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What are my rights in the process of divorce as a wife?

Rights to wife in the divorce proceedings in our country are very limited.  Rights to wife by means of financial support in the form of maintenance can only be viewed, and not in any other form.

Maintenance would be given in different stages, one of which would be alimony pendatelite.  Pendatelite alimony could be applied under any of the Acts that is applicable to them such as Section 36 of Special Marriage Act and Divorce Act in general, Section 125 of Criminal Procedure is also applicable to apply for maintenance irrespective of their personal laws, for Parsis under Section 39 of Parsi Marriage Act and for Hindus under Section 24 of the Hindu Marriage Act.

Right to maintenance is a continuous right under Hindu Laws.  Family Courts under Section 127 of Cr.P.C has power to revise the maintenance order by modifying, or rescind or may enhance the maintenance amount. In S.Jayanthi Vs.S.Jayaraman (1998(1) DMC 699), the court held that the wife is entitled to have the same status as her husband. She must have the necessary medical facility, food, clothing etc”, the Court should also consider the inflation and cost of living while granting permanent alimony. Grant of Maintenance under Section 125 is not a bar to get maintenance under Section 24 of Hindu Marriage Act to claim Maintenance pendentelite

For Muslims, their personal law grants maintenance to wife only for three months period, hence they can apply under section 125 of Cr. P.C, which is applicable for all religions, under this section Muslim husband is not absolved in the name of their personal laws. Ameer Amanullah Vs. P.Maniam Beevi (1985 (1) MLJ (Cri) 164.  First Class Magistrate upon such application and upon proof of negligence committed by the person, may order maintenance a reasonable amount on monthly basis to wife and children. As per Muslim Women (Protection of Rights on Divorce) Act, 1986, wife entitled to maintenance of three months, children from that marriage are entitled to maintenance for two years, and Mehr amount agreed at the time of marriage, and properties if any given to her before or after marriage by husband or his relatives or her relatives.

For Parsis, right to alimony pendente lite and permanent alimony are available to wife under Parsi Marriage and Divorce Act, 1936, which is not less than one-fifth of the husband’s income till she remains unmarried or unblemished.

The other major right for wife in the divorce proceedings is the right to permanent alimony for post divorce period for her and for minor child or children.   Court grants permanent alimony after considering certain factors such as financial status of both husband and wife, and any properties, age and sex of children.

In Komalam Amma Vs. Kumarapillai (2008(14)SCC 345) it was held that Right to Residence is also a part of wife’s right to maintenance

By Anitha Gutti