Women's Rights in Divorce

Divorce and Matrimonial disputes harm the interests of women across religious communities and there exist only few provisions in divorce laws in India which recognize a woman’s value in the family and her rights in divorce. More often than not, a woman endures a sharp fall in standard of living on separation and divorce as this fact has been consistently been ignored by policymakers.

But now laws are coming to their rescue: For the first time, the nation is deliberating legal changes that propose to accord women new equality with men on property rights and lifestyle post-divorce. The Marriage Laws (Amendment) Bill 2010 seeks to provide women with equal rights in divorce with respect to property of husband acquired during the marriage, hence, aiming to leave less vulnerable during or after divorce. It is currently pending approval in the Rajya Sabha.

Under the current laws in force, maintenance can be sought under various personal laws and even under the Criminal Procedure Code. 

Hindu Law
The Hindu Marriage Act, 1955 under section 24 provides for support to be given by the earning spouse to the non-earning spouse, who has no sufficient income to support himself/herself during the pendency of proceedings in court. Section 25 of this act provides for Permanent Alimony or Maintenance. 

It allows any court which has jurisdiction under the Act to pass an order upon receiving an application from the aggrieved spouse, during or after the proceedings, directing the respondent to pay the applicant for his/her support and maintenance. Such maintenance may be paid on a periodical basis or it may be paid as a gross sum. The respondent’s own income must be taken into consideration and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

As per section 18 of the Hindu Adoptions and Maintenance Act,1956 a Hindu wife is entitled to claim maintenance from her husband if he is guilty of cruelty, conversion, desertion, adultery, polygamy or has a venereal disease, thereby enforcing her rights in divorce

Muslim Law
So far as Muslim wives are concerned, a husband is under an obligation to maintain her under the personal law, i.e. the Shariat, the Code of Criminal Procedure 11973 and the Muslim Women (Protection of Rights on Divorce) Act, 1986. 

Under the personal law, a wife who is faithful and obeys reasonable orders of her husband is entitled to be maintained by him. If she refuses herself to him or is disobedient (unless this is on grounds of non-payment of prompt or she leaves husbands house on account of cruelty) she will not be entitled to be maintained.

The Muslim Women (Protection of Rights on Divorce) Act, 1986 protects a Muslim woman’s rights in divorce; Section 3 of this Act provides that Mahr and other properties of a Muslim woman are to be given to her at the time of divorce. It entitles a Muslim woman to

  • Reasonable and fair amount of maintenance during Iddat period

  • Where she herself maintains the children born to her before or after the divorce, a reasonable and fair provision and maintenance is to be paid by the former husband for a period of 2 years from the dates of birth of such children;

  • An amount equal to the sum of mahr or dower which was agreed upon at the time of marriage;

  • All gifts and other properties given to her at the time, during or after the marriage.

Also, section 4 of this act provides that if a divorced woman is unable to maintain herself after the iddat period, then her relatives who are entitled to inherit her property on her death as per Muslim Law, may be ordered by a magistrate to maintain her, keeping in regard her standard of living prior to divorce and capacity of such relatives. The amount of such reasonable and fair maintenance would be payable by such relatives in the proportions in which they would inherit her property.

Parsi Law
The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband's net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to pay, wife's own assets and conduct of the parties. The order will remain in force as long as wife remains chaste and unmarried.

Christian Law

If a divorced Christian wife cannot support herself in the post-divorce period she need not worry as a remedy is in store for her in law. Under Section 37 of the Indian Divorce Act, 1869, she can apply for alimony/ maintenance in a civil court or High Court and, husband will be liable to pay her alimony such sum, as the court may order, till her lifetime.

Like the Parsi Laws for divorce, the Christian Laws for divorces are extremely neutral and do not have express provisions to benefit the wife. A husband and wife under both these personal laws have equal rights.

Section 125 of the Criminal Procedure Code

It is a secular provision with the noble objective of securing a woman’s rights in divorce. Under this provision, a wife can claim maintenance no matter what religious faith she follows. It provides speedy relief to a distressed wife who may have been stranded by her husband. To claim maintenance under this act, a woman litigant has to prove marriage and demonstrate that she is unable to maintain herself.