Category Archives: Legal Rights of women in India.

Rights of Married women in India.

Meaning of Marriage in Indian Culture.

In India, marriage is considered as a pure institution that not only ties two individuals but two families. Marriage as a social institution is an affirmance of civilized social order where two individuals, capable of entering into wedlock

The marriage tied their nuptial knot to bring about the union of souls. The marriage creates a new relationship of love, affection, care and concern between the husband and wife. According to Hindu Vedic philosophy, it is sanskar- sacrament, one of the sixteen important sacraments essential to be taken during one’s lifetime.

Legal Rights of a married women in India.

It is ironical that most women are unaware of their legal rights, and thus keep mum. In order to fight injustice, it is important to have through knowledge about the rights. The Constitution of India, under Article 14, backs women and their rights in the country. It ensures women equality and equal protection of the laws. Article 15(3) empowers the state to take affirmative action in favour of a daughter-in-law.

Here is a list of rights every married woman should be aware of:

Right to Reside in Marital Home

The Hindu Adoptions and Maintenance Act, 1956, entitles wives a basic right to reside in the matrimonial/marital household. The term matrimonial home refers to a household a woman shares with her husband. Also, she has the right to live in her matrimonial residence even if her husband is not there or is dead.

Many cases have come to light where a husband leaves a rented accommodation when his relationship with the wife turns sour. However, this does not free the man from providing basic maintenance to his wife and children.

That courts in India have upheld the right to reside in a household that must qualify as ‘adequate’ under the right to housing, is clear from several judgments in favour of the domestic violence survivor and her right to adequate housing, granted as part of right to residence under the Protection of Women from Domestic Violence Act, 2005 (PWDVA).

The Protection of Women from Domestic Violence Act, 2005.

Sec.17. Right to reside in a shared household.—

(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

Right to Stridhan.

According to the Hindu Succession Law, Stidhan refers to the gifts a woman receives during pre-marriage or marriage ceremonies and during childbirth. This includes any movable, immovable property, jewellery, gifts, money and more (e.g. god bharai, baraat, mooh dikhai).

The main objective of providing Stridhan to a married woman is to provide her some monetary safeguards after marriage.

Domestic Violence Act, 2005- Section 12 of the Domestic Violence Act, 2005 provides for women right to her Stridhan in cases where she is a victim of domestic violence. The provisions of this law can be easily invoked for recovery of Stridhan. Under the residence orders: Prov. (8) the magistrate may direct the respondent to return to the possession of the aggrieved person her Stridhan or any other property or valuable security to which she is entitled.

The Hon’ble Supreme court has given inalienable rights over Stridhan to the married woman. It rules that the right is not lost even after separation from her husband. That is, a wife has complete ownership rights to all her Stridhan, the gifts and money given to her before and after marriage.

Right to Maintenance by Husband.

A wife has the right to claim decent living standards and basic comforts of life from her husband. However, the benefits are subject to the husband’s living standards, his income and property. In case of ties souring, he has to provide basic maintenance facilities to his wife and children.

The basic amenities include food, clothing, residence, education and medical treatment. Section 125 of the Criminal Procedure Code, 1973, supports this right.

What is the Law on Maintenance:

Section 125 in The Code Of Criminal Procedure, 1973

  1. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

  1. Subs. by Act 45 of 1978, s. 12, for” Chief Judicial Magistrate” (w. e. f, 18- 12- 1978 ).

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-

(a) ” minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;

(b) ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’ s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such

Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’ s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order..

Maintenance under Domestic Violence Act.

Sec. 20 .Monetary reliefs.—

(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to—

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

Maintenance in Divorce Proceeding.

Section 24 in The Hindu Marriage Act, 1955

24 Maintenance pendente lite and expenses of proceedings. —Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable: 54 [Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]

Right to Child Maintenance.

It is the duty of the husband and the wife to provide the required facilities to their minor child. In case the woman is not capable earning a living, then it is the duty of the man to provide financial assistance.

In case both partners are monetarily incapacitated, they can take support from their parents to look after the child.

In the matter of Farooq Ahmed Shala v. Marie Chanel Gillier, The Hon’ble High of Delhi held that:

That no doubt, mother, if she is earning, should also contribute towards the expenses of the child but the expenses cannot be divided equally between the two. However, merely because the Respondent wife is earning, does not give an excuse to the husband to avoid working or undertake the responsibility of maintaining his children.

To read judgments related to Maintenance click the above link of our Legal Blog:

https://maintenancelawinindia.wordpress.com/

 

Right to Restitution of conjugal rights.

Section 9 in The Hindu Marriage Act, 1955

 Restitution of conjugal rights. — 7 [***] When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. 8 [ Explanation. —Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

Right to Property in Husband  Share.

Inheritance: The Hindu Succession Act, 1956, did not give daughters and sons equal right in the father’s property. As per the old Act, the daughter enjoyed rights on her father’s property only until she got married. But the Act was amended in 2005. As per the amendments introduced in the Hindu Succession Act in 2005, every daughter, whether married or unmarried, has equal rights as her male sibling to inherit her father’s property after his death. That is, every married daughter has equal rights, liabilities, and duties as her brother’s. Additionally, the daughters also have a share in the mother’s property. If the father does not sign any will before his death, they can turn to the court for legal aid.

Daughters as Coparceners: A coparcenary is formed with the four generations of a family. Earlier, daughters were excluded from being a coparcener. However, according to the Hindu Succession Act (2005), a married woman has equal rights to be a coparcener. It enables the women’s legal rights on coparcenary property. This implies that women of the family have the right to equally inherit a share in the undivided property since birth. They have similar rights and liabilities as the son.

Laws and Act on Property of married women in India.

Hindu Succession Act —- The Act an amending and codifying law provides under section 14 that,(1)Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

explanation— In this subsection “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase any such property held by her as stridhana immediately before commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

The Married women’s property Act, 1874- Its statement of object and reasons provides that The Indian Succession Act(X of 1865) section 4, declares that no person shall by marriage acquire any interest in the property of the person whom he or she marries. This section however does not apply to marriage contracted before 1st January 1866.

Part III of Indian Succession Act,1925

Section 20 of Indian Succession Act, 1925 which is a consolidating Act provides that, (1) No person shall, by marriage acquire any interest in the property of the person whom he or she marries or become incapable of doing any act in respect of his or her own property which he or she could have done if unmarried.

(2) This section—

(a) Shall not apply to any marriage contacted before the first day of January,1866.

(b) shall not apply, and shall be deemed never to have applied to any marriage one or both of the parties to which professed at the time of the marriage, the Hindu, Muhammadan, Buddhist, Sikh or Jaina religion.

The Hindu Marriage Act, 1955 Section 25 (1) Permanent alimony and maintenance–— (1) Any Court exercising Jurisdiction under this Act may, at the time of passing any decree or at any time subsequent there to, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant, as having regard to the respondent’s own income and other property , if any, the income and other property of the applicant it may seem to the Court to be Just, and any such payment may be secured, if necessary by a charge on the immovable property of the respondent.

Section 27 ,Disposal of property — In any proceeding under this Act, the Court may make such provisions in the decree as it deems Just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly both the husband and wife.

The Hindu Women’s Rights to property Act,1937 An Act to amend the Hindu Law governing Hindu Women’s rights to property.

(3) Any interest devolving on a Hindu widow under the provisions of this section shall be limited interest known as Hindu woman’s estate, provided however that she shall have the same right of claiming partition as a male owner,

Right to Live with Dignity and Respect

A wife has the legal authority to live with proper dignity and self-respect with her in-laws. She also has the right to have the same lifestyle that her husband’s and in-laws have. This legal right provides married woman independence after marriage.