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Property and custody laws related to divorce

September 30, 2009 18:09 IST

Earlier this week, Firoza Daruwala, a trainee associate lawyer with a leading Mumbai-based law firm, explained how one goes about filing for divorce and what the law states. Today, she explains the various property laws related to legal separation.

We have already discussed the different grounds on which a divorce can be obtained. But just filing a petition and making affidavits is not going to secure you financially or enable you to get what is rightfully yours.

Ending a marriage is a very painful, difficult process and division of finance and property is often (but not always) the last thing on your mind. However, it is essential to be well aware of your rights and if the need arises, fight for them.

Just as the grounds for divorce in our country differ based upon the different religions and communities people belong to, so do the laws relating to property division, custody of children and payment of alimony or maintenance.

Today in the second part of our two-part series, we discuss division of property, custody and alimony based upon the different laws.

Hindu, Zoroastrian and intercaste marriages

The provisions of the Hindu Marriage Act (1955) apply to couples married under Hindu law and seeking to obtain a divorce, whereas the Parsis in India are governed by the Parsi Marriage and Divorce Act (1936) and the Parsi Marriage and Divorce (Amendment) Act (1988). Inter-community and civil marriages and divorces are governed by provisions of the Special Marriage Act, 1956 and Special Marriage (Amendment) Act, 1970. The rules relating to alimony, custody of children etc are uniform for both religions.

Thus, if the court finds that either partner has no income which is independent and sufficient for his/her support and/or to pay for the divorce proceedings, then on the petition of the said partner, the court may order the other party to meet his/her legal expenses and also provide a monthly sum to the partner till such time as the divorce case is pending. The court will, however, take into consideration the petitioner's own income, as well as the income of the other party and only sanction a sum which is thought reasonable. This is known as Maintenance Pendente Lite.

At the time of passing an order or decree for divorce, a court may grant alimony to either spouse for his or her maintenance and support. This may be done by the court on its own while exercising its jurisdiction, or may be done at a later stage if an application for that purpose is made by either the wife or the husband. The court may order the respondent (the partner other than the one making the application) to pay a certain sum of money to the applicant. It may be a lump sum paid all at one go or it may be a monthly or periodical amount to be payable over a term not exceeding the life of the applicant. While doing so, the court will take into consideration the following:

  • The income and property of the respondent
  • The income and property of the applicant
  • The conduct of both parties and other circumstances of that particular matter

If the court feels that the respondent may avoid making the payments to the applicant, then the court may secure such payment by a charge against any immovable property of the respondent.

Also, if the court feels that there has been any change in the circumstances of either party at any time after it passes an order for alimony, it may at the request of either party alter or nullify the order in whichever manner it may feel necessary and may deem fit. If, for example, the party who has made an application for alimony and has obtained an order in his/her favour remarries or is found guilty of being unfaithful to his/her spouse, the court can modify the order and the amount of money he/ she is entitled to.

With regards to custody, maintenance and education of minor children in any proceedings under this Act, the court from time to time passes interim orders and makes such provisions in its decree as it deems just. The court will consistently try and take into consideration, wherever possible, the wishes of the children. The court will at all times take into account the wellbeing and security and comfort of the child. However, it is safe to say that in India, courts prefer to grant custody of minors to the mother unless they find her incapable/ unfit of looking to the wellbeing of the child.

Any property belonging jointly to the husband and wife shall be disposed off properly by the court. In case of property, shares, fixed deposits or any investments, it is better for couples to deal with all finances jointly and to make them accessible to both. Both spouses should be aware of all monthly income and expenses and try and keep everything in joint names.

Muslim marriages

The Muslim Women (Protection of Rights on Divorce) Act (1986) is the law which governs Muslim women filing for divorce and the matters incidental thereto. Under this act, a Muslim women is entitled to Mahr. Under Islamic law, Mahr is a gift (usually a sum of money) given by the groom to the bride upon their marriage. It is considered to be a form of appreciation and also acts as a guarantee for a woman. The Mahr is given to the wife in parts: once at the time of marriage, and later on if she is widowed or divorced. The amount of Mahr differs from one couple to another and may also depend upon the social status of the bride. Thus, legally, a Muslim woman in the midst of a divorce is entitled to her part of Mahr. The court, however, also takes into consideration the following:

  • The needs of the divorced woman
  • The standard of life enjoyed by her during her marriage
  • The means of her former husband etc

Besides Mahr, the wife is also entitled to maintenance paid to her by her husband during her period of Iddat (Iddat is a particular amount of time after divorce that a Muslim woman must allow to lapse before she can remarry. She cannot remarry before that period is complete; it is usually three menstrual cycles or three lunar months).

With regards to maintenance for children, a Muslim wife is also entitled to a reasonable and fair amount of money from her husband towards maintenance of her children born both before and after her divorce. This maintenance has to be paid by the former husband for a period of two years from the respective dates of birth of each child.

The Muslim Women (Protection of Rights on Divorce) Act (1986) also provides for a Muslim woman to be entitled to all properties given to her before or at the time of marriage or even after her marriage by relatives, friends or her husband.

To sum things up, this Act only entitles a divorced Muslim woman to get maintenance from her husband during her period of Iddat, after which he is not responsible for her maintenance. However, if the court is satisfied that a divorced woman has not re-married and is unable to maintain herself after the Iddat period, it may order her children or, if she is childless, her parents to pay her maintenance which it deems just and fit. It may also order such relatives of the divorced woman who would be entitled to her property after her death according to the Muslim law to pay her maintenance which is reasonable and fair. Again, here the standard of life enjoyed by the woman during her marriage and the financial means of her relatives come into play.

For the woman who has no family and no relatives and is unable to support herself, the court may direct the State Wakf Board established under Section 9 of the Wakf Act, 1954 or under any other law in force in a State, functioning in the area in which the woman resides, to pay such maintenance as is determined.

Christian marriages

The provisions of the Indian Divorce Act 1986 govern the process of dissolution of marriage for Christians. Under this act, a husband who is petitioning for dissolution of marriage or for judicial separation has the right to claim damages from any third party on the grounds that the said party has committed adultery with his wife. The court may direct the manner in which the damages may be paid. However, it is the onus of the aggrieved husband to prove that such adultery has been committed. If the 'other man' in this case proves in court that the wife was not living with her husband at the time of adultery or he had reason to believe that she was not a married woman, he shall be exempt by the court from paying any costs.

A petition for Alimony Pendente Lite under the provisions of this act can be made by the wife and the court, if satisfied, may order the husband to make payments to the wife during the course of the impending proceedings as it deems just. However, in no case can the amount of Alimony Pendente Elite exceed one fifth of the husband's average net income for the next three years preceding the date of the order.

When the court passes a decree absolutely declaring a marriage to be dissolved or a decree of judicial separation obtained by the wife, it shall order the husband to pay the wife a certain sum of money for her maintenance and upkeep. This sum may be a gross amount or lump sum or it may be a certain amount paid annually till her death. This amount is alimony and just like for Hindus and Parsis, in this case too the court shall take all factors into consideration before deciding a sum.

Before passing any decree for divorce, the court will also enquire about existence of prenuptial and postnuptial settlements made by parties whose marriage is the subject of the decree. It will then make such an order with regards to the property as it deems fit, either in favour of the wife or husband or children or of both -- but the court shall not pass any order for the benefit of either parent if it is at the expense of the children.

The rules for custody of children are the same as those provided under the Hindu and Parsi Marriage Acts.

Everthing discussed above is in accordance to Indian law. However, things don't always work out according to the law. It is necessary for any party applying for alimony (Hindu law states that even an earning wife may have to provide alimony to the non-earning husband) to prove that the other spouse has the capacity to make the payments from his or her income. So often, when divorce battles are acrimonious and bitter, couples do anything in their power to hide assets and income. Suddenly, a booming business will run into losses and assets may be sold or disposed off quickly.

With regards to property, Indian laws do not recognise common property. Like in the West, where a wife gets half of everything that a husband owns (including property), in India, unfortunately, that is not the case. The property is considered to belong to that person in whose name it is bought even if it has been acquired during the course of marriage. This means that even if a earning wife pays for a certain property from her own hard-earned money and it is in the name of her husband, there is no way to prove during divorce proceedings that it rightfully belongs to her. That is because the law in India does not recognise the right of any person to a part of the property bought during the course of marriage, unless proved that it has been paid for by the said person.

Marriages are made in heaven, they say and each partner is an equal in a marriage. It is therefore imperative that each partner be treated equally during the divorce proceedings as well.

Also see: Divorce: How to go about it and what the law states

Firoza Daruwala