A wife's rights in a divorce in India: property, maintenance, the home and children

Property

No 50% rule. Each spouse keeps what is in their own name.

Money

Maintenance during the case, then permanent alimony, fixed on income, needs and standard of living.

Home

A right to reside in the shared household; no eviction without due process.

Stridhan

Her absolute property. Whoever holds it holds it in trust for her.

A divorce ends the marriage. It does not end a wife's claims on money, on the home she lived in, on her own property, or on the children. Those claims come from several laws at once: the Act that governs the marriage, the maintenance provision of the criminal procedure code, the Domestic Violence Act, and the guardianship law. This page sets them out in the order women usually ask about them. Which Act governs your marriage is explained in divorce in India.

Property: there is no 50% rule

India does not have community property. A divorce does not give a wife half of what the husband owns, and it does not give the husband half of what the wife owns. Property in the husband's name, whether self-acquired or ancestral, stays his; property in the wife's name stays hers; property in joint names is divided by each owner's share, which may depend on who paid for it. A wife has no share in her husband's ancestral property in her own right. Her children do: sons and daughters of a Hindu father are coparceners by birth (Vineeta Sharma v. Rakesh Sharma, 2020), and a divorce does not change that.

What a wife does have is a claim on the husband's income and assets through maintenance and alimony. The court can secure permanent alimony as a charge on the husband's immovable property (Section 25, Hindu Marriage Act), which is the nearest the law comes to a property award.

Maintenance during the case

A wife who does not have enough independent income can ask for monthly maintenance and the costs of the case while the divorce is pending (Section 24, Hindu Marriage Act; Section 36, Special Marriage Act; Section 36, Divorce Act for Christians). This is usually decided within months. Separately, and whether or not a divorce has been filed, she can apply to the Magistrate under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, which replaced Section 125 of the old Code from 1 July 2024, and for monetary relief under Section 20 of the Domestic Violence Act. There is no ceiling on the amount in any of these.

Since Rajnesh v. Neha (2020), both spouses must file an affidavit disclosing their income, assets and liabilities at the start; maintenance runs from the date of the application, not the order; and amounts awarded in one proceeding are adjusted in the others, so the same need is not paid for twice.

Permanent alimony after the divorce

At the decree, or later, the court can order a lump sum or a monthly amount for the rest of the wife's life or until she remarries (Section 25, Hindu Marriage Act, and the equivalent sections of the other Acts). There is no formula. The court considers both spouses' income and property, the standard of living in the marriage, the wife's qualifications, earning capacity and what she gave up for the family, the children's needs, the length of the marriage, and the husband's other obligations. The Supreme Court has said alimony is meant to let the wife live with dignity, not to equalise the spouses' wealth or punish the husband (Rinku Baheti v. Sandesh Sharma, 2024).

In a mutual consent divorce the amount is agreed rather than decided, usually as a single settlement that closes all money claims, including maintenance cases already filed. Once accepted as full and final, it is difficult to reopen.

If the wife earns

A working wife can still claim if her income does not let her live as she did in the marriage. Being qualified to earn is not the same as earning, and a wife is not refused maintenance only because she could work (Shailja v. Khobbanna, 2018). Her income is set against the husband's when the amount is fixed.

When maintenance can be refused

Under Section 144 of the BNSS (old Section 125 CrPC) a wife is not entitled if she is living in adultery, refuses without sufficient reason to live with her husband, or lives apart by mutual consent. The husband's cruelty, his second marriage or his keeping another woman are each sufficient reason to live apart. Under Section 25 of the Hindu Marriage Act the court can vary or cancel alimony if the wife remarries.

The matrimonial home

A wife has a right to reside in the shared household, whether or not she has any title or interest in it, and cannot be evicted from it except in accordance with law (Section 17, Domestic Violence Act). The Supreme Court has held that the shared household can include a house owned by the husband's parents where she lived as part of the family (Satish Chander Ahuja v. Sneha Ahuja, 2020). The Magistrate can pass a residence order restraining dispossession, or direct the husband to secure alternative accommodation or pay rent for it (Section 19). This is a right to live there, not ownership, and the court balances it against the rights of the owners.

Stridhan and dowry

Stridhan is what a woman receives as her own: gifts before, at and after the wedding, from her family, her husband's family and others, including jewellery, cash and articles. It is her absolute property, and a husband or in-law holding it holds it in trust for her (Pratibha Rani v. Suraj Kumar, 1985). Refusing to return it is criminal breach of trust, now Section 316 of the Bharatiya Nyaya Sanhita (old Section 406 IPC). The divorce court can also make orders about property presented at or around the marriage (Section 27, Hindu Marriage Act), and the Magistrate can order its return under Section 19(8) of the Domestic Violence Act.

Dowry received by anyone other than the woman must be transferred to her (Section 6, Dowry Prohibition Act). Lists of articles, bills, photographs and bank records made at the time are what prove stridhan later.

Children: custody, visits and support

Custody is decided on the welfare of the child, not the rights of either parent. Custody of a child under five should ordinarily be with the mother (Section 6(a), Hindu Minority and Guardianship Act); for older children the court looks at the child's age, schooling, stability and, where the child is old enough, the child's own wishes. The divorce court can make interim and final orders on custody, maintenance and education (Section 26, Hindu Marriage Act), and the parent without custody is normally given visiting rights. A child's right to be maintained by the father continues regardless of custody and regardless of the divorce.

Where she files and who pays for it

A wife can file her divorce petition in the district where she lives on the date of filing (Section 19(iiia), Hindu Marriage Act). If the husband has filed far away, the Supreme Court often transfers matrimonial cases to the wife's district. Every woman is entitled to free legal services from the Legal Services Authority, whatever her income (Section 12(c), Legal Services Authorities Act). In Ghaziabad that is the District Legal Services Authority at the district court.

Muslim, Christian, Parsi and interfaith marriages

The Special Marriage Act, the Divorce Act and the Parsi Act have their own sections on maintenance during the case and alimony, which work in much the same way. A divorced Muslim woman is entitled to a reasonable and fair provision for her future, to be made within the iddat period (Danial Latifi v. Union of India, 2001), to her mehr, and to maintenance from the Magistrate, which the Supreme Court confirmed in 2024 (Mohd. Abdul Samad v. State of Telangana). See Muslim divorce in India.

Read next

• Divorce in India: the law, the process and how long it takes
• Grounds for divorce in India under each law
• One-sided divorce in India
• Mutual consent divorce
• Divorce lawyer in Ghaziabad: the Family Court at RDC

Questions people ask