Rights of Women After Divorce in India
- Sahara Sultana
- Jul 18
- 4 min read
Updated: Sep 10
Divorce can be emotionally and legally complex. In India, the rights of women post-divorce vary significantly depending on the personal laws governing their religion, such as the Hindu Marriage Act, 1955; Muslim Personal Law; Indian Divorce Act, 1869 and the Special Marriage Act, 1954. The law ensures that women are entitled to certain rights and protections after divorce, including maintenance, custody of children, residence, and return of property, though the extent and nature of these rights differ based on the personal law under which the marriage was governed.
Rights under the Hindu Marriage Act 1955:
Right to Maintenance and Alimony
Sections 24 & 25, Hindu Marriage Act, 1955: A divorced Hindu woman can claim interim (during proceedings) and permanent (after divorce) maintenance and alimony. The amount is determined by the husband's financial capacity, the wife's needs, and other circumstances.
Section 125, Criminal Procedure Code (CrPC): Any divorced woman, regardless of religion, can claim maintenance if she cannot support herself.
Duration: Maintenance is generally provided until the woman remarries or becomes self-sufficient. Read more at: Alimony and Maintenance Procedure in India
Rights to Property and Stridhan
Stridhan: All gifts, jewellery, money, or property received by a woman before, during, or after marriage from her family, husband, or relatives are her absolute property. She can reclaim Stridhan during or after divorce, and the husband has no right over it.
Joint Property: If the property is jointly owned, the woman has an equal right to it, based on each party’s contribution.
Marital Assets: Indian law does not automatically grant a share in the husband's pre-marriage property. Assets acquired during marriage may be divided fairly by the court.
Child Custody and Support
Custody Rights: The welfare of the child is paramount. Under the Hindu Minority and Guardianship Act, 1956, and the Guardians and Wards Act, 1890, mothers are generally granted custody of minor children, especially those below five years.
Child Support: The father is obligated to provide financial support for the child’s upbringing, education, and healthcare, even after divorce.
Visitation Rights: The non-custodial parent retains visitation rights. Looking for Legal Advice? Talk to our team:
Rights under the Muslim Law:
Right to Mehr (Dower):
Mehr is a sum of money or property promised by the husband at the time of nikah (marriage). It is a legal obligation under Muslim personal law. If unpaid at the time of divorce, the wife can lawfully claim the full amount. This amount is her exclusive right, regardless of the duration of the marriage.
Right to Maintenance (Nafqah):
During Iddat: The husband is legally bound to provide maintenance to his wife during the iddat period, typically three menstrual cycles (or three lunar months), or until childbirth if the woman is pregnant.
Beyond Iddat: Under Section 125 of the Criminal Procedure Code (CrPC), a divorced Muslim woman can claim maintenance beyond iddat if she is unable to support herself. Though the Muslim Women (Protection of Rights on Divorce) Act, 1986 was initially viewed as limiting this right, the Supreme Court in Danial Latifi v. Union of India clarified that the husband must make a fair and reasonable provision within the iddat period, but this provision must cover her future needs as well.
Right to Reasonable and Fair Provision:
The Muslim Women (Protection of Rights on Divorce) 1986 Act mandates that a divorced Muslim woman is entitled to:
A reasonable and fair provision and maintenance, to be paid within the iddat period, but for her future livelihood.
If the husband fails to provide this, the woman can approach the Magistrate for relief.
This interpretation, as laid down by the Supreme Court, ensures that Muslim women are not left destitute after iddat ends.
Right to Child Custody and Support:
Custody (Hizanat) Under traditional Islamic principles:
Mothers typically get custody of boys up to 7 years and girls until puberty.
However, Indian courts prioritise the welfare of the child over religious rules. Custody is granted based on the child’s best interests.
Child Support: Regardless of custody, the father is legally obligated to financially support the child until adulthood.
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Rights under the Indian Divorce Act, 1869 (for Christians)
Right to Maintenance and Alimony
Section 36, Indian Divorce Act, 1869 Christian woman can claim interim maintenance during the divorce proceedings. The court may order the husband to pay a monthly allowance depending on his income and her financial situation.
Section 37:After the divorce is granted, she can also apply for permanent alimony, which the court decides based on factors such as income, conduct of the parties, and circumstances.
Section 125, CrPC: As with other religions, any woman, regardless of faith, can approach a Magistrate under the Criminal Procedure Code if she is unable to maintain herself.
Right to Property
There is no automatic right to the husband’s property after divorce under Christian personal law.
However, she can retain or reclaim her personal belongings, gifts, and assets given during marriage.
If any property is jointly owned, her share is determined based on contribution or mutual agreement.
Child Custody and Support
Custody: Under the Guardians and Wards Act, 1890, custody decisions are made keeping the best interests of the child in mind. There is no strict preference for mother or father.
Visitation and Child Support: The non-custodial parent has visitation rights. The father is generally expected to contribute to the child’s financial needs, including education and health.
Rights under the Special Marriage Act, 1954:
The Special Marriage Act applies to interfaith couples or those who choose to marry under a civil, secular framework. Right to Maintenance and Alimony
Section 36 woman can seek interim maintenance while divorce proceedings are ongoing.
Section 37:She can also claim permanent alimony or financial support post-divorce. The amount is determined based on the needs of the wife, the husband’s income, the duration of the marriage, and other relevant factors.
Additionally, Section 125, CrPC applies universally to claim maintenance if she cannot sustain herself.
Right to Property
The law does not automatically grant the wife a share in the husband's individual property.
However, any jointly held property is divided based on ownership records and contribution.
Personal belongings and gifts given during marriage are considered the woman’s property.
Child Custody and Support
Custody is governed by the Guardians and Wards Act, 1890, with the child's welfare being the most important factor.
Either parent may be granted custody, and the non-custodial parent must contribute to the child’s maintenance and education.
Visitation rights are usually provided to the non-custodial parent.
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