By Simran Bhinder:
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:
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.
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.
“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.