Indian Women’s Divorce, Financial & Property Rights

Divorce: Divorce is the legal termination of a marriage. Attitudes and beliefs toward marriage have evolved over time, and so have the divorce laws in India to reflect these changes. Understanding the new divorce rules in India is crucial in navigating the modern legal landscape. Historically, divorce was rare in India, with societal norms strongly favoring the permanence of marriage. However, as time has passed, there has been a noticeable shift in people's mindsets. Contemporary views on marriage, individual rights, and personal happiness have led to an increase in divorce cases. The evolving laws aim to address the changing needs and challenges faced by modern couples, ensuring fair and just resolutions in marital disputes.

Types of Divorce Petitions

1.       Contested Divorce: One spouse files for divorce, but the other spouse disagrees with the terms or the divorce itself. Court proceedings follow where both parties present arguments and evidence. The court decides on property division, alimony, child custody, and support.

2.       Mutual Consent Divorce: Both spouses agree to the divorce and its terms, including property division, alimony, and child custody. Generally faster and less expensive, avoiding lengthy court battles. In India, under Section 13B of the Hindu Marriage Act, 1955, both parties must have lived separately for at least one year before filing.

3.       No-Fault Divorce: Allows a couple to dissolve their marriage without proving wrongdoing by either party. Grounds include irreconcilable differences or an irretrievable breakdown of the marriage. Simplifies the process by not requiring proof of fault.

4.       Fault Divorce: One spouse alleges the other’s misconduct caused the marriage to fail. Common grounds include adultery, cruelty, abandonment, and habitual drunkenness. The accusing spouse must provide evidence to support their claims, making these divorces contentious and detailed.

5.       Summary Divorce: A simplified process for couples meeting specific criteria, such as a short marriage duration, no children, minimal property, and mutual agreement on terms. Involves less paperwork and fewer court appearances, making it quicker and more cost-effective.

6.       Default Divorce: Occurs when one spouse files for divorce and the other spouse does not respond or appear in court. The court may grant the divorce in favor of the filing spouse by default, expediting the process if the non-responding spouse is uncooperative or unreachable.

7.       Collaborative Divorce: Both spouses and their attorneys commit to resolving divorce issues outside of court through negotiation and cooperation. Focuses on reaching mutually beneficial agreements and maintaining a respectful relationship, especially when children are involved. If the process fails, involved attorneys must withdraw, and new legal representation is required for court proceedings

Finer points in Divorce

a) Jurisdiction: The district court where the couple last resided together has jurisdiction over divorce cases.

b) Residency Requirements: At least one spouse must have resided in India for a minimum of six months before filing for divorce.

c) Separation Agreement: The couple may try to reach a separation agreement, which will then be reviewed and approved by the court.

d) Mediation: The court may suggest mediation as a way to resolve disputes and reach a settlement.

f) Appeal: Either spouse can appeal the decision of the district court to a higher court if they are not satisfied with the ruling.

g) Waiving the Mandatory 6 Months Period for Rehabilitation: According to Section 13B (2), when couples move to the court for divorce with mutual consent, the court grants them a mandatory six-month period to consider any chances of reconciliation. This period is intended to save the marriage. However, as per the new rule, it is no longer mandatory and is left at the discretion of the court. The court may decide whether to order the six-month rehabilitation period based on the facts and circumstances of the specific case. This was observed in the Supreme Court ruling in the Akanksha vs. Anupam Mathur case, where the court waived the six months and ordered the dissolution of the marriage.

h) Irretrievable Breakdown of Marriage, a Valid Ground for Divorce: When a couple decides they cannot continue living as married partners, this situation is called separation or breakdown of the marriage. There are no separate rules for this issue in the divorce law; it is a matter of the court’s discretion whether the separation can form the ground for divorce. If the court believes there is no possibility of reconciliation, it can allow them to proceed with the divorce. In the Sangamitra Ghose vs. Kajal Kumar Ghosh case, the Supreme Court observed that the marriage was irretrievably broken down and ordered the couple to divorce on these grounds.

i) Child Custody and Support: The court will make decisions regarding child custody and support based on the best interests of the child. Both parents have a legal obligation to provide financial support for their children. Child custody in new divorce rules determines where the children will live and how decisions about their upbringing will be made. There are two primary types of custody: legal custody and physical custody. Legal custody refers to the right to make major decisions about the child’s life, such as education, healthcare, and religious upbringing. Physical custody refers to where the child will live and their day-to-day care. Custody can be awarded as sole or joint. Sole custody means one parent has primary custody, while joint custody means both parents share responsibilities. Courts decide custody based on the best interests of the child, considering factors like the child’s age, health, emotional ties to each parent, the parents’ ability to care for the child, and, in some cases, the child’s preference. Custody arrangements can be modified if there is a significant change in circumstances affecting the child’s well-being.

Grounds for Divorce

a)       Adultery: Both spouses can file for divorce

b)       Mental/Physical Cruelty: Includes physical violence, harassment, and mental torture, but now also includes withholding financial support or denying access to a child

c)       Desertion: Must have been for a continuous period of 1 year

d)       Conversion: Recognized as grounds for divorce, but requires a one-year separation period

Financial aspects of Divorce

Understanding these financial rights and taking the appropriate steps can significantly impact a woman’s financial stability during and after a divorce. Women often lack knowledge about their financial and legal rights during marriage and divorce proceedings. It's crucial for women to secure their financial rights and understand the steps necessary during a divorce. In India, wives have rights to a fair division of marital property, alimony (financial support) under certain circumstances, and child custody arrangements during a divorce. These rights are protected under various laws like the Hindu Marriage Act and the Code of Criminal Procedure. Here are the key financial rights and aspects involved in a divorce:

1.       Alimony: The Supreme Court of India has set a benchmark of 25% of a husband's net monthly salary as the minimum amount of alimony that should be paid to a wife if it's paid monthly. However, there's no set amount or percentage for a one-time settlement. The court may order one spouse to pay alimony to the other, depending on various factors such as the duration of the marriage, the earning capacity of each spouse, and the standard of living during the marriage.

2.       Maintenance: Women can file a petition under Section 125 of the Indian Penal Code to claim maintenance for themselves and their children during a legal separation. The petition must state the facts of the case and the need for maintenance and include proof that the woman can't support herself and that the husband can. The court may grant interim maintenance during the proceedings and may also determine a final amount of permanent maintenance to be paid monthly or as a lump sum for the rest of the woman's life.

3.       Streedhan: Women can also claim Streedhan, which includes gifts received before, during, and after marriage, such as jewelry, shares, and bonds. The Hindu Succession Act and the Hindu Marriage Act provide legal avenues for women to reclaim their Streedhan from in-laws if necessary.

4.       Property Settlements: Property settlements in new divorce rules involve the division of marital assets and debts between the spouses. This process aims to fairly distribute property acquired during the marriage, taking into account various factors such as the tenure of the marriage, contributions of each spouse (both financial and non-financial), and each spouse’s future needs. Property can include real estate, bank accounts, investments, retirement funds, vehicles, and personal belongings. Courts generally encourage spouses to reach an agreement through negotiation or mediation, but if they cannot agree, the court will decide based on equitable distribution principles or community property laws, depending on the jurisdiction.

Understanding these financial rights and taking the appropriate steps can significantly impact a woman’s financial stability during and after a divorce. Women often lack knowledge about their financial and legal rights during marriage and divorce proceedings. It's crucial for women to secure their financial rights and understand the steps necessary during a divorce.

Legal and Financial Steps

a)      Recognize Legal Marriage: Only a legally wedded woman is considered a "wife." According to Section 125(4) of the Code of Criminal Procedure, a wife cannot claim maintenance if she is living separately by mutual consent, but she can claim it if there is a divorce decree.

b)      Identify Financial Assets: Understanding which assets belong to them and which don’t is critical. Women should learn how to divide assets and property effectively.

Monetary Rights

a)      Maintenance and Alimony:

i.            Interim Maintenance: Provided during court proceedings to cover basic needs from the date of filing until the decree.

ii.            Permanent Alimony: Paid after legal separation as a lump sum or periodic payment. The court determines the amount based on factors like income, standard of living, and financial needs. Generally, it is 1/3rd to 1/5th of the paying spouse’s gross earnings or up to 25% of the husband's salary monthly, as per Supreme Court rulings.

b)      Child Support: Separate from alimony, child support covers the expenses for children’s needs.

Practical Advice

a)      Opt for Liquid Assets: Liquid assets are beneficial as they provide immediate financial security and flexibility.

b)      Lump Sum vs. Periodic Payments: A lump sum is often preferable as it provides certainty and is not taxable, unlike periodic payments which can be discontinued if the husband loses his job or delays payments.

c)       Forming a Trust with the Child as Beneficiary: In cases of mutual consent divorce, setting up a trust with the child as a beneficiary ensures the child's needs are taken care of if a parent passes away.

Asset Division

Property:

a)      If the property was bought by the husband during the marriage, the wife can claim it if she can prove her equity.

b)      For jointly financed properties, the house can be sold and the proceeds split according to each spouse’s share, or one spouse can buy out the other’s share.

c)       Right to Ancestral Property: A married woman is entitled to shelter and maintenance by her husband post-divorce. In a joint family, she is entitled to an equal share with her children and mother-in-law after her husband's death. Under the Indian Succession Act, 1925, she receives one-third of the ancestral property if there are lineal descendants; otherwise, she may receive half or the entire property.

Maintenance Rights under Hindu Law

Separate Residence: A married woman can claim maintenance while living separately without seeking a divorce under the Hindu Adoption and Maintenance Act, 1956. The law provides grounds for a woman to claim allowance if living with her husband is impossible but she does not wish to divorce.

Grounds for Awarding Maintenance

1.       Cruelty: Husband treated her with cruelty.

2.       Neglect or Desertion: Husband neglected her willfully or deserted her.

3.       Health Issues: Husband is suffering from any virulent leprosy or venereal disease.

4.       Bigamy: Husband has another wife living.

5.       Infidelity: Husband keeps a concubine in the house or resides with that concubine elsewhere.

6.       Religious Conversion: Husband converted to another religion or ceased to be a Hindu.

7.       Mental Health: Insanity can also be a ground for divorce if the husband has an unsound mind.

8.       Presumption of Death: If the wife has not heard anything about the husband for at least seven years.

9.       Legal Justification: Any other justification for separation valid in the eyes of law.

Limitations on the Act as regards financial claims

a)      Adultery: If the wife has an adulterous relationship with any other man during the marriage, she cannot claim maintenance.

b)      Religious Conversion: If the wife has converted to another religion and ceased to be a Hindu, she loses her claim.

c)       Legal Marriage: No claim is valid if there is no legal marriage or an existent matrimonial relationship.

Maintenance Rights under Muslim Law

A Muslim wife is entitled to the "dower or mehr" agreed upon at the time of marriage. After divorce, she is eligible for maintenance until the iddat period. Post-iddat, she can seek maintenance from her parents or the District Waqf Board under Section 4 of the Muslim Women (Protection of Rights on Divorce) Act.

Acts Protecting Muslim Women's Rights

The Muslim Women (Protection of Rights on Divorce) Act: Protects the rights of women divorced by their husbands. This Act nullified the decision in the Shah Bano case and does not apply to Jammu and Kashmir. It is administered by a first-class magistrate under the Code of Criminal Procedure, 1973.

Maintenance Rights under the Act

a)      Fair and Reasonable Provision: Muslim women are entitled to receive alimony from their former husbands during and after the iddat period.

b)      Supreme Court Ruling (Shah Bano v. Imran Khan): A Muslim woman with no means of sustaining herself can claim maintenance even after the iddat period as per Section 125 of CrPC.

c)       Maintenance from Relatives or State Waqf: If a woman cannot sustain herself post-iddat, the magistrate can order her relatives to pay maintenance, with them entitled to inherit her property after her death. If relatives cannot provide maintenance, the State Waqf can be ordered to pay the amount.

Ancestral Property Rights

In the Shah Bano case, the Supreme Court held that the husband must make a reasonable and fair provision for maintaining his former wife under Section 3(1Ha) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This period extends beyond the iddat, as the woman retains control over property and goods.

Maintenance Rights under Christian Law

The Indian Divorce Act, 1869 governs the maintenance rights of Christian women, where the husband is liable to pay maintenance for the woman’s lifetime.

Proceedings

Criminal or Civil Suit: Proceedings can be under either criminal or civil suit. Both types of proceedings can be carried out simultaneously. In criminal suits, religion does not matter, but in civil suits, it does.

Custody of Child under Muslim Law

a)      Guardian and Wards Act of 1890: Governs custody, known as Hizanat (infant care).

b)      Custody of Boys: Mother holds custody for boys below seven years old.

c)       Custody of Girls: Mother holds custody until the girl attains majority or puberty.

d)      Maternal Relations: If the mother is not alive or capable, custody passes to maternal relations. If not possible, custody is given to males.

e)      Father’s Custody: After the age of seven for boys and puberty for girls, the father, as the legal guardian, gets custody.

f)       Forfeiture of Custody: Rights can be forfeited if the mother marries someone not related to the minor, neglects the child, leads an immoral life, or stays far from the father’s residence.

Alimony under Christian Law

Section 37 of the Indian Divorce Act, 1869: A divorced woman can get alimony from her husband for her lifetime by applying for maintenance in a civil/high court.

How to Get Alimony If the Husband Refuses

a)      Court Order: If the husband refuses to provide maintenance, the wife can approach the court. The court can order the husband to make payments, considering the financial situation of the husband. The alimony should not exceed one-fifth of the husband's average income for the next three years preceding the order.

b)      Weekly or Monthly Payments: The court can order the husband to make weekly or monthly payments if reasonable. The court can also appoint a trustee to receive maintenance on behalf of the wife.

Right to Ancestral Property

Under the Indian Succession Act, 1925, when the husband of a woman dies, she is entitled to one-third of the ancestral property if there are lineal descendants. Without descendants, she may receive half or the entire property.

Maintenance under the Parsi Law

Parsi Marriage and Divorce Act, 1936: The court can award a maximum of one-fifth of the husband’s net income to a Parsi woman for her lifetime. Maintenance under Parsi Law is similar to Christian law, but the husband can also claim maintenance. The usual condition of chastity follows, and the amount cannot be more than one-fifth of the spouse’s income.

If the Husband Refuses to Pay Maintenance

a)      Court Imprisonment: If the husband refuses to pay maintenance after the court order, the wife can approach the court, which will imprison the husband until he pays.

b)      Recognition of Alimony: The Parsi Marriage and Divorce Act, 1936 recognizes the right of a married woman to receive both pendent alimony and permanent alimony.

Child Custody under Christian Law

Indian Divorce Act of 1869: Along with the Guardian and Wards Act of 1890, it governs child custody. The court can pass directions during or after divorce proceedings, deciding custody based on the child’s best interests.

CA Harshad Shah, Mumbai harshadshah1953@yahoo.com