December 3, 2017. O. Kuttan, Advocate, Supreme Court
Many victims of domestic violence are not approaching the Police, Courts and appropriate forums to get relief, as they are not aware of the legal proceedings, rights available to them and ways to get it. Lack of legal knowledge, financial resources, fear etc are compelling them to lead a life with agony and un certainty. Every woman, especially married, should be aware about their legal rights to prevent possible exploitation, violence and a troubled marriage life.
A married woman can claim relief / right under different sections of Domestic Violence Act, 2005, Hindu Marriage Act 1955, Maintenance under section 125 of Code of Criminal Procedure 1973, Protection against cruelty under section 498A of Indian Penal Code, Right of property under Hindu Succession Amendment Act 2005 etc. Provisions of different laws should be used as per the nature of case and situation. Few of the rights of a married woman are summarized in the following heads.
I. RIGHTS OF A MARRIED WOMAN FROM HER HUSBAND AND IN-LAWS
Legal right of wife in the house of in-laws is the same as her husband's right. If the woman is subject to any kind of domestic violence, harassment etc she can file a Complaint in a Court seeking the following relief, which are applicable to her under the Domestic Violence Act 2005.
1. Relief under Domestic Violence Act 2005
If any domestic violence happened against her, the wife can file complaint under the Act and the complainant wife can claim the following, relief, according to the applicability:
1. Right to reside in the shared household under section 17
2. Protection orders under Section 18
3. Residence Orders under Section 19
4. Monetary Relief under Section 20
5. Custody orders under Section 21
6. Compensation order under Section 22
Relief under Hindu Marriage Act 1955
If no domestic violence happened or not filed complaint under DV Act, the married wife can claim applicable relief under Hindu Marriage Act. They are:
1. Maintenance pendente lite and expenses of proceedings under Section 24
2. Permanent alimony and maintenance under section 25
3. Custody of children under Section 26
Maintenance under Section 125 of Code Criminal Procedure 1973
Wife can file a petition seeking orders to grant maintenance to herself and her children under Section 125 of Code of Criminal Procedure.
Protection against cruelty under Section 498A of Indian Penal Code
Section 498A of IPC has provision to punish husband or relative of husband of a woman subjecting her to cruelty.
II. PROPERTY RIGHT OF A MARRIED DAUGHTER FROM HER OWN FAMILY
Right of property to married woman as per Hindu Succession Amendment Act,
According to the Hindu Succession Amendment Act, 1956, amended on 9th September, 2005, every daughter, whether married or unmarried, is considered a member of her father's HUF and can even be appointed as 'karta' (who manages) of his HUF property. The amendment now grants daughters the same rights, duties, liabilities and disabilities that were earlier limited to sons. The Act is with prospective effect as clarified by the Supreme Court. So, the daughter can avail of the benefits granted by the amendment only if her father passed away after September 9, 2005.
Right to residence to a married women
A married woman has the right to reside in the matrimonial household where her husband resides, irrespective of type of house whether it is an ancestral house, a joint family house, a self-acquired house or a rented house.
As per section 17 (1) of the Domestic Violence Act 2005, every women in 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.
Section 17(2) of the act says that the aggrieved person shall not be evicted or excluded from the shared house hold or any part of it by the respondent save in accordance with the procedure established by law.
How to get residential orders in favour of married woman.
The aggrieved person can file a petition under Domestic Violence Act 2005 with a prayer for residential order under section 19 of the Act. Provisions under section 19 of the Act regarding residential orders are:
"19. Residence orders.
(1) While disposing of an application under sub-section (1) of section12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed against any person who is a woman
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(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 to."
Right of married woman to Stridhan
As per Section 19(8) of Domestic Violence Act, quoted above, the Magistrate may pass order to return to the possession of stridhan or any other property or valuable security to which the wife is entitled to. A wife has ownership rights to all her streedhan, that is the gifts and money given to her before and after marriage. The ownership rights to streedhan belong to the wife, even if it is placed in the custody of her husband or her in-laws.
Right of wife to a committed relationship
A Hindu husband cannot marry another girl or have an affair unless he is legally divorced. If the husband violates it, he can be charged of adultery if he is in a relationship with another married woman. This is ground to file Divorce petition by his wife for divorce on the grounds of his extra-marital relationship.
Married woman has right to live with dignity & self respect
A wife has the right to have same life style that her husband and in-laws have and she has the right to live her life with dignity. A married woman also has the right to be free of mental and physical torture. If any violence has taken place or likely to take place, the wife can file a complaint under Domestic Violence Act 2005. As per Section 18 of the Act a Magistrate can pass protection orders to protect the complainant wife from violence.
Extracts of Section 18 of the Act is:
"18. Protection orders
The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from-
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic violence;
(c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
(g) committing any other act as specified in the protection order."
Right of wife for Monitory Relief
The wife can claim monitory relief for expenses incurred and losses suffered. As per section 20 of the Domestic Violence Act 2005 the Magistrate may direct the respondent to pay monitory relief to meet expenses incurred and losses suffered by wife and children as a result of domestic violence.
Extracts of Section 20 of Domestic Violence Act 2005:
"20. Monetary relief
(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 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.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in charge of the police station within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.
Wife's right for Custody of Children
A married woman can also claim custody of her children. As per Section 21 of Domestic Violence Act 2005, the Magistrate may pass order for granting temporary custody of children.
Extracts of Section 21 of the act is:
"21. Custody orders
Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent:
Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit."
Compensation from Husband
The wife can claim compensation for damages for the injuries, including mental torture and emotional distress caused. As per section 22 of Domestic violence Act 2005, in addition to the other relief, the Magistrate may pass order directing to pay compensation and damages for the injuries, including mental torture and emotional distress caused.
Extracts of Section 22 of the Act is:
"22. Compensation orders
In addition to other reliefs as may be granted under this Act, the
Magistrate may on an application being made by the aggrieved person, pass an
order directing the respondent to pay compensation and damages for the injuries,
including mental torture and emotional distress, caused by the acts of domestic
violence committed by that respondent."
Maintenance to wife and children under Section 125 of Code of Criminal Procedure
Right of wife to claim maintenance to her and their children by husband
A wife can claim maintenance under section 125 of the Code of Criminal Procedure, 1973. A wife is entitled to claim decent living standards & basic comforts of life by her husband as per his living standards. Husband and wife must provide for their minor child. If the wife is incapable of earning a living, the husband must provide financial support. If both the parents are financially incapable, then they can seek help from the grandparents to maintain the child. A minor child also has the right to seek partition in ancestral property.
Provision under section 125 of the Act is:
Section "125. 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 (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."
Right of married woman to claim relief under Hindu Marriage Act
The married woman can claim relief under section 24, 25 and 26 of Hindu Marriage Act. Provisions under the Act are:
Provision in the Hindu Marriage Act for pendente lite and expenses of proceedings
Section 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 the petitioner the expenses of 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.
Provision in the Hindu Marriage Act
for Permanent alimony and maintenance
Section 25. 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 thereto, on application made to it for the purposes 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 of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immoveable property of the respondent.
(2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the Court is satisfied that the party in whose favour an order has been made under this Section has re-married or, if such party is the wife, that she has not remained chaste or if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.
Provision in Hidu Marriage Act for custody of
"Section 26. Custody of children
In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the Court may also from time to time revoke, suspend or vary any such orders and provisions previously made."
Important Case Laws, Citations