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3 Reasons Why Married Women In India Continue To Be Treated As Unequals

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By Simran Bhinder:

Women supporters of India's ruling Congress party listen to their speaker during a rally ahead of women's reservation bill to be presented in upper house of the parliament on International Women's Day in New Delhi March 8, 2010. REUTERS/Vijay Mathur (INDIA - Tags: POLITICS SOCIETY) - RTR2BDMO
Image credit: Reuters/Vijay Mathur.

In the patriarchal Indian society, it is customarily accepted that a wife belongs to her husband’s family after marriage. Yet her share in or her right to property in her matrimonial home is almost non-existent.

In 2010, the government of India introduced The Marriage Laws (Amendment) Bill 2010, which proposed to give a divorced Hindu wife half the share in her husband’s residential property. This Bill–though it is still pending in the Parliament and it is limited only to Hindu marriages–introduces the idea of matrimonial property and a wife’s equal right and interest in it for the first time in the Indian legal system.

The reasons why I think that these new provisions, which would guarantee women a share in the joint matrimonial property, should be allowed are:

1) The Existing Gender Biased And Limited Laws

The main problem with legal provisions and rules which deal with the property of spouses on the dissolution of their marriage is that all of them are extremely gender biased.

While under Muslim personal law a wife is only entitled to that property which the wife holds an absolute title to and to her mehr amount, the only provision under Hindu law which talks about distribution of property among ex-spouses is Section 27 of the Hindu Marriage Act. And even this provision only discusses the distribution of the jointly held property, i.e., that property which is jointly registered in the name of both the spouses. Thus, under the current laws, property remains with the spouse, usually the husband, in whose name it has been registered. As a result, the divorced woman has very little financial support, besides the nominal ‘maintenance’ granted by the courts.

In a country like ours, which has had a history of gender-based discrimination against women, such laws only worsen the economic and social gender inequality which already exists. The existing law itself disregards the financial and non-financial contribution of the spouse who does not hold the title.

Another limitation of the existing law is that it only talks about that property which is acquired at the time of marriage or those in which an individual holds a direct interest. It does not recognise or make any provisions for all the property which a married couple acquires during their marriage to meet the needs of matrimony.

Thus, the present law is not only extremely biased in the favour of men, who have been the traditional title holders of property in the Indian society, but it is also really limited with regard to the kind of property it governs.

2) No Recognition Of The Non-Financial Contribution Of The Wife

In countries such as the UK and others in Europe, the courts apply the doctrine of constructive trust to determine and decide how joint matrimonial property should be distributed between ex-spouses. Under this doctrine, the court considers the non-financial contribution of a woman in the form of domestic work, household chores, child rearing etc. However, the Indian courts do not apply or recognise any such mechanism.

The importance of recognising this non-financial contribution of a woman in ensuring the smooth and successful functioning of her matrimonial home has also been highlighted by Flavia Agnes, in her book titled Family Law II: Marriage, Divorce, and Maintenance Litigation.

Often, a woman is forced to let go of her career in order to look after the family. The financial cost of her professional sacrifice, as well as her un-remunerated contribution to the maintenance of her matrimonial home, should be considered while deciding how the joint property will be divided.

3) No Concept Of Equality Or Equity Within Marriage While Deciding Property Share

“A noteworthy feature of all maintenance statute[s] in India is that they are based not on the concept of equal economic partnership of husband and wife, but on the concept of maintenance as gratis or at best an act of compassion.” (B. Sivaramayya, Matrimonial Property Law in India)

Since the courts fail to view both the husband and wife as equal partners socially as well as economically, the contribution of the wife to the joint matrimonial property and her equal right to get a share in the same is also completely disregarded by the courts. Even her direct financial contribution is often completely ignored by the courts. As a result, even the maintenance that she gets, or the limited interest in jointly held property that she gets, are given keeping in mind the knowledge that she is being given something which he ex-husband rightfully owns.

Thus, the courts never really give a fair and just reimbursement to a woman. Often, low and completely unjust amounts are justified using the logic that since the husband is doing a favour on his ex-wife by giving her a monetary sum or share in the property which is deemed to be ‘his’. A very high sum or joint interest in property are very rarely granted since the presumption is that the husband is being denied his property.

The courts need to recognise that in most modern day marriages the wife is an equal partner who contributes socially as well as economically. Her claim to her husband’s property is nothing but a claim to get an equal share in that property in which she is an equal shareholder and contributor.

You must be to comment.
  1. Truth

    Does being empowered only mean thinking about the financial and economic capability of the husband and nothing else. I am sure even if women get married they would leave their husbands at the drop of a hat once the husband’s economic status falls.

    In reality marriage has become a business opportunity for the girl’s family. Marriage proposals move forward only once the groom’s financial position is ascertained beyond reasonable doubt, so that if the marriage goes sour, which it most likely will since the marriage was solemnized purely on financial reasons, and then we have the infamous 498A and Domestic Violence act to fall back on. It is not really surprising that with the marriageable female population and their family displaying such pure greed that we are seeing section 498A being misused in 98 per cent of cases as a money extortion tool. Not to mention alimony, child support, and now half of husband’ property. Husband’s are walking, talking ATM machines.

  2. The Hulk

    Now women can get married with the intention of getting a divorce. Easy money. If alimony and child support wasn’t enough. The mistake men make in their early days of marriage, when love is hot, is that they get trapped in their wives smooth talks and book property under their wives name. They regret it later, when the woman they loved dearly “flies” away with their property.

  3. pedrole

    you seem to be excluding(intentionally or unintentionally) lot of clauses in that bill
    In my knowledge marriage law amendment bill(2013) is very unfair towards men.
    1)It says wife will have a right to husbands property which was acquired before the marriage.
    actually in progressive societies marital property is considered as a property that was acquired after that marriage.
    hence the name marital property.
    2)Even worse its only the husbands property.If my wife buys a property after marriage husband wont get a share on it.
    but wife will get a share on husbands property.Simply his property will be her’s and her property will still be her’s.
    3)wife will have a right to husbands ancestral property which is the most regressive clause.no progressive country has sucha law.Also wife’s ancestral property
    wont be divided its only his.
    4)The law gives power to challenge a divorce initiated by husband if she can prove that she will be in poverty due after the divorce.
    As usual husband has no right to challenge the divorce initiated by wife at any circumstances.
    5)no minimum time to file divorce.If marriage is today she can file divorce tomorrow.
    6)worst clause :Judge has no jurisdiction. All of the above clauses are valid at any circumstances.It does not consider behaviour of parties involved in marriage.
    Suppose if wife is the one who cheats her husband and want to go with a new lover
    above 5 clauses will still be valid.That means she can marry a rich person,initiate a divorce,Tell the judge I want to go with a new lover judge cannot do anything.
    Its all fixed irrespective of who is at fault.
    This law cannot be misused.Because injustice itself is the law.:)

  4. Ghhdf

    This will support gold diggers

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