Laws On Post-Divorce Maintenance For Women In India – Rights That She Must Know!
Only if a woman is wedded legally, she is considered to be a “Wife”. Legally wedded wife is entitled to many rights in India. After all, India is a democratic country that provides all of its citizens with different laws that are often necessary to earn the means of livelihood. Before digging deep into the basics and details on maintenance and divorce, let us first understand the basic rights of a legal wife in the next section.
What are the key rights of a wife in India?
- Right to residence – A legally wedded wife has a right to reside in her matrimonial house, where her husband lives, regardless of whether it is joint family home, an ancestral house, rental house, or a self acquired house.
- Right to Streedhan – Streedhan is basically the property that a woman acquires at her marriage time. It isn’t considered to be a dowry, since it can be the gifts that are given voluntarily to wife before, or sometimes even after marriage. On numerous instances, the courts have made their stand amply clear about the fact the complete rights of Streedhan should go to the woman, even if it held custody by her husband or by the in-laws.
- Right to live a dignified life – The wife has an absolute right to live and lead her life with utmost dignity, and to enjoy same lifestyle like the one that her husband or in-laws may have. She even has the right to be free from any kind of physical or mental torture.
- Right to get maintenance by her husband – A wife is entitled for claiming maintenance from her husband, if he is found guilty of desertion, cruelty, polygamy, or if he has venereal disease that may enforce her rights for divorce. She has the right for permanent alimony as well as maintenance.
- Right to the child maintenance – The husband and wife both should provide for their child if they are minor. However, if the wife is not capable of earning herself, then it is the duty of husband to provide her with financial support.
- Right to committed relationship – A male is actually bound not to marry with any other girl, or even have affair with someone else, unless he is granted a divorce legally. If the husband is found to have any kind of relationship with other women, then he shall be charged with the crime of adultery. The wife then has an absolute right for filing a divorce on ground of her husband having a relationship out of marriage with other woman.
In case of divorce, it is the right of the wife to get the deserved maintenance amount from her husband. Now, you might have a question that what comes under the word “maintenance”. Well, it is basically granted to the wives that cannot maintain themselves.
In a general sense, even the children and parents too can be entitled for getting maintenance amount. The Supreme Court states that any kind of delay in the maintenance is actually considered to be violation of the human rights. However, here we are talking specifically about wife.
According to the rule, the husband cannot escape from the responsibility of sustenance amount of money to his wife, regardless of how sour the relations might be between them. Even the family courts can never delay the grant of maintenance to an estranged wife.
It must be noted here that these maintenance proceedings isn’t any kind of punishment for any individual for their past neglect, but it aims to prevent homelessness that may lead to commission of starvation or crime, by the ones that are forced to support themselves or the family that cannot support themselves.
This provision of maintenance is applicable to all the persons, regardless of their religion. It doesn’t have any relationship with personal laws of parties.
The divorced women in India can enjoy several maintenance rights that are normally governed by different religious personal laws. It is to be noted here that the maintenance amount can either by determined by mutual settlement between the couple, or according to the order that has been received from court.
Let us explore some more facts and information about the women’s right in the following sections.
Conditions under which maintenance can be granted
- Enough means to maintain – According to Section 125(1) of Code of the Criminal Procedure, the individual from whom the maintenance is being claimed should have enough means for maintaining a person or a group of persons that are claiming maintenance. The term “means” don’t just indicate visible means like definite employment or real property. The term “sufficient means” here indicates actually the earning capacity. If the man is able-bodied and healthy, he should be held on grounds of having a definite employment or real estate property.
- Wife who is claiming maintenance should not be able to maintain herself – The requirement for paying maintenance must only be in respect of the people that are not able to maintain themselves. Maintenance includes appropriate clothing, food, as well as lodging. The maintenance here is usually determined on the basis of living standard of the concerned person that she had at her husband’s place.
- Refusal to maintain – If the individual from whom the maintenance is being claimed has either refused or neglected for maintaining the person or group of persons that are entitled for claiming maintenance. It isn’t enough if the refusal or neglect to maintain is only by conduct or words, as it should also be implied.
There are several personal laws that deal with divorce, marriage, and maintenance in various religions in India. Therefore, there are different provisions as well, regarding the divorce laws for women in India. Let us know more about them in the following pointers.
In Islam, there are different types of divorce. The law governing the maintenance of divorced women is Muslim Women Act, 1986. A wife is entitled to claim the following under this act.
- The husband is needed to offer “dower” or “Meher” as promised during wedding, or at any time after that.
- Suitable maintenance amount by the ex-husband within a specific iddat period.
- If the wife gets pregnant during divorce, she has the right to claim a maintenance amount for minimum 2 years from the date of child’s birth.
- If the couple already has a child during the divorce period, then the wife can claim maintenance for their child until the time that she either remarries, or until the child itself is her dependent.
- The properties that are given to wife by her parents, relatives, his husband, or even his family, relatives, or friends.
If wife is incapable to maintain herself after the period of iddat, her relatives who receive the property named after her, or after her demise, can be ordered by the Magistrate to go for appropriate provisions for maintaining her. It is her right under the laws governing divorce in India.
The Hindu Adoption and Maintenance, 1956 and Hindu Marriage Act, 1955 gives the right to the divorced women to claim a suitable amount of maintenance after divorce. Under these laws, the maintenance amount is determined by numerous factors such as liabilities, assets, the financial income of husband, wife’s earning status, and so forth.
It must be remembered here that the maintenance will likely not be inclusive of Stridhan. Stridhan is actually right of wife, and the maintenance isn’t dependent on it.
According to the 1936 Parsi Marriage and Divorce Act, the wife gets the rights to claim the maintenance money amount from her husband during the process of divorce. The maximum maintenance amount for the time period for which the case is pending, is generally 1/5th of the net income of the husband.
When can a maintenance granted to the wife?
There are various laws governing maintenance rights of divorced women. It can be granted to wife only on the following conditions.
- If the husband neglects or abandons her by to his own will.
- If husband is suffering from venereal or virulent disease.
- If the husband subjects her with cruel treatment or tortures her.
- If the husband has married again, and is living with his another wife.
- If the husband changed his religion.
- Any other reason which is justifiable enough for living separately from her husband.
How maintenance amount is calculated?
Well, the maintenance amount isn’t generally constant. It varies depending on each case. The amount is basically decided by court after considering all the important, as well as relevant factors such as husband’s property, earnings, the specific needs of dependents, wife’s earning ,and her property ownership, expenses, and so forth.
While there isn’t any fixed formula for calculating the amount of maintenance, it is likely calculated as around 1/3rd of salary of husband. However, the condition here is that his wife must be staying single without having an involvement in any kind of romantic relationship.
The court may order husband to reveal his confidential information like his salary, shares, IT returns, bank balance, credit card ownership, lifestyle expenses, vehicle ownership, fixed deposits, etc. All these information is taken into account as a proof of his capability to maintain her.
A wife has the right to claim a specific maintenance amount for all her rational requirements like home, food, shelter, and medicine. In case they have children, she has the right to claim maintenance for their education too.
The court can then decide the suitable amount of maintenance that can be reasonable and fit according to her situations. The amount can either be in form of some lump-sum amount or monthly amount.
It can even be modified later, if the situations changes in future. For example, the income of husband may change in case of inflation, and if the wife’s marital status also changes, and other such relevant conditions.
On what grounds can the wife be refused maintenance?
- If the wife tends to be living in adultery, she won’t be entitled for receiving an allowance for maintenance or expenses of proceeding and interim maintenance from the husband.
- If the wife refuses living with her husband without any valid reason, she shall not be entitled for receiving an allowance for maintenance from the husband. The wife shouldn’t just refuse randomly in order to get maintenance. However, the sufficient reason for refusal from wife will greatly depend on circumstances and facts in each of the case.
- If the couple is living separately by their own mutual consent, then the wife isn’t entitled for receiving an allowance as maintenance from husband. However, divorced wife isn’t characterized as the one living separately as a result of mutual consent. A divorce done by mutual consent for living separately can never disentitle her to claim maintenance. In fact, the wife can be entitled for maintenance from ex-husband so long as she don’t re-marry, and is not able to maintain herself.
- If wife had voluntarily refused to claim her right for maintenance, then she cannot claim it later on.
Various grounds under which divorce can be acquired under the Hindu Marriage Act
The Hindu Marriage Act, 1955 presents different grounds on which divorce can be acquired. They are as follows.
Cruelty – The overall concept of cruelty is varying one. As per the modern concept of it, it includes physical as well as mental cruelty. The acts of cruelty are the behavioural manifestations that can be stimulated by various factors in life of spouses as well as their surroundings. As a result, each of the case needs to be determined based on its distinct set of facts.
While the physical cruelty is much easier to determine, mental cruelty is perhaps lack of conjugal kindness that inflicts pain of such duration and degree that may sometimes affects mental or bodily health of the one suffering. Mental cruelty can be defined as “state of the mind”.
Some of the common instances of such cruelty are mentioned below.
- Demand of dowry
- False accusations of unchastity or adultery
- Harassment after birth of child
- Threat of committing suicide
- Physical and verbal harassment in drunken state
- Incompatibility of temperament
- Refusal to have children or marital intercourse
- Ill-treatment of wife, based on false complaints by husband’s employer
- Irretrievable breakdown of the marriage
There are even things that may be sometimes termed as cruelty, but they aren’t. They are as follows.
- Desertion per se
- The refusal of wife to resign from her job
- Some normal wear and tear of the married life
- Outbursts of the temper without extended rancour or bitterness.
It is true that adultery might not be considered as criminal offense in some of the countries, but it is indeed a just ground for divorce under Hindu Marriage Act. During the course of the marriage, if either of the individuals indulge in consensual sex or intercourse with other individuals outside of the marriage. Since it is actually an offense against the marriage, it is required to establish it right at time of act of adultery. The adultery offense can be proved by the contracting venereal disease or circumstantial evidence.
Conversion here refers to the conversion of one’s religion. When other party converts themselves to other religion like Christianity, Islam, Zoroastrianism, Judaism, or any other one, then divorce can be granted.
Presumption of Death
Under Hindu act, if the person hasn’t been heard of being alive for time duration of minimum 7 years, then he/she is assumed to be dead. The burden of the proofs that whereabouts of respondent isn’t known for required time period, is normally on petitioner under all of the matrimonial laws. This is in fact presumption of the universal acceptance since it aids the proof in the cases, where it will be very difficult for proving the fact. A divorce which is granted under this condition is effective as well as valid.
It is typical a Hindu practice which is followed by some people, where they wish to renounce the materialistic world in order to attain their spirituality. If either of the individuals in a marriage considers renunciation of the world, then it does give a valid ground for legally ending the marriage.
The modern law states that spouse can seek divorce if other party has entered holy order by renouncing the world. A person that has done this is believed to be dead civilly. Such renunciation by entering in religious order should be absolute and unequivocal.
Contagiousness of leprosy was responsible for developing this psychology, where the man along with others, shuns the company of lepers, or looks at them in a mocking way. It is therefore provided as valid ground for the divorce.
Special grounds for divorce for Wife
Apart from the above grounds mentioned a wife is provided with 4 extra grounds of divorce under Hindu Marriage Act, 1955.
They are as follows:
- Repudiation of Marriage – If marriage was solemnized before she reached age of 15 years and the marriage has been repudiated before she reached 18, then this provision offers ground for divorce to wife. Such kind of repudiation can be either expressed in the form of spoken or written words, or might even be implied from conduct of wife. Furthermore, this right has retrospective effect.
- Pre-Act Polygamous Marriage – This provision states that if the husband already has another wife that is alive at the divorce time, then it is a ground for divorce for wife. This ground is available only if both marriages are valid ones, and the other wife must be present at time of filing of petition.
- Rape, Bestiality, or Sodomy – Under this provision, a wife can file divorce petition if husband is found to be guilty of bestiality, sodomy, or rape.
- Non-Resumption of Cohabitation after order of maintenance – If the wife has acquired order of maintenance or decree, and if the agreement hasn’t been maintained between the parties over one year, then it is valid ground for divorce.
Basics on Interim Maintenance
As per the laws for maintenance in Hindu religion, the woman can claim the interim maintenance from her divorced husband, if she does not have any other means to support her livelihood. The calculation of this amount isn’t generally prescribed in law, and is decided on basis of court’s discretion.
However, it is to be remembered here that interim maintenance requires to be paid right from date when the petition is presented before the court, to the date that the decree is passed by the court, or dismissed. It is actually the amount given to cater her basic immediate needs for the time duration, when the case is pending in the court.
Now, the maintenance rights of divorced women normally ceases, when either she gets involved romantically with anyone else, or gets re-married. The husband then can raise this matter before court to rescind or modify the order of the maintenance.
When the wife earns enough to maintain her standard of life, then no earning wife is being entitled for maintenance. The real definition of standard life here varies from one situation and another, and from one place to other. Overall, salary of wife even highly affects right to get maintenance in Divorce.
In case the husband doesn’t pay maintenance money without any valid cause, the wife has the right to file criminal case and approach the court for the same against the husband. The court can even secure the compensation by taking control over the husband’s property.
Maintenance rights are in fact the most powerful and important legal tools in hands of divorced women, neglected wives, or women that live separately from husbands. It allows all of them to live a life with respect and pride without compromising on their basics rights. It is best suggested to contact an expert divorce lawyer for claiming maintenance in monthly payments, or as a lump-sum amount.
Gone are the days when women were considered to be weak. It is high time they realize their importance, and know as well as understand their basic rights to live a dignified and respectful life!