The Divorce petition being the main petition must be filed first with the family court which may or may not be accompanied by a petition for claim for permanent maintenance. This implies that the petition for maintenance being an ancillary petition may be filed along with the divorce petition or separately. However, you may affix a schedule/exhibit with the divorce petition listing out all the stridhan/articles that you may want to claim from husband’s family.
I. DIVORCE
Hindu Law: Grounds for Divorce
A petition for divorce may be presented by either the husband or wife for dissolving the marriage on the grounds mentioned under the Hindu Marriage Act 1955.
Note: Divorce under the Hindu Marriage Act 1955 can be obtained on the grounds of Adultery, Cruelty, Desertion for two years, Conversion in religion, Unsound mind, Suffering from venereal disease and/or Leprosy, has renounced the world, not heard for 7 years, no resumption of co-habitation for one year after the decree of judicial separation, no restitution of conjugal rights for one year after decree for restitution of conjugal rights, husband guilty of rape, sodomy or bestiality and if after an order of maintenance is passed under the Hindu Maintenance and Adoptions Act or the Criminal Procedure Code there has been no cohabitation for one year
Hindu Law: Divorce by Mutual Consent
A petition for dissolution of marriage may be presented to the District Court by both spouses if they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. A divorce by mutual consent can be jointly filed by the parties on the grounds that they have been living separately at least for a year.
On the motion of both the parties made not earlier than six months after the date of the presentation of the petition (by law, both the parties are required to re-confirm their mutual consent after six months) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, pass a decree of divorce declaring the marriage to be dissolved.
Note: Under matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of wife is defeated. However, pursuant to a recent judgment by the Supreme Court of India, Hindu marriage can be dissolved under the provision of mutual consent even if one of the parties withdraws approval of the dissolution before the statutory period of six months expires following the application for divorce. However, it is only the Supreme Court of India, in exercise of its extraordinary powers under Article 142 of the Constitution that can pass orders to do complete justice to the parties. Neither the civil courts nor even the High Courts can pass orders before the periods prescribed under the relevant provisions of the Hindu Marriage Act. The Supreme Court, under Article 142, can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13 B of the Act.
II. MAINTENANCE
Maintenance an ancillary relief: The relief of maintenance is considered an ancillary relief and is available only upon filing for the main relief like divorce, restitution of conjugal rights or judicial separation etc.
Hindu Law: Interim Maintenance & Maintenance Pendente Lite
Under Section 24 of Hindu Marriage Act, 1955, either the wife or husband can apply for interim maintenance. The basis of the claim for interim maintenance is that the claimant has no independent income of his/her own to support himself/herself. The provision is silent on the quantum of maintenance and it is upon the discretion of the court to determine the quantum.
Similarly, maintenance pendente lite (while litigation is pending) is to be provided to the claimant who does not have an independent income and the financial need of litigation expenses has to be provided by the other spouse. When either the wife or the husband has no independent income for his or her support and for the necessary expenses of the proceedings, an application can be made either by the husband or wife to the court and the court may order the respondent to pay the expenses of the proceeding and such sum as maintenance as the court seems reasonable.
Hindu Law: Permanent Maintenance
A Hindu wife is entitled to be provided for by her husband throughout the duration of her lifetime. However, a Hindu wife can claim for maintenance only if she can prove that she is not able to maintain herself. If the wife’s income is sufficient to maintain herself and lives in the same comfort then she cannot claim for maintenance.
The Court may at the passing of any decree (e.g. divorce decree) or any time subsequent thereto, may on the application of the party order the non-Applicant/ respondent to pay to the Applicant for the maintenance and support. The maintenance may be in a gross sum or on periodical or monthly basis. In no case, the maintenance shall be payable beyond the life of the non-Applicant.
Maintenance without divorce
Section 18(2) also entitles a Hindu wife to claim for maintenance even if she is living separately provided that she can justify her living separately under any of the following grounds:- the husband is guilty of desertion, has treated her with cruelty, is suffering from a dangerous form of leprosy, has any other wife living, keeps a concubine, has ceased to be a Hindu, or any other just cause for living separately. However the wife forfeits her claim under S.18 (2) if she is unchaste or ceases to be a Hindu.
Further, under matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of wife is defeated. However, the right of a married woman to reside separately and claim maintenance, even if she is not seeking divorce, has been recognized in Hindu law alone. A Hindu wife is entitled to reside separately from her husband without forfeiting her right of maintenance under the Hindu Adoptions and Maintenance Act, 1956. Thus, in order to realize her claim, the Hindu wife must prove that one of the situations as stated in the Act, exists.
Grounds for award of maintenance without divorce: Only upon proving that at least one of the grounds mentioned under the Act, exists in the favor of the wife, maintenance is granted. These grounds are as follows:
a) The husband has deserted her or has willfully neglected her;
b) The husband has treated her with cruelty;
c) The husband is suffering from virulent form of leprosy/venereal diseases or any other infectious disease;
d) The husband has any other wife living;
e) The husband keeps the concubine in the same house as the wife resides or he habitually resides with the concubine elsewhere;
f) The husband has ceased to a Hindu by conversion to any other religion;
g) Any other cause justifying her separate living;
Quantum of Maintenance: In assessing the amount of maintenance, the court takes into account various factors like position and liabilities of the husband. The income and property of the non-Applicant may be considered while determining the permanent alimony. In fact, in case of the husband, it is not only the actual earning, but also his potential earning capacity, which shall be considered i.e. there is a presumption that every able-bodied person has a capacity to earn and maintain his wife. The income of the husband is a significant factor to be considered by the court in fixing the quantum of maintenance.
Section 23(2) of the Hindu Adoption and Maintenance Act states the factors to be considered by the court in determining the amount of maintenance payable to the wife – the position of and status of the parties, the reasonable wants of the claimant, the claimant if living separately is justified or not, the income of the claimant and the value of the claimant’s property and the number of persons entitled to maintenance under the Act.
Factors relevant for modification: The maintenance provided can be modified, suspended or cancelled if the change in circumstances so demand i.e. if the claimant has remarried or is proved unchaste or there is resumption of cohabitation after judicial separation.
III. CLAIM FOR STRIDHAN
‘Stridhan’ is a traditional concept in Indian Hindu Society which has been derived from two Sanskrit words ‘Stri’ and ‘dhan’ which means ‘Woman’s property’. Usually, stridhan is passed from mother to daughter, unless the woman decides otherwise. Besides the ornaments and trousseau given at marriage, stridhan also includes all the gifts of money, property, jewellery and so on received by the woman before, during and after marriage from her family, her husband’s family, friends and even strangers. It includes property inherited by the woman from her family or husband’s family; property received by her under a compromise, adverse possession or in lieu of maintenance; property obtained in partition; and property bought using proceeds from stridhan. However, gifts to the husband by the woman or her relatives will not be part of her stridhan.
Protection of Stridhan
A woman’s right to her stridhan is protected under law. Section 14 of the Hindu Succession Act, 1956 read with Section 27 of the Hindu Marriage Act, 1955 make a female Hindu an absolute owner of such property. In the case of Pratibha Rani v. Suraj Kumar, 1985 (2) SCC 370 the Supreme Court of India explained the concept of ‘Stridhan’ and its legal position under the Indian Laws. The Supreme Court of India held that “a Hindu married woman is the absolute owner of her stridhan property and can deal with it in any manner she likes and, even if it is placed in the custody of her husband or her in-laws they would be deemed to be trustees and bound to return the same if and when demanded by her”.
It is, therefore, manifest that the position of stridhan of a Hindu married woman’s property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes-she may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as in famine, illness or the like, the husband can utilize it but he is morally bound to restore it or its value when he is able to do so. This right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree for debt, such being the nature and character of stridhan of a woman.
If her husband or any other member of his family who are in possession of such property, dishonestly misappropriate or refuse to return the same, they may be liable to punishment for the offence of criminal breach of trust under sections 405 and 406 IPC.
Precautions: Women who wish to protect their stridhan rights must take precautionary steps.
- Make a list of the gifts and/or properties received before, during and after marriage from your family, your husband’s family, friends and other acquaintances.
- Keep evidence for the gifts received by you such as wedding pictures. Also, ensure that the gifts and their bills are in your name and preserve these bills.
- Have witnesses - statements of witnesses will be important evidence - for gifts of movables (including jewellery) at the time of marriage.
