ABSTRACT
The current research focuses on the prevalent Spousal Laws in India. This article also looks deeply into various aspects like the laws that are available to both the partners irrespective of their gender, and also the laws that are only available to the wives forming part of protection of their rights against their husbands. The current article also aims to throw light on the situations of husbands belonging to the modern era along with drawing a comparison between the laws that are just aimed at protecting the rights of wives and have no mention about the rights and interests of the husbands. Last but not least, the article is concluded with suggestions from the author.
KEYWORDS
- Wife
- Husband
- Laws
- Protection
- Marriage
INTRODUCTION
WHO IS A SPOUSE AND WHY DO THEY NEED LAWS?
In common layman terms, spouse is a term used for a married person, which may even be a wife using the term for her husband, or the husband using it to refer to her wife.
Since it is evident as the law of nature that when, two people who might or might not have differing opinions, tend to reside together, the number of clashes between them also tend to take a rise. There can be multiplicity of causes, actions, objects which can start a miniscule fight between the partners, or might even escalate into something bigger and unforeseeable. To prevent all this, every country by way of legislations and statutes guarantees certain rights and laws in favor of the partners, be it for the wife against her husband or vice versa.
However, it is also a proven fact that such laws available for spouses are only applicable and usable when the marriage is a valid marriage in the eyes of law. Talking about the Indian context, rules of marriage are governed by two specific acts The Hindu Marriage Act, 1955[1] and The Special Marriage Act, 1954[2]. According to these acts, any marriage is rendered to be valid in the eyes of law when the said marriage in question complies with the provisions laid down in these acts. For example, according to the Section 5 of the Hindu Marriage Act, 1955[3], which applies only on the Hindu population of the country, any marriage is rendered to be valid when:
5. Conditions for a Hindu marriage. —A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: —
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party—
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity
(iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
Another section which validates the existence of a marriage in the eyes of law, according to the Hindu Marriage Act, 1955, is s. 7[4] of the act which states:
7. Ceremonies for a Hindu marriage. — (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.
As per the Special Marriage Act, 1954, any marriage is considered to be valid in the eyes of law according to the said provision of the act pertaining to solemnization of marriage, contained in Section 4 of the act, which is reproduced herein under:
4. Conditions relating to solemnization of special marriages. ―Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely: ―
(a) neither party has a spouse living;
(b) neither party―
(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(iii) has been subject to recurrent attacks of insanity
(c) the male has completed the age of twenty-one years and the female the age of eighteen years;
(d) the parties are not within the degrees of prohibited relationship: Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship; and
(e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends.
Provided that no such notification shall be issued in relation to the members of any tribe, community, group or family, unless the State Government is satisfied—
(i) that such rule has been continuously and uniformly observed for a long time among those members;
(ii) that such rule is certain and not unreasonable or opposed to public policy; and
(iii) that such rule, if applicable only to a family, has not been discontinued by the family.
I further wish to bring into light, Section 11 of the Hindu Marriage Act, 1955[5], which clearly specifies the marriages that are to be considered void in the eyes of law, and since the laws available to the spouses apply only in the cases of a valid marriage, therefore, all the laws that are to be discussed under this article are not to be applied to the marriages when they fall under the ambit of s.11 of the act.
WHAT SPOUSAL LAWS ARE AVAILABLE IN INDIA TO BOTH THE HUSBAND AND THE WIFE SIMULTANEOUSLY?
The list of the laws pertaining to spouses that are commonly and simultaneously available to both the husband and the wife, is as follows:
- SECTION 9 of THE HINDU MARRIAGE ACT, 1955
The aforementioned section talks about restitution of conjugal rights which can be applied for either by the husband or the wife. The section states:
9. Restitution of conjugal right. — When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
- SECTION 10 of THE HINDU MARRIAGE ACT, 1955
The section 10 of the act, pertains to the right of judicial separation which can prayed for before the court of law by both the partners at any point of time. The section further states:
10. Judicial separation. — (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.
(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
- SECTION 13 of THE HINDU MARRIAGE ACT, 1955
The above noted section, gives the right to either party to a marriage to file for divorce. The section also further mentions the grounds for divorce available to the party filing for it. The section is reproduced herein under:
13. Divorce. — (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
…
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;
…
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground, —
(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
…
- SECTION 24 of THE HINDU MARRIAGE ACT, 1955
S. 24 of the act, talks about the right to maintenance which can be demanded by either party to the marriage. The section states:
24. Maintenance pendente lite and expenses of proceedings.— Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable.
- SECTION 25 of THE HINDU MARRIAGE ACT, 1955
The above noted section deals with the grant of permanent alimony and maintenance to either party to the marriage. The section further states:
25. Permanent alimony and maintenance.—(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
ARE ALL LAWS AVAILABLE TO BOTH THE PARTNERS SIMULTANEOUSLY?
The answer to the above question is a negative one for that matter, since there are various such laws that only cater to the rights of wives. Such laws are:
- SECTIONS 36 and 37 of THE SPECIAL MARRIAGE ACT, 1954
These two sections of the act talk about the right of wives to demand permanent or pendente lite alimony along with maintenance from their husbands. It is evident from the sections that there is no mention for a husband who can seek the same from the wife. The sections further read as:
36. Alimony pendente lite. ― Where in any proceeding under Chapter V or Chapter VI it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as having regard to the husband’s income, it may seem to the court to be reasonable.
37. Permanent alimony and maintenance.― (1) Any court exercising jurisdiction under Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent to the decree, on application made to it for the purpose, order that the husband shall secure to the wife for her maintenance and support, if necessary, by a charge on the husband’s property such gross sum or such monthly or periodical payment of money for a term not exceeding her life, as, having regard to her own property, if any, her husband’s property and ability [the conduct of the parties and other circumstances of the case], it may seem to the court to be just.
- CHAPTER III (SECTION 18 – 30) of THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956[6], talks about maintenance, however, it is evidently clear from a bare reading of the said chapter that there is no such provision for a husband to seek maintenance, it is only the wife who can seek maintenance from her husband or a widow who can seek maintenance from her in-laws, or a widowed daughter-in-law who can demand maintenance from her father-in-law.
- It is not just the case with Hindus, there are certain Muslim Laws prevalent in India which protect the rights of wives over those of husbands. For Example, CHAPTER II[7] and III[8] of THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019, talk about protection of rights of Married Muslim Women, against their husbands. Sections 2 and 3 of the said act (Chapter II) state that pronouncement of talaq by any Muslim husband upon his wife shall be void and punishable.
- CHAPTERS XX (SECTIONS 493 – 498)[9] and XXA (S. 498A)[10] of THE INDIAN PENAL CODE, 1860, talk about offences relating to marriage and cruelty upon wife by husband respectively. It is again evident that these provisions protect the right of women and wives against their husbands. For example, s. 497 of the code, talks about adultery but it is nowhere specifically mentioned that a wife can also be held guilty under adultery, or s. 498A of the same, nowhere states about any kind of cruelty the husband might have been subjected to by his wife or her family.
- There are however various other laws and legislations which only cater to protect the rights and interests of wives against their husbands, for example, right to hold streedhan, right to receive child maintenance from husband etc.
WHY ARE THERE NO LAWS TO PROTECT THE RIGHTS AND INTERESTS OF HUSBANDS AGAINST THEIR WIVES?
As the author of the current text which talks about spousal laws in India, I would like to throw light on how certain existing laws are biased towards the feminine gender, this is perhaps because India is a country which is broadly run on patriarchal norms and practices. According to which, men are believed to be the dominating ones in a household, or that they are often referred to as the ‘bread winners’ of the family.
Another reason behind these gender specific laws and legislations, is that women in the ancient period were believed to be pure and chaste, and that they couldn’t possibly do or commit any wrong to their husbands, therefore, this notion is often seen reflecting its ideology in the current existing laws and legislations that were drafted and enacted almost 6 decades ago.
However, pertaining to the modern era, there are often cases filed in courts where women tend to misuse these privileges provided to them by these legislations in India, due to which it is believed that the society needs more gender-neutral laws as well as proper mechanism to redress the grievances of the male population of the country, because the cases where a husband is abused, often do not catch such light as others.
RESEARCH METHODOLGY
The purpose of this research was to bring in light the Spousal Laws that are prevalent in India. The research has also tried to strike a comparison between the laws so existing. As the author of the current text, I would like to state that the method used during this research was Doctrinal in nature, by way of which I have put forth my analytics and conclusions from the existing legal material and statutory provisions.
METHOD
The method used by the author while conducting the current research includes interpretation of statutes, reading and analysis of published articles and news pieces, all in order to throw light on the current situation of Spousal laws in our country, and how they affect the lives of individuals. Law develops with time, and so does the society, and bringing in more gender-neutral laws to protect the rights and interests of both the husband and the wife, is only a need that has arisen out of the people and the society.
REVIEW OF LITERATURE
Various articles have been referred by me, as the author of the current text, while conducting the research for the said topic of Spousal Laws in India. Some of which are reproduced herein under:
- Ridhi Khurana: Laws for Married Women’s Rights in India (VIDHIKARYA) [11]
Through the reading of this article, I could analyse and comprehend the comparison between the existing laws and also the need for more gender-neutral laws to cater the needs of the future generations.
- NRI LEGAL SERVICES: Legal rights of a Wife (NRI LEGAL SERVICES)[12]
This blog post proved to be really helpful as it imparted great amount of knowledge about the legal rights of a wife.
SUGGESTIONS
As the author of the current text the following are suggestions on my part after conducting and analysing the issue at hand:
- There shall be more gender-neutral laws and legislations for the future generations to cater to the needs and interests of both the partners to a marriage.
- There should be a well-developed social infrastructure so that men suffering from any kind of cruelty or abuse, may raise their voices and acquire justice.
- The concept of Marital Rape is relatively a new concept but however, in my opinion, shall be criminalized, as it will only further protect the rights and interests of both the partners and would also rectify the other prevailing social problems like unwanted pregnancies, rising population etc.
- Rights and interests of husbands shall also be given priority and equal importance.
CONCLUSION
As the author of the current text, while concluding I would like to draw utmost attention to the fact that Protection of life and personal liberty is guaranteed to the Indian Citizens by way of Article 21, and any kind of infringement in such liberty of any individual shall be a punishable offence like others.
I also conclude by stating the fact that incorporating more gender-neutral laws, protecting the rights of husbands alongside those of wives, etc, are the needs of the society, and its people.
Submitted by: MUSKAN GOEL
VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES
(LEGAL INTERN at THE AMIKUS QRIAE)
[1] The Hindu Marriage Act, 1955, Act 25 of 1955
[2] The Special Marriage Act, 1954, Act 43 of 1954
[3] The Hindu Marriage Act, 1955, Act 25 of 1955, s. 5
[4] The Hindu Marriage Act, 1955, Act 25 of 1955, s. 7
[5] The Hindu Marriage Act, 1955, Act 25 of 1955, s. 11
[6] The Hindu Adoptions and Maintenance Act, 1956, Act 78 of 1956, Chapter III (s. 18 – 30)
[7] The Muslim Women (Protection of Rights on Marriage) Act, 2019, Act 20 of 2019, Chapter II (s. 3 & 4)
[8] The Muslim Women (Protection of Rights on Marriage) Act, 2019, Act 20 of 2019, Chapter III (s. 5 – 8)
[9] The Indian Penal Code, 1860, Act 45 of 1860, Chapter XX (s. 493 – 498)
[10] The Indian Penal Code, 1860, Act 45 of 1860, Chapter XXA (s. 498A)
[11] Ridhi Khurana: Laws for Married Women’s Rights in India (VIDHIKARYA) Last Visited on 12.04.2023
https://www.vidhikarya.com/legal-blog/laws-for-married-womens-rights-in-India
[12] NRI LEGAL SERVICES: Legal rights of a Wife (NRI LEGAL SERVICES) Last Visited on 12.04.2023