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Women's Rights on Divorce

Divorce is a tumultuous experience looked down upon by Indian society. It is a very necessary tool to separate oneself from spousal trauma, or to mutually separate from their spouse. A woman has to know her legal rights and options in the legal system to help protect herself from something that was meant to be a sacred union.

Divorce Laws in India

India being a secular nation, numerous religions are practiced in the subcontinent, we have different Acts prescribed for most religions. Hindus, Jains and Buddhists are governed under the thumb of the Hindu Marriage Act of 1955, and Muslims by the Dissolution of Muslim Marriages Act, 1939 and other acts specified for Parsis and Christians. Couples belonging to different communities and other secular cases can seek restitution under the Special Marriage Act, 1956.

Before ending the husband-and-wife relationship, one spouse may initiate the process of giving the other spouse legal notice of divorce. They are called divorce petitions.

Types of Divorce Petitions:

They can be categorically classified into 3 divisions:
  1. Divorce by Mutual Consent
    When both spouses have decided that the best decision for them is to split apart, they can proceed on mutual grounds. It is the simplest way to dissolve the marriage. The husband and wife have to come to an agreement on 3 points,

    Alimony or Maintenance:
    Alimony or Maintenance is the financial support that a court orders a person to provide to their spouse during separation or after divorce.
    The parties will decide amongst themselves whether the wife needs the alimony and if so, they need to come to an agreement on how much she would need. There is no limiting amount for alimony, it could be any number or none at all.

    Custody of Child/Children:
    Depending on the mutual understanding between the spouses it could be a joint or exclusive custody system, the court will take into account who can be the best parent for the child, the mother doesn't automatically get custody, and usually monetary capabilities aren't taken into consideration, but The Guardian and Wards Act of 1890 states that if the child is younger than 5 years of age the mother has superior rights. At the age of 9 the child's consent will be taken into consideration, and at 18 the custody passes to the father.

    When it comes to legal guardianship in Muslim Law, in Hanafi (Sunni school of Law or fiqh), Hizanat is given entirely to the mother, only if she is physically and mentally fit to care for the child.

    Property:
    This involves movable and immovable assets, it doesn't have to be evenly split just has to be agreed upon by both parties, but currently no woman has the right to their husband's property after the lapsing of The Marriage Laws Amendment Bill, 2013.
     
  2. Contested Divorce
    Any party can, on certain grounds, present a request before the Court to dissolve the marriage. Legislation of various communities has defined various grounds for claiming a divorce.
     
  3. Void Marriages
    Void Marriages are considered void ab initio since its conception. By using this, parties can annul their marriage and it comes under section 11 of the Hindu Marriage Act, it is called Batil in Muslim Law.

Streedhan

At the time of marriage or before marriage a woman is given gifts or property, is not considered as dowry because it was given on voluntary basis, not due to coercion. The wife can do anything she wants with her Streedhan, a woman's rights to Streedhan are guarded under Section 27 of the Hindu Marriage Act, 1955 and Section 14 of the Hindu Succession Act, 1956.

There are special grounds that only pertain to women for protection by the law, to contest a marriage.

Grounds for Divorce for Women

Under the Hindu Marriage Act
Any Hindu, Jain or Buddhist can seek annulment under section 13 of the Hindu Marriage Act, 1955. Section 13(1) contains grounds that both parties can attest to file for divorce such as Adultery, Cruelty, Conversion, Desertion, Unsoundness of mind, leprosy, venereal disease, renunciation, and presumption of death. Section 13(2) are special grounds that only a wife can place against their husband.
  1. Bigamy
    If the husband has another spouse alive at the same time of the marriage, the union is null and void and the wife can claim divorce under section 13(2) of the Hindu Marriage Act, 1955.
     
  2. Rape, Sodomy, Bestiality
    If the husband forces his wife into sexual intercourse or unnatural circumstances, she can claim divorce against him under sec 13(2) of the Hindu Marriage Act and rape is a serious charge under section 375 of the IPC. If found guilty, the wife has the right to disenfranchise her spouse.

    If the husband has inter-species relations, with an animal this is considered bestiality and the wife can file charges under Section 13(2)(ii) but the burden of the proof lies on the wife.
     
  3. Before Attainment of Puberty
    In the case of child marriage, if the wife was older than 15 and younger than 18 when she was wedded, she can file for annulment within this time frame or by repudiation it can be spoken, implied or written.

    In the case of child marriage different courts hold different opinions in accordance to this act and particular section, it varies from circumstance to circumstance.

Divorce under Muslim Law

  1. Lian
    A judicial Talaq that allows the wife to take action against the husband on the basis of only one ground, €śadultery€ť. If the husband of sound mind tries to slander the wife on adulterous charges or questioned the paternity of the child, and once these charges have been proven false, the wife can file suit for divorce in court but, if the husband then accepts his charges were false in court after the evidences have been presented to him, the suit will be dismissed.
     
  2. Talaq-E-Tafweed
    If the husband delegates his power to assert Talaq to his wife, this enables the wife to file for divorce in the court of Law. This can happen during or after getting married, the husband can refute his delegatory powers whenever he likes. This is practiced by Sunnis and Shias alike.

In Accordance with the Dissolution of Muslim Marriages Act, 1939

The Dissolution of Muslim Marriages Act of 1939, was slated to add in provisions to help Muslim women file for divorce under Muslim Law it is called statutory Talaq. Section 2 of the Act provides grounds for dissolvement.
  • Faskh-e-Nikah:
    There is a list of acts/omissions that allows the woman to divorce her husband. This List isn't a set defined list and can be added upon by the courts to see through justice for the woman as a progressive motion.


A few common acts or omissions that could allow a woman to be divorced are:

  1. The whereabouts of the husband are unknown for 4 years or more
  2. When the husband hasn't performed his marital duties for 3 years due to unreasonable reasons.
  3. When the husband treats his spouse with cruelty.
  4. If the husband was imprisoned for more than 7 years.
  5. When husband neglects maintenance for his wife for 2 years.

Conclusion
Social Education for women on marital rights should be spread across the country at the grassroots level so that society will break away from the stigma that surrounds divorce in both the rural and urban areas. The Indian legislative system should continue to be progressive and help curb spousal abuse that still occurs in India at an alarming rate. We as a society need to help women be able to face these situations without the fear of what their relatives or neighbours think, the day that happens India has progressed one step further towards true equality.

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