Introduction:
Both men and women in society have their rights, whether it comes to marriage or the dissolution of marriage. There are many reasons for divorce, like lack of compatibility between the husband and wife. Women are usually considered as a weaker section in society and a divorced woman, even weaker. Even though the woman becomes weak mentally and emotionally, she cannot be deprived of certain rights even after divorce. Further, in the article, we will look at the post-divorce rights available to Hindu women, Muslim women, and Christian women.
Post-Divorce Rights under Indian Law:
1. Maintenance Rights:
Maintenance is an amount given by the man to the woman after divorce so that the woman is not financially dependent on the man, anymore. Section 125 of the Cr.P.C.[1] lays down the remedies available to women who are financially weak and need maintenance. Sub-section 4 of 125 Cr.P.C[2] states that if the husband and wife are living separately with mutual consent, the women are not entitled to any maintenance. However, this decree of mutual consent does not abstain from asking for maintenance. The amount of maintenance is fixed at the court’s discretion.
2. Custody Rights:
The custody rights of the child are vested with both the wife and husband. The religion and the parents are the primary factors of this decision. The personal laws are looked at in consonance with the Guardian and Wards Act, 1890.[3] This act applies to every citizen. The factors such as financial capability, the background, and the parents’ lifestyle are also considered.
Post-Divorce Rights of Hindu women:
1. Right to Streedhan:
Streedhan is the property the woman has received from her parents, in-laws, and the other third parties in the form of gifts. Women can demand their streedhan under Section 27 Hindu Marriage Act.[4] Section 14 of the Hindu Marriage Act[5] also provides for such provision. To eliminate the multiplicity of cases, the SC in Sangita Balakrishna Kadam v. Balakrishna Ramchandra Kadam[6], held that either party could apply under the Section 27 Hindu Marriage Act[7] to claim the property given at the time of marriage. This way, a woman can demand the recovery of property under a single application itself.
2. Right to Joint Property:
Section 27 Hindu Marriage Act[8] provides the spouses with the right to a division of property given to them at the time of marriage. Such property includes the properties which are given for the use of both, even though it is registered in the name of the husband only.[9] The idea behind this is to ensure the equal economic positions of the spouses after the divorce.[10] The amount received by the woman from the property is equal; the same is also considered while calculating alimony.[11] Hence, this reduces the amount of alimony and poses a disadvantage to women.
Right to Maintenance and Alimony:
1. Interim Maintenance:
Divorce proceedings go for an extended period. At times the women cannot afford the expenses of such lengthy proceedings so, she can claim for interim maintenance under Section 24 Hindu Marriage Act.[12]
2. Permanent Maintenance:
Section 25 Hindu Marriage Act[13] provides for the application of permanent maintenance or alimony. Alimony is granted after the divorce, and then the interim maintenance is stopped. Permanent maintenance usually focuses on a bigger picture to support the wife for life and hence, is larger than the interim maintenance.[14]
3. Child Custody Rights:
The parents of the child can apply for custody under Section 26 Hindu Marriage Act[15]. During this process, the Hindu Minority and Guardianship Act, 1956[16] is also looked at. The main aim of granting custody rights is to ensure the welfare of the child.[17]
Post-Divorce Rights of Muslim Women:
1. Right to Dower:
Dower or Mehr is the amount that is given to the wife at the time of marriage by the husband. The payment of dower aims to ensure that the spouses are equal, and the wife is not a salable commodity.[18] This sum is payable to the wife and not her parents. Furthermore, this sum is not payable back at the time of divorce.[19] The amount is fixed by the husband and can increase after the marriage. If the amount is not pre-determined, then the wife will receive a dower based on the husband’s wealth.
2. Right to Property:
The Muslim Women (Protection of Rights on Divorce) Act, 1986[20] lays out the provisions regarding women’s right to property after divorce. If the property was received for the use of both, but only in the name of the husband, the wife is entitled to that property.[21] There is no provision for property acquired by the husband in the name of the wife. Hence the wife does not get the property wholly or partially.[22]
3. Right to Maintenance:
The Islamic law does not entitle or prohibit the women from receiving maintenance after divorce, though it allows full maintenance during the iddat period. Section 125 Cr. P.C.[23] provides that a Muslim woman is treated like a wife if she does not remarry and is entitled to claim for maintenance.[24]
4. Right to Child Custody:
The Islamic law provides that the mother has custody of the female children until they reach puberty and male children until they become seven years of age. This right stays even after the divorce, but if she remarries, the right gets deferred to the father.[25] While deciding the custody, the main focus is on the welfare of the child, and it is of utmost importance that which parent will able to look after the children better. This decision is purely based on the discretion of the court.
Post-Divorce Rights of Christian Women:
1. Right to Maintenance:
The Section 37 Indian Divorce Act 1869[26] provides the wife with the right to demand maintenance for a lifetime if she is unable to maintain herself. She can do so by applying to the civil/high court. Moreover, this provision applies only to Christian women.
2. Right to Child Custody:
Sections 41, 42, and 43 of the Guardian and Wards Act, 1890[27] are exclusively for children who are Christian or belong to any other religion, not governed by personal laws. At the time of granting custody, the Indian Divorce Act, 1869, is read along with the Guardian and Wards Act, 1890. The custody can be granted after the decree of divorce or while the divorce proceedings are going on.
Conclusion:
The rights of women after divorce are pretty much similar in the various personal laws. The main aim of the particular laws is to ensure spouses’ economic equality after divorce so that neither of them is left alone in a disadvantaged position, post-divorce. In addition to this, if the woman is not able to maintain herself, there are provisions in every personal law regarding the maintenance to the wife of the standard and status; she is used to living in during the marriage. Clear rules are made regarding the custody of the child. Court has a full-proof discretion, and the welfare of the child is considered of paramount importance. Hence, the laws are equitable and provide the necessary rights to women, which ensure women’s welfare post-divorce.
References:
[1] The Criminal Procedure Code, 1973, §125.
[2] The Criminal Procedure Code, 1973, §125(4).
[3] The Guardian and Wards Act, 1890.
[4] The Hindu Marriage Act, 1955, §27.
[5] The Hindu Marriage Act, 1955, §14.
[6] Sangita Balakrishna Kadam v. Balakrishna Ramchandra Kadam AIR 2005 Bom 262
[7] Supra note 4.
[8] Supra note 4.
[9] Anju Bhargava v. Rajesh Bhargava, 1986 ILR 2 Delhi355, ¶ 14.
[10] Jhuma Sen, Matrimonial Property Rights: Is Indian Ready for a Law? available at http://docs.manupatra.in/newsline/articles/Upload/F2587F8B-1162-415A-8E76-6F4019530939.pdf (last visited on 7 June, 2020).
[11] Sangeeta Chaturvedi v.Manoj Chaturvedi, 2016 158 DRJ 481, ¶10.
[12] The Hindu Marriage Act, 1955, §24.
[13] The Hindu Marriage Act, 1955, §25.
[14] ASHUTOSH MOOKERJEE, MARRIAGE SEPARATION AND DIVORCE, 147 (1 ed.,1986).
[15] The Hindu Marriage Act, 1955, §26.
[16] The Hindu Minority and Guardianship Act, 1956.
[17] Rohit Dandekar v. Raj Kavitha, AIR 2003 Kant 511.
[18] Sir Dinshaw Fardunji Mullah, Principles of Mahommedan Law, 540 (20th edn., 2013).
[19] Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AIR 945.
[20] The Muslim Women (Protection of Rights on Divorce) Act, 1986
[21] Kumud Desai, Indian Law on Marriage and Divorce, 381 (8th ed., 2011).
[22] Majitha Beevi v. Yakoob, (1999) II DMC 699 Ker.
[23] Supra note 1.
[24] Supra note 18.
[25] Abdulsattar Husen Kudachikar v. Shahina, AIR 1996 Bom 134.
[26] The Indian Divorce Act, 1869, §37.
[27] The Guardian and Wards Act, 1890, §41, §42 & §43.
This article is authored by Priyanshi Jain, First-Year, B.A. LL.B (Hons.) student at The West Bengal National University of Juridical Sciences.
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