One of the primary duties of the State is to protect women and children. This allows for special laws for women to protect their rights while they are in marriage, separated or divorced. Marriage in India is governed by personal laws. Laws that protect women within marriages or even while they are separated and/or divorced are secular in nature as it applies to all women irrespective of religion. Hence, if a woman wished to seek any form of relief while separating from her husband or while getting a divorce, she can use such laws for legal and economic relief.
If a woman is separated from her husband, it could mean:
- They are living separately while their marriage continues to be legally valid. They may not choose to legally separate or file a divorce.
- They are living separately while being judicially separated, which is the court mandated period before filing for divorce
- They are living separately because they are divorced. Their marriage has been legally dissolved.
In whichever way a woman might be separated from her husband, she has two basic rights that she can avail at any time by approaching the family or local court in the jurisdiction through a lawyer
- Right to receive maintenance
- Right to residence
Right to Receive Maintenance
A woman’s right to be maintained by her husband during separation is a right every woman can exercise. Maintenance could be a lump sum amount or a fixed amount at regular intervals which has to be paid. There are two laws that govern maintenance- Code of Criminal Procedure, 1973 (CrPC) and Protection of Women from Domestic Violence Act, 2005 (PWDA)
Section 125 of CrPC provides for maintenance of women and children. Women, irrespective of the religion they follow or married under can claim for maintenance under this law. However, this law is not without its problems. “125 CrPC is a law that was given to us by the British. If you read section 125 CrPC it says that maintenance has to be paid to avoid vagrancy. That is to avoid woman from being left destitute. Here the understanding of maintenance is more like an amount for her survival”, says Parsis Sidhva, litigator with woman’ rights organisation, Majlis.
While this section to exist and be utilised for maintenance, law has recognised that maintenance is not a favour that is bestowed upon women. Rather, maintenance is a right that should not just be enough to meet basic needs but uphold standards of living that a woman is accustomed to.
PWDA, 2005 is a progressive legislation which acknowledges deprivation of maintenance to women to be an act of domestic violence. Section 3 (iv) defines economic abuse as a form of domestic violence. Under PWDA the definition of maintenance is not just a paltry sum for survival but rather includes:
- Payment of rental for residence
- Any share, bonds or other financial assets in which the wife had a share
- Share in join properties, if she owned any with the husband
- Access to all those facilities the wife enjoyed during the entirety of their married relationship including the shared household
Section 20 of PWDA titled Monetary Reliefs provides that the woman be provided for any loss of earnings, medical expenses, any loss that is caused due to damage or destruction to property, along with maintenance. Hence, maintenance is a part of monetary reliefs that a wife is entitled to. “The PWDA law not only recognises that non-payment of maintenance is a form of domestic violence but it goes a step ahead and says that the husband not only has to pay maintenance but the court also has to see the standard of living, if there has been any loss of earning for the woman and she should be compensated for that” says Sidhva.
Section 22 of PWDA titled Compensation Orders has provisions for the wife for claim for damages depending on the degree of violence she has faced in the matrimonial home, including mental torture and emotional distress. “The courts can award a certain compensation in the form of damages which will be based on the degree of violence that has been committed. It is also based on the husband’s income, on their standard of living. Keeping these aspects in mind the compensatory amount to is awarded to the wife” says Sidhva.
Right to Residence
Right to have a safe resident is a basic necessity for any individual living in any part of the country. However in the face of violence when residence is threatened, it deters many women from seeking separation or divorce. The PWDA recognised this impediment in separation and have made provisions for residence within the Act. Section 17 of the Act grants the woman the right to continue residing in shared household. Women when faced by domestic violence cannot be asked to leave the residence irrespective of whether they have own it jointly or not. No woman can be asked to leave the matrimonial household.
Section 19 while asserting the right to residence states that if required the husband will have to leave the household in case the violence is threat to the woman. However, the husband or any of their relatives cannot dislodge the woman from the household. The husband cannot stop discharging this duties of the householder. They have to continue to bear the expenses of running the household.
In case, the woman wants to live separately, the court will direct the husband to pay her rent allowance so she can enjoy alternate accommodation. Sidhva, further reiterates this by saying, “If she is outside the house and wants to re-enter the house then she can claim her right of residence. If she is staying in the house and he is constantly threatening to throw her out then an order restraining the husband from throwing her out. If she cant stay in the house then she can ask for rental accommodation”.
Why It Matters?
Many women might feel helpless when faced with violence or even the idea of separating from her husband. This threatens the basic necessities that are crucial for everyday living. The various provisions protecting women have recognised this and ensured that maintenance, monetary reliefs are made a matter of right and not charity. This is a big step towards recognising the debilitating effects of separation and violence. PWDA, 2005 is often held as a progressive law for viewing violence that goes beyond physical violence and providing reliefs for the same.