Abstract
Matrimonial property is one of the most important issues pertaining to the Institution of marriage. Despite the significant economic contributions that women provide to the household, they do not receive significant financial support. Since their contribution to the family’s development is not seen as productive work, they are not granted any “economic co-ownership with equal rights”. This research paper outlines the case that reasonable thought must be implemented to this issue. The husband and wife’s relationship should be viewed as a “equal economic partnership”. Regarding matrimonial property and the distribution of it among spouses, Indian law needs to be more specific. This paper also attempts to examine the strains and stresses associated with introducing the idea of “matrimonial property” into the framework of the traditional family unit. In an effort to highlight the issue, a thorough examination of women’s inheritance rights and a discussion of the ideal framework for matrimonial property in the Indian context are undertaken. In the context of the family system, the article covers the economic rights of Indian wives, particularly following a failed marriage. The need of having a unified matrimonial property law is then highlighted through a detailed discussion of women’s property rights both during marriage and after divorce. Equal property rights for daughters in their birth families have been a goal of the law; but, not much has been done to protect these rights in their adopted and married families. The paper also makes an effort to study current laws, court rulings, and their socioeconomic effects in order to highlight existing injustice and disparate treatment of women.
Keywords:
Matrimonial Property, Inheritance Rights, Equal Property Rights, Matrimonial Home, Equal Economic Partnership
Introduction
It is true that women make up half of the global population, perform multifaceted domestic duties, and receive inadequate, unprofessional, and detrimental financial support because their role in the growth of the family is not seen as productive work and they are not granted any economic co-ownership with equal rights. The property that spouses bring into the marriage is still treated as individual property under the matrimonial property legislation in India. According to what Prof. B. Sivaramayya called the “Separation of Property” model, the assessment of the matrimonial property that may occur at the time of the husband’s death or the dissolution of the marriage is carried out. Under such a system, “there is no corpus of ‘matrimonial property’ over which both the spouses can exercise a claim, and related to that, there is no conception of an economic partnership between the spouses that would come into existence upon marriage”[1].
Women are believed to become a part of their husband’s family following marriage. Are women in marital homes in patriarchal India receiving all of their rights? Most crucially, property rights for women in their marital homes are practically negligible. She receives little assistance once her marriage dissolves in terms of regaining her mental, social, and most critically, financial stability.
The proprietary identity of a Hindu female has improved as a result of legislative action and judicial rulings. But there is still a lot to be achieved. Women have been denied the proprietary status under all of the male-dominated systems of law, worsening their social status and relegating them to the other class, unquestionably of inferior human beings, according to a study of ancient and current legal systems around the world. Attempts can be made to assess the English and Hindu legal systems in order to establish a matrimonial property law wherein both spouses should have an equal stake in the property acquired before, during, or after marriage. Legal recognition of the economic value of the contribution made by the wife through domestic labour should be given in place of the antiquated test of actual financial contribution when determining who will have ownership of the marital property. In the existing family structure, where property is designed to be an important part of the marital institution and it passes to a person according to the status he or she holds in the family, this research study examines the stresses and strains necessary for the introduction of a new notion of “matrimonial property.” Additionally, a study of women’s economic rights and her matrimonial property rights within her matrimonial family, particularly after a marriage has been dissolved. This research paper also elaborates on the court rulings and legislative changes impacted the interpretation and implementation of matrimonial property laws in India and the need for a standalone law.
Research Methodology
The method used to approach the afore-mentioned study in this research paper is doctrinal method of research. It is source-based research which gathers its content from traditional and modern sources of written text such as books, journals, newspapers, and e-resources. This method is both analytical as well as descriptive. The issues in the project have been examined thoroughly by applying intensive literature review. The researcher has made effort to critically examine all sources to provide an insightful and perspicacious analysis. Research scholars’, academicians’, and other specialists’ perspectives on this subject matter have been incorporated as an authentic addition to this work.
Review of Literature
Numerous writers have addressed the issue and made comparable efforts, but many have failed to analyse the gender imbalance issue and to develop methods for calculating the non-economic contribution in order to determine an ultimate percentage for the marital property share. This is what this study attempts to examine and address.
- Mishra R (2011): The article highlights the situation of women, who, despite making up a substantial portion of the population, are consistently subjected to inequalities indignities, unfairness, and prejudice. Their ownership rights regarding the distribution of their parents’ and spouses’ estates were somewhat restricted. There was the idea of stridhan, which is an asset she brought to the marriage that was accessible for their enjoyment and served as protection for her in case of unacceptable conduct or cruelty in the marital home. Her right to stridhan is protected by the Hindu Succession Act of 1956, which also helps Hindu women gain economic emancipation.
- Swaminathan, (2009): The article gives us an understanding of the discrimination women face. Patriarchal attitudes, biased gender standards, and disparities in authority are the causes of property-related conflicts. The attitude of refusal and dispossession is complex, ranging from the promise of inheritance rights for the children but not for the women to the eviction from the marital house.
- In another article published in the New Vision titled “Parliament asked to enact Matrimonial Property law”[2] The author points out the fact that “matrimonial property law is very important in a just system of delivering justice through an equal division of matrimonial property and considering the social status and the existing legal instruments for Human rights and equality promotion.” The better alternative would be to enact a specific law to cover up the aspect of matrimonial property distribution rather than amending and reviewing each and every law.
CONCEPT OF MATRIMONIAL PROPERTY-
Legislative protections of women’s rights to independently own and manage property are separate from those that married women have regarding property they jointly possess with their husbands. Married women must be given the power to vote on the distribution of marital assets and income in order to safeguard their property rights. Up until recently, solely the husband was expected to provide for the marital home. But as time goes on, women provide an expanding number of equal contributions to the upkeep of a married home; as a result, a matrimonial home should be acknowledged as belonging to both tenants. Hence, Indian law should make it evident who resources the matrimonial residence on marriage and within its domain which property should be considered as matrimonial property entitled to equal allocation on the termination of marriage by divorce or death. “An attempt to define matrimonial property was made by the legislators while amending and codifying the law of marriage among Hindus in the form of the Hindu Marriage Act, 1955 and to regulate the property acquired at or about the time of marriage of a spouse under Section 27 of HMA”[3].
The current section 27 of the Act, however, fails to accomplish the purpose of introducing matrimonial property in the matrimonial home where both the husband and wife share it upon the breakdown of their marriage, if such situation arises among them; and it shall offer equal economic assistance to the parties upon separation.
The contribution that the wife makes to the household and indirectly makes to the acquisition of many properties was not given enough consideration by the legislators. Her contribution serves as the backbone of the family and gives the other family members who are employed the chance to buy real estate. Therefore, a wife’s non-financial resources must be taken into consideration in law, and the husband and wife must both be given joint ownership of any property the husband acquires during the marriage. If they decide to get separated in the future for any reason whatsoever, the property they acquired must be distributed appropriately[4].
The Protection of Women from Domestic Violence Act of 2005 “grants the wife residency rights in the marital home in order to assist women in situations when divorce may leave the wife homeless”. The husband may also be prohibited by the court from disposing of the marital property or taking over it, and he may be required to offer his wife an equivalent standard of living elsewhere. The woman is still not eligible for a portion of the marital estate, despite these progressive measures.
WOMEN AND INHERITANCE RIGHTS–
In India, property rights including inheritance rights are attached with the institution of marriage wherein different laws are applicable to marriage of persons belonging to different religions, faiths and spiritual traits[5].
HINDU- In the absence of acquiring separate property, inheritance is the primary method by which Hindu women can obtain their property rights. In this regard, it is significant to keep in consideration that separate property, as defined by Hindu personal law, is different from coparcenary property, which is acquired from an ancestor and belongs to a joint family. Hindu women who marry into the family are not regarded as coparceners, but they are still entitled to housing, support, and marriage-related expenditures. When a Hindu man passes away intestate, the property first passes to the widow and the Class I heirs. She has a right to a percentage that is equivalent to her son’s share. The wife does not have a property right in the matrimonial house just because she is married to a male family member. On the other hand, if she becomes a widow, she inherits from her deceased husband and/or, if her husband’s father predeceased him, she inherits from her father-in-law.
MUSLIM- Despite being a Quranic sharer, a daughter may be barred from marriage in Sunni and Shia Muslim law due to traditions and statutes. These customs which treat a daughter illusory at the time the intestate succession is opened, are lawful despite being at odds with Quranic principles. The concepts of coparcenary property and matrimonial property in which the partners have equitable portions are not recognised by Sunni personal law. In case of the succession of an intestate Muslim man, “his wife is entitled to 1/4th of the property in the absence of a son. If she has a son, then she is only entitled to 1/8th of the property”.
DISPOSAL OF MATRIMONIAL PROPERTY BETWEEN THE SPOUSES-
Personal matrimonial laws that are in effect throughout the nation do not apply in Goa. It adheres to the 1867 Portuguese Civil law, which establishes a standard civil law for everyone. When a married couple decides to end their marriage, they are free to agree upon how their assets will be distributed. If they don’t decide, community property law will be in effect. This code designates both couples as joint owners of their respective properties. Thus, “it provides women with financial resources at the time of termination of her marriage, as opposed to currently applicable separation of assets law, according to which wife does not have any right to her husband’s properties”[6].
In order to promote equality between the spouses as well as provide women the ability to stand on their own two feet while indirectly advancing the development and progress of the family, India’s matrimonial property laws should be modelled after those in Goa and France.
CONTRIBUTION OF THE HOMEMAKER: EVOLVING JURISPRUDENCE
The Indian Judiciary and the personal laws have also consistently failed to quantify the contribution of the homemaker. General Recommendation No. 17 of CEDAW[7], dealt with “measurement and quantification of the unremunerated domestic activities of women and their recognition in the Gross National Product”.
The House of Lords in Miller v. Miller[8] strongly articulated that “there has to be some sort of rationale for redistribution of resources from one party to another. It held that there are at least three rationales—need (generously interpreted), compensation and sharing for redistribution, which individually or collectively look at factors which were linked to the parties’ relationship”. The standard justification is that the relationship has resulted in creation of needs that should be met by the other party. “The requirements induced by such decisions are a fairly sound justification for modifying the parties’ relative means as compensation,” the court held. Another rationale is the sharing of fruits of matrimonial partnership.
Unfortunately, and rather unexpectedly, Indian courts have not yet addressed this matter. No effort has been made to pass any appropriate laws to address important problems with marriage property division. A skeleton of legal precedent about the role of the homemaker is developing very slowly in cases like-
In Lata Wadhwa v. State of Bihar[9], the Supreme Court endeavoured to determine the value of the services that the housewives provided to the home while awarding compensation to the relatives of the deceased (including housewives) and injured in the fire. It was stated that:
“11. The role of a housewife includes managing budgets, coordinating activities, balancing accounts, helping children with education, managing help at home, nursing care etc. One formula that has been arrived at determines the value of the housewife as, Value of housewife= husband’s income+ wife’s income+ value of husband’s household services, which means the wife’s value will increase inversely proportionate to the extent of participation by the husband in the household duties”.
In Kamta Prasad v. Om Wati,[10] the Allahabad High Court held that “the court can pass a decree with respect to any property which is owned by either the husband or the wife in addition to the property owned by both of them jointly”. The law grants the court the authority to deal with both kind of properties—those owned by each of them individually or jointly—and not just those owned jointly, the court further decided.
In Balkrishna Ramchandra Kadam v. Sangeeta Balkrishna Kadam,[11] the Supreme Court of India held that “property under this section would not be restricted to property given to a spouse at the time of marriage only but would also include property given before as well as after marriage. The Supreme Court specified that the property must be given in relation to the marriage”. The wife received the ornaments she had claimed as her own when it was decided the family court had jurisdiction over the situation. The court pointed out that the clause covers any property that “may belong jointly” to the marriage, giving it the authority to make decisions about assets that are also owned exclusively by one or both of the spouses. It is left to the court to allocate property in accordance with section 27 while keeping equitable principles in account.
In Pratibha Rani v. Suraj Kumar,[12] “the Supreme Court of India observed that the Section 27 of the Hindu Marriage Act does not in any way take away the right of the wife to file a criminal complaint if the property belonging to her is criminally misappropriated by her husband”.
NEED FOR A STANDALONE LAW–
The report of an assembly of ministers, which had recommended mandating compensation from the husband’s portion of the property, including his property acquired at the time of inheritance, was adopted by the Cabinet in July 2013. “The Marriage Laws (Amendment Bill), 2013”, an updated edition of the original bill, was reintroduced, eventually passed by the Rajya Sabha, and is currently awaiting approval by the Lok Sabha.
Section 28D of the Bill assumes significance. It states:
(1).“Without prejudice to any custom or usage or any other law for the time being in force, the court may, at the time of passing of the decree under section 28A on a petition made by the wife, order that the husband shall give for her and children as defined in section 28C, such compensation which shall include a share in his share of the immovable property (other than inherited or inheritable immovable property) and such amount by way of share in movable property, if any, towards the settlement of her claim, as the court may deem just and equitable, and while determining such compensation the court shall take into account the value of inherited or inheritable property of the husband”.
Given the female prejudice in court evaluations, it is unsettling to provide judges broad flexibility in deciding how to allocate marital property. A law that offers security to wives, especially homemakers, is desirable. To extend these rights to wives from all cultures, it is recommended that a separate piece of legislation be passed to address matrimonial property division.
Conclusion and Suggestions
Women can actively participate in the development of their country by having access to property and inheritance rights. Governments have made significant progress in recent years to protect fundamental rights through constitutional clauses and statute law. India still lacks an exhaustive, inclusive legislative structure, meanwhile, that covers women’s legal property rights in a variety of legal contexts, such as marriage and divorce law, religion law, and customary law. There is a gap in the law since it does not acknowledge the idea of matrimonial property among married spouses in India and does not provide them an equal portion at the termination of their marriage through divorce.
She does not receive any property rights in the family of her marriage with her husband just by nature of their marriage. The true goal of women’s empowerment will be accomplished if this disparity is addressed by the creation of “matrimonial property” law in the family of marriage and if the law also provides for its equal division among marital couples. Additionally, this action might eliminate the nation’s steadily widening gender disparity between men and women. Younger educated citizens of the nation may prioritise marriage ahead sharing parental responsibilities. In order to eliminate the ambiguity that now exists in the Indian legal system, the term “matrimonial property” must be defined in explicit and unambiguous terms.
The present provision which vaguely refers to ‘matrimonial property’ under Section 27 of the Hindu Marriage Act must be amended to include “the property received, bought, inherited or any other mode of acquisition during the marriage irrespective of the fact that either of the two spouses has joint title and co-ownership to the same”.
There is a pressing need to expand the definition of what counts as matrimonial property and create a genuine appreciation of a woman’s contribution to the prosperity and well-being of the home. The introduction of the ‘Matrimonial Property (Rights of Women Upon Marriage) Bill, 2012’ in Maharashtra and debate regarding the forthcoming passage of the ‘Marriage Laws (Amendment) Bill, 2012’ in Parliament represent encouraging steps towards the development of a new matrimonial property jurisprudence in India. The ‘equitable distribution principle’ states that “at the time of a divorce, the court with jurisdiction over the case should divide this property equally between the parties”. In more general terms, establishing a suitable policy and legislation on ‘matrimonial property’ in India will undoubtedly call for a close examination of the objectives and obligations of marriage, as well as an understanding of the role played by women in creating, raising, and caring for family members, as effectively as the social and economic issues and legal protections that are currently offered to women in their spouse’s home. “The provisions that treat marriage as a partnership of equals and recognize both financial and non-financial contributions of both spouses to the marriage, the household and the acquisition of assets”[13]. An essential and critical first step for women is the elimination of legal restrictions and the legitimization of property rights reform. In order for women to realise and exercise their property rights, it is desired that policymakers, government officials, non-profit organisations, and other stakeholders can create a more robust system.
Author:
Devanshi Bang
Maharashtra National Law University, Nagpur
[1] B. Sivaramayya, “MATRIMOINAL PROPERTY LAW IN INDIA”, Oxford University Press, 1sted. 1999, p. 112.
[2] Francis Emorut, Parliament asked to enact Matrimonial Property Law, New Vision, 2nd May, 2016, Kampala.
[3] Section 27, The Hindu Marriage Act, 1955.
[4] Vijender Kumar, “Matrimonial Property in India: Need of the Hour”, Journal of the Indian Law Institute (JILI), Vol. 57, No. 4, 2015, pp. 500-523.
[5] Indira Jaising, “Women’s Inheritance Rights in Contemporary Jurisprudence”, Nitya Rao and Luise Rurup (eds.), A JUST RIGHT: WOMEN’S OWNERSHIP OF NATURAL RESOURCES AND LIVELIHOOD SECURITY.
[6] Pradhan Saxena, Poonam. 1993, “Concept of Matrimonial Property’, in Kusum (ed.) women March Towards Dignity: socio-Legal Perspectives”, Delhi press.
[7] General Recommendation No. 17, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
[8] [2006] UKHL 24.
[9] AIR 2001 SC 394
[10] AIR 1972 All 153.
[11] AIR 1997 SC 3562: (1997) 7 SCC 500.
[12] AIR 1985 SC 628.
[13]Jhuma Sen, “Matrimonial Property Rights: Is India Ready for the Law”, Journal of Indian Law and Society, Vol 1, 132 (2009).