Financial rights of women in Divorce

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.

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.

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.

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?

Monetary rights:

Ø Maintenance and alimony (called interim alimony and maintenance) is given during the time of court proceedings

Ø Permanent alimony, interim alimony (called permanent alimony and maintenance) is given after the legal separation

Ø child support

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.

Permanent alimony

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.

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.

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.

There is no fixed formula to decide the amount. There are a number of factors that are taken into account like income of both of them, their standard of living, financial status, net worth, as well as each individual’s financial need. 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.

As per a Supreme Court ruling, 25% of the husband’s income is considered a just amount to be given as maintenance. 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.

The woman should also opt for as many liquid assets as possible, which will help her to restart her life afresh after divorce.

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 also. 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.

Property: 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.

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). 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, her half property will be given to her, otherwise, entire property.

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.

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.

Grounds for awarding Maintenance are listed below

· Husband treated her with cruelty.

· Husband neglected her willfully or deserted her.

· Husband is suffering from any virulent leprosy or venereal disease.

· Husband has any other wife living.

· Husband keeps a concubine in the house or resides with that concubine somewhere else.

· Husband converted to another religion/ceased to be a Hindu.

· Insanity can also be a ground of divorce ( mental state and unsound mind)

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

· Any other justification for separation valid in the eyes of law.

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.

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.

Which Act protects the rights of women under Muslim Law?

· 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.

How this Act protects the right to maintenance of women?

· As per Section (a) of this Act, 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.

· In Shabana Bano v Imran Khan, Supreme Court held that a Muslim Women, who has no means of sustaining herself, can claim the maintenance even after the iddah periods gets over, according to Section 125 of CrPC.

· 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.

· 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.

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.

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.

Which Act protects the rights of women under Muslim Law?

· 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 is under which proceedings?

· 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.

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 linean descendants. But if there are no descendants, her half property will be given to her, otherwise, entire property.

Custody of Child under Muslim Law

· 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.

· In case of a boy below the age of 7, mother holds the custody (according to Hanafi School)

· In case of a girl, custody remains with mother till she attains majority or puberty.

· 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.

· 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.

· 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 under the 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 usual condition of chastity follows and the amount cannot be more than one-fifth of the spouse’s income.

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.

Maintenance rights under Christian Law

Maintenance is under which proceedings?

· 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.

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.

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.

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