Divorce rights basically flows from the following two heads
- Parental Rights.
Maintenance flows from the concept of marriage. The question of maintenance is not dependent upon the divorce proceedings. Even before the case of divorce is filed, Indian Law provides the right to claim maintenance through the medium of the Court.
If we look at the entire gamut of Indian matrimonial law, we will find that the provisions for maintenance are available in following statues in case of Hindu Marriage
Section 125 Criminal Procedure Code( Cr.P.C.).
Section 20 of Protection of women from Domestic Violence.
Section 18 of Hindu Adoption and Maintenance Act.
Section 24 of Hindu Marriage Act.
Section 25 of Hindu Marriage Act.
A general conjoint reading of the aforesaid provision makes it amply clear that the objective of law is to provide maintenance to the Spouse who does not have sufficient means to maintain himself/herself by the one who has capacity and means to provide maintenance. The object is salutary and the scheme appreciating.
A cursory look at the past practices and belief is a clear cut indication of the fact that it is the man who has been bestowed with the power, capacity and capability to look after the family. Womanhood is expected to take care of the domestic chores while men were held responsible for all financial support to the family.
Law is expected to change with time. So, when women starting assuming proactive roles in the society, then maintenance law in India took care of this fact and brought the working men and women in the same pedestal. In number of cases, it was held that Husband is entitled to maintenance if he does not have sufficient means and the wife is working.
While awarding maintenance, Court considers following factors among other
- Status of the husband and wife.
- Salary/ Income of the husband.
- Salary /Income of the wife.
- Liabilities of husband, if any.
- Reasonable wants of claimant.
- Financial Background
- Movable & Immovable properties of the Husband. Though there is no fixed formula to arrive at the calculation of maintenance. Yet, the figure hovers around 30% to 40% of the salary/income.
It will be a no defence in case of maintenance that other spouse is at fault or marriage is solemnised on the strength of fraud, the other claimant wilfully and without reasonable cause left the society of the spouse, etc. Court awards maintenance on the strength of marriage and conduct of the party could play a part in determining the quantum of maintenance. Thus, as a matter of general rule maintenance is awarded.
Paremtal Rights After Divorce
Parental rights are the legal obligations and responsibilities that a parent has for their child. Failing to fulfill the needful duties result in child abuse or neglect, thereby terminating the parental rights legally. But neglecting duties in India is hardly a matter to be considered as enough for terminating parental rights. Termination can be voluntarily or involuntarily, and for various reasons. However, here our concern is to deal with parental rights after divorce.