Due to the complexity of the consequences that may arise from the proposed legal amendment to provide women with a share of the matrimonial property upon dissolution of marriage, and to expand these rights to wives of all communities, a new law should only be framed after holding extensive consultations with experts and stakeholders.
THE series of lock-downs and work-from-home orders following the outbreak of COVID-19, brought unpaid care and domestic work to the limelight, as several care-givers and homemakers were suddenly placed under additional stress to take care of more people at their homes. Children homebound due to the closure of schools, requiring assistance for virtual learning, and increased care requirements for senior citizens, substantially increased domestic work.
In recognition of the added stress on homemakers, who are mainly women due to the gendered nature of housework, several countries provided additional support such as cash-transfers or vouchers for care-givers. While the measures were temporary, it raised an important issue about how those who engage in house-work or unpaid care and domestic work need to be compensated.
In several jurisdictions, the contribution to the house-work is recognized as a factor in the distribution of matrimonial property, following a rupture in matrimonial relations. A spouse may be given property in recognition of the domestic and care-work undertaken by her. For instance, in Austria, the law recognizes “the management of the common household” and “the care and upbringing of common children and any other marital assistance” as forms of contribution by a spouse, which needs to be assessed by the court during the division of matrimonial property.
In several jurisdictions, the contribution to the house-work is recognized as a factor in the distribution of matrimonial property, following a rupture in matrimonial relations. A spouse may be given property in recognition of the domestic and care-work undertaken by her.
In Kenya, the law allows for the division of matrimonial property between the former couple upon dissolution of their marriage, according to their contribution to the acquisition of the property. This has been interpreted to also include the non-monetary contribution of spouses, such as the maintenance of the home.
In 1975, the Supreme Court of Norway in the ‘Housewife case’ reasoned that even if the husband purchased the matrimonial property, the wife’s full time care-work in looking after the three children, and domestic work in looking after the home, enabled the husband to use his time to build the matrimonial house; therefore she is entitled to a share in the matrimonial property. In Spain, especially in Catalan, Balearic and general Spanish law, the division of matrimonial property expressly recognizes the right to receive financial compensation on grounds of housework.
Providing housewives with a share in the matrimonial property or compensation enables them to have a certain level of autonomy. This is not an entirely alien concept in India, as royal families included practices to provide limited income-support to the female members of the royal family.
Among the Rajputs, the queens and female members of the royal household received maintenance grants known as ‘Hath Kharch’, for their personal expenses. They were also provided property and the right to receive revenue from such property. These properties, including land and villages, were known as ‘jagirs’ and were run by administrative agents such as kamdars, amils, and diwans. The income from the jagirs could be disposed as per the discretion of these women. During the reign of the Delhi Sultanate and the Mughals, allowances were provided to members of the harem.
In India, most marriages are ‘patrilocal’ in nature, whereby the wife resides in the house of her in-laws and her husband. Therefore, in the absence of any rights in the matrimonial house, dissolution of marriage may render the wife homeless. This is especially so in the case of housewives, who may not have an independent source of income, even though they engage in housework.
In order to help women in such scenarios, the Protection of Women from Domestic Violence Act, 2005 provides residency rights in the matrimonial home to the wife. The court can also restrict the husband’s ability to sell or encumber the matrimonial property and can order him to provide an alternate accommodation of the same level enjoyed by his wife in the matrimonial home. However, despite these progressive measures, the wife is still not entitled to a share in the matrimonial property.
Access to maintenance in India has several procedural hurdles, and courts at times inquire as to whether the woman performed her ‘wifely duties.’
As noted by legal academic Dr Kamala Sankaran, the right to maintenance is not the same as the right to property. Maintenance in India is usually given through regular instalments instead of a lump sum capital; therefore it is difficult for the woman to acquire property to generate income. Access to maintenance in India has several procedural hurdles, and courts at times inquire as to whether the woman performed her ‘wifely duties.’
When marriages break down, the standard of living of women takes an adverse turn. They are forced to return to the home of their parents, where they are not welcomed. The fact that women marry at an early age also reduces their ability to control assets. Therefore, when they are no longer part of a marriage, they are financially vulnerable and face a great deal of hostility from society.
While it may be tempting to suggest the transplanting of models from other jurisdictions in giving women an automatic share in the matrimonial property as a solution to this problem, there are several factors that need to be kept in mind, especially due to the interplay with personal law in matters of marriage and succession.
Under Hindu personal law, no express provisions are provided to bestow a share of matrimonial property with the wife. Post the Hindu Succession (Amendment) Act, 2005, a daughter becomes a coparcener by birth, but a wife does not get any rights as a coparcener, even in the property held by her husband. The only express provision entitling a wife to the property of her husband, is in her capacity as a Class-I heir under Section 8 of the Hindu Succession Act, 1956. Therefore, in case of the dissolution of marriage, the wife is only entitled to permanent alimony determined by the courts, and does not receive a share of the matrimonial property.
However, Section 27 of the Hindu Marriage Act, 1955 [HMA] provides an interesting avenue for relief to a wife in addition to receiving alimony. The section states:
“In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.”
Property presented to the couple as gifts or presents to the couple, come under the purview of this section. Even if labour or skill has not been applied towards the acquisition of the property, the intention of the donor is given importance under this provision. Therefore, the property can be distributed between the spouses at the time of dissolution of marriage.
Courts have approached section 27 of the HMA through different perspectives. It has been reasoned that any relief under section 27 is subject to the discretion of the court; it is not an obligatory relief nor does the court have to compulsorily admit an application under the said provision. In 2020, the Delhi High Court reiterated this position by quoting an order of the Bombay High Court from 1988, which held that since the court is vested with discretionary powers, it is not incumbent on it to issue a decree to dispose the property under section 27.
Any legislative intervention to expand the ambit of Section 27, must avoid gender-neutral language which can disproportionately and adversely affect women.
In a case concerning the wife’s application under section 27, requesting the return of her ornaments that had been taken by her husband, the Allahabad High Court in 1971 rejected the argument of the husband who argued that since he is the exclusive owner of the ornaments, section 27 will not apply. The court noted that the section applies to any property which ‘may belong jointly’ to the couple, thereby giving the court the discretion to pass orders concerning property which is also under the exclusive ownership of either of the spouses. It is for the court to apply principles of equity while distributing property under section 27.
The Allahabad High Court in another case in 2003 held that property solely owned by the husband or the wife, will come under the purview of section 27, provided that the property was given around the time of marriage or connected with the marriage. The court held that the phrase “may belong jointly to both the husband and wife” covers within its “penumbra the property which may not belong jointly to the parties.”
However, some courts have taken a more restricted approach in interpreting the ambit of section 27. The Bombay High Court held in 2004 that even if the spouse paid for half of the costs for the construction of a marital home, the court cannot divide the property under section 27, since it was not presented at the time of marriage.
The Delhi High Court had held in 1981 that section 27 does not apply to property solely owned by one spouse, as the section refers to property that is jointly held by a married couple.
The Punjab and Haryana High Court ruled that property given to the wife as stridhan is her exclusive property, which cannot be alienated by the husband. Therefore, property presented solely to the wife at the time of marriage, will not be covered by section 27. The Supreme Court reasoned that the absolute property of the wife does not disappear the moment she enters the matrimonial home. Therefore, even if her stridhan is in the custody of her husband, it does not assume the character of joint property, and therefore section 27 does not apply to it.
The Supreme Court in a subsequent judgment in 1997 read section 27 in a relatively expansive manner. The Court held that section 27 applies to property which has a connection with marriage, even if it was given before or after the time of marriage. However, the court did not shed further light on the exact nature of the connection between the property and marriage that is necessary for section 27 to apply. It noted:
“It includes the property given to the parties before or after marriage also. So long as it is relatable to the marriage. the expression “at or about the time of marriage” has to be properly construed to includes such property which is given at the time of marriage as also the property given before or after marriage to the parties to become their “their property”. Implying thereby that the property can be tracked to have connection with the marriage.”
Nevertheless, in cases where there is a property agreement where the wife is listed as a co-owner, then she is entitled to 50 per cent share in the property at the time of dissolution of the marriage.
In 2016, the Kerala High Court once again reiterated the principle that section 27 will not apply to jewellery or money given to the bride by her parents or family members at the time of marriage, as that is her exclusively owned property, and does not partake the character of joint-property. According to the court, when property is entrusted with the husband, he acts as a trustee of the property and not as a joint-owner; therefore the impugned property can be recovered from the husband, even in the absence of the dissolution of marriage.
The Punjab and Haryana High Court also upheld in 2018 the position that stridhan is the exclusive property of the wife, and that a civil court can admit a suit for recovery of the stridhan, as its jurisdiction is not expressly excluded by section 27. The position that the husband is only a trustee in connection with stridhan was also shared by the Allahabad High Court in 2017.
It is possible that courts have avoided expanding the ambit of section 27 to cover property exclusively held by either spouses, to prevent husbands from claiming half the property given to wives at the time of their marriage, such as stridhan or jewellery, as those may be the only source of economic security for such women. Therefore, any legislative intervention to expand the ambit of section 27, must avoid gender-neutral language which can disproportionately and adversely affect women.
Women’s rights lawyer Flavia Agnes had also warned against using gender-neutral language while determining the distribution of matrimonial property. For instance, if a married woman is hard-working and builds assets, and her husband is a drunkard without engaging in any work, why should he be entitled to half of her property acquired after marriage, merely because he is her spouse?
Giving a share of matrimonial property, which has been acquired by the husbands as separated property, will not benefit a large number of women staying in homes that have been passed down from generations or which are owned by their in-laws.
The main source of accessing property rights for Hindu women, in the absence of acquiring separate property, is through inheritance. In this regard, it is important to note that under Hindu personal law, separate property is distinct from joint family ancestral property or coparcenary property, which is devolved from an ancestor. This usually covers up to three immediate paternal ancestors in a male line, such as the father, the grandfather and the great-grandfather. Only a coparcener can hold coparcenary property. Hindu women married into the family are not considered coparceners, yet they can enjoy it due to their right to residence, maintenance and marital expenses.
On the death of a Hindu man as an intestate, the property first devolves to the Class I heirs, which includes the widow. She is entitled to a share that is equal to the share of her son.
Under Sunni Personal Law, there is no concept of matrimonial property in which the spouses have equal shares, nor is there the concept of coparcenary property. 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.
A study by lawyer Kirti Singh revealed that 59.8 per cent of the married women surveyed lived in homes which had been acquired by the parents of the husband. Only 15.3 per cent of the matrimonial homes had been acquired by either of the spouses.Therefore, giving a share of matrimonial property, which has been acquired by the husbands as separated property, will not benefit a large number of women staying in homes that have been passed down from generations or which are owned by their in-laws. If a share of the property of the in-laws is provided to the married woman as matrimonial property, the question arises as to how the rights of the in-laws can be secured, especially given that their advanced age puts them at risk of being deprived of their rights.
The Union Government mooted the idea of The Marriage Laws (Amendment) Bill, 2010 to provide for irretrievable breakdown of marriage as a ground for divorce. This sparked fears among women’s rights activists, as the husband can cite irretrievable breakdown of marriage to dissolve his marriage and render the wife homeless. While the Protection of Women from Domestic Violence Act provides a married woman the right to residence in the matrimonial home, the Act does not provide any relief to a woman who wishes to end the marriage, as observed by Agnes.
Given the opposition to the government’s proposal, the Bill was referred to the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice. The Committee in its report addressed some of the concerns raised by various women’s rights groups. The Committee recommended amending the Bill to include a provision for giving the wife a share in the matrimonial property, to be determined at the time of divorce. The report of the Committee stated:
“It is generally seen that in majority of cases women are left with very little to fall back upon after the divorce and quite often they also have to bear the burden of the children born out of the wedlock. In such situations, it seems quite natural for women to feel cheated when they are left to their fate without any roof or financial support although during the subsistence of marriage they might have contributed in varied forms in the matrimonial family in the prime of their age. This is especially true in case of working women.
Accordingly, the Committee feels that there should be some effective legal mechanism so that the women at least get their share in the matrimonial property which has been acquired during the subsistence of marriage. The Committee, accordingly, recommends the Government to make adequate provisions in the Matrimonial Law to ensure that the courts, while adjudicating on divorce petitions, also decide upon women’s share in the matrimonial property while granting divorce so that they are not deprived of the assets/properties in which they have contributed during the continuance of marriage.”
In July, 2013, the Cabinet approved the recommendation of a Group of Ministers, which had suggested giving mandatory compensation from the husband’s share of the property, including his inherited and inheritable property. The revised Bill titled as ‘The Marriage Laws (Amendment Bill), 2013’ was re-introduced and eventually passed by the Rajya Sabha and is pending passage 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.
(2) Any order of settlement made by the court under sub-section (1) shall be secured, if necessary, by a charge on the immovable property of the husband.”
Giving wide discretion to judges to determine the distribution of matrimonial property is concerning because of the gender bias in judicial evaluations. Development economist Bina Agarwal also pointed out that the mother and daughters of the husband are Class-I heirs in the succession of his separate property. Therefore, the Bill may undercut their interests by giving a large portion of the property to his wife. Furthermore, the Bill ignores the fact that the mother and any adult daughter living in the matrimonial home may also engage in housework; therefore they also have equal claims over the property due to their input.
Agarwal also highlighted the ambiguity regarding the phrase ‘inheritable property’ used in the Bill, as it can mean property that he may inherit as well as property his heirs may inherit. It is not clear if it covers the husband’s share in coparcenary property. The Bill also ignored the concept of duration of marriage, before vesting rights. For instance, she wrote, places like New Zealand and Ontario consider marriages of less than three years and five years respectively, to be short-duration marriages and restrict property rights accordingly.
A law providing wives, especially homemakers, an element of security is desirable. However, due to the complexity of the consequences that may arise and the need to tailor provisions to address the same, and to expand these rights to wives of all communities, it is suggested that a standalone legislation is enacted to deal with matrimonial property distribution. The concerns raised by scholars and activists in response to The Marriage Laws (Amendment Bill), 2013 must be kept in mind while drafting a new matrimonial property law.
Therefore, a new law should only be framed after holding extensive consultations with experts and stakeholders. For the sake of the women in the country, it is high time that this matter is no longer kept on the backburner.
PS: The Laws of Social Reproduction project affiliated to King’s College, London and headed by the legal academic Dr Prabha Kotiswaran, is studying ways in which unpaid care and domestic work in India can be recognized as actual work. The Laws of Social Reproduction project has received funding from the European Union’s Horizon 2020 research and innovation programme (under grant agreement No. 772946). I had briefly worked with the project as a research fellow, and my time with the project enabled me to research issues concerning unpaid care and domestic work. The research I undertook as part of the project helped me in the writing of this article. I would encourage those interested to check out the interesting work being done by the project.