In short: a wife can claim maintenance for herself and the children, the right to live in the shared household, protection from violence, custody of the children where their welfare requires it, and the return of her own property, including her stridhan. She does not need to file for divorce first, and a wife living in Bangalore can ordinarily file these cases here.
Many women who consult me after a separation have been told, by relatives or by the other side, that leaving the matrimonial home means giving up their rights, or that nothing can be claimed until a divorce is granted. Neither is correct. The law gives a wife a set of rights that stand on their own, whether or not she wants a divorce, and several of them can be enforced quickly. This article sets them out in plain terms.
Maintenance for Herself and the Children
A wife who is unable to maintain herself can claim maintenance from a husband with sufficient means under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 125 of the Code of Criminal Procedure), and the children can claim it too. While a divorce case is pending, either spouse may ask for maintenance and the expenses of the case under Section 24 of the Hindu Marriage Act, and the court may award permanent alimony under Section 25 when it passes the decree. A Hindu wife may also claim maintenance while living separately in the circumstances set out in Section 18 of the Hindu Adoptions and Maintenance Act, 1956.
Since Rajnesh v. Neha (2021), both spouses must file an affidavit disclosing their income, assets and liabilities in every maintenance case. A wife who keeps copies of the household's financial documents is in a far stronger position when this stage arrives. See How Maintenance and Alimony Are Decided in India.
The Right to Live in the Shared Household
Section 17 of the Protection of Women from Domestic Violence Act, 2005 gives a woman in a domestic relationship the right to reside in the shared household, whether or not she owns any part of it, and protects her from being evicted except in accordance with law. Under Section 19 the Magistrate can pass a residence order, including restraining the husband from dispossessing her or directing him to provide alternative accommodation. In Satish Chander Ahuja v. Sneha Ahuja (2021) the Supreme Court held that the shared household can include a house owned by the husband's relatives, such as his parents, where the couple lived together.
Protection From Violence
The Domestic Violence Act covers physical, sexual, verbal, emotional and economic abuse. The Magistrate can grant a protection order under Section 18, monetary relief for losses and expenses under Section 20, and temporary custody of children under Section 21. Cruelty by a husband or his relatives is also a criminal offence under Sections 85 and 86 of the Bharatiya Nyaya Sanhita, 2023. The civil and criminal routes can be pursued together, and the choice between them deserves careful thought at the outset. See Protection Under the PWDVA 2005.
Custody of the Children
Custody is decided on the welfare of the child, which overrides the claims of either parent. Under Section 6 of the Hindu Minority and Guardianship Act, 1956, custody of a child below five ordinarily lies with the mother, though that too yields to the child's welfare. A mother can apply for interim custody while the main case is pending, and for an order on the father's visiting rights. See Child Custody Laws in India.
Her Own Property, Including Stridhan
Jewellery, gifts and money given to a woman before, at or after her marriage are her stridhan, her absolute property. Property a woman holds is hers under Section 14 of the Hindu Succession Act, 1956. Her husband and his family hold her stridhan, if it is with them, only as trustees, and they must return it. The Domestic Violence Act allows the Magistrate to direct its return, and refusing to return it can also be a criminal offence.
Where She Can File
A wife who now lives in Bangalore can usually bring her cases here, even if the marriage took place elsewhere in India or abroad:
- maintenance under Section 144 BNSS, where she resides (Section 145);
- a domestic violence application, where she resides or works (Section 27 of the DV Act); and
- a divorce petition, where she resides on the date of filing if she is the petitioner (Section 19 of the Hindu Marriage Act).
Which court hears each of these is explained in Family Courts in Bangalore: Which Court Hears Which Family Dispute.
What I Suggest to a Wife at the Start
- Keep copies of the marriage certificate, her own and her husband's income documents, bank statements and property papers, if they are accessible.
- Make a list of her stridhan, with photographs, bills and the names of those who gave it.
- Record incidents with dates, and keep messages in their original form.
- Take advice before leaving the shared home, where that can safely be done, because the right of residence is easier to protect than to restore.
- If she is in danger, her safety comes first. The police and the Protection Officer can be approached immediately.
Law referred to: Sections 144 and 145 of the Bharatiya Nagarik Suraksha Sanhita, 2023; Sections 19, 24, 25 and 27 of the Hindu Marriage Act, 1955; Section 18 of the Hindu Adoptions and Maintenance Act, 1956; Sections 17, 18, 19, 20, 21 and 27 of the Protection of Women from Domestic Violence Act, 2005; Section 6 of the Hindu Minority and Guardianship Act, 1956; Section 14 of the Hindu Succession Act, 1956; Rajnesh v. Neha, (2021) 2 SCC 324; and Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414.
Frequently Asked Questions
Can a wife claim maintenance without filing for divorce?
Yes. A wife can apply for maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and seek monetary relief under the Domestic Violence Act, 2005, while the marriage subsists. A Hindu wife may also claim maintenance while living separately in the circumstances set out in Section 18 of the Hindu Adoptions and Maintenance Act, 1956.
Does a wife have the right to stay in the matrimonial home?
Under Section 17 of the Domestic Violence Act, 2005, a woman in a domestic relationship has the right to reside in the shared household, whether or not she has any title in it. In Satish Chander Ahuja v. Sneha Ahuja (2021) the Supreme Court held that a shared household can include a house belonging to the husband's relatives where the couple lived.
Where can a wife living in Bangalore file her case?
Usually in Bangalore. Maintenance under Section 144 BNSS may be filed where she resides (Section 145), a domestic violence application where she resides or works (Section 27 of the DV Act), and a divorce petition by a wife where she resides on the date of filing (Section 19 of the Hindu Marriage Act).
Does a mother automatically get custody of young children?
Not automatically. Custody is decided on the welfare of the child. Under Section 6 of the Hindu Minority and Guardianship Act, 1956, custody of a child below five ordinarily lies with the mother, but that too yields to the child's welfare.
Disclaimer: This article is for general awareness only and is not legal advice. Every case turns on its own facts, and the practice of individual courts varies. Readers should refer to the statutes and judgments themselves before relying on any point. This content is published in compliance with Rule 36 of the Bar Council of India Rules and does not solicit legal work.
Topics