In Indian society, woman occupies a vital position and vulnerable place. The Vedas glorified women as the mother, creator and the one who gives life and worshipped her as Devi or Goddess. The constitution of India guarantees the Article 14 right to equality before law and Article 15 which prohibits unreasonable discrimination between persons, it not only grants equality to women but also empowers the state to adopt measures of positive discrimination in favour of women.
Rightly did Swami Vivekananda say ‘ Just as a bird can not fly with one wing only, a Nation cannot march forward if the women are left behind’. The relation of male and female is very well illustrated in our Nyaya Darshan by the analogy of mind and matter, which means that man and woman are closely associated with each other, as the soul body. There is no doubt that we are in the midst of a great revolution in the history of women. The evidence is everywhere; the voice of the woman is increasingly heard in Parliament, courts and in the streets.
As rightly said by Justice Chandrachud “The fight for gender equality cannot be fought by women alone, men have a key role to play in demanding and supporting this societal shift by being a part of the conversation and of the movement”
Here, The talk I delivered in the session organized by Adhivakta Parishad where I discussed the legal rights of those women who are divorced, unmarried and widow, in other words, a legal rights /status of a single title woman. The women’s right is protected under several legislations and the importance of legislation has been extended by new and changing laws on the protection of women’s rights.
* Right of Divorced Women
So, Let me tell you one of the stories – A lady in the room full of people, asked about her marital status, She said that ” I am divorced.” All those who claimed to be like her company lost their interests. All the eyes full of questions, those fingers pointing out at her, those screams, allegations and disasters, she has been through could be felt by her at that moment. People marring and then laughing. Men at her looking like the object. She knew that again she is not accepted.
Who knows why she has left? We don’t know her story. If I talk about Indian society, it is not easy for every woman to initiate herself for the divorce and we don’t know what she has been through. Even if she initiated it, it was her personal choice. The law gives her a Right of divorce if she is not able to live with her partner due to any sufficient reason, she has a right to get separated and lead a happy life.
Recently on 11 September, in the case of Amardeep Singh vs Harveen Kaur, 2017 The Hon’ble Supreme Court cut down the cooling-off period for divorce by six months under the Hindu Marriage Act and ruled that divorce can be granted to couples without the provision of mandatory of 18 months separation period in the mutual consent cases.
As per the maintenance laws and rights, it is the duty of the husband to pay his wife a lump-sum or monthly payment, without divorce or after the divorce. 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.
The law that governs the maintenance of Muslim divorced women is the Muslim Women (Protection of rights )on divorce act 1986. A wife can claim over a fair amount of maintenance by her ex-husband within the given iddat period that is the 4 months, 10 days. 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.
The court also uphold the validity of the act and held that Muslim husband is liable to make a “fair and reasonable provision” for the future of divorced wife and the liability to pay maintenance is not confined to Iddat period as per sec 3 (1) (a) of the act.
Even, if a divorced Muslim woman who has not remarried and who is not able to maintain herself after Iddat period can proceed as provided under section 4 of the act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the magistrate may direct the State Wakf Board established under the Act to pay such maintenance.
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 husbands’ income. The precondition is that woman should not remarry and stay chaste.
Under the Parsi Law, maintenance is usually similar to Christian law but here the husband can also claim maintenance.
The Special Marriage Act, 1954 also allows a divorced wife to claim maintenance by charging a quantum on husbands property depending on the husbands’ ability to pay and other circumstances.
In a divorce proceeding, either spouse can seek relief if the court is satisfied on the insufficiency of the income of the applicant under section 24 of the Hindu Marriage Act 1955, This is termed as “Interim Maintenace “or “Pendente lite”.
In furtherance to the Hindu Marriage Act,1955, interim maintenance can also be sought under section 125 of criminal procedure code and under section 36 of the Special Marriage Act, the wife can seek expenses from her husband under chapter V and VI of the act, in a case where she doesn’t have an independent source of income.
Where the proceedings are pending under the Parsi Marriage and Divorce act 1869, either spouse can claim relief under sec 39 of the act.
Interim relief can also be sought by the Christians under section 36 of the Divorce Act.
In Nivya V.M vs Shivaprasad N.K, 2017 the Kerela High Court remarked that a husband seeking maintenance from the wife under section 24 of the Hindu Marriage act, 1955, can be treated as an exceptional case and he can only claim when he is able to prove the incapability or handicap.
In Sanjay Damodrarkale vs Kalyani Sanjay Kale 2020, The Bombay High Court held that statutory right of the wife of maintenance cannot be permitted to be bartered away or infringed by setting upon an agreement not to claim maintenance and wife cannot be denied on the ground of having the source of income.
A similar view was held in Sumita Kachwa vs Anil Kachwa, 2014 SC
In Mohd. Ahmad Khan vs Shah Bano Begum, 1985 The Supreme Court held irrespective of Muslim law, the liability of the Muslim husband, provide for maintenance under section 125 criminal procedure code does not come to an end with the expiry of the Iddat period if she is unable to maintain herself.
In the case of a divorced, the women have the right to get the possession of everything that belongs to her(Streedhan) as she becomes the sole owner what she owns. In case, the in-laws do any misconduct with her, the husband or his family is held guilty under sec 14 of the Hindu Succession act 1956 and sec 27 of the Hindu Marriage Act 1955. According to the law of the Indian Constitution “, every wife has sole ownership right over the streedhan”.
The government of India also planning to formulate a law against the NRIs who abandon their wives after marrying them in India. The bill is expected to have clauses that will result in revocation of their passports and make them incapable of working in foreign countries.
The divorced woman have also rights:-
Right to residence for her– The wife has a full right to claim the residence for her even if the house is the joint family solely under husbands possession, his ancestral house or even rental house.
Right to get alimony- Under section 18 of the Hindu Adoption and Maintenance act 1956, A Hindu wife can ask for her monthly expenses and alimony for herself and for her children. In any case, the husband shows unable to pay the amount of alimony, then it will be recovered by selling the property and assets of the husband.
Right to ask for the payment of attorney- A wife even after divorce can ask the amount of paying legal bills as the husband have better financial conditions.
Rights of Widow
The average Indian Woman’s identity is often defined by her marital status. It is no wonder, then, that a widow is often isolated for being bereft of ‘value’ after her husband passing. Inheritance laws for widows, though, strive to protect their interests, recognizing the economic disadvantage that widows are liable to face as a result of their identity.
The prevailing legislation called the Hindu Widow’s Remarriage act,1856, According to the act, A Hindu widow has a right to inheritance from their deceased husbands’ property even if they remarry.
The widow of the deceased is entitled to inherit equally with their son and daughter under the Hindu Succession Act,1956.
Under The Indian Succession Act, the widow of a Christian male takes a specified share.
For the Parsi community, a widow receives equal shares with each child or parent of the deceased husband.
Under Muslim law, no widow is excluded from inheritance.
Provision for maintenance under 125 criminal procedure code also includes ” widow” within the ambit of wife and she is eligible to claim maintenance under the code.
The Domestic Violence act 2005, which says that relief can be sought against the relatives of the husband as well.
A bill called the widows’ protection and maintenance bill, 2015 also provides the central government shall by notification in the official gazette establish a board to be called the National Widows Welfare Board for the purpose of this act and promote and provide such measures as it thinks fit; for the protection, maintenance and welfare of neglected, abandoned and destitute widows and their dependent children. Unfortunately, the bill cannot seek the light of the day.
In one of the case, The Andhra Pradesh High Court verdict in favour of a widow who had transferred the property willed to her by husband for a lifetime to a relative said it was a woman’s absolute right and she was free to bequeath the property. It is well settled that under the Hindu Law, the husband has got a personal obligation to maintain his wife and if he is possessed of properties, then his wife is entitled to be maintained out of such properties.
It is been truly said that the only thing which is constant in this world is change, The Indian society has observed a drastic change in the living pattern in the past few years. Indian law does not give any rights or obligations to the parties to live-in relationships. However, the court has clarified the concept of live-in relationships through various judgements. The reason behind people choosing to have a live-in relationship is to check the compatibility between couples before getting legally married.
In a landmark case of S. khushboo vs Kanniammal, the Supreme Court held that a living relationship comes within the ambit of right to life under article 21 of the constitution of India. The court further held that live-in relationships are permissible and the act of two major living together cannot be considered illegal or unlawful.
For the very first time the Protection of Women from Domestic Violence Act,2005 the legislature has acknowledged live-in relationships by giving rights and protections to those females who are not legally married, but rather are living with a male individual in a relationship, which is in the idea of marriage, additionally akin to wife, however not equivalent to wife.
Sec 2 (F)of the act defines; Domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related to consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. This gives some basics rights to women to protect themselves from the abuse of fraudulent marriage, bigamous relationships.
The Supreme Court on 26-11-2013, in Indra Sarma vs V.K.V. Sarma, 2013 held that when the woman is aware of the fact that the man with whom she is in a live-in relationship and who already has a legally wedded wife and two children, is not entitled to various relief available to a legally wedded wife as per provisions of Pwdva ,2005 but the Supreme Court felt that denial of any protection would amount to a great injustice to victims of illegal relationships, therefore emphasised to extend the section 2 (F)which defines ” domestic relationships” and also laid the various guidelines.
The Supreme Court in one of the landmark judgement Bharatha Matha vs R. Vijaya Regananthan, 2010 11 SCC 483, added that woman in the relationship would be eligible to inherit the property after her death of the partner.
Sec 125 of criminal procedure code alter the meaning of “Wife”, incorporates the ladies who were previously in life in relationship and now her accomplice has abandoned her at his will so a lady in a live-in relationship can now get the status of wife. Basically, she ought to have legitimate privileges as that of a spouse and can claim maintenance under this section.
In Chamuniya vs Chamuniya Kumar Singh kushwala, 2011 the Supreme Court turned down the judgement of a high court and awarded maintenance to the wife saying that provisions of section 125 of criminal procedure code must be considered in the light of section 26 of the domestic violence act,2005. The court held that women in live-in relationships are equally entitled to all claims and reliefs which are available to a legally wedded wife.
As per the Sec 114 of Indian Evidence Act, The court may presume the existence of any fact which it thinks likely to have happened, regard being the common course of natural events, human conduct and public and private business, in relation as to the facts of the particular case. Therefore, where a man and a lady respectively for a long spell of time as a couple then there would be the assumption of marriage.
In Madan Mohan Singh vs Rajni Kant,2010 the court held that the life in relationship, if continued for a long time, cannot be termed as ” Walk-in and Walkout” relationship and that there is a presumption of marriage between the parties.
On 31-03-2011 a special bench of the Supreme Court consisting of G.S. Singhvi, Ashok Kumar Ganguly in Revanasiddappa vs Mallikarjun 2011, remarked that irrespective of the relationship between parents, the birth of a child out of such relationships has to be viewed independently of the relationship of the parents. It is as plain and clear as sunshine that a child born out of such a relationship is innocent and is entitled to all rights and privileges available to born out of a valid marriage. This is the crux of section 16 (3) of the amended Hindu Marriage Act 1955.
The marital status of the daughter is immaterial, and a married daughter has the same rights as an unmarried one. In a landmark decision, Danomma vs Amar,2018, The Supreme Court upheld the right of a daughter to be entitled to an equal share as the son in an ancestral property including daughters who were born before the Hindu Succession Act came 1956 into force.
The Madras High Court in R. Kiruba Kanmani vs L. Rajan on 17-06-2019 has held that even a major daughter is entitled to maintenance from her father. The High Court observed that even though section 125 criminal procedure code restricts the payment of maintenance to the children till they obtain a majority, the court take a consistent view and held that even if the daughter has attained majority she will be entitled to maintenance till she remains unmarried by virtue of section 20 (3) of the Hindu Adoption and Maintenace act. The court also held that such petition can be entertained without pushing her to file an independent petition and court can exercise jurisdiction under section 482 of criminal procedure code.
The similar view held by the Bombay High Court in the case of Agnes Lily Irudaya vs Irudaya Kani Arsan, 2018 SCC online Bom 617, order dated 06-04-2018.
The Bombay High Court, in the case of Gajanan Rege vs Gauri Ramesh Rege, 2015 SCC online Bom 2436, decided on 18-03-2015 uphold the constitutional validity of sec 20 (3) of the Hindu Adoption and Maintenace Act, 1956 held that an unmarried daughter of a Hindu father is entitled to receive maintenance from an estranged father, even if she is not an Indian citizen and is residing in a foreign country. The court held that applicability of the Hindu Adoption and Maintenace Act does not depend upon the nationality of the child or domicile of the child, if both the parents are either Hindu, Buddhist or Sikh by religion, the said act becomes applicable to such children.
You Lady remember! Amongst the darkness of the world, there are paths that lead into light; providing new hope,
This world is scared of the power and the fire within you,
Let them see the power in your mind and strength in your thoughts…💫
~Adv Ankita Wadhwa