Know Your Divorce Rights

One of the greatest concerns of a woman to be divorced is her financial security. There are many cases where a woman hangs on to a bad marriage merely because she is ‘looked after' (financially) by her husband. Thus, once she has decided to opt for divorce, she must make sure that she will receive her due as maintenance or alimony.

While granting maintenance or alimony the court takes into account the financial status of the husband at the time of marriage as well as at the time of divorce and his current income, assets and dependants.

The actual amount of maintenance is determined by evaluating

* the position and status of both husband and wife
* the reasonable wants of the wife
* if the wife is living separately, whether there is justification in being so
* the value of the wife's property or any income derived from such property
* earnings of the wife, either of her own or from any other source
* Number of persons entitled to be maintained.

Maintenance

You can claim maintenance from your spouse either through civil or criminal proceedings. Earlier the maintenance amount under criminal proceedings was fixed at Rs.500/- per month. Now this ceiling has been removed and Section 125 of the Code of Criminal Procedure has been amended to calculate the amount on the basis of the assets and income of the husband.

In the Civil proceedings the maintenance money is fixed according to the financial capacity of the husband. You can opt for both civil and criminal proceedings simultaneously too. In criminal proceedings the religion of the husband and wife does not matter. The civil proceedings vary according to different religion.

The court usually directs the husband to give a separate maintenance for his wife and children, which is calculated according to his income. Usually he is supposed to pay 1/3rd of his income or salary to his wife and child as maintenance, unless the wife has an independent income or any other alternate source of income.

Children

The custody of the minor children is generally given to mother. In exceptional cases where the mother is working or is known to have neglected the child or is of an immoral character, then the father would get the custody of the child. The court always takes into regard the welfare of the child while granting the custody ship.
Time Frame

Usually a divorce by mutual consent is granted within 8-9 months. If contested then it depends on the number of witnesses and evidence and would extend from 3-4 years. A recent development in the divorce law is that if both husband and wife have ruled out any form of compromise and have firmly decided to part ways, then the mandatory six month waiting period is waived and they are granted divorce immediately. If one of the couple is outside the country, then he/she could present the case through his/her advocate. But both have to be present at the time of filing the case, counseling and evidence stage. Otherwise, the ex-parte decree will be granted to the other person.

The court will not grant alimony in cases where divorce has occurred due to concealment of important facts by the wife at the time of marriage. In a recent judgment the Bombay High Court refused alimony to a woman whose concealment of her epileptic condition at the time of marriage was the reason of her divorce. The court opined that the husband would not have agreed to the marriage in the first place if he was aware of her epileptic condition. Under such circumstances, the wife cannot shift the liability of maintenance on her husband.
It is of great importance that a woman knows about this valid support system before she decides to embark on the daunting task of divorce. She must arm herself with appropriate information as well as recent amendments so that her rights and dues are not denied to her in any way. Gone are the days when a woman could rest assured that her best interests will be looked after by people / relatives other than her husband. She must ensure that she is safeguarded at all times.