Until the modern era, many women in India were not aware of their legal rights related to the institution of marriage and divorce. They were often tongue-tied and disposed to remain governed by social customs, lack of education, economic dependence, and patriarchal conventions, even if they were suffering abuse, desertion, or inequity. Marriage was often viewed as a sacred, permanent union, thus leaving limited involvement, freedom, or authority for women to question her customary role or expectation, or demand equality. Divorce, was often viewed as shameful and less respectable, particularly for women, and was an option very few women might consider.
However, with the ongoing evolution of India, legally and socially, a series of reforms were introduced to respect the dignity of women and recognize women’s rights of equality in a domestic relationship. Today, women can rely on several laws or special legislation in India that protect women’s interests in marriage, and provide relief and protection when they file for divorce. However, there are many women who remain oblivious to their rights and entitlements under the various laws.
Understanding your legal rights is not only beneficial, it is essential too. Know your rights to make informed decisions. Know your rights to take appropriate legal action or remedy if necessary. Know your rights to protect your future. This article, therefore, seeks to identify a women’s legal rights in relation to marriage and divorce under Indian law. The intention, is to make women aware of their rights and to empower them to stand up for their legal entitlements with strength and confidence.
Legal Framework Governing Marriage and Divorce in India
In India, there is a pluralist legal system in respect of, issues of marriage and divorce. Different religions have their own personal laws that govern marriage and divorce, and there are secular laws that exist for interfaith or civil marriages. The major laws are:
- Hindu Marriage Act, 1955 applies to Hindus, Buddhists, Jains and Sikhs.
- Muslim Personal Law (Shariat) Application Act, 1937 and Dissolution of Muslim Marriages Act, 1939 applies to Muslims.
- Indian Christian Marriage Act, 1872 and Indian Divorce Act, 1869 applies to Christians.
- Parsi Marriage and Divorce Act, 1936 applies to Parsis.
- Special Marriage Act, 1954 a secular law and provides for inter-religious (or civil) marriages.
In addition to these laws the Constitution of India provides various rights for gender equality. Article 14 provides for equality before the law, Article 15 prohibits discrimination based on sex, and Article 21 provides a right to life with dignity.
These laws are made to provide equity, protection, and justice for women, however effective implementation is often based on access to legal remedies which necessitates the need for women to be aware of the laws that protect their rights both within marriage and outside of it.
Legal Rights of Women in Marriage
Marriage is not just a social institution according to Indian law; marriage is also a legal relationship that creates rights and obligations. Over the years, legislation has evolved to address the needs of women in marriage and, in request to protect them from exploitation and lack of justice. The following are some of the significant rights that women have in marriage:
Right to Matrimonial Home
A married woman has a legal right to reside in the matrimonial home, regardless of whether the house is owned by her husband, his parents, or leased. Section 17 of the Protection of Women from Domestic Violence Act, 2005, guarantees a woman right to residence in her matrimonial home and to reside in the shared household even if she doesn’t have its ownership.
Right to Maintenance
A woman has the right to get maintenance from her husband while she is married. Maintenance includes feeding, lodging, dressing, medical, and basic survival and livelihood needs.
- Under Section 125 of the Criminal Procedure Code (CrPC), there are provisions for maintenance of any woman of any religion from her husband who neglects, or refuses to provide maintenance.
- Under Section 18 of the Hindu Adoption and Maintenance Act, 1956, a Hindu wife is entitled to maintenance both during a marriage and when living away from her husband when he has abandoned or cruelly treated her.
Right to Streedhan
Streedhan refers to all amounts gifted, including money, ornaments, and property sent to the woman before the marriage, at the marriage, or after the marriage. A woman has full ownership and control of her streedhan and cannot have it taken away by the husband or the in-laws. A misappropriation or refusal to return streedhan is treated under the Bharatiya Nyaya Sanhita (BNS), such as under section 316 for criminal breach of trust.
Protection from Domestic Violence
A married woman is entitled to protection from physical, emotional, sexual, and economic abuse, as defined in the Protection of Women from Domestic Violence Act, 2005.
The Act enables a woman to:
- request protection orders,
- reside in the shared household,
- receive monetary relief or maintenance, and
- receive compensation for distress.
The Act provides civil and emergency relief, which is vital for abused women in a marriage. The legislative rights seek to protect a woman’s dignity, ensure her well-being, and establish an equitable and equal status in a marital relationship. Knowledge of these rights is the first step to justice.
Legal Rights of Women in Divorce
Right to Apply for Divorce
- Under Section 13 of the Hindu Marriage Act, 1955, divorce is granted if the wife provides proof of: cruelty, desertion (a minimum of 2 years), adultery, conversion of religion, venereal disease, mental disease, renunciation of the world, or where the husband is unheard of for 7 years.
- Under Muslim law, divorce can be filed for Khula, or under the Dissolution of Muslim Marriages Act, 1939. For a woman to seek divorce under the Act must be based on sufficient grounds, and enough proof of one must be provided, which can include: cruelty, neglect, impotency, and neglect for maintenance.
- Under Christian law as per Indian Divorce Act, 1869, only a Christian married woman may seek divorce from her husband basis of the complete grounds of: adultery, cruelty, desertion and other grounds of conversion.
- The Special Marriage Act, 1954, a secular statutory law covering interfaith marriage or civil marriage mentions the same grounds for the divorce as in the Hindu Marriage Act, 1955.
Right to Alimony and Maintenance After Divorce
If a woman gets divorced, she obtains the rights to receive financial assistance from the husband in the form of maintenance or alimony which allows her to maintain her dignity after the dissolution of her marriage.
Permanent alimony is granted under Section 25 of the Hindu Marriage Act and Section 37 of the Special Marriage Act considering the following factors: wife’s financial needs, length of marriage, age of the couple, and husband’s earnings.
Muslim women are entitled to maintenance from her husband during the period of iddat (waiting period) under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Right to Custody of Children
- Women can claim custody of children after divorce. Indian courts proceed on the principle of best interest of the child rather than the rights of the parents.
- Any parent can approach the court for custody, which is governed by the Guardians and Wards Act, 1890.
- It is generally accepted that the mother should have custody of minor children or young children unless the court thinks otherwise.
- The mother may be provided sole custody, joint custody or prescribed visitation rights based on the welfare of the child and the willingness and ability of the parents.
Right to Residence and Protection
A woman, could continue to seek protection from her husband, if she continued to suffer abuse or threats, under the relatively newly instituted Protection of Women from Domestic Violence Act, 2005, even after a divorce was finalized.
A woman could also seek the following so long as it was safe for her to do so:
- Restraining Orders,
- Damages for harassment or emotional harm,
- Right to residence if the right to residence is important to her own safety or to her children’s safety.
These rights are meant to protect a woman from finding herself helpless, dependent and without support after the dissolution of her marriage. Access to legal support, as well as social awareness, will help ensure that the process of separation is respectful and fair.
Other Relevant Legal Protections
In addition to laws that provide a basis for marriage and divorce, Indian law offers a number of protections to ensure that women retain their dignity and can seek justice in the marital relationship. These laws afford protection from harassment and cruelty, and include provisions for seeking justice:
Right Against Dowry Harassment
The Dowry Prohibition Act, 1961 makes giving or taking dowry illegal and specifically mentions that a woman can lodge a complaint if she is harassed or abused by a husband or his family (either before, during or after her marriage) for dowry. The Dowry Prohibition defines dowry as any gift, cash or property that must be given as demanded by the groom or his family.
Section 85 of the Bns (Section 498A of IPC)
Section 85 of BNS is India’s ‘cruelty’ statue that deals with cruelty either by the husband or his relatives, which includes not only physical and mental abuse, but also demands for dowry, and enforces a woman to hurt herself or commits suicide. It is a criminal offence, and thus a complaint can be lodged by the woman, under section 85, which has enabled women to file FIR in any police station. The enactment of this section has enabled many women to seek justice from inhumane conduct from their husband or his family.
Free Legal Aid
Women are also entitled to free legal services through the Legal Services Authorities Act 1987, without regard to income. All a woman has to do is apply to the District Legal Services Authority (DLSA) and they will provide a free lawyer and assistance to file a case related to marriage, divorce or domestic violence.
The assistance provided by the DLSA complements the protections afforded by the marriage and divorce laws in order to create a fairer and safer environment for all women. Familiarity with their rights can be critical to how women choose to react to an injustice in their marital relationships.
FAQs about Womens rights in marriage and divorce in India
Can a woman reside in her husband’s house after the divorce?
Yes, according to the section 17 of Protection of Women from Domestic Violence Act, 2005, a woman has the right to reside in a shared household, even if it is owned by her husband.
Can a woman claim streedhan after divorce?
Yes, streedhan is a woman’s personal property which if withheld by in-laws after divorce can be claimed back under section 316 of BNS
Can a woman claim maintenance if she is working?
Yes, a woman can claim maintenance even if she is working, when her income is not sufficient to meet her basic needs.
What if the husband refuses to provide maintenance after the divorce?
The aggrieved woman can file a case under section 125 of CrPC (for all religions) or the applicable personal law, if her husband refuses to provide maintenance.