Financial & other rights of Women in Divorce
The 2011 Census pegs the number of divorced people in India at 1.36 million, even as the number of divorcees has doubled in the past two decades, as per a recent report from United Nations. Numbers of women who are divorced and separated are far more than men because the men have married again. For non-working women, the situation after divorce is difficult. With no future income and a life span that is longer than men, the one-time settlement is often not enough. This is only one aspect they are ignorant about. What are the financial steps they need to take as soon as they realise there is trouble in the marriage? Which assets belong to them and which don’t? How should they divide the assets and property?
Recently, Honorable Supreme Court cut down Cooling off period for Divorce by 6 months under the Hindu Marriage Act 1976 and ruled that divorce can be granted to couples without the provision of mandatory 18 month separation period and held that the cooling off period of 6 months can be waived off by the courts with the mutual consent of the couples. Bench underlined that Section 13B enables the parties to dissolve the marriage by mutual consent if irretrievably broken down. Hence, it is not advisable to force the parties to accept matrimonial relation if they are unwilling to do so.
Normally, women do not know their financial or legal rights or how to secure these either when they are married or while they are going through divorce proceedings. They have to secure themselves financially and their rights during a divorce.
Legal Rights of a Wife
1. Right to Streedhan: Streedhan is the property that a woman obtains at the time of her marriage, it is different from Dowry in a way that it is voluntarily gifts given to the wife before or after her marriage and there is no element of coercion. The courts clearly say that women will have absolute rights over their Streedhan even if it is placed in the custody of her husband or in-laws. Jewellery, property and other valuables, including cash, appliances, gadgets, given to the woman at the time of marriage, before marriage or during the course of marriage, is part of “Streedhan”. This includes items given from family, relatives, friends, husband, in-laws and acquaintances. This also includes the woman’s earning before or after marriage as well as savings and investments made from her earnings.
2. Right to maintenance by the husband: Under Section 18 of the Hindu Adoption and Maintenance Act, 1956 a Hindu wife is entitled to claim maintenance from her husband in case if he is guilty of cruelty, desertion, polygamy or has a venereal disease, thereby enforcing her rights in divorce. Under Section 25 of this act, it provides for permanent Alimony and Maintenance of wife and child. This section allows any court which has jurisdiction under this Act to pass an order upon receiving an application from the aggrieved spouse directing the respondent to pay the applicant for her support and maintenance.
3. The right to live with dignity and self-respect: A wife has the right to live her life with dignity and to have the same lifestyle as that of her husband and in-laws. She also has the right to live free from any mental or physical torture.
4. Right to child maintenance: The husband and wife must provide for their minor child. If the wife is incapable of earning, then the husband must provide her with financial support.
Ø Maintenance and alimony
Ø Permanent alimony, interim alimony and child support
Alimony and maintenance is monetary compensation granted to a spouse who is unable to support herself. The compensation depends on the matrimonial laws specific to specific religions or civil laws like the Special Marriage Act 1954 and 125 CRPC.
Section 125 of the Code of Criminal Procedure, 1973 lays down the provision that states that when a man has sufficient means, he is liable to pay for the maintenance of his wife, children, and parents if they do not have any reasonable means to support themselves or suffer from any physical or mental incapacity. There is no limit of minimum or maximum maintenance under section 125 mentioned it depends on the economic condition and discretionary power of the court.
There are 2 types of alimony and maintenance, (1) the maintenance amount (called interim alimony and maintenance) is given during the time of court proceedings whereas (2) alimony (called permanent alimony and maintenance) is given after the legal separation. Thus, Permanent alimony is a provision that comes into effect immediately on dissolution of the marriage or judicial separation and the amount fixed by the court is required to be paid either as a lump sum amount or as a fixed periodic payment. These payments stop upon the death of either of the spouse or a date given by the judge.
Essential conditions for granting Maintenance:
a) The reasonable needs of the spouse who is claiming maintenance
b) The status of both the parties
c) The independent income and property that is owned and possessed by the spouse who is claiming the maintenance
d) The number of persons, the spouse who is providing maintenance, has to maintain apart from the claimant.
e) The lifestyle that the spouse claiming maintenance used to enjoy in his/her matrimonial home.
f) The liabilities of the spouse who is providing maintenance.
g) The provisions of the basic necessities of the spouse who is claiming maintenance such as food, shelter, clothing, medical needs, etc.
h) The Court may use its discretion when all specific sources of income of the spouse providing maintenance are undisclosed
i) The spouse paying maintenance must discharge the cost of litigation of the divorce proceedings
Interim Maintenance (pendente lite)
In a divorce proceeding, either spouse can seek relief if the Court is convinced of the insufficiency of income of the applicant under section 24 of the Hindu Marriage Act, 1955. Furthermore, interim relief can be provided to the applicant in order to meet his/her immediate needs. This relief is termed as ‘interim maintenance’ or ‘pendente lite’.
· In furtherance to the Hindu Marriage Act, 1955, interim maintenance can also be sought under section 125 of the Criminal Procedure Code by the wife regarding monthly allowance for maintenance.
· In a case where the wife does not have an independent source of income, the wife, under section 36 of the Special Marriage Act, 1954, can seek expenses from her husband under Chapter V and VI of the Act.
· Where the proceedings are pending under the Parsi Marriage and Divorce Act, 1869, either spouse can claim relief under section 39 of the Act.
· This provision is almost entirely similar to section 36 of the Special Marriage Act, 1954. Interim relief can be sought by Christians under section 36 of the Divorce Act.
· Each application filed for interim maintenance has to be disposed of within 60 days of service of notice to the defendant. This provision is uniform in all the legislations mentioned above.
Permanent maintenance is granted by the court as per the personal laws in force in India. Once the divorce proceedings reach an end, permanent maintenance is awarded under the following provisions:
1. Section 25, Hindu Marriage Act, 1955 – The applicant under this section is entitled to maintenance from the spouse. It should be paid either periodically or as a sum till the applicant either remarries or for his/her lifetime.
2. Section 18, Hindu Adoption and Maintenance Act, 1956 – Under this section, the wife is entitled to maintenance from her husband. Further, this provision defines the right of the wife to ask for separate residence in addition to the maintenance in case of any conditions of section 18(2) of the Act (desertion, cruelty, leprosy, any other wife/ concubine living in the same house, conversion of religion or any other reasonable cause) exists till the time she remains chaste or converts to another religion. In furtherance to this, section 19 of this Act provides for the maintenance of widowed wives and the responsibility rests upon her father-in-law.
3. Section 3, Muslim Women (Protection of Rights on Divorce) Act, 1986 – This section provides that the Muslim wife be provided with fair and reasonable maintenance within the iddat period by her former husband. The amount should be equal to the amount of mahr or dower agreed to be paid at the time of marriage. In addition to this amount, the wife is also entitled to all the properties, her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. In case of failure on part of the husband to pay the maintenance, the Magistrate has the power to order the husband to pay the same.
4. Section 37, Special Marriage Act, 1954 – this provision is entirely similar to section 40 of the Paris Marriage and Divorce Act, 1869 with the only difference of applicability of the Act. Under the Special Marriage Act, only the wife can seek maintenance from the husband from a Court having jurisdiction under Chapters V and VI of the Act. The order may alter or rescind in case the wife remarries or is not leading a chaste life.
5. Section 37, Divorce Act, 1869 – Under this section, the District Court is empowered to order the husband to pay a reasonable amount to the wife till her lifetime when a decree of dissolution or decree or judicial separation is obtained by her. Moreover, it is the responsibility of the Court to consider the fortune of the wife, the ability of the husband to pay as well as the conduct of the parties before passing such order. The Court may discharge or modify the order in case the husband is unable to pay the reasonable amount (as determined by the Court) in the future.
When does Maintenance rights cease?
The maintenance rights of a divorced woman shall cease when it is found that she has remarried someone or is involved with another person romantically or in live-in relationship. The husband, in such a case, can bring the matter before the court to modify or rescind the order of maintenance. She is also not entitled to divorce maintenance when she has a job and earns enough for maintaining a standard life. The definition of standard life is subjective in nature.
Grounds Maintenance can when wife be refused
There are certain scenarios where the wife can be refused maintenance:
1. Adultery: If the wife has committed an act of adultery during her marriage then her right to maintenance would be taken away.
2. Refusal to reside: In scenarios where the wife has, without proper reasons, refused to reside with her husband then she has to satisfy the court of the reason to do so.
3. Separate residence: If by mutual consent, both the wife and husband have been living separately then the wife shall not be entitled to any maintenance.
Order for Maintenance of wives, children & parents:
The obligation of the husband to maintain his wife arises out of the status of marriage, and it is a form of personal law. The right of maintenance does not only extend to the wife, but also to the dependent children and the parents who are unable to take care of themselves but the claim of maintenance essentially depends on whether the husband (bread winner) has sufficient means or not. The most important factor of maintenance is that the party who is relying on maintenance should not have any other source of income and is not dependent on anyone else.
· The person who is claiming maintenance can claim even if he/ she have a movable or immovable property, but the property should not yield any income.
· If any of the property of the claimant is able to yield income than he/she cannot claim maintenance.
· The amount of maintenance is not specified under any law, it merely depends on the discretion of the court and the financial condition of the maintainer and the status and comfort of the receiver of maintenance.
When is maintenance granted to the wife?
Under the various maintenance laws in India, maintenance after divorce is granted to the wife only on the following grounds:
1. If the husband has abandoned her or neglected her on his own will
2. If the husband has tortured her or subjected her to cruel treatment
3. If the husband is suffering from a virulent or venereal disease
4. If the husband is living with another wife
5. If the husband has a concubine which he keeps in the same residence where his wife lives, or he lives with the concubine at some other place
6. If the husband has changed his religion to any other religion
7. Any other reason that is justifiable for living in separation with her husband
Alimony or maintenance:
There is no fixed formula to decide the amount. There are a number of factors that are taken into account
1) Income of both of them,
2) Their standard of living,
3) Financial status,
4) Net worth,
5) Each individual’s financial need
The woman should get a sum in which she is able to maintain her existing lifestyle, take into account her longer life span and earning capacity. The court would decide on the maintenance by considering the husband’s income, the needs of wife, the liabilities, and wife’s earning capacity, among others.
The woman should also opt for as many liquid assets as possible, which will help her, restart her life afresh after divorce.
Broadly, it’s 1/3rd to 1/5th gross earnings of the spouse who has to pay when it’s a lump sum alimony and not more than 25% of husband’s salary as monthly maintenance as per a Supreme Court judgment.
However, if she is earning while the husband is not, she may be denied maintenance. If she is earning but unable to maintain a comfortable lifestyle, the husband will have to shell out money.
If the woman is earning and there is a substantial difference between her net worth and her husband’s net worth, she still may be granted alimony for the same living standards as her husband’s.
Alimony does not constitute child`s support, maintenance of children has to be provided separately. Husband is not required to pay regular maintenance to wife in case the wife remarries, though he is still supposed to pay a maintenance amount to support children.
Common sense says a lump sum amount is better than a periodic payment. After all, a rupee today is more valuable than a rupee tomorrow. Lump sum gives more certainty, plus it’s not taxable either. As far as regular fixed amount goes, it can stop after a while in case of the husband’s job loss. As regards periodical payments, husband may stop or delays the payment for his own reason and for that the wife would be required to approach the Court which may include attachment of his salary and Employer is bound by Court order to deduct the amount from husband`s salary.
If the property is bought by the husband while the two were together and he holds the title, the wife can make a claim if she can prove her equity in the property.
If a property is purchased and paid for by one person and the title is held by the other, the person in whose name the property is will be considered its legal owner.
If the house has been financed jointly through a loan, it can be sold and the money split as per the share of each spouse. If one spouse wants to retain the house, he or she can buy the share of the other and repay the loan. If, however, the husband refuses to pay the EMI, the entire responsibility of repaying the loan can shift to the wife.
Maintenance means an amount which husband has to pay to the wife for the Divorce. The main aim is to provide financial independence to the divorced women so as to facilitate convenience. Section 125 of Criminal Procedure Court provides remedy to those who are neglected and seek maintenance. Only a legally wedded woman is considered as a “wife”. According to Section 125(4) of the Code of Criminal Procedure, if both husband and wife are living separately with mutual consent, the wife cannot claim allowance from maintenance but a divorce decree by mutual consent to live separately cannot disentitle the wife to claim maintenance. The court can fix it at any amount, depending upon its discretion.
A divorce petition will be filed in a district court dealing with family matters. An interim maintenance is provided to the wife, in which an amount is to be paid from the date of filing of petition to the date of dismissal or decree. The aim of this allowance is to fulfill her basic needs during the pendency of the case. There are 2 conditions:
1. Working women cannot claim maintenance before divorce or without separation.
2. The wife has residence right till divorce, but no property right during lifetime of the husband.
Child Custody Rights
The custody of child in India depends upon the parents and religion. The custody of child in our country is governed by the personal laws of the religion practices with Guardians and Wards Act, 1890 which is applied to every citizen. While deciding the custody, the financial positions of the parents, background, lifestyle and welfare is taken into consideration.
Maintenance Rights of the Divorced Women under the different religions in India
Different religions operate under diverse laws but ultimately they all deal with the object of justice delivery and right of women. Under the ambit of personal laws in India there is a very important role of governing the relationship between a wife and a husband. Under these laws there is specific focus on the aspect of maintenance after divorce. Maintenance simply means the amount which is paid to the wife after divorce for her sustenance and well-being. The law has laid down certain rules to follow in case of providing a specified amount of maintenance, which is applicable due to terms & conditions.
Maintenance Rights under the Hindu Law
Right to maintenance is not a transferable right. A married woman can claim maintenance when she is living separately from her husband even if she is not seeking divorce under Hindu law alone. She is entitled to reside separately from her husband without forfeiture of her right to maintenance under Hindu Adoption Marriage Act, 1956. Sometimes it becomes impossible for a woman to reside with her husband but maybe she is not willing to break marriage relation because of personal reasons. So in that case, Hindu law provides certain grounds which are stated in the Act so as to claim allowance.
As per the Hindu Marriage Act, divorce maintenance is about the husband providing financial support for his wife’s living expenses. Generally, it’s not just the wife but the children and her parents are equally entitled to receiving financial aid from the father/husband/son-in-law.
Under the Hindu Marriage Act 1955, both husband and wife can ask for it. “But, it’s usually the woman who gets the maintenance from the husband. But there are cases (like husband’s physical disability that prevents him from earning) and the court has ordered the wife to pay maintenance.
Grounds for awarding Maintenance
1) Husband treated her with cruelty.
2) Husband neglected her willfully or deserted her.
3) Husband is suffering from any virulent leprosy or venereal disease.
4) Husband has any other wife living.
5) Husband keeps a concubine in the house or resides with that concubine somewhere else.
6) Husband converted to another religion/ceased to be a Hindu.
7) Insanity can also be a ground of divorce ( mental state and unsound mind)
8) Presumption of death: If wife has not heard anything about the husband for at least seven years.
9) Any other justification for separation valid in the eyes of law.
Additional Grounds of divorce
Wife has been provided additional grounds of divorce under Hindu Marriage Act of 1955 under section 13(2).
· Polygamous marriages.
· Bestial tendency of husband to rape, sodomize and torture.
· Repudiation of marriage.
· Maintenance order.
Limitations on the Act
· If the wife has adulterous relationship with any other man during the lifetime of her marriage then she cannot claim anything.
· If the wife has converted into any other religion and ceased to be a Hindu.
· If there is no legal marriage or non-existent matrimonial relationship, then no claim is valid.
Note: As a result of Judicial Activism, presumption of Marriage is held as more significant and bar on maintenance had been removed.
Maintenance under Hindu law:
· According to the Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 a divorced woman has a right to claim maintenance under the Hindu Law.
· Under the Hindu Marriage Act, if in any proceeding under this Act, the Court comes to the conclusion that either the wife or the husband has no separate source of income sufficient for their support, it may order for the payment of monthly maintenance to the petitioner through the respondent.
Right to Ancestral property
A married woman has to be provided with shelter and maintenance by husband after the divorce. If she is a member of a joint family then she will be entitled to equal share of the husband, jointly with his mother and her children(after his death).
Child custody under Hindu Law
A Hindu child’s custody is decided according to Guardian and Wards Act, 1890 along with Hindu Minority and Guardianship Act, 1956 which also includes Jain, Buddhists and The Sikhs. According to that the Hindu child below the age of 5 years has to remain under the custody of mother so as to provide emotional and moral grounds. The natural guardian is generally considered as father, otherwise mother. If the custody of the father is not suitable for the welfare of the child, or not better than that of mother’s, then cannot claim any indefeasible right. The custody of the child can shift from one to another, depending upon the welfare and secure future of the child.
Maintenance rights under Muslim Law
A Muslim wife is entitled to the “dower or mehr” agreed to at the time of marriage, and after divorce, she is eligible to maintenance till the iddat period. After this period, she can seek maintenance from her parents or District Waqf Board under Section 4 of the Muslim Women (Protection of Rights on Divorce) Act.
· The Muslim Women (Protection of Rights on Divorce) Act protects the right of women who have been divorced by their husbands.
· This Act was an outcome of the decision of Rajiv Gandhi Government to nullify the decision in Shah Bano case.
· It does not apply to Jammu and Kashmir. It is administered by the magistrate of first class exercising jurisdiction under Code of Criminal Procedure, 1973.
Maintenance under Muslim law:
1. Under the purview of Muslim law, a husband is supposed to maintain his wife and family, and the term maintenance signifies the amount he is liable to pay for the same.
2. The term used for maintenance under Muslim Law is called “nafaqa” and it involves food, sustenance, and lodging.
3. The wife is usually entitled to obtain maintenance from her husband, despite the fact that she has the appropriate means to maintain herself.
4. The law that governs the maintenance of divorced women is the Muslim Women (Protection of Rights on Divorce) Act, 1986.
5. A wife has a claim over a fair amount of maintenance by her ex-husband within the given iddat period
6. The husband is required to provide ‘Meher’ or ‘Dower’ as promised at the time of the wedding or anytime later
7. If during the divorce, the wife is pregnant, she can claim a fair amount of maintenance for at least 2 years from the date of birth of a child
8. If they had a child at the time of divorce, a wife can still claim maintenance for the child till the time she remarries or until the child is dependent
9. The marriage contract may also stipulate the payment of special allowances by the husband, and in presence of these, it becomes the obligation of the husband to pay these to the wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc.
10. Muslim woman is entitled to receive alimony from her former husband under a fair and reasonable provision during the iddat period and the obligation of the husband is not only confined to that iddat period, but also after that time.
11. If a women is not able to sustain her livelihood after iddah period, which she observes after death of husband or divorce, during which she cannot marry any other man, then the magistrate can order the relatives of the woman to pay the maintenance to her but they will be entitled to inherit her property after her death, as per Muslim Law.
12. But if relatives are not able to provide maintenance, then the magistrate can order the State Waqf to pay the amount.
NOTE: Muslim Women (Protection of Rights on Divorce) 1956 Act is retrospective in nature and husband will be liable to pay the maintenance (fair and reasonable provision) to the wife even if the divorce had taken place before passing the Act. Case: Hyder khan v. Mehrunnisa (1993)
Ancestral Property rights of wife in Islam
In Shah Bano case, the Supreme Court held that, it is the responsibility of the husband during the divorce to make a reasonable and fair provision to maintain the former wife under Section 3(1Ha) of Muslim Women(Protection of rights on Divorce Act, 1986. The period extends beyond Iddat as the woman retains control over property and goods.
Custody of Child under Muslim Law
1. It is governed by the Guardian and Wards Act of 1890 but separate act is not there. The custody of the child is known as Hizanat which means infant care.
2. In case of a boy below the age of 7, mother holds the custody (according to Hanafi School)
3. In case of a girl, custody remains with mother till she attains majority or puberty.
4. If mother is not alive or incapable, then the custody is passed on to maternal relations of the child. If not possible, then finally to males.
5. After the attainment of age 7 of boy and puberty of girl, the father, who is considered as legal and natural guardian, gets the custody.
6. The rights of the custody can be forfeited from the mother if she marries someone not related to minor, neglects child, leads an immoral life or stays far from father’s residence.
Maintenance rights under Parsi Law
Under the 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. Under Parsi Law, maintenance is usually similar to the Christian law but here the husband can also claim maintenance and the court cannot offer maintenance beyond the life of the person paying maintenance. The financial conditions of the husband, assets of the women and actions of the parties who are involved will be taken into consideration and it will remain in force till wife remains unchaste.
To claim maintenance
· Parties can claim maintenance by instituting criminal or civil proceedings simultaneously.
· The religion of the party holds no significance in criminal matter but this is not so in the case of civil action.
What if Husband refuses to give maintenance?
· If the husband refuses to pay the maintenance even after the order of the court, then the wife shall approach the court.
· The court will imprison the husband until and unless he pays.
· The Parsi Marriage and Divorce Act, 1936 recognizes the right of the married woman to receive both pendent alimony and permanent alimony.
Right to Ancestral property
Under the Indian Succession act, 1925, when the husband of a woman dies, then she will be entitled to one-third of the total amount of the ancestral property if there are other lineal descendants but if there are no descendants, half property will be given to her, otherwise, entire property.
Custody of Child under Parsi Law
It is dealt according to the instruction prescribed in Guardian and Wards Act, 1890. As the welfare of the child is of utmost importance and so, no custom or religious tradition can become an obstacle in the custody of the child
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 till a woman’s lifetime.
· Proceedings can be under either criminal or civil suit.
· Both criminal and civil proceedings can be carried out simultaneously. In criminal, religion does not matter, but in civil, it matters.
· Under the purview of Christian Law and maintenance, the Indian Divorce Act plays an important role.
· The amount of maintenance mentioned in the act dictates that it cannot be more than one-fifth of the husband’s income. The precondition here is that the woman should not remarry and stay chaste.
· The amount of permanent maintenance depends upon factors like husband’s income, wife’s own income, property, the behavior of both, the wife and husband, etc.
What if woman is not able to sustain herself after divorce?
Under Section 37 of the Indian Divorce Act 1869, divorced woman can get alimony from the husband till her lifetime by applying for maintenance in a civil/high court. But it is valid only for those who are Christian.
How to get alimony in case husband refuses
· If husband had refused to provide maintenance, then wife can approach the court, which in turn, can order the husband to make payment, provided that the court is satisfied with the veracity of statements.
· The alimony should not exceed one-fifth of the income of the husband’s average income for the next three years preceding the order and shall continue till decree of nullity or dissolution of the marriage.
· Court can also order the husband to make weekly or monthly payments to the wife, if reasonable, taking into consideration the financial situation of the husband at that point of time.
· Can order the husband to give maintenance to the trustee of the wife on her behalf.
Right to Ancestral Property
Under the Indian Succession act, 1925, when the husband of a woman dies, then she will be entitled to one-third of the total amount of the ancestral property if there are other linen descendants, but if there are no descendants then she half property will be given to her, otherwise, entire property.
Custody of Child under Christian Law
It is governed by Indian Divorce Act of 1869 with Guardian and Wards Act of 1890. The court can pass direction either at the time of proceeding or after the decree for divorce, according to its discretion. Also, section 41, 42 and 43 of the act confers the power to the courts to decide the child custody of a Christian or any other child not covered under the personal laws.
Marriages under the Special Marriage Act, 1954
Special Marriage Act, 1954 also allows a divorced wife to claim maintenance and support by charging a quantum on husband’s property depending on the husband’s ability to pay, his property, wife’s own wealth, property and assets, the conduct of both the parties and any other just circumstances. The district court of apt jurisdiction where the application for maintenance is submitted can rescind, modify or vary its order/decree if it is convinced that there is a change in circumstances of either party at any time after the order is passed or if the divorced woman doesn’t remain chaste or single.
Inputs to Women getting divorced
Often women are so blinded by emotions that they neglect the upcoming divorce, even if they sense it, leaving them unprepared and ultimately ruined; financially and emotionally. Your life will be turned upside-down by your divorce, so at least ensure that you are left with enough support to deal with aftermath of divorce. Being a woman, emotions are primary to you. But dealing with divorce means putting aside emotions and thinking logically, step-by-step, about what it will cost you, financially, socially and legally.
1. Get yourself Acquainted – Most women, especially in India, consider marriages to last forever. Believing this, they often leave the financial matters completely and solely in their husband’s hand. This leads to women getting divorced financially insecure. So, get your facts about finances right like income of your husband, tax-payments, loan installments, FD, credit balance and disposition, bank accounts and monthly bills.
2. Apart From Income – It is a grave mistake to ignore marital properties, assets like jewellery, car, and insurance policies. They add up in providing financial support when deciding for alimony and child support. Keep track of your husband’s investments in stocks and mutual funds. However, women in India are hardly aware of their rights and are often taken for a ride by their husbands. Indian women should keep tab on all resources, and not feel guilty of spying.
3. Ask for Maintenance – While you are preparing for divorce, filing and hiring a lawyer, your funds will burn quicker than you realize. Though you may have support of your family, it is good to ask for maintenance from the court. In India, more than depending on the need of women getting divorced it depends on other factors like how much your husband is willing to co-operate. Indian law however provides for Indian women to be maintained while waiting for divorce.
4. Value Your Contribution – It so happens with women that, they often invest not only emotionally in the making of a home but also financially, which goes down the drain once your marriage is on the divorce track. Under the Hindu law, women are entitled to keep all articles, moveable or immoveable, to her after marriage.
5. Document Your Communication – It is crucial to jot down the communication of any kind, letters, phone calls, however they enrage you. They can be important to strengthen your case against your husband and especially if it documents any kind of threat or abuse. Indian women have deep-seated respect for their husband and exploiting family name in court is looked down upon by in-laws and society. What Indian women need to keep in mind is that they should worry about themselves rather than a family who won’t be theirs anymore.
6. Being Independent – Most women in India are not working when they are married, either they have never worked or they give up their career for the sake of husband or society or family needs. This is the time for them to re-consider their options of working. Brush up your talents and skills that you think can earn you your bread. Working not only gives financial independence, though it is a major benefit, but also opens up many doors like not worrying about where to live. If your family is supporting you for a while, don’t hesitate to accept but do not become dependent on your father or your brother.
7. Forming a Trust where Child/ren are Beneficiary/es: In case of a mutual consent divorce, a good option is to consider setting up a trust with the child as a beneficiary. This will ensure that the child’s needs are taken care of in case a parent passes away.
IPC Section 498A
According to the Indian Law, IPC Section 498A states that “Husband or relative of husband of a woman subjecting her to cruelty, shall be subject to imprisonment for a term of 3 years and shall also be liable to fine.” As of today though, Section 498 A IPC is used by a woman in India to file a complaint against her husband for mental, physical, and psychological or any other agony or harassment and the punishment for 498a case under the IPC is also known well to the society due to the build-up of so many 498A cases coming in the limelight. Today, every woman understands its use and holds it as a weapon against any sort of matrimonial cruelty, as it is a cognizable, non-bailable and non-compoundable offense in India.
Somewhere down the line, no one can deny that women are more often victims when compared to men, but when it comes to false allegations, men are more prey to it. Section 498A IPC is made to protect the women who actually face troubles from the husband and his family, but increasingly, the number of innocent men & their families tortured through this law has been seen.
The last 7 decades of Indian history have seen many women protection laws being made and amended, only from a perspective to uplift and protect the rights of Indian women. However, during the last few years, several activists have been raising their voices against such biased laws and recommend harassed women to get divorced via divorce process India.
In the past few years, it has been seen that there has been a rise in the misuse of Section 498 IPC and cases of false 498A have much increased. In the absence of a clearly defined and easy mutual divorce process, 498A often becomes an easy choice to settle scores. It’s been observed that these laws don’t protect or acknowledge the abuse done to men when compared to women, showing a clear disparity in the system.
Misuse of Section 498
Here in India, you will often come across the phrase - “Log kya kahenge” (i.e. what will people say?), which somehow finds more value than what one is subjected to bear when it comes to registering a police complaint or even fighting a court case. While we all have heard people saying, “Men deserve this treatment” especially after all the things they have done to society and the disrespect they have shown to women, the public opinions play a great role of significance especially in a democratic or patriarchal society like ours. With so many cases coming up under this section, it’s alarming to see the rate at which false allegations are rising, after the fallout of marriage or any relationship due to insecurities a woman feels, with the fear of being rejected.
Section 498A instantly offers an umbrella of protection to women, while putting the husband and his family behind bars, with immediate effect. However, over time, understanding the frequent misuse of this section has led the Law to amend it and today, the husband or his family do not have to bear the shame in society, in case of false accusations.
Ways to ease the blow of a 498A case
There are some easy to follow ways, where not every time men can be blackmailed against these laws. Section 498A punishment may state that if a husband or relatives/family of the husband is found to subject the wife to cruelty, then they will be imprisoned for a jail term of three years with a liability to fine.
However, the law which is meant to protect women, if misused then a new set of directions has been implemented by the Supreme Court to prevent this from happening.
According to the recent order, “Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such a committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication. Report of such committee is given to the Authority by whom the complaint is referred to it the latest within one month from the date of receipt of the complaint. The committee may give its brief report about the factual aspects and its opinion on the matter. Till report of the committee is received, no arrest should normally be made. The report may be then considered by the Investigating Officer or the Magistrate on its own merit.”
The Supreme Court had issued certain guidelines for the enforcement authorities for dealing with 498A cases in India which are:
a) In every district, 1 or more Family Welfare Committees must be established by the District Legal Services Authorities to deal with cases filed under Section 498A.
b) All complaints under Section 498A IPC received by the police or Magistrate must be sent to the committee.
c) The committee must look into the matter and send a report on it within 30 days to the authority that referred the complaint.
d) No arrest must be made until a report is sent by the committee.
e) If an anticipatory bail for 498A is filled with one day’s notice, it must be decided within that time frame only.
f) Personal appearance of all family members may not be required in court and appearance by video conferencing must be allowed for outstation family members.
How to seek protection against Section 498A IPC?
It has however been seen that Indian laws have several loopholes that need to be identified. Below is a list of legal remedies that one can use for protection against section 498A IPC if a woman decides to misuse the law and threatens to register a false case against you for personal gains.
Ø Collect all Evidence & Documents: The first step in proving a false accusation would be to gather all substantial material elaborating well on the 498A case details. You must start collecting as much evidence as possible, which includes:
a. Any conversation between you or your family member with your wife or her relatives like any SMS, emails, letters, call recordings, etc.
b. Any evidence that proves that your wife moved willingly out of your house.
c. Any evidence that shows no demands for dowry were made before or after the wedding
Ø Get an Anticipatory Bail: If you think your wife may file an FIR under Section 498A, hire a criminal defense lawyer and get an anticipatory bail to prevent yourself or your family member’s arrest. Anticipatory bail is like a precautionary bail in case police move ahead to arrest you or your family members. You can file for anticipatory bail for protection against section 498A IPC case under Section 438 of CrPC.
Ø Get the 498A FIR Quashed: You can also get the false 498A FIR quashed by High Court under Section 482 of CrPC. Courts are generally reluctant to quash an FIR or interfere in the law and order process, but if you have sufficient proof, the court has the power to quash the false 498A FIR filed by your wife.
Ø File an FIR against your wife for false 498A complaint: You can also file an FIR against your wife for blackmailing or filing a false 498A case against you. Police in India usually do not favor such FIR, but if you make your case foolproof, the police cannot deny you to file an FIR against your wife. Get your complaint drafted by a good criminal lawyer so that the police cannot reject it on any grounds. If the police refuse to register your FIR, you can file a written complaint against the police officer, with the Superintendent of that police station.
Ø File a case for Restitution of Conjugal Rights: If your wife has left her matrimonial home and went back to live with her family, you can file a case for RCR i.e. restitution of conjugal rights against your wife under Section 9 of Hindu Marriage Act. You can mention all the terms and conditions that she’ll have to follow to start living with you once again.
Ø File a defamation case against false 498A case: You can also file a defamation case against your wife for maligning your image by filing a false 498A case against you.
While fighting the 498A case, the duration of the case will depend largely on the evidence produced before the court and how efficiently your lawyer fights in the court representing your case.
Fundamental Rights Guaranteed
If a woman has been harassed for dowry or threatened for the same, before, during or after marriage, her husband, his family or in-laws can be subjected to punishment under the dowry act, 498A and even Section 304A, (in case her life has been threatened).
Yet, despite the lack of legal protection against section 498A IPC case, there is a list of sections which are identified which might be helpful in this case, if you wish to file a counter case against your wife such as:
a) If your wife is trying to conspire a crime against you, then under Section 120B IPC, you can file a case against her.
b) If you suspect that false evidence is being framed or presented against you then under Section 191 IPC, you can file a case alleging that you are being framed wrongfully.
c) Man being a social animal, reputation is everything for him. So if she threatens you to defame or falsely drag you and your family to court, you can file a counter case of defamation under Section 500 of IPC.
d) In a situation where your wife threatens you to do harm to you or your family or anything related to you, gather the evidence and present it to court under Section 506 of IPC.
e) If you believe that the complaint registered by your wife is false you can file an application under Section 227 stating that the 498A case filled by your wife is false.
f) If you have enough proofs, or if she does not have enough proof to substantiate the charges, chances are that the judge just dismisses the 498A case as it is a framed one.
g) If she breaks into your home, creates a scene, and goes to a 'protection officer' and lies that you abused her 'physically, emotionally, or economically', file a damage recovery case under Section 9 of CPC against her.
h) Legally, you must issue notice on the same day or the next day. The suit will continue for a long time. It has no risk.
Taxation of Alimony & Maintenance
It is said marriages are made in Heaven but separation happens much closer to tax authorities!
1. In case of a lump sum payment of alimony is treated as a capital receipt, and therefore it is not treated as income and not taxable.
2. In case of recurring payments of alimony is considered as a revenue receipt & is taxable. But the person who makes the payment of alimony cannot it as deduction against in his return.
3. Interim maintenance paid during divorce proceedings would not be taxable as it is a capital receipt in the hands of women.
4. Alimony Paid through transfer of Asset Other Than Cash prior to the divorce will be exempted from tax as it will be treated as a gift under Section 56 (ii). However, post-divorce, the “relative” aspect of the transaction ceases to exist, and therefore, such transfer is referred to as taxable in the hands of the recipient.Further, as long as the marriage exists, any income earned from the asset transferred will be clubbed along with the income of the spouse who transferred the asset.
Bottom line: If you are going to receive alimony payments, insist on lump sum payment and avoid the taxman!