© Prof.

Ashok Wadje

Concept of “marital property.”

„Settlement‟ & „Succession‟ of property: difference- divorce & death.

Settlement: during marriage or after dissolution (Divorce).

Proportion of distribution

Settlement of other claims attached to property

Transfer of ownership

© Ashok Wadje
© Prof. Ashok Wadje

Bill/Law
Cabinet passes bill: Divorce to get quicker and Wives to get share in marital
property.
The Marriage Laws (Amendment) Bill 2010 (RE-DRAFT) which has been approved
by the Union Cabinet, will give the wife, in case of divorce, half the share in her
husband's residential property. The amendment is yet to be passed by Parliament.
Accordingly, Planning Commission‟s working group on Women‟s Agency and
Empowerment suggested a comprehensive legislation entitled: RIGHT TO MARITAL
PROPERTY ACT/Bill.
First such law in India, a woman‟s share in marital property has become a part of
the marriage related legislation.
Under the current laws, property remains with the spouse, usually the husband, in
whose name it has been registered .

© Ashok Wadje
© Prof. Ashok Wadje

Form of a New Law

• This Bill is going to amend two key legislations: Hindu Marriage Act, 1955 &
Special Marriage Act, 1954.

• All assets acquired by a couple should be viewed as joint property, regardless

of who bought.

• Both spouses are legitimate owners of each other‟s property acquired after the
marriage.

• Wife gets a right to ask half portion of the property from the husband at the
time of divorce.

© Ashok Wadje
© Prof. Ashok Wadje

Property Rights of Hindu Woman

Supreme Court in Pratibha Rani Vs. Suraj Kumar A.I.R. 1985 SC 628. held that
Stridhan is the wife‟s absolute property and therefore the husbnd or his relatives
will have no rights over the sridhan and they would be deemed to be trustees if the
stridhan was ever placed in their hands.

Notion of Absolute property is also similar to it and stridhan is deemed to be her

absolute property in case of Hindu Law.
For the first time in Hindu Law, Hindu Woman‟s Right to Property Act, 1937
bestowed kind of ownership.

© Ashok Wadje
© Prof. Ashok Wadje

Notion of Absolute Property in Hindu Law

Sec. 14: Property of a Female Hindu to be her Absolute Property:- Any

property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and
not as a limited owner.
Explanation: Property :includes both movable and immovable property acquired by a female
Hindu by inheritance or devise, or at a partition or in lieu of maintenance or arrears of
maintenance or by gift from any person. Whether a relative or not, before, at or after her
marriage, or by her own skill or exertion , or by purchase or by prescription or in any other ma
manner whatsoever and also any such property held by her as stridhan immediately before the
commencement of the Act.

o In the case of Chaudhary v. Ajudhia (AIR 2003 Kan. 396) it was held that any
property possessed by a Hindu female, irrespective of how it was acquired,
becomes her absolute property in view of operation of Sec. 14 (1).

© Ashok Wadje
© Prof. Ashok Wadje

Existing Personal Law on Joint Matrimonial Property.

• The existing codified personal law dealing with post divorce property distribution is
grossly inadequate to address the concept of joint matrimonial property which
treats marriage as an equal partnership in which assets are accumulated as a result
of work, support and fortune of both parties for the benefit of the whole family unit.

• Current divorce law disregards any financial contribution made by wife during her
marital life.
• Discretion u/S. 27 of Hindu Marriage Act, 1955

• Section 27. Disposal of property. In any proceeding under this Act, the court may
make such provisions in the decree as the 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 wife.

• The Court is not empowered to distribute the assets equally at the time of divorce.

© Ashok Wadje
© Prof. Ashok Wadje

The Rajasthan High Court stated in Anil Kumar v. JyotiA.I.R 1987 Raj. 157. that section
27 addresses only that property which is jointly owned by the couple and which has
been given to them at or about the time of their marriage. Therefore, it was the
court‟s understanding that this provision did not concern any property belonging
solely to one of the parties. The only procedure to regain possession of his or her
individual property, the husband or the wife must institute a separate suit.

The Special Marriage Act, 1954 includes no provision addressing the settlement
of any type of property upon divorce.

Muslim Law only provides only that upon divorce the wife shall receive the
property given to her directly and an amount equal to the sum of mahr or dower
previously agreed to be paid to her.

© Ashok Wadje
© Prof. Ashok Wadje

Uniform Civil Code in Goa: “Settlement of Spousal Property”

The Portuguese Civil Code, the living legacy left in Goa by the Portuguese provides
for equal distribution of property at the time divorce between spouse.

Goa is the only state which provides so.

Community Property
Anti-nuptial Agreement
Marriage is a contract/Civil registration of marriage.
Registration of Separate Property at the time of Marriage; if not registered it would
be termed as „community property.‟
All property acquired during the marriage is considered to be owned jointly by both
spouses and is to be divided equally if parties divorce.

© Ashok Wadje
© Prof. Ashok Wadje

Concluding Remarks

Separate Property

Spousal Property

Anti-nuptial Agreement: Settlement of Property at the time of divorce.

Feasibility and Pros & Cons of Bill on Settlement of Spousal Property.

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© Prof. Ashok Wadje

Should the (legal) regime not be made

gender-neutral, cutting both ways?

© Ashok Wadje