In this Guest Post, Pranitha Pai discusses briefly on the settlement of Spousal Property
Introduction
In India, the institute of marriage is given a lot of importance. According to the Hindu Law, it is said that the man is incomplete without his wife and vice versa. Even in the West people say that the wife is the better half of her husband and the other way round.
Once married, the property of the couple which they buy together is termed as the spousal property. But this does not include the property which the wife had got as a part of her stridhan. But what happens when a couple wants a divorce? Who gets the spousal property? How is the property divided?
Divorce was and is still considered to be an inauspicious thing in India. So, what the Indian women know is that they are entitled to maintenance after divorce from their husband so that they can maintain the same standard of life. But what very less number of women know is that they too are entitled to get a share in the property (spousal) upon divorce. It is a well-known fact that every woman has got a right to residence after divorce if she has not remarried. The confusion arises when the property has been bought by a man after marriage in the name of his wife but she has not contributed anything financially in the buying of the property.
Thus, there are many laws in India which deal with settlement of spousal property. In this article, the author would like to mainly focus on women’s property such as stridhan and her right on her husband’s property after divorce.
What is Spousal Property?
Marital property is basically all the assets and liabilities acquired during the course of the marriage. Assets might include hSome, cars, furniture, shares in a company, rental income and savings. Liabilities can include any debt, such as mortgages or other loans and leases.
The concept of what is a spousal property (also known as marital property) and what is a separate property is a matter of confusion, but what is understood so far is that spousal property includes all the movable or immovable property bought by the husband or wife through their mixed earnings after marriage or a separate property which is used extensively by both the parties equally or a gift which they got together during their marriage. Now, separate property includes property bought before marriage or property inherited individually or a gift received before marriage or property bought exclusively from one’s own hard earned money and then it is used by that person itself.
Now the confusion only arises when there is a divorce and then the question of distribution of spousal property arises. As far as the marriage is going strong, the spouses do not care as to in who’s name the property is bought and who is paying the money. They plan their future as a lifelong affair and are repugnant to the idea of divorce[1]. Earlier the concentration was more on current needs such as food, clothing etc, but now with the concept of instalment purchases and mortgages, married couples are concentrating more on immovable property such as house etc. So, the spouses either contribute financially equally or with their skills and hard work.
Meaning of Marriage Settlement
According to the Merriam Webster, the legal definition of a marriage settlement is basically a written contract between the husband and the wife upon their divorce talking about things like custody, maintenance and property division.
What does the settlement of spousal property mean?
As discussed above, when a property is bought by the couple during their marriage never do they think about division of their property upon divorce because no one ever thinks about that. They always use all their properties together and so frequently that, it is difficult to conclude as to who needs it more. It is only during the divorce proceedings that the calculation of the amount of property division is done.
Now divorce is a very difficult situation for the women when compared to the men because not all women will be qualified enough to work and earn a handsome salary. Sometimes the divorced lady is at a much tougher position than a widow when compared financially. When a man dies then the widow becomes his heir and thus can get his property through succession[2]. But in a divorce this is no such thing, the lady is not the heir and thus the question of maintenance and support comes into the picture.
For maintenance, there are many provisions in the Indian Law which talk about both interim maintenance and alimony[3].
Calculating maintenance is not that difficult when compared to calculating the amount of share in the divided property because of the fact that there are generally two types of women when we look at them for the contribution towards the buying of that property. One of them is the working class who, earns enough money so that she can pool in her money with that of her husband’s to buy any property and the other one is the stay at home, who does not earn but takes care of the family, children and the whole house and also supports her husband in almost every way even if not financially. It is said that her physical contribution is no less than her husband’s financial contribution[4]. It is very difficult to calculate the share in the property as to how much will the stay at home women will get upon divorce. Thus in the case of White v White [2001] 1 A.C. 596 the English court has said that the domestic and the financial contribution of both the spouses have to been seen and evaluated equally. In this above-mentioned case the court also clarifies the meaning of Section 25 (2) (f) of the Matrimonial Causes Act, 1973, so it says that this S
ection does not talk about the contribution of the parties in terms of wealth but rather talks about the contribution made by the parties towards the welfare of the family[5].
So the broad issue which the author would like to answer is – How to find a compromise between the husband and the wife so that both of them are treated equally? and How to recognise the contribution of the working as well as the non- working woman equally in this type of non- contractual relationship such as buying of property in a marriage?
Indian courts rarely talk about the quantification of a housewife’s contribution in the family. However there are some tiny efforts put in by the Apex court and thus in the case of Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Ors (2009) (10) SCALE 675 says- “For compensating a husband for loss of a wife, therefore courts consider the loss of income to the family. It may not be difficult when she had been earning. Even otherwise a wife’s contribution to the family in terms of money can always be worked out. Every housewife makes a contribution to her family. It is capable of measuring in monetary terms although the emotional aspect of it cannot be[6].”
In all those countries where ever there are laws relating to the settlement of matrimonial property upon divorce all of them follow the rule of equal division. So, the basic idea is that each spouse should exit the marriage on the same economic or financial level[7]. Michael Davie in “Matrimonial Property in England and American Conflict of Laws” says that each spouse will retain all those properties with themselves with which they had entered into the marriage which means this is their separate property. So, all those properties which they buy or acquire after their marriage then that is a part of their matrimonial property.
Discussion on the topic of the settlement of spousal property in UK
Earlier according to Blackstone, upon marriage the woman automatically lost her legal identity. The husband and the wife were seen as one single unit. And thus he says “depend almost all the legal rights, duties and disabilities that either of them acquires by marriage[8]”. So, if we go by this principal then whatever the woman gets (any property) after her marriage or during the marriage as a gift unless and until it is specified that it is for own personal use then it would automatically go to the husband as she has no legal identity. Thus, in other words, even if the husband died most of the property rather than going to the wife it would go to his legal heirs[9]. This principle was practiced till 1870 and thus the policy which was practiced by the husband was “what is yours is mine; is mine is my own [10]”. But after making certain amendments and laws[11] finally in 1935 the Law Reform (Married Women and Tort Feasors) Act, came up which finally recognised the concept of equality of status and capacity, separation of property and separation of liabilities[12].
So now in the English Law, the main focus is on to make adequate financial provisions for the spouses and children and then make a proper division of the property among the spouses[13]. So, according to Section 39 of the Maintenance Agreement Act, 1957 UK law the husband has got a right in the property of the wife if she has been proved guilty of adultery. Similarly, according toection 27 and 28 of the said Act, the wife has got a right in the property of the husband if he is proved to have deserted her for no particular reason. Thus, the court of England has always tried to discourage vices and has tried to encourage morality[14].
Nowadays the court of England is following the one-third policy according to the Matrimonial Causes Act, 1973 when no specific share or division is proposed by the parties to the case. What the judges say is that one-third is just the starting point and they can increase it if needed like in the case of desertion, cruelty, adultery[15]. Lord Dennings has justification for this policy in the case of Watchel v Watchel[16]. He said – “ …. In any calculation the court has to have a starting point. If it is not to be one-third, should it be one-half or one-quarter? A starting point of one third of all the combined resources of the parties is good as and rational a starting point as any other…. In these days of rising house prices, she should certainly have a share in the capital assets which she has helped create. The windfall should not all go to the husband. But we do not think it should not be as much as one-half if she is also to get periodical payments for her maintenance and support.”
But at the same time if it is proved that the matrimonial home is in name of both the parties then the court gives an equal share to both the parties. It is only when the husband has contributed financially and the wife just stays then only the police of one-third is used.
Settlement of spousal property in India and the concept of women’s property
In contrast to the English Law women in India did not have to struggle so much for their share in the spousal property. The laws in India were such that they have had provisions for the settlement of spousal property in different situations. Guroodas Banerjee says “Nowhere were proprietary rights of women recognised so early as India, and in very few ancient system of law have these rights been to largely conceded as in our own [17].” So, when the Indian Divorce act of 1869 was made it was made similarly to that of the Matrimonial Causes Act of 1857. So, Section 39 of the Indian Divorce act says that if the women are guilty of adultery and there has been a divorce or a judicial separation then the husband and her children will be entitled to a share in her property. Similarly, in the Parsi Marriage and Divorce act of 1936 Section 50 says that if the wife is guilty of adultery then the property is divided and then her children can get their own share for their benefits. For Muslim divorced wives no provision for disposal/distribution of property is made on ranting divorce under Dissolution of Muslim Marriage Act, 1939 but now s.3 (d) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 makes provision for the return of property of a divorced woman that was given to her before at or after the marriage.[18]
But in the case of Hindu law, the position of the women has been good, it means that she could own her individual property. The marriage does not affect her position. According to Section 27 of the Hindu Marriage Act of 1955 what the definition of spousal property meant was any adjustments made by the parents of the couple at or about the time of marriage will be termed as the joint property of the couple. So, according to a judgement given by the Madhya Pradesh High Court in the case of Rajendra Singh v Tulsa Bai[19] said that a petition under Section 27 of the Hindu marriage act is only maintainable if it is about the joint property of the couple and not their exclusive property.
In the case of Akasan Chin v Paravati[20] the court said that every court has the power to settle property in the name of one of the spouses for his/ her benefit till the time the property is jointly belonging to them (husband and wife both) and that the property does not come under the factum of ‘separate property’. Thus, Section 27 of the Hindu Marriage Act, 1955 does not talk about the separate property but only talks about the jointly owned property of the couple in dispute. In order for a husband or a wife to get his or her separate property then they would have to institute a separate suit altogether which would not come under this divorce case[21].
The meaning or interpretation of the words ‘belonging jointly’ by M.M. Punchhi, J. of the Punjab and Haryana high court in Surinder Kumar v. Madan Gopal Singh[22] was given. He did not follow the narrow interpretation. He said that the word ‘belong’ does not, necessarily reflect title to the property in the sense of ownership. According to, him the word ‘belong’ denotes the joint use in their day to day living”, whether the property was received “individually or collectively”. Therefore, the entire emphasis is on the nature of the property and not on the fact that it was jointly’ presented. Thus he said “Properties and articles presented from any source and to any one of them which by very nature of the present, or by intention of the donor, or by agreement of spouses, has come to be jointly in use by both the husband and the wife, can well be said to belong jointly to both the them.”
In the case of Rashmi Kumar v Mahesh Kumar Bhada[23] the Supreme Court has said that any kind of property be it movable or immovable, if it is gifted to the woman before marriage or at the time of marriage then it is exclusively her property and it is to be termed as stridhan. No one has got the right to take away the stridhan from her not even her own husband. Under the Islamic Shariah law, it is known as Mehr.
If the women gives her stridhan to her husband or any of his relatives and then they use it inappropriately or convert the property then they have committed a criminal breach of trust under Section 405 and Section 406 of the IPC[24] .
The wife can give her stridhan to her in laws or husband so that they keep it safely but once she demands it back from them then it is their duty to return it because they (the in laws) do not have a right of ownership or possession over the stridhan. Any kind of alienation or conversion or misappropriation done by the in laws or the husband then they are guilty of crime provided under sections 405 and 406 of the IPC. The wife can demand her stridhan at any point of time and she can use it in whichever way she wants to because she is the absolute and exclusive owner of the stridhan property. The husband of the woman can use the stridhan only during times of famine or stress or emergency etc. But the husband has the duty to give back the stridhan or something equal to the value of that used stridhan to the wife whenever she needs it. Now stridhan can include in it-
- Gifts given to the woman before the ceremonial fire during the marriage.
- Gifts given to the woman during the bridal procession
- Gifts given to the woman by her in-laws or husband
- Gifts given to the woman by her parents or brother[25]
So, now a property exclusively belonging to the husband would be ‘Vara Dakshina’ money given to the groom by the bride’s father at the time of marriage[26] . And any inherited property exclusively in his name or any property bought by him before his marriage.
Now comes the interesting part and that is if there is a house that was exclusively bought or that belonged to the husband and if after marriage his wife also stays in that house then that house becomes the dwelling house. This means that she would have a right to residence in that property if there is a divorce[27].
Women’s property rights are also mentioned in Section 14 of the Hindu Succession Act, 1956 and Section 2 of the Women’s Estate and Widow’s Remarriage Act, 1956 which says that a widow would have a right in her dead husband’s property till she remarries or dies.
Presently, in India, only the State of Goa has a different set of laws. The Portuguese drafted these laws (the Goa Civil Code, which follows the Portuguese Civil Code) when they ruled over Goa – and are still in force. So, in Goa, there has been a continuing practice of uniform civil code for the past 500 years. In this state, marriage is considered as a contract and civil registration of a marriage is compulsory. So if there is no pre-nuptial contract then during divorce if there is a separation of property then the customs prevails. The customs say that at the time of the marriage the bride and groom have to register all kind of properties that they have so that all these properties are to be treated as separate property during separation. If this step of registering the separate property is not done then that property is to be treated as a part of the community property or the property belonging jointly to the wife and the husband. So therefore in Goa upon divorce without any prenuptial agreement the wife and the husband get the equal amount that is a 50% share each in the joint property. Thus, what the Portuguese believed was that this system of giving an equal share to both the parties ensured equality and fairness. They said that we should respect the contribution of the housewife in the buying of that joint property even if she did not contribute financially. We should respect the fact that some women upon their marriage give up their careers and become full time housewives who take care of the welfare of the family emotionally and physically which is equal to the financial contribution made by the husband[28].
So in order to know the amount of contribution of the housewife or to know the value of the housewife Justice Prabha Sridevan gave out a formula to calculate the value of the housewife and thus she said “ Value of Housewife = Husband’s Income + Wife’s income+ Value of husband’s household services, which means that the value of the housewife will be increasing inversely proportional to the extent of the husband’s participation in the household activities.” In the same case, the Hon’ble judge also mentions about the Australian Family Property Law which says that “while distributing property in matrimonial matters the one has to consider the contribution of the party towards the marriage, matrimonial home, children born out of such wedlock and towards the welfare of the family.” And she also talks about the fact that “The homemaker, by applying herself to the tasks at home liberates her spouse to devote his time and energy and attention to tasks that augment his income and generate the property for the family[29].” Thus, if we try to understand what the Hon’ble judge wants to say then she says that even though the housewife does not contribute financially towards the buying of the property or the maintenance of the property but still her acts (physical and emotional) towards the upkeep of the welfare of the family are equal to the financial contributions made by her husband. Therefore, she is equally entitled to the matrimonial house or property just like her husband upon divorce.
Hence, the amount to be given to the wife upon divorce from her husband is totally the discretion of the judge because of the main reason that there is no such law in India giving out the exact amount to be given.
Amendment to the Marriage Laws in India in 2013
Finally, in the year 2013, there was a bill that was passed by the Rajya sabha saying that now the women would get 50% share in the property of the husband upon divorce. This is the “THE MARRIAGE LAWS (AMENDMENT) BILL, 2013”.
A major change is that this rule is applicable to all the properties of the husband acquired before and after the marriage, whereas as in the earlier law the wife gets share only in those properties which are acquired by husband only after marriage. So, if it is a joint property then first she will get her 50% share then later the half of 50% share of the husband too. Thus, giving her a 75% share in the property and the husband just a 25%.
What the author thinks is that this is an anti-male law, because now the husband will be in a lower position. Even though the Parliament has the right to make special laws for women under Article 15 but still both the sexes should be in an equal footing rather than doing this kind of injustice. Both the parties while going through a divorce suffer emotionally as well as financially. Which means that it is not always the wife who suffers but the husband can also suffer equally, thus if we have such a law then the husband will suffer more than the wife. We should try to have all the laws in our country which are gender neutral and equal. Because of the fact that after marriage when a couple buys property then both are the equal partners of the property in a fair and a legitimate manner hence why is it that the wife will get 75% of the property and the husband just 25% when actually he has contributed equal amount to build or buy this property. Why is it that the women is not supposed to give her streedhan which she has got in her own name and only the husband has to now give his separate property which includes the ancestral property, vara dakshina and property received through gift during divorce? Isn’t this discriminatory? Earlier there was a hue and cry that women were always discriminated but now all the laws in the name of uplifting the female section of the society are drafting such laws that are actually keeping the women on a higher pedestal than men rather than keeping them on an equal footing. This amendment can give rise to misuse of this law, a similar situation as to the misuse of Section 498A of the Indian Penal Code. One of the problems that this amendment would have started is, that it would have led to a decrease in the sanctity of marriage. None of the husbands would ever trust their wives and thus they would never buy property in his name and rather would buy it in his mother’s name or father’s name or any other relative’s name so that his wife will not have a right in that property upon divorce.
But now fortunately this amendment was only passed by the Upper house and not by the Lower house and thus the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 has not been amended.
Conclusion
While there were times when women were deprived of their share in wealth at the time of divorce in India and there was a requirement of strong laws which focuses on rights of women. But with this particular amendment nothing will be changed except for the fact that now there are more loopholes for women to exploit and that the sanctity and the purity of marriage will be lost because no husband will want to buy a property in his name and thus there will be a lack of trust among everyone in the family towards the wife. So, now luckily as this amendment will not take place thus this abovementioned tension is reduced. Hence, it would be great if there would have been some kind of balanced law, and some thought should have gone for the worst cases.
What is recommend is that, India should start following the concept of a pre-nuptial agreement because it would take care of all the rights and shares of both the spouses in the marriages and after the marriage ends. Then there would be no confusion either as to whether a wife will get 50% or less or more than that, it will not be problem to calculate the share of a housewife and a wife who is earning and the court also will not have to waste its time in matters like to determine whether a property is separate or joint and as to how will the contribution of the housewife be converted in quantities when it is known to everyone that mental and emotional contribution cannot be quantified. Separate property should always remain separate property and no law whatsoever should try to merge it in the realm of joint or marital property.
References
[1] Kahn-Freund, “Recent Legislation on Matrimonial Property”, (1670) 33 M.L.R. 601, at pp. 605-607
[2] Hindu Succession Act, 1956
[3] Includes Hindu Marriage act, Special Marriage act, Parsi marriage and divorce act, Indian divorce act, section 125 CrPC etc.
[4] English law now recognizes, “The contributions made by each of the by looking after the home or caring for the family” as one of the consideration which fee court has to take into account while making any financial’provision on divorce. See section 25(1) (f) of the Matrimonial Causes Act, 1973. The provision first originated in section 5(1) (f) , Matrimonial Proceedings and Property Act, 1970.
[5] Jhuma Sen, Matrimonial Property Rights: Is India ready for a law? Available at (http://docs.manupatra.in/newsline/articles/Upload/F2587F8B-1162-415A-8E76-6F4019530939.pdf) Last visited on 9 May 2017
[6] Supra Note 5
[7] Ibid
[8] Blackstone, “Commentaries on the Laws of England,” Vol. I, at p. 430.
[9] For a succinct summary of law on this point, see Dicey, “Lectures on the Relation between Law and Public Opinion in England During the Nineteenth Century,” 2″‘* ed., (1952) at p. 372/12.
[10] Virendra Kumar, “Alimony and Maintenance.” 1″ ed., 1978 at p. 37.
[11] Married Woman’s Property Act, 1870; Married Women’s Property Act, 1872; for a summary of Law see B.K. Sharma, Divorce Law in India, pp. 362 et. seq
[12] Section I (a) of the Law Reform ( Married Women and Tort Feasors) Act 1935, provided; “…..a married woman shall be capable of acquiring, holding and disposing of, any property… as if she were a feme sole.”
[13] Dr. Paras Diwan “The Law of Marriage and Divorce” 5th ed. (2008) Pg. 716.
[14] B.K. Sharma, Vijay Nagpal in “Disposal/Distribution Of Spousal Property In The Wake Of Dissolution Of Marriage”.
[15] Ibid
[16] (1973) 1 All ER 829 (CA)
[17] “Hindu Law of Marriage and Streedhana.” 5* ed.. (‘1915) at p. 370
[18] B.K. Sharma, Vijay Nagpal in “Disposal/Distribution Of Spousal Property In The Wake Of Dissolution Of Marriage”.
[19] 1 (1996) DMC 572 MP
[20] AIR 1967 Ori 167
[21] Jhuma Sen, Matrimonial Property Rights: Is India ready for a law? Available at (http://docs.manupatra.in/newsline/articles/Upload/F2587F8B-1162-415A-8E76-6F4019530939.pdf) Last visited on 9 May 2017
[22] 1980 H.L.R. 507 followed in Yudhister Raj v. Sarla Kumari, 1981 H.L.R 37 (P &H).
[23] (1997) 2 SCC 397
[24] Pratibha Rani v Suresh Kumar (1985) 2 SCC 370, Ajay Kumar Ghosh v Kajal Ghosh I (1999) DMC 224 (Cal)
[25] Pratibha Rani v Suraj Kumar 1985(2) SCC
[26] Interpretation of the word jointly by the Karnataka High Court and all the things that might come under this word.
[27] Kanchan B.R v Akash alias Usuf Hussian 1 (2001) DMC 574 Del
[28] Supra Note 5
[29] Supra Note 5
