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Expert Talk: Lawyer Shruti Swaika Shares Must-Know Financial Rights Of Women Seeking Divorce

Out of 1,000, only 13 marriages end in divorce in India and 1.36 million people in this country are divorced. While no one likes to see a marriage break, walking out of abusive or unsatisfactory marriages is sometimes the only decision that makes sense. The reasons may vary, but gone are the days when divorce was a big no-no. Though it will take time and effort to destigmatize the ‘D’ word, especially for women, walking out of an unhappy marriage is hard already. It’s physical, psychologically, emotionally, and financially draining. That’s why it’s important to have all the information you need when going through a separation.

We caught up with Lawyer and Principal Associate at Fox & Mandal Shruti Swaika, who explains the broad laws governing the financial rights of women seeking a divorce in India.

Divorce Laws In India

Laws relating to divorce fall in the realm of personal laws in India. These laws are different depending on one’s religion. Before anyone cries out foul and cites secularism here, it is important to understand that laws religious scriptures have had a huge contribution in our personal laws and even today, a great amount of Muslim law is not codified and recourse is made to religious scriptures in order to determine rights of individuals. 

Indeed, our Constitution, in Article 12 includes ‘custom’ within the definition of law. Accordingly, we have the Hindu Marriage Act, 1955 which governs the rights of Hindu women in case of divorce, which is the present topic. In addition to the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”), we also have the Code of Criminal Procedure, 1973, which gives some additional rights to women.

To begin a conversation on divorce, one must start with the grounds for the same. The Hindu Marriage Act, 1955 lays down the grounds on which one can seek divorce. These are:

  • When the other spouse has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or,
  • has, after the solemnization of the marriage, treated the petitioner with cruelty; or
  • has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
  • has ceased to be a Hindu by conversion to another religion; or
  • has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent; or
  • has been suffering from venereal disease in a communicable form; or
  • has renounced the world by entering any religious order; or
  • has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; or
  • that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
  • that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties; or
  • that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
  • that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

In addition to all the above, a husband and wife can also seek divorce by mutual consent on the ground of irretrievable breakdown of the marriage.

Irrespective of the grounds on which divorce is sought, the next question that comes up is that of maintenance and alimony. The thumb rule here is that the wife is to be granted such amount of maintenance as would allow her to enjoy the same standard of living as she was accustomed to while living with her husband. Therefore, what is seen by the Courts is not the wealth of the husband, nor that of his family, nor his personal income, nor that of the family. While all these factors do play a role in the process, what is finally looked at by the Court is the standard of living the wife was accustomed to during the subsistence of marriage. While Courts have a high degree of autonomy in deciding the amounts to be allowed, this is the rule adopted in most cases. Accordingly, the Courts may choose to consider the earning capacity of the wife herself while coming to this amount.

At this stage, it is relevant to note that maintenance or alimony is of two types. 

One is maintenance pendente lite, i.e. the maintenance amount payable during the pendency of the divorce proceeding and second is the permanent alimony, i.e. the amount payable upon the decree of divorce. Maintenance pendente lite is available both under Hindu personal laws and under the Code of Criminal Procedure. This may be either by way of a one-time payment or a periodical payment. Quantum of maintenance depends on several grounds. The Delhi High Court, in a 2016 decision in the case of Manpreet Singh Bhatia v. Sumita Bhatia laid down some of these grounds which include:

  • Status of the parties;
  • Reasonable wants of the claimant;
  • The independent income and property of the claimant;
  • The number of persons, the non-applicant has to maintain;
  • The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home;
  • Non-applicant’s liabilities, if any;
  • Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant;
  • Payment capacity of the non-applicant;
  • Some guesswork is not ruled out while estimating the income of the non-applicant when all the sources or correct sources are not disclosed;
  • The non-applicant to defray the cost of litigation.
  • The amount awarded u/s 125 Cr.PC is adjustable against the amount awarded u/24 of the Act.

These are all illustrative examples and not exhaustive. Maintenance laws are gender neutral and either spouse may be required to pay maintenance to the other spouse. However, one would be hard-pressed to find instances in our country where a wife was required to pay maintenance to her husband. It would be incorrect, however, to say that is not the intention of the law.

Note: The information contained herein does not constitute legal advice and should not be treated as such. Readers should not take decisions on the basis of this article and should take independent legal advice before taking any decision. The views of the author are her independent views and not necessarily that of the Firm.

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