Equitable Distribution Of Property Rights Post-Divorce
Marriage is an institution of two people in which peaceful co-existence and
mutual harmony are important and guide the two parties to live a happy married
life. this institution has its ups and downs which can sometimes cause the two
parties to break apart (divorce). Divorce is defined as when two people agree to
discontinue their legal relationship as a married couple before the death of
either spouse. Section 13 of the Hindu Marriage Act lays out the grounds for
As a matter of fact, India is a secular country every religion in the country is
governed according to their personal matrimonial laws. According to the Hindu
marriage act, marriage is the solemnization of a male and a female in accordance
with customary rites and ceremonial traditions. though it is the solemnization
of two people in changing times due to people getting aware of their rights
separation and divorce are becoming common practice.
The property right of an individual is no more a fundamental right but a human
right that comes under article 300 A of the Indian constitution. now the
question arises that what are the entitlement of women after divorce in
accordance with Indian laws and whether the property should be equally
distributed among spouses.
to get into the depths of the issue we have to understand the historical
development of matrimonial laws in India. The laws go back to the time of
Kautilya where "a woman may abandon her husband if he is of bad character, if he
has become a traitor, or is likely to endanger her life, is an out-caste and
lost his virginity".
Or A disaffected wife is not to be granted a divorce from her husband who is
unwilling nor the husband from his wife but by mutual consent, divorce can be
granted. According to Kautilya, there were various grounds for divorce such as
cruelty, desertion, apostasy, impotency, and mutual consent.
This projects India as a society where the rights of women were recognized and
protected. Over the time when societal norms were changing the need was felt to
codify the laws relating to divorce and the first attempt was made in the year
1931 under which rights to divorce were given to both men and women on the
grounds of impotency, adultery, bigamy desertion, conversion, cruelty,
intoxication, if the wife is pregnant during the marriage or either the spouse
is disappeared for seven years.
After this various law were passed such as the madras act of 1933, and the Hindu
marriage act of 1955 which includes Hindus, Jains, Sikhs, and Buddhists, and
give eight grounds for divorce to both spouses. Divorce of Christians governed
through the Indian Divorce Act, of 1869. Inter-religion marriages are governed
under the Special Marriage Act of 1956.
These laws became the bedrock of the present legal system that deals with
present divorce cases.
there are 2 models according to which the matrimonial properties is divided i.e.
Separate and Joint ownership. Equitable distribution of property means how the
property should be equally distributed between a divorcing couple so that each
one of them is financially stable and independent, it is a positive concept and
supports the personal growth of the individual spouse.
Two main concepts should be taken into consideration other than property
distribution and those are alimony and maintenance, now alimony is the economic
support that one spouse is bounded to give to the other spouse during divorce
and it varies from party to party keeping their financial situation in a note.
section 25 of the Hindu Marriage Act deals with the concept of permanent alimony
When talking of divorce alimony property distribution among the couples also
comes to light, property rights are the legal rights to obtain, sell, or
transfer property as one wishes. division of property during a divorce is
something that has always been in contention, when the property is in the name
of the husband, the wife has no rights over that property.
According to the registration act 1908, the property belongs to the person under
whose name it has been registered and therefore we can say that during divorce
the wife can ask for maintenance and livelihood cost but not property. So what
about the joint property that the couple purchased during the course of the
The simple answer to this question is, the wife can claim her stake in such
joint property, after producing the needed documentation before the court of
law. stridhan, movable property given to the wife at the time of marriage, can
only be claimed by her. This includes cash, jewelry, cards, etc. [i] Section 27
of the Hindu marriage act, 1955 gives the court the authority to decide on
matters of property that are jointly owned by the couple. These concepts are
further clarified by the judiciary in their verdicts.[ii]
In the present scenario, the courts use their discretion in deciding the grant
of maintenance and alimony and to determine that the judges use certain
parameters like the age, level of education, and family background of the wife
and a fixed percentage of maintenance There is an instant need to change the
laws on this subject matter. Rather than having a needs-based approach i.e.,
according to the needs of the wife, it must be a rights-based approach so that
it is entitled to them as a matter of right.
when there are loopholes in the laws that the legislature fails to address, the
judiciary's role becomes crucial to address those problems. in the history of
divorce and the claim for maintenance cases, various judgments can be referred
to to understand this concept more clearly.
In the case of 'Aishwarya Atul Pusalkar v Maharashtra Housing & Area
Development Authority and Others' this case was decided on 27th April 2022
in which the court rightly observed that the appellant had a 'right to reside in
her matrimonial home, the court further stated that 'Alienating an immovable
asset to defeat the right of a victim lady under the said Act can constitute
domestic violence, coming, inter-alia, within the ambit of the expression
"economic abuse" under Section 3(iv) of 2005 Act'.
In another case 'Rajnesh v. Neha' decided in 2020 the supreme court
addressed the problem of delay and transparency and made it compulsory for all
the courts to ensure that Affidavits of Assets and Liabilities were filed by
parties, at the time of filing applications/petitions making claims for alimony
and maintenance. The apex court also laid down the guidelines in which it
specified the criteria for the quantum of maintenance. "Fixed percentages
matching these criteria, based on the different permutations, would enable a
much speedier recourse to what the law already offers."
There are numerous instances where the supreme court became the savior of the
rights of women but still, we have to go a long way to achieve the ideal
equitable distribution the society aspires.
Divorce in any relationship is always very stressful and painful. aside from
emotional problems, many physical and economic problems are connected with the
happening of divorce. after seeing all the facts and case law we can dive into
the conclusion, that is, property distribution to one spouse from another is not
always a smooth process and is also not equally proportional, and in the Indian
context, women are not entitled to their husband's property as alimony claim.
Women since time immemorial have always faced discrimination and not giving them
equitable property rights is just one example it. In the present scenario, the
courts use their discretion in deciding the grant of maintenance and alimony and
to determine that the judges use certain parameters like the age, level of
education, and family background of the wife and a fixed percentage of
There is an instant need to change the laws on this subject matter. Rather than
having a needs-based approach i.e., according to the needs of the wife, it must
be a rights-based approach so that it is entitled to them as a matter of right.
Living in the 20th century we as a society have to buckle up our thoughts and
should develop forward-looking thinking towards divorce. in countries like India
divorce is not always accepted with open arms and is usually looked down upon,
but it's high time no we should make it a new normal. sometimes financial
restraints of women hamper them from taking a divorce, hence it becomes much
more important and urgent to act laws that help women grow and become
independent, providing them with equal property will help them to assure their
future and live a life free of tension and social restraints.
According to article 15(3) state has the power to make special provisions for
women and children to insure their welfare and what must be kept in mind is that
it is not only the duty of the state but also the duty of every citizen to make
sure that women are empowered enough to seek not only their property rights but
also other necessary rights after divorce. It is the need of the hour of the
legislature to bring the laws clearly specifying rights and ownership in
connection with the division of property in India.
Law Article in India
You May Like
Legal Question & Answers