muslim Law

Under Muslim Personal Law in India, a woman can seek divorce through various means, including -

• Lian Talaq & ndash It is a form of judicial divorce under Muslim Personal Law. It allows a wife to initiate divorce proceedings against her husband on the ground of adultery. If a husband falsely accuses his wife of adultery, and the charges are proven false, the wife can file for divorce based on Lian Talaq. In this case, the husband must make a solemn oath (lian) that his charges were true, and if he later retracts this oath in court, the wife is entitled to a divorce. This form of divorce is available to both Sunni and Shia Muslims.

• Talaq-e-tafweed & ndash It is a type of Islamic divorce in which the husband delegates his power to pronounce talaq (divorce) to his wife or any other person through a written agreement. This delegation can be temporary or permanent and can be done before or after marriage. The wife then has the right to initiate divorce proceedings in court using the delegated power. This type of divorce is recognized by both Sunni and Shia Muslim personal law. The husband, however, retains the right to revoke the delegation of power at any time before or after the divorce is initiated.

• Khula & ndash This form of divorce is initiated by the wife and is also known as a & quot divorce at the instance of the wife.& quot The wife can seek divorce by returning her dower (mahr) to her husband or by agreeing to forgo it. However, this form of divorce requires the husband's consent. You can refer to LawRato's article, “ What is Khula under Muslim Law” to know more.

   

Section 2 of the Dissolution of Muslim Marriages Act, 1939 provides the following grounds for a woman to obtain a decree for the dissolution of her marriage under Muslim law:

1. Husband's whereabouts unknown for 4 years

2. Husband has failed to provide maintenance for 2 years

3. Husband sentenced to 7 years or more of imprisonment

4. Husband has failed to perform marital obligations for 3 years without reasonable cause

5. Husband was impotent at the time of marriage and continues to be so

6. Husband has been insane for 2 years or has a virulent venereal disease

7. Woman was married before the age of 15 and repudiated the marriage before the age of 18, provided the marriage was not consummated

8. Husband treats her with cruelty, including habitual assault, association with women of ill repute, forcing her to lead an immoral life, disposing of her property, obstructing her religious practice, or unfair treatment due to having multiple wives

9. Any other ground recognized as valid for the dissolution of marriages under Muslim law.

What are the Rights of a working woman undergoing Divorce in India?

A working woman has the same legal rights as a non-working woman in divorce. However, if a working woman has been financially supporting the family, she can claim a higher amount of maintenance or alimony from her husband. The amount of maintenance or alimony is determined by the income of the husband, the standard of living of the couple, and the financial needs of the wife and children. The amount of maintenance or alimony that a working woman is entitled to receive during divorce is not determined solely based on her employment status. It is possible that in some cases if the woman's income is significantly higher than her husband's, the court may consider that while determining the amount of maintenance or alimony. However, the woman is still entitled to receive a fair and reasonable amount of maintenance or alimony, regardless of her employment status. If you are a woman going through a divorce and have some legal queries, you can visit LawRato and ask for a free legal query through it. Your query will be answered by expert lawyers across the country while maintaining your anonymity.

Understanding Maintenance and Alimony in India

Understanding Maintenance and Alimony under Hindu Law

Under the Hindu Marriage Act, a Hindu wife is entitled to claim maintenance from her husband during the subsistence of the marriage and after divorce. The husband has a legal obligation to maintain his wife and children, if any, according to his capacity and means. In case of divorce, a woman can claim maintenance for herself and her children until they attain the age of majority. The amount of maintenance is determined by various factors, including the income and property of both the husband and wife, their standard of living, the age and health of the parties, and other relevant factors. After making an order for maintenance, the court may modify or revoke it if it finds that one or both parties have changed their circumstances. If a court is convinced that the party in whose favour an order was made has remarried, or if the wife has not remained chaste, then it can modify or revoke the order.The decision of the amount varies in each case. Hindu Law recognises the right of the wife to claim alimony after divorce. The amount of alimony is decided based on factors such as the income and property of the parties, the duration of the marriage, the standard of living enjoyed by the parties during the marriage, and other relevant factors. There is no fixed formula for calculating the amount of alimony, and each case is decided based on its individual circumstances. It is important to note that maintenance and alimony are separate legal concepts. Maintenance is financial support provided to a spouse during the subsistence of the marriage or after divorce, while alimony is financial support provided to a spouse after divorce to help maintain the lifestyle and standard of living that was enjoyed during the marriage.

Understanding Maintenance and Alimony under Muslim Law

A Muslim woman is entitled to receive mahr or dower as well as maintenance and other properties from her former husband in case of divorce. The Muslim Women (Protection of Rights on Divorce) Act, 1986, lays down the rights of a Muslim woman in case of divorce. As per Section 2 of the Act, a divorced woman is entitled to a reasonable and fair provision and maintenance to be made and paid to her by her former husband within the iddat period, however, his obligations are not confined to the period of iddat. This provision includes:

1. Maintenance for herself.

2. Maintenance for her children, if she maintains them, for a period of two years from their respective dates of birth.

3. An amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law. As per Muslim Personal Law it is the right of Muslim wife to continue to be in possession of her husband's property in case where the dower has not been paid to her and she can recover it like an actionable claim.

4. All the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

In K Zunnaiddin v. Ameena Begam, a broader interpretation was given to Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. It was held that the husband would be responsible for paying maintenance to the wife during the period of iddat as well as after if she is unable to maintain herself. Therefore, the husband will be responsible for providing maintenance to the wife for the remainder of her life if she chooses not to marry again. All obligations of maintenance end with the remarriage of the wife.

Law Relating to Child Custody in India

Child custody is one of the most contentious issues in divorce cases in India. The custody of a child is determined by the best interests of the child. The court considers several factors, including the child's age, sex, health, education, and overall welfare, while determining custody.

Law Relating to Child Custody under Hindu Law

As per Hindu Minority and Guardianship Act, 1956, the father is the natural guardian and ultimately has custody rights. In accordance with section 6 of this Act, the father is responsible for the custody of children above the age of 5 and below the age of 18. In a recent case, Hon'ble Supreme Court ruled that a mother can claim custody only if the father has died or absented himself from the proceedings. However, this rule is not applicable if the child is illegitimate in which case custody is given to the mother only.

Law Relating to Child Custody under Muslim Law

The rules of custodianship and guardianship under Muslim law can vary depending on the specific school of thought within Islam. The Hanafi school of thought is one of the four major schools of Islamic jurisprudence and is followed by a significant number of Muslims in India. Under Hanafi law, the concept of & lsquo hizanat' gives the right of custody of a minor child to the mother. However, this right is not absolute and can be challenged if the mother is found to be unfit for custody. This can happen if the mother is physically or mentally incapable of taking care of the child, or if she is found to be mistreating or abusing the child. According to Hanafi law, at the age of nine, a child's preference can be taken into consideration in matters of custody. However, this is not an absolute rule and the court may still decide custody based on what it considers to be in the best interests of the child.

The Legal Rights of a Married Woman in India

In India, the legal rights of a married woman are protected under various laws, including the Constitution of India, the Hindu Marriage Act, the Special Marriage Act, and the Indian Succession Act. Here are some of the legal rights of a married woman in India:

1. Right to Live with Dignity: Every woman has the right to live with dignity and respect. Any form of physical or mental abuse or harassment is punishable under the law.

2. Right to report Domestic Violence: Under the Protection of Women Under Domestic Violence Act, 2005, women can file a complaint against her husband and family if she happens to face domestic violence such as acts of physical, emotional, sexual, economical violence and other acts of ill-treatment.

3. Right to report Dowry and Harassment: A woman can report against her parental family and in-laws if any exchange of dowry is involved in marital affairs, under the Dowry Prohibition Act 1961. Section 304B and 498A of IPC criminalise the exchange of dowry and any sort of harassment related to it.

4. Right to Abortion: A woman can, under the Medical Termination of Pregnancy Act 1971, abort an unwanted pregnancy through a registered medical practitioner. However, the Act allows termination of pregnancy only up to 12 weeks of gestation, or up to 20 weeks in certain exceptional cases where the life of the mother or child is in danger, or if the pregnancy is a result of rape or failure of contraception. The termination of pregnancy after 12 weeks requires the opinion of more than two medical practitioners.

5. Right to Maintenance: A woman has the right to claim maintenance from her husband during the subsistence of her marriage as well as in case of separation or divorce. The maintenance includes a monthly allowance for the woman's living expenses and can be claimed by the woman and her children. As per Section 18 of the Hindu Adoptions and Maintenance Act 1956, a Hindu wife provided she has not ceased to be a Hindu or lost her chastity, has a statutory right to live separately without forfeiting her claim to maintenance in case she meets one of the grounds listed thereunder - abandonment or wilful neglect by the husband, cruelty that causes reasonable apprehension, suffering from a virulent form of leprosy, having another wife or a concubine, converting to another religion, and any other justifiable cause.

6. Right to Inherit Property: A woman has the right to inherit her husband's property after his death on account of being his legal heir as per the Hindu Succession Act 1956 only if the husband hasn't excluded her by way of a will. Additionally, the 2005 Amendment of the Hindu Succession Act, 1956 provided that a daughter, regardless of her marital status, has equal rights to inherit her father's property.

7. Right to Matrimonial Property: The property acquired during the marriage is considered to be joint property, and both the husband and wife have an equal share in it. A woman can claim her share in the matrimonial property in case of separation or divorce.

8. Right to Matrimonial Home: Under any conditions, including the death of her spouse, a wife is legally entitled to remain in the marital residence. Regardless of whether the husband owns the property or not, a wife is entitled to dwell in the marital house she shared with her husband under the Domestic Violence Act of 2005. In the 2005 case of B.P. Achala Anand v. S. Appi Reddy and Others, the Supreme Court held that personal laws protect a wife's right to residence i.e. remain in the marital home even after divorce. A wife is entitled to her husband's support, and she has the right to exist and be safe in his home.

9. Right to Divorce: A woman has the right to seek a divorce from her husband in case of cruelty, adultery, desertion, or any other ground recognized by the law. Right to divorce: Women can legally file for a divorce without the consent of their husband in the event of infidelity, cruelty, physical and emotional violence and more, under Section 13 of the Hindu Marriage Act, 1995. Women can further claim maintenance under Section 125 of the Code of Criminal Procedure, 1973 that states women can rightfully claim financial maintenance for herself and her child, especially if the husband earns more.

10. Right to Child Custody: In case of divorce or separation, the woman has the right to claim custody of her children. The court considers the welfare of the child while deciding the custody. A woman has the supreme right to claim custody of her child, especially if the child is below five years of age. She can also take her child along with her if she leaves the matrimonial household without any legal order. Despite giving equal custodian rights, a woman can have her child's custody in an event of a disputed home.?

Women in India have various legal rights that protect their interests and ensure their well-being in the institution of marriage. These rights are essential to ensure gender equality and empower women in society. It is crucial for women to understand their legal rights and options to assert them effectively.

Right of a Wife to Streedhan

& lsquo Streedhan' refers to the gifts and valuables given to a woman at the time of her marriage. A woman has the right to her Streedhan, which cannot be taken away by anyone, including the husband or his family. Section 14 of the Hindu Succession Act, 1956 and Section 27 of the Hindu Marriage Act, 1955 allow a woman to rightfully claim Streedhan as its sole owner. She can also further file a complaint under Section 19A of the Protection of Women against Domestic Violence Act if her right is denied. Streedhan belongs to a woman, and a woman is free to alienate it however she pleases. The Privy Council ruled in Bhagwandeen Doobey v. Maya Baee that a man's gift to his wife would not fall under the purview of stridhan but rather be referred to as the woman's inheritance.

What are the Property Rights of a Wife after Divorce?

Women in India gain certain property rights upon divorce. These are as under -

1. Jointly Acquired Property: The property acquired during the marriage is considered joint property, and both the husband and wife have an equal share in it. This includes immovable property like land and buildings, as well as movable property like money, jewellery, and household goods. In case of divorce, the wife is entitled to a share in the joint property, which can be claimed through the court. If the husband refuses to give the wife her share in the joint property, the court can order the sale of the property, and the proceeds can be divided equally between the husband and wife. In the 2020 case of Satish Ahuja v. Sneha Ahuja, a three-judge bench of the Supreme Court also stated that a property that is purchased by a couple jointly is regarded as joint ownership. The lady has the right to stay in the property as a co-owner until the divorce and property settlement is resolved, as per the Hindu Succession Act, 1956.

2. Ancestral Property: A woman does not have any rights to her husband's ancestral property. Ancestral property is defined as the property that has been inherited from ancestors and has passed down through generations.

3. Maintenance: The wife is also entitled to maintenance from her husband after divorce. This includes financial support for her day-to-day needs, as well as support for any children from the marriage.

It's important to note that law on transfer of property or registration may vary depending on the State where the dispute has arisen, and the specific rules of the State apply towards its resolution. Additionally, the division of property and maintenance is subject to various factors such as the length of marriage, the earning capacity of the parties, and the specific circumstances of the case.

Alternative Dispute Resolution Methods

Alternative Dispute Resolution (ADR) methods are increasingly being used in divorce cases in India. ADR methods such as mediation, arbitration, and conciliation can provide an alternative to traditional court proceedings and can be a faster, more cost-effective way to resolve disputes between parties. Here are some ways in which ADR can be used in divorce cases in India:

1. Mediation: Mediation is a voluntary and confidential process in which a neutral third party assists the parties in reaching a mutually acceptable agreement. A mediator helps the parties to communicate with each other and identify their interests and concerns. Mediation can be used to resolve disputes related to property division, child custody, and maintenance.

2. Arbitration: Arbitration is a more formal process in which an arbitrator, a neutral third party, makes a decision after hearing both parties' arguments. The decision is binding, and the parties cannot appeal against it. Arbitration can be used to resolve disputes related to property division and maintenance.

3. Conciliation: Conciliation is a process in which a conciliator, a neutral third party, helps the parties to negotiate a settlement. The conciliator does not make a decision but assists the parties in finding a mutually acceptable solution. Conciliation can be used to resolve disputes related to property division, child custody, and maintenance.

In India, the courts also encourage parties to attempt ADR methods before proceeding to trial. The Family Courts Act, of 1984, mandates that every suit or proceeding under the Act should be settled through ADR methods if possible. You can consult an expert lawyer through LawRato and ask the lawyer whether ADR will be a suitable option for you. You can easily get on a phone call with a lawyer and get free legal advice on the phone

Why do you need a Lawyer for a Divorce Process in India?

Divorce is a stressful time for everyone involved. Getting a Contested Divorce especially can feel like a battle, thus hiring a Divorce lawyer is recommended. While the attorney will need to gather information from you regarding the case, he or she will also take care of all the paperwork, allowing you more time to take care of yourself and your family. An experienced divorce attorney can give you expert advice on how to handle your divorce owing to his years of experience in handling such cases. You can connect with a lawyer through LawRato, all you have to do is select the option to & lsquo Talk to a Lawyer' and soon a representative from LawRato will connect with you and provide you with a lawyer according to your needs. This information will be kept confidential and all the lawyers that are brought to you are verified by LawRato.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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