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 and below 18 for girls. There are numerous cases where girl child has been the victim of child marriage, only because the family of the girl thinks she is a burden, and if she is sent married off as a child, the dowry taken will be lesser, so the families marry their daughters at a very young age to lower the cost of dowry, despite of the existing laws for the prohibition of dowry.
A statute was created for restraint of child marriage, which was called the Child Marriage Restraint Act, 1929 that implicated the solemnization of marriage between two individuals when they were below the age limit prescribed in the Act. At the outset, the age limit was 14 years for girls and 18 years for boys. The age limit for girls was raised to 15 years by an amendment to the Act in 1949. However in 1978, it was changed to 18 and 21 respectively, especially keeping the view of rising population in the country.
However in 2006, the Government of India put forth the Prohibition of Child Marriage Act, 2006 that incorporated stricter laws for those offenders who perpetrated the crime of child marriage. As the statistics were inflating, to effectively eliminate the evil practice of child marriage, the National Human Rights Commission took up the issue for a review, and the Prohibition of Child Marriage Act, 2006 was enacted.
The Salient Features of the Act are:
The Act made the child marriage voidable at the option of the contracting party to the marriage, who was a child;
The Act also allows for maintenance and the right to live in the same residence for the girl until her remarriage from the male contracting party or his parents;
Punishments which is contemplated under the Act are quite intensified as compared to the 1929 Act. The punishment for a male adult marrying a girl child has been enhanced to 2 years of imprisonment or with a fine up to one lakh rupees or both;
All offenses under the Act have been made as non-bailable and cognizable;
The Act allows for injunctions to prohibit child marriages including ex-parte injunctions and also makes any child marriage solemnized in infringement of an injunction order as void;
The most important change introduced by the Act is the provision which declares child marriage to be null and void under certain situations involving abduction, kidnapping or trafficking of the minor.
In the case of the State by Suddaguntepalya Police vs Syed Mujamil on 19 April, 2018, the accused absconded with a 14-year-old minor girl with the intention to marry, and screened her real age in order to get married in a masjid which was a punishable offense under section 10 of the Prohibition of Child Marriage Act, 2006. The accused was sentenced six months of imprisonment and Rs 2,500/- as fine.
Likewise in the case of State by Malleswaram Police vs Sagar on 13 January 2020 the accused was in contact with a minor girl and made her believe he loved her. The minor lived with her mother, which was known to the accused as well, on 18/10/2018, the accused came near the house of the minor and took her to his village with full knowledge that she was a minor, and got married in a temple by threatening her of aggravated assault, which was a punishable offense under section 9 of Prohibition of Child Marriage Act, 2006 and was convicted for the same.
Few Other Provisions under Distinct Laws:
Hindu Marriage Act, 1956:
According to this act, the parties to a child marriage are solely punishable despite their consent to the union. There are no such provisions made available or enforced for punishing the guardians/ parents or people those that solemnized such marriage.
A girl can get the marriage annulled only on condition stating, her marriage was solemnized before she attaining the age of 15 years and then she challenges the marriage before turning 18 years. Unfortunately, there is no as such express provision to prohibit child marriage.
Muslim Personal Law:
Since Muslim law is not codified in India, its provisions are based on the elucidations of Quran by the scholars. Under this law, there is no such prohibition to child marriage. A guardian has a right to consent and urge the child married. However, the couple has an ‘option of puberty’ also referred to as ‘Khayar-ul-Bulugh’, whereby they will be able to repudiate the marriage after attaining puberty. Although, such repudiation must be done before attaining the age of 18 years provided that, if the marriage has not been consummated yet.
The age of marriage under Muslim law is the age of puberty that is, 15 years. Nevertheless, a marriage before the age of 7 years even if contracted by a lawful guardian, is void ab initio.
As it is a known fact that concept of divorce in ancient India is as existential as a month of Sundays. Although as Manu preached of a spouse not being delivered by her significant other either by deal or by deserting, that the conjugal tie cannot be cut off in any case, nevertheless in modern India, concept of divorce exist to put the marriage to end. It ceases all the mutual obligation of husband and wife legally, by way if this action both are free to go their own way. This leads to end all bonds between them except concerning section 25 and section 26 of the Hindu Marriage Act, 1955. There is accessibility of much grounds for divorce of a husband and wife.
Especially availing the women few exclusive rights in various statutes promulgated in India. As times change there is an urge and dire necessity to change, adapt, comprehend, update ourselves with the ongoing developments and criticism by paving towards the empowerment of women and children.
The custom of child marriage has historical traditions rooted in ancient India and it still remains prevalent today. The basis that have entertained this dangerous abuse of young girls to continue are that both cultural struggle with poverty and place too much emphasis on the virtue of women while patriarchal conviction are heavily implanted into societies and are still dyed in the wool to a great certain of the society. For rooting out this, existing laws require much tightening. Reviewing the child marriage interventions indicate that reformation of legal and policy frameworks is vital.
Child Marriage cannot be curbed without any support from the society. There are demands to constitute child marriage void ab initio under the Prohibition of Child Marriages Act, 2005. Considering the Indian society’s complication and complexity, constituting child marriages void will solely jeopardize the rights of women and young girls who are victims of such marriages. Likewise, Mere legislation would not be rendering much success unless there is a support and backing from the society. Hence, Uniform Civil Code may facilitate in preventing child marriage to some extent.
There is a demand of enhancing the accessibility and quality of formal schooling for girls whilst offering economic support and incentives for them and their families to prioritize by providing education to girls in school or marry later.
Women ought to take part in the decision making process as it is solely through a woman’s association and voice in the decision making, can a girl's or woman's hankering for her children be realised. Approaching to terminate the custom of child marriages acknowledges the complexities and challenging nature of the issue, along with the socio-cultural and structural factors reinforcing the custom.
Consequently, the panaceas to this should be that envisions success in two timeframes. That is within the short term (5-10 years), there is an exigent mass of children, families, and communities revolutionising their attitudes and behaviour and during the longer term (10-30 years) eventually, there is hankering for all the children upheld by new social norms.
Name: Hemanth M
Class: 4th Year
College: KLE Society’s Law College, Bengaluru