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
- 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
- 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
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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:
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.
