Rights of a Hindu Women After Divorce

India is a wide country, which allows every citizen to be governed as per the personal laws relevant to religious views. It also extends to personal laws which also consider the matter of divorce and marriage. Hindu Code Bill was enacted into the act by parliament in 1955 and also added marriage laws among Hindus. As well as it regulates the institution of marriage which also includes the validity of the marriage, also its conditions for invalidity. These acts also regulate other aspects of personal life among the Hindu religion and the applicability of such lives in wider Indian society. This act also provides guidance to be in a systematic, lawful marriage bond, this law also provides rights to both bride and groom for the safety of their family and children so that they will be not suffering from their parental issues.

This act has its applicability to all forms of Hindus which also includes Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana, or Aryasamaj and also recognizes off shots which have been provided under Article 44 of the Indian Constitution[1], which basically includes Jains, Buddhists, etc. Even this act has applicability to those who are a permanent resident in India, but they must not be Muslim, Jew, Christian, or Parsi by religion. Although the Act originally applied to Sikhs as well, the Anandkarj Marriage Act gives Sikhs their own personal law related to marriage, also it is now applicable to J&K. 

In Indian society “Marriage” is considered a sacred bond since the Vedic Period, even the concept of marriage has been evolving continuously with time, the concept of marriage has evolved with time. Today there are a number of acts which are dealing with marriage even our government has also introduced the Marriage Act in regard to this. Marriage is a union of two persons under the matrimonial laws, but in certain cases, the either female or male spouse is not happy together after marriage, there are lots of difficulties and problems which they are facing, so for breaking this matrimonial bond the concept of “Divorce” is introduced. Modernization and urbanization have brought many changes in Indian families, many of the families are today nuclear in structure. These changes have been accompanied by a number of increasing divorce cases. In our country, marriage and divorce are interconnected with religious rituals.

The word “Divorce” has been originated from the Latin word “Divortium” which means “splitting of a unit”. In other words, it is the physical separation of spouses. In our country, the rate of divorce is increasing especially in metropolitan areas, although there is no state-wise registry of divorce data, on the basis of family court applications which has been filled, from there the data was made regarding the increase of cases. India is a country where different religions are present with that of Hindu religion and these religious groups are governed by their respective codes and by customary laws of their respective communities.

Hindu Marriage Act governs the marriages and divorce of Hindu as well as it also applies to Buddhist, Sikhs and Jains. There are separate laws governing family matters for Muslims and Christians, even there is a Special Marriage Act which deals with marriage with a different religion. The Hindu and Special Marriage act have the same grounds for granting a divorce. For Muslims in India, these grounds for divorce are still un-codified allowing for plural interpretation, their marriage is like a contract that can be terminated if the contract is breached.

For divorce, parties can approach any regular court or family courts that have been made where such proceedings can be brought under any religious law or special laws. Once Eleanor Roosevelt said that “The battle of the individual rights of the woman is one of the long-standing and none of us should countenance anything which undermines it.”

Grounds for Divorce

Marriage is stated to be divine, as per Hindu Marriage Act and it also allows both husband and wife to divorce on the grounds which have been stated under the act if they are not happy with each other. A petition for divorce can be filled 1 year after marriage and its registration, in special cases petition may be filled before one year in the family courts. So, the different grounds of divorce by which the marriage may be dissolved as per section 13 of the act are:

  1. Adultery – the respondent has had voluntary sexual intercourse with a man or a woman other than the spouse after the marriage.
  2. Cruelty – the respondent has physically or mentally abused the petitioner.
  1. Desertion – the respondent has deserted the petitioner for a continuous period of not less than two years.
  2. Conversion to another religion – the respondent has ceased to be a Hindu and has taken another religion.
  3. Unsound mind – the respondent has been diagnosed since the marriage ceremony as being unsound of mind to such an extent that normal married life is not possible.
  4. Disease – the respondent been diagnosed with an incurable form of leprosy or has venereal disease in a communicable form.
  5. Presumption of death – the respondent has not been seen alive for seven years or more.
  6. No resumption of cohabitation after a decree of judicial separation for a period of at least one year.

In addition, a wife may also seek a divorce on the grounds that:

  1. In the case of marriages that took place before the Hindu Marriage Act 1955 was enacted, the husband was already married and that any other wife of the husband was alive at the time of the marriage ceremony.
  2. The husband, after marriage, has been found guilty of rape, sodomy, or bestiality.
  3. Co-habitation has not been resumed within a year after an order for maintenance under Section 125 of the Criminal Procedure Code or alternatively, under the Hindu Adoptions & Maintenance Act 1956.
  4. The wife was under-age when she married and she repudiates the marriage before attaining the age of 18 years.[2]

So, for divorce there are different rights which women have, divorce is one of the traumatized phases of a women’s lives and our laws outline different rights of a woman after the divorce which are as follows:

Maintenance Rights

It is a moral obligation of the husband to take care of his family which also includes his wife, but when the situation arises where both spouses decide for the dissolution of marriage for this relation being a quagmire. From one decision such marriage cannot be dissolved, but still the responsibility still there to comply with it, a man is obliged to provide allowances in form of maintenance to his wife. The physical needs that are food, shelter, clothes and other basic requirements for easy survival need to be provided to the dependents in form of maintenance.

Right to Maintenance of a married woman can be claimed by women when she is living separately from her husband even after the divorce or in between of divorce proceeding. It is the financial support from the husband such financial support is the right of women to maintain themselves and particularly provided in scheduled payments or in lump sum money. Under section 125 of CrPC is it stated and this rule of maintenance has been defined.

In special marriage, only the wife has been entitled to claim maintenance. But when the marriage is solemnized under the Hindu Marriage Act, 1955, the court will decide the seeker of alimony after scrutinizing the living conditions of both the spouses. The Grounds for awarding maintenance are stated under Section 13 of both the acts. But before providing maintenance assets and income of the wife are examined by the court. Even in the case of Muslims, they are entitled to maintenance, In the case of Shabana Bano v Imran Khan[3], Supreme Court held that a Muslim Women, who have no means of sustaining herself, can claim the maintenance even after the iddah periods gets over, according to Section 125 of CrPC.

Child Custody

As divorce is one of the biggest steps due to which both the parties suffer, the one who suffers the most after divorce is the child if the parties of divorce have any. A Hindu child’s custody is decided according to the Guardianship and Ward Act, 1890 which governs child custody in India in all laws. As per this act, a child below the age that has been specified for the child has to remain under the custody of the mother so as to provide emotional and moral grounds. It is the duty of the judiciary to decide and to ensure the best result in the interest of the child. Even the custody of a child can be a shift from one parent to another in some case but if that child is below the age of 5 years he has to stay in the custody of his mother and he can also stay with his mother till he attains the age of majority as stated under Hindu Minority and Guardianship Act, 1956.

It is also the right of a wife to have a child with him as a guardian of that child, the two major activities which have significance in such custody matter are the Guardianship and Ward Act, 1890 and the Hindu Adoption and Maintenance Act 1956 and when it comes to Muslim law after divorce the mother is having entirely custody of child, but not in that case if women is not sound mind, or she is no more, etc. as stated in the act.

Streedhan

Any kind of property that the bride receives at the time of marriage from relatives or from a father is known as Streedhan, it is completely different from dowry, it is a voluntary gift given to the wife before or after marriage and there is no element of coercion in it. The court clearly states that women will have absolute rights over the Streedhan even if it is placed in the custody of her husband or in-laws. This right of Streedhan is protected under Section 27 of the Hindu Marriage Act, 1955 and section 14 of the Hindu Succession Act. The wife is entitled to the right either to sell, alienate, use, or gift this property to whomsoever she wants.

Although she has not right in the property of husband after divorce and even the amendment made in 2013 that bill has now lapsed which was giving the wife right to claim or possesses 50% of husband’s residential or immovable property irrespective of the fact whether it is possessed before the marriage or after marriage.

So, these all are the rights of a woman having after getting divorced in India and she can claim these rights after divorce.

Conclusion

Marriage is called one of the divine bond of both partners as per Hindu religion and also as per act but if both of them are not happy with their marriage bond then the petition for the divorce can be filled and after having the divorce, still, women is entitled to her rights such as maintenance rights, child custody, etc. Still, after the divorce, they are entitled to enjoy their rights because in many studies it has been revealed that women’s rights are not only constrained by a uniform set of patriarchal norms but are also shaped and molded by several social, economic and political currents.

References

  1. https://www.shethepeople.tv/law-and-her/legal-rights-married-women-india/
  2. https://bnblegal.com/article/womens-rights-during-and-after-divorce-in-india/
  3. https://www.myadvo.in/blog/maintenance-rights-for-divorced-women-under-different-religions/
  4. https://propertyadviser.in/news/real-estate/property-rights-of-woman-after-divorce-2019-updated-56

[1] Article 44 of Constitution of India 1950

[2] Hindu Marriage Act, 1955

[3] AIR 1985 SC 945

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