Amid rising instances of matrimonial discontent, married couples often start living separately without filing for a divorce. While divorce is not often the first choice for most of the couples in India due to the negative stigma attached to it, several problems may arise when the separation does not get a formal legal seal.

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Informal separation leads to several property and maintenance related disputes and finding a legal remedy in such case may be difficult for both the parties. Here, we would examine the property and maintenance rights of deserted or abandoned wives in India.

Also read about the property rights of the second wife and her children

Maintenance rights of deserted wife, her children

In November 2020, the Supreme Court of India has ruled that deserted wives and her children are entitled to alimony/maintenance from their husbands from the date they apply for it in a court. While stating that women deserted by husbands are left in dire straits, often reduced to destitution for lack of means to sustain themselves and their children, the apex court, in its 67-page judgment, said that the order or decree of maintenance may be enforced like a decree of a civil court, through the provisions, which are available for enforcing a money decree.

While maintenance cases must be settled in 60 days, they typically take years in India to get resolved.

The top court also stated that the argument that a husband does not have any regular source of income does not absolve him from his moral duty to maintain his wife and children.

Establishing that a deserted wife should get an alimony, which fit the standard of life she was used to in the matrimonial home, the SC said that the spiralling inflation rates and high costs of living must be considered at the time of deciding the maintenance.

“Education expenses of the children must be normally borne by the father. If the wife is working and sufficiently earning, the expenses may be shared proportionately between the parties,” the SC added.

What qualifies matrimonial desertion?

According to the SC, desertion is the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of the deserting spouse to bring the cohabitation to a permanent end.

When can a deserted wife not claim maintenance?

Under Section 125 of the Code of Criminal Procedure, a wife can’t claim maintenance from her husband if she is living in adultery.

The same is true if the wife refuses to live with her husband without any reasonable cause. In February 2022, the Supreme Court dissolved a marriage on the ground of desertion as the wife failed to provide a reasonable cause for remaining away from her matrimonial home.

“There should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home,” it said in the judgement.

The wife cannot claim maintenance if the couple is living separately by mutual consent.

Note, the provisions of Section 125 of the CrPC also include unmarried couples living together for years within its ambit.

Can wife claim maintenance if she lives separately on her own will?

A husband can refuse paying maintenance to a wife who deserts him and starts living separately terming the act cruelty. However, in a ruling on December 26, 2022, the Kerala High Court has said that a husband can’t dent maintenance to such a wife if she was not able to live peacefully in her matrimonial home.

“When a party seeks a divorce on the ground of cruelty, there shall be sufficient pleadings alleging cruelty, and evidence to prove the cruelty, to succeed in the divorce petition. But difference of opinion otherwise, in view of the particular circumstances at the matrimonial home, whereby the wife could not lead a peaceful life shall not always be ‘cruelty’… these are also reasonable grounds to deny joint residence. In such cases, it could not be held that there was willful discretion to deny payment of maintenance,” the HC said.

Property rights of deserted wife, her children

Legally, an abandoned wife and her children have the right to stay in her husband’s house. Under the existing Hindu laws (also applicable on Sikhs, Jains, and Buddhists), a deserted wife can’t seek the division of her husband’s self-acquired, or ancestral property.

“An abandoned Hindu wife can’t stake a claim in her husband’s ancestral or self-acquired property for as long as he is alive even though she certainly can claim to reside in such a property,” said Brajesh Mishra, a lawyer practicing in Gurgaon.

Mishra, however, added that she could stop the sale of her husband’s self-acquired property if she is able to prove that her money was also used in purchasing the property. This makes it pertinent for the wife to provide documentary proofs of her share in the property.

Deserted Hindu wife can stay in husband’s rented house: SC

In a 2005 ruling, the Supreme Court made it clear that the deserted wife and children also have the right to live in her husband’s rented house.

What happens in case of the husband’s death?

In case the husband of a deserted wife dies, she may or may not acquire the right in his self-acquired property.

In case, he died without leaving a will (known as dying intestate in legal parlance), his self-acquired property will be divided among his legal heirs under the provisions of the Hindu Succession Act.

In this case, the wife will get her share as the husband’s Class 1 heir.

“In case the husband dies leaving a will and neglecting his wife from his self-acquired property, his wishes will take prevalence. As no such liberty is meant for ancestral properties, the wife will get her share in her late husband’s inherited properties,” added Mishra.

What if the deserted wife divorces her husband in the meantime?

Keeping in mind that an abandoned wife’s property and maintenance rights would be very different in case she proceeds with the divorce. Such woman divorces her husband even as her petition for property rights and maintenance is pending before the court, the decree of divorcee would take precedence.

In its ruling on rented accommodation, the apex court has made it clear that a divorced wife can’t claim tenancy as she ceases to be a member of her husband’s family. If this rented home is part of the divorce settlement, the wife will have to claim tenancy of this rented house in her own name.

Latest judgements

Husband must provide for first wife despite second marriage: Calcutta HC

August 3, 2023: A husband who has married for the second time under his personal law is still duty bound to provide for the first wife, the Calcutta High Court (HC) has ruled. While delivering its order on July 31, 2023, the quashed a sessions court order which had reduced the monthly maintenance for the first wife from Rs 6,000 to Rs 4,000 “A man who can marry for the second time (permitted under personal law), is duty bound to maintain his first wife of 9 years. A woman who has diligently, sincerely, and lovingly put in so many years of her life in a relationship with her husband deserves to be looked after and cared for by him, as long as she needs or requires the same,” the HC said.

Read full coverage here.

First wife can seek declaration of husband’s second marriage as void: HC

August 3, 203: A first wife’s application under Section 11 of The Hindu Success Act, 1955, seeking declaration of her husband’s second marriage as void is maintainable, the Allahabad High Court has ruled. While allowing the first wife to pursue legal recourse to nullify the second marriage on the grounds of its illegality, the HC dismissed an appeal by the second wife. “If the first wife is deprived of seeking a remedy under Section 11 of the Hindu Marriage Act, it would defeat the very purpose and intent of the Act. The protection offered to legally wedded wives under sections 5, 11, and 12 of the Hindu Marriage Act would become insignificant in such a scenario,” the two-judge Bench of Justices Saumitra Dayal Singh and Vinod Diwakar said.

Read full coverage here.

Woman who leaves matrimonial home on her own not eligible for maintenance: HC

June 13, 2023: The Allahabad High Court says a woman who leaves her matrimonial home of her own accord is not eligible to claim maintenance. “The provision of Sections 125(4) CrPC. is very clear that no wife shall be entitled to receive any maintenance from her husband if she refused to live with her husband,” it said.

Husband buying property in wife’s name not always benami transaction: HC

June 9, 2023: A husband supplying the money to her wife for property purchase does not necessarily make the transaction a benami one, the Calcutta High Court (HC) has ruled. For the transaction to qualify as benami transaction, the intention of the husband behind providing this monetary support is crucial, the HC said in an order dated June 7, 2023

Read full coverage here.

FAQs

Under which law can a Hindu wife claim her maintenance?

Section 18 of the Hindu Adoptions and Maintenance Act, 1956 stipulates that a wife would be supported by her husband throughout her life.

What should a deserted wife do to claim her husband's property?

The wife can either file a suit for partition of her husband's property, or file for divorce.

Which section of the Code of Criminal Procedure allows a deserted wife to claim maintenance from her husband?

Section 125 of the Code of Criminal Procedure allows a deserted wife to claim support from her husband.

Does a deserted wife have the right to seek partition of her husband's ancestral, or self-acquired property?

No, the wife does not have the right to seek partition of her husband's ancestral, or self-acquired property. A married woman, even if abandoned, can inherit her husband's property only after his death.

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Sunita Mishra

An alumna of the Indian Institute of Mass Communication, Dhenkanal, Sunita Mishra brings over 16 years of expertise to the fields of legal matters, financial insights, and property market trends. Recognised for her ability to elucidate complex topics, her articles serve as a go-to resource for home buyers navigating intricate subjects. Through her extensive career, she has been associated with esteemed organisations like the Financial Express, Hindustan Times, Network18, All India Radio, and Business Standard.

In addition to her professional accomplishments, Sunita holds an MA degree in Sanskrit, with a specialisation in Indian Philosophy, from Delhi University. Outside of her work schedule, she likes to unwind by practising Yoga, and pursues her passion for travel.
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