Matrimonial Rights of Women and FAQ

Matrimonial Rights of Women and FAQ

 Introduction

In India, upon marriage, women leave their parental homes and live in the home provided by the husband or by his family members. This home is called her matrimonial home.

The contract of marriage creates a legal obligation upon the husband and his family members to provide shelter and maintenance to the wife. In our society, a woman is perceived as a homemaker, in addition to all other roles she may be required to perform. So while women have the burden of managing the house, cooking for the family, raising the children and tending to the sick, their chances of earning an adequate income to support themselves or even the chances of retaining their pre-marriage jobs are constrained. Hence when economic support is withdrawn due to a matrimonial conflict, most women are rendered destitute. The situation becomes dismal when they have the additional burden of caring for their children. Women‘s right to shelter and maintenance is located within this conceptual framework.

Various legal provisions are meant to safeguard the wife's rights in her husband‘s home and ensure that she can live there with dignity and safety. The husband and his family cannot deprive her of these rights. They cannot harass a wife for dowry and inflict violence upon her. If a situation of domestic or sexual violence arises, the wife can avail of legal remedies under criminal as well as civil laws. The wife also has a right to file for divorce and opt out of the marriage. She also has a right to custody of her children.

a. Right to live in the Matrimonial

 Home What is a matrimonial home?

 When a woman is married, she acquires the right to live in her husband‘s home. This home becomes the woman‘s matrimonial home. Even if it is not owned by her husband and is in the name of his parents or siblings, she still has a right to reside in this house and she cannot be thrown out of this house. A widow cannot be thrown out from the house in which she was living with her husband, after her husband‘s death. It does not matter if the house was not owned by her husband.

The term used in the Protection of Women from Domestic Violence Act (Domestic Violence Act or DV Act, for short) is ―shared household.

How can a woman protect this right?

To protect this right, a woman must first believe that under her marriage, she has acquired a right to reside in her husband‘s home and she cannot be dispossessed from this home. Most often, women lose their right to their matrimonial home because they do not believe that they have a right to reside there. Even when they are asked to leave the home, they must believe that they have a right to reside in the home and this right can be protected by law. This is the first step. Only when women believe this, the right can be protected by law.

If there is an apprehension that she will be thrown out of this house, she must approach a magistrate‘s court under the provisions of the Domestic Violence Act and obtain an order of injunction to restrain her husband or his family members from dispossessing her (throwing her out) from her matrimonial home (Ss.17, 19 of DV Act). This will secure her right of residence in this house. If the husband or his family members violate this order they will be liable for punishment under the Domestic Violence Act. (S.31 of DV Act).

A woman will be deprived of this right only when an alternate accommodation of a permanent nature is provided for her. Until such time, the court will protect her right to reside in the matrimonial home.

The term right of residence‘ cannot be construed to mean ownership rights or right to a share in the property. Women‘s right to property is discussed under a separate section. In India, we do not have a right to matrimonial property which is owned by the husband or his family members. However, despite this limitation, the right to residence is an important right for most women, and this right is protected under the Domestic Violence Act.

 

b. Right to claim Maintenance for self and children

What is Maintenance?

The law imposes a legal obligation on the husband to provide maintenance to his wife. If he fails to provide for her, the wife can approach the court for an order of maintenance. The term ―maintenance is the amount required for a decent living, including the cost of food, shelter (if the same is not provided by the husband), travel, requirements of health care, educational, extra-curricular and recreational expenses of children, and other sundry expenses.

 Who can claim maintenance?

Under our law, the wife, minor children, major children who suffer from physical or mental disabilities, unmarried major daughters and aged parents are entitled to maintenance as they are unable to maintain themselves.

Can the wife claim maintenance for her children along with herself?

Yes, the wife can claim maintenance for herself and her children. If the children are living separately along with their mother, they also have an independent right to claim maintenance from their father.

If a woman is working, can she still claim maintenance?

Even if a woman is working, she can claim maintenance, if her husband‘s income is substantially more than her income and she is unable to maintain herself or her children from that income. If the husband and wife are earning the same amount, she cannot claim maintenance from him. But in such a situation, women can claim maintenance for their children.

Can a woman who is living with her husband claim maintenance?

 Yes, if her husband is not providing her maintenance while she is living in the same house with him, she has a right to claim maintenance.

Can women claim maintenance during divorce?

 Yes. If a woman files for divorce, in the same petition, she can also claim interim and permanent maintenance for herself and for her children. Along with this she also needs to make a separate application for interim maintenance which can be taken up at the initial stage and decided so she will start getting some maintenance while her divorce petition is pending in the court. If her husband has filed for divorce, as soon as she receives the papers, she can immediately apply for interim maintenance which will be heard and decided first as a preliminary issue.

Is a woman entitled to claim maintenance after her divorce?

Yes. Even after the divorce, if she has not received a lump sum amount as alimony, which is adequate to meet her expenses, she can claim maintenance from her husband until she remarries.

 If the husband agrees to take the wife back during litigation, will she still be entitled to maintenance?

Usually, to prevent an order of maintenance from being passed against him, the husband may volunteer to take the wife back or may even file proceedings for ―restitution of conjugal rights. If a woman is keen to reconcile with her husband, she may accept this offer, but if there is a history of violence, then she must exercise caution before accepting it because once an order is passed dismissing the petition on the ground that the parties have reconciled, it will be difficult for the woman to start the proceedings all over again, as it would be deemed that she has condoned (or forgiven) the husband his earlier acts of cruelty. Hence, it is advisable to stipulate certain conditions or even keep the proceedings pending in the court for a few months, to ensure that the husband is sincere in his offer of reconciliation and is not doing so only to avoid payment of maintenance before the earlier petition is withdrawn.

What is the criterion to decide the amount of maintenance?

The amount of maintenance awarded should be sufficient to meet the regular household expenses, children‘s educational, medical, and recreational expenses, to pay the rent of the dwelling house, etc. It should be sufficient to meet the basic needs of a person. Here the standard of life that a person is used to is also taken into consideration. For instance, if the husband is very rich and the wife is used to that lifestyle she will be given a higher amount than a person earning a modest income where the wife is used to a modest life. Hence it is important to collect evidence to prove the husband‘s lifestyle and income such as type of house, area of the house, type of car or two-wheeler, property details, trips to foreign countries etc. The exact amount is decided as per the income of the husband and the needs of the wife and children.

Many times, husbands try to show that their earnings are far less than their actual income by showing old salary slips or by hiding their additional income. So the wife must get all the information before approaching the court, and collect the necessary details – recent salary records, bank statements, income from business or family property, income tax returns etc.

Is it necessary to file for divorce while filing for maintenance?

No. If the woman does not wish to file for divorce, she can make an application only for maintenance. This can be done under the provisions of S.125 Cr.PC or under the Domestic Violence Act without filing for divorce.