Divorce can be a difficult and emotional process for anyone. Still, for women in India, the added complexity of navigating a legal system that is often not in their favour can make it even more challenging. However, it is essential for women to understand their rights during this process, as doing so can help them to assert their rights and obtain the best possible outcome. In this blog post, we will discuss the rights of divorced women in India, including alimony, child custody, and property rights.
We will also provide information on legal resources and support available to divorced women in India. By the end of this post, you will better understand your rights as a divorced woman in India and how to assert them. The following are the rights granted:
Rights to Alimony and maintenance:
In India, it is conventional for husbands to provide divorce alimony to their wives during and after the divorce. This includes paying for the child or children's education and welfare support. Though getting Alimony is not an absolute right, the court awards it based on different factors and circumstances in every divorce case. It is given to the wife post-divorce till she dies or remarries. Usually, it is given to a wife with no working history or skills or who has left their profession post-marriage and needs financial support.
Many people think there is some fixed formula or calculation in the law under which the court of law calculates Alimony. On the contrary, India has no hard and fast rule to calculate Alimony. There are mainly two modes by which Alimony is distributed, either by giving monthly payments or by giving one lump-sum amount.
After receiving an application from either the wife or husband for permanent Alimony and maintenance, a court can order the respondent to pay the applicant such gross or monthly, or periodic sum based on the respondent's income and other property as the court determines it.
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 party (if a wife) has not remained chaste, or if the party (if a husband) has had sexual relations with any woman outside marriage, then it can modify or revoke the order.
Rights to child custody
Usually, child custody rights are granted to the mother when the child is below 5 years keeping in mind the emotional attachment a child has with their mother, it is considered essential for their growth and well-being.
You might be interested in: Child Custody in India : Types, Laws governing child custody
As a matter of Hindu tradition, the father is the natural guardian and ultimately has custody rights. In accordance with Section 6 of the Hindu Minority and Guardianship Act, 1956, the father is responsible for the custody of children above the age of 5 and below the age of 18. In a recent case, the 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 and in those cases, custody is given to the mother only.
Rights on property
In India, divorced women have the right to share the property acquired during the marriage. It's important to note that property laws may vary depending on the state or region, and the specific rules of the state or region should be consulted.
When Property is in the name of the husband
In the event of a mutual divorce between a couple, if the Property is in the name of the husband, the wife has no legal claim. However, if the wife can prove that she has contributed to buying that Property through bank statements or any other valid proof, she can have a claim over the Property.
When the Property is jointly owned
Nowadays, we witness many situations where the husband and wife jointly own the Property for various reasons like financial advantages, tax savings, etc. In this case, when the wife owns the Property jointly with her husband, the law allows her to claim division or title over it. Mostly, the claim depends on the amount contributed by the wife. The burden of proof lies on the wife to prove the extent of the contribution she gave to the Property, whether it is in the name of the couple jointly or the husband solely.
When the couple is separated but not divorced
As per the law, until the divorce between the husband and wife is not officialized, the wife and the children have all legal rights over the Property of the husband.
Rights of residence
Post-divorce, the woman should be allowed to live in a separate residence during this time period. There must be a right to a separate residence for the spouse even in cases of separation or desertion. According to Section 18(2) of the Hindu Adoption and Maintenance Act, 1956, a wife may be granted a separate residence based on certain grounds.
During her husband's lifetime, a Hindu wife has a statutory right to live separately without forfeiting her claim to maintenance. In order to qualify, she must meet one of the seven grounds listed under the section and must not cease to be a Hindu chaste.
Rights to Streedhan
Streedhan is movable property over which the wife has all claims including but not limited to jewelry, cash, cards, etc. All the gifts and jewelry given to a wife during the time of her marriage constitute to be Streedhan and post-divorce also, the wife has full claim over it. However, if the husband has contributed to it, he can claim it in court after the divorce.
In conclusion, the rights of divorced women in India have witnessed significant improvements over the years, as the legal system has recognized the importance of ensuring their welfare and empowerment.
If you are a divorced woman seeking clarity or assistance with legal matters, consulting with a knowledgeable lawyer specializing in family law is highly recommended.
