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LEGAL RIGHTS OF A WOMAN & CHILD vis-à-vis MARITAL SANCTITY


India considers the concept of marriage is a very pure and sanctified institution where two individuals ties their lives together. Legally, marriage is a contract between two people who is of legal age and creates a legal obligation between them. It is also a legal obligation of a husband to provide shelter and the maintenance to his wife. Countless women across the country are suffering because of their in-laws and husbands which is why there was necessity to create legal rights specifically for women.


There are legal provisions given especially to women because retrospectively crimes against women has been an issue for a very long time. The crime of dowry, domestic violence, marital rape, abetment to suicide, grievous hurting by the in-laws or the husband himself, cruelty to wives, emotional violence such as abusing with derogatory words etc. these are some of the reasons why women are given separate laws in order to protect their dignity and lives, so they can lead their life independently without any crimes against them.


The Legal Rights of a Married Woman:


Right to Streedhan:

According to the provisions of Hindu Succession Act 1956, Streedhan basically means gifts which is received by a woman during her pre-marriage, ceremonies and during child birth which might include movable or immovable property, jewelleries or any other valuable things.

The important objective of giving the Streedhan is to provide financial ability to the woman after marriage in order to safeguard herself if anything happens. The Supreme Court of India has clearly stated that, “A Streedhan of a married woman is absolutely inalienable to her husband or children but can legally give the Streedhan property if she consents it”. If the family refuses to give Streedhan to the woman, they can be criminally charged under the Protection of Women from Domestic Violence Act, 2005.

Section 14 of Hindu Succession Act, 1956 and section 15 of Hindu Marriage Act, 1955 states that a woman has all the rights to Streedhan and she has her absolute ownership over the property.

If a woman is denied of her rights, a complaint can be filed under section 19 in The Protection of Women from Domestic Violence Act, 2005.

In the case of Krishna Bhatacharjee vs Sarathi Choudhury and Anr on 20 November, 2015 - in this case the appellant filed a case under the Domestic Violence Act, 2005 seeking Streedhan from her husband. The husband had stopped paying the maintenance as they had taken judicial separation, so she was compelled to file a case seeking for her Streedhan, the court held that it is immaterial if the parties were no longer living together, the husband has to pay the Streedhan as he stopped paying the maintenance of his wife.


Right to Reside in Marital Home:

One of the legal rights of a woman is to live in her husband’s house and it is the same even if the husband dies irrespective of the house being an ancestral house, own or rental house. A shared household is her right under the Protection of Women from Domestic Violence Act, 2005. In case the woman is violated of this right, she can lodge a complaint for the same under the DV Act, 2005 in section 31 where the family members of the husband and including the husband will be liable for breaking the law.


Right to a Committed Relationship:

A marriage works only if both husband and wife are absolutely committed to each other. The law dictates that husband cannot be in relationship with someone else if he is already married which is also same for the woman. Having extra marital affairs is one of the grounds for divorce which can be used by women to seek divorce.

If the husband has an extra marital affair, the wife can file a case against him for committing adultery under the Hindu Marriage Act of 1955.


Right to Live with Self-respect and Dignity:

A woman has the legal authority that she can lead her life with dignity and self-respect, where she has all the rights to have the same lifestyle of a husband. Women have the rights to speak against her husband or her in-laws if there is any violence mentally or physically. The apex court has clearly stated that “a daughter in law of the house is supposed to be treated equally as a family member and must not be treated as a maid in the family”.

No impressions of threatening to throw her out of the house or any act of violence must be avoided by the husband and his family members. Under Article 21 of the Constitution of India, a woman has given the right to dignity and also have the rights to divorce, live a free independent life liberated from violence.


Right to Maintenance by Husband:

It is the legal right of woman to claim decent standard of living from her husband, the standards which are pertained to the standard of a husband’s financial strength. Under section 125 of Indian Penal Code, 1860 it avers that a married woman has the legal right for maintenance by the husband for her lifetime. But in case the wife is earning, she can only seek maintenance from him if he earns more than her only, and husband can claim maintenance from the wife if she earns more than him.

The right to maintenance does not include Streedhan and the sum of maintenance will be set by the court on the basis of husband’s salary and standard of living which might include up to 25% of the property of husband.


Right to Property:

In the amendment of Hindu Succession Act 1956, in 2005 it was amended that a daughter married or not has equal rights over her father’s property just like her brothers. A married woman will also have rights, liabilities and duties just how her brother will possess towards her parental family. And the woman also has equal legal rights to inherit her husband’s property however, it can be inherited only if the husband has never prepared a will for his property or has not excluded the wife in his will. Furthermore, they also have a share in their mother’s properties as well.


Right to Claim Custody of Child:

According to the statute of the Guardian and Wards Act, 1890 - The rights over a child is equally given to the parents. A woman has an exclusive right to take her child from her marital home with her without any court order if there is a case of judicial separation.

She is entitled to claim full custody of the child after divorce which is regardless of the fact that she is employed or not, she can claim custody of the child along with maintenance for the child from the husband. And the child will have all the rights over the ancestral property of the father even if the child is a minor.

While the case of custody goes on in the court, the decision is taken seeking the best interests of the child, all the factors of both the parents will be seen in the court and will only be decided which parent holds the best interests of the child and subsequently receiving the custody of the child.


Right to Abortion:

In the statute of Medical Termination of Pregnancy Act, 1971, it gives the women full-fledged rights to abort a child even without the consent of her husband. The Supreme Court of India has stated that “a woman has a sacrosanct right over her own body and doesn’t require the permission of a husband if she decides to not have a baby” and giving women the exclusive right to abortion.


Right To Divorce:

Section 13 of Hindu Marriage Act, 1955 gives the legal right to women to file a divorce even without the consent of her husband. The grounds for those divorce could be adultery, domestic violence, cruelty, dowry, mental disorder of the husband etc., and if the divorce comes through, she will be entitled for maintenance legally by the husband.

Considering these grounds, women have been availed with further 3 grounds for divorce that are in exclusivity to women. They are the grounds of Sec 13(2)(i) – Bigamy; Sec 13(2)(ii) – Rape, Sodomy, Bestiality; Sec 13(2)(iii) – Non-resumption of cohabitation after decree of maintenance; Sec 13(2)(iv) – Repudiation of Marriage under the same Act.


Right to Report Domestic Violence:

If a woman deals with any kind of physical or mental violence in her marital house, she has all the legal rights to report it to the police. Under the Protection of Women from Domestic Violence Act, 2005, a woman can complain about the heinous crimes against her and the police officers or service providers under the law will make sure she is in a safe place and a case will be lodged against the husband’s family. She can claim maintenance and continue to live in the same house. This act can also be one of the grounds for divorce from her husband.

In the case of Saraswathy vs Babu on 25 November, 2013, the appellant was mentally tortured, physically injured and thrown out of her marital house. Under the Protection of Women from Domestic Violence Act, 2005 the respondent was held liable for his actions and was directed to pay RS.5, 00,000 in the favour of wife as compensation of his actions.


Child Marriage and Girl Child:

The custom of child marriage is a brazen violation of the Human Rights of children by the brass necked society. It destroys the juvenescent of the children, knocks down the development within, and increases perpetual inequalities. Marriage before the age of majority is known as child marriage and it has been the plight of many young Indians for centuries tremendously. Child marriage means, “A marriage to which either of the contracting parties is a child”. Child marriage constitutes both genders of children, where inequality, patterns of disparity, and hefty discrimination is made against them.


The cases of child marriage are severe in cases of girls in India, many young women are made to fall into the rampant of marriage and their lives are ruined with early cohabitation, unwanted pregnancies, malnutrition, and many other unwarranted cohabitations. Early marriage robs a girl off her childhood and affects her development in physical, mental, emotional, and physiological needs.

The law in India seeks to put a stop to the solemnization of child marriages, it has framed a rule which states that marriage is prohibited for children below the age of 21 for boys a