Silent Laws, Unheard Voices: The Matrimonial Property under Hindu Law

Introduction

In every marriage, both spouses contribute equally to the accumulation of assets and the smooth functioning of the household. However, the advent of divorce laws has unveiled a harsh reality for many women. While these laws provide an avenue for women to break free from unhappy or abusive marriages, they often find themselves teetering on the edge of financial ruin. This predicament arises due to prevailing laws favouring the husband as the sole owner of family assets and properties. Thus, there is an urgent need for clear guidelines governing the division of such properties upon divorce.

This paper aims to explore the deficiencies of Hindu personal laws concerning matrimonial property in India. Firstly, it will outline the limitations of existing legal frameworks in addressing matrimonial property and their failure to ensure fair and equitable distribution of property between spouses during divorce proceedings. Secondly, it will propose a solution to this problem by proposing the reinterpretation of Section 27 of the Hindu Marriage Act, 1955¹ aligning it with international standards. Lastly, the paper will present a long-term solution by advocating for the enactment of a standalone law inspired by the Goan framework, with adaptations from legal systems in countries like France and Croatia. Such a comprehensive approach aims to rectify the deficiencies in existing legislation and establish a just system for property division post-divorce in India.

The matrimonial property under Hindu law

When it comes to managing property ownership between spouses, two models are widely acknowledged. First, there is the “model of community ownership”, wherein the property is considered jointly owned by both partners and upon separation, assets are typically divided equally between the husband and wife.² Under this model, the belief is that both spouses contribute equally to the acquisition of property, whether financially or through non-monetary efforts such as homemaking.³ On the other hand, countries like India follow the “separate ownership model” where an economic partnership between spouses arising from marriage does not exist.⁴ After the marriage dissolves, each spouse maintains ownership of the property they individually hold title.⁵ Thus, in India, particularly within the Hindu law, there is no such concept of “matrimonial property” subject to division upon divorce.⁶

Despite the enactment of various acts and reforms in personal laws, the situation remains largely unchanged. While the Hindu Women’s Rights to Property Act of 1937 was a progressive step at its time, it only provided wives with limited property rights exclusively upon the demise of their husbands, rather than extending such rights during divorce or separation.⁷ With the coming of the Hindu Marriage Act, 1955, Section 27 was introduced, granting the court authority to handle “jointly” presented property to spouses “at or about” the time of marriage as it deems fair and appropriate.⁸ The term “jointly” in the legislation holds significance as it lays down the extent of authority of the Family Court regarding such property.⁹ Firstly, it confines the jurisdiction of the court to the property gifted to the spouses specifically around the time of marriage, excluding property acquired jointly during marriage.¹⁰ Secondly, while the court can order property settlements benefiting either spouse, it only has authority over jointly held property and cannot adjudicate on property owned exclusively by each spouse.¹¹ Hence, the section leaves out various other types of property acquired by spouses before or after marriage or property obtained jointly during their marital period to fulfil family needs, among other purposes.¹²

Likewise, through the enactment of the Hindu Succession Act of 1956, while widows gained the right to inherit a share of their late husband’s estate, they are devoid of any proprietary claim over the marital home while their husband is alive.¹³ During marriage, wives are only entitled to maintenance from their husbands, which is often insufficient for dignified survival, and upon divorce, they usually receive only permanent maintenance alimony without any share in the property of their husbands.¹⁴ In cases where Hindu joint families exist, wives are entitled to obtain a share only upon partition between the husband and sons, without the ability to claim partition themselves.¹⁵ Additionally, while the Protection of Women from Domestic Violence Act of 2005¹⁶ is hailed as a crucial legislation offering residency rights to wives within the matrimonial home, they still lack entitlement to a share or any claim in that property upon dissolution of marriage.¹⁷ Thus, despite the implementation of diverse legislation, the position of women post-divorce persists unaltered.

The situation is exacerbated by the fact that the Indian stance on matrimonial property disregards not only the financial contributions made by the wives during the marriage but also the non-financial contributions. In Hinduism, a wife is more than a householder (grihaspatni).¹⁸ She is also seen as a companion in righteousness (dharmpatni) and an equal partner (sahadharmini).¹⁹ Yet, domestic work is not seen as a productive job in India, disregarding the essential role of women in nurturing families.²⁰ In Arun Kumar Agrawal v. National Insurance Co. Ltd., the 2001 Census was condemned by the Supreme Court for categorising 367 million homemakers as “non-workers”, alongside beggars, prisoners, and prostitutes.²¹ When marriages end, women often experience a decline in their standard of living and are compelled to return to their parental home, where they may not be often welcomed.²² Early marriage further diminishes their control over assets, leaving them financially vulnerable and subject to societal hostility upon divorce or separation.²³ Thus, there has been no tangible progress in post-divorce property rights of women as current personal law for the Hindus fails to recognise joint matrimonial property. This oversight is concerning, particularly as divorce legislation evolves to become more adaptable, yet societal perceptions of women’s contributions to property acquired during marriage remain stagnant and antiquated. Therefore, it is imperative to devise effective solutions to tackle the issue of lack of laws concerning matrimonial property under the Hindu law in India.

Towards equitable solutions: Proposals for matrimonial property reform

A. A reinterpretation of Section 27

Section 27 of the Hindu Marriage Act, 1955 (HMA) stipulates that: 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.²⁴ The interpretation of this provision carries significant weight as it shapes the landscape of property rights of Hindus within the marital institution. The present understanding of the section by the courts restricts the jurisdiction of the Family courts to only jointly-owned properties and that too limited to those acquired “at or around” the time of marriage.²⁵ This necessitates a re-evaluation of the section, as such a narrow view does not adequately cater to the complexities of modern marital dynamics in the Indian context where most of the properties are owned by the husbands and wives are expected to handle only domestic work. The ruling of the Allahabad High Court in Hemant Kumar Agrahari v. Lakshmi Devi rightly emphasises interpreting the term “may” rather than “must” in Section 27 of the HMA.²⁶ Unlike the obligatory nature of “must”, the term “may” implies discretion, indicating that properties exclusively owned by one spouse are not automatically excluded from consideration in matrimonial proceedings.²⁷ This reading of the section underscores the expansive authority of the court in addressing both jointly owned and individually owned properties in matrimonial proceedings, ensuring equitable outcomes for spouses.²⁸

However, such interpretation has sparked valid concerns, notably among women rights, advocates like Flavia Agnes, who raise objections to its potential implications.²⁹ For instance, if a woman independently acquires assets through her hard work, it appears unjust for her spouse to claim an equal share upon divorce, particularly if he has not contributed to the acquisition.³⁰ Additionally, there is apprehension regarding the possibility of the husband asserting a claim over the stridhan, which is exclusively bestowed upon the wife and constitutes her separate property.³¹ To address these concerns and ensure fairness, a more refined approach is necessary. The purview of the court under Section 27 should ideally need to be limited to properties acquired “in relation to marriage”. In Balkrishna Ramchandra Kadam v. Sangeeta Balkrishna Kadam, the Supreme Court clarified that Section 27 of the Hindu Marriage Act covers property acquired not only at the time of marriage but also before or after, as long as it is linked to the marriage.³² This means that while jointly acquired assets would still fall under its scope, properties acquired separately by either spouse, particularly through individual efforts post-marriage and not in relation to their marriage, should be safeguarded from automatic division.³³ Such a proposition strikes a balance between recognising marital contributions and upholding individual ownership rights.

This approach also marks a significant step towards acknowledging and appreciating the invaluable domestic contributions of women within the institution of marriage. Presently, despite their dedicated efforts, women often face exclusion from property ownership upon divorce, especially when properties were solely registered in the names of their husbands and wives lack financial resources to pool beyond their domestic contributions. Through the reinterpretation, the property acquired during marriage will be perceived through the prism of mutual support and contribution by both spouses, “in relation to the marriage”. This encompasses not only financial investments but also the often overlooked non-financial contributions made by the spouse “at, around, or during” the time of the marriage. However, when the property concerned is inherited by the husband, the question of how it will be divided between the spouses might arise, especially if the wife significantly contributes to its maintenance, domestic upkeep, and enhancement during their marital journey. Such property is considered to be a separate property of the husband and wives are not entitled to share in such property post-divorce.³⁴ In these instances, the court should strive to ensure fair compensation for the wives. This compensation should be determined by considering various factors, including the contributions made by each spouse subsequent to the inheritance. The court should ascertain an amount payable to the wife that aligns proportionately with the value of the property involved. This will ensure that the wife who has played a vital role in nurturing and improving the inherited property, receives a proportionate share in terms of compensation, reflective of her contributions and the shared commitment to the marital partnership.

Such understanding of the section also resonates with broader principles of gender equality and justice prevalent in international law. Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw) emphasises the necessity of eliminating discriminatory practices in matters concerning marriage and family, stressing the equality of spouses in property ownership, acquisition, and management.³⁵ Article 51(c) of the Indian Constitution highlights the responsibility of the State to uphold international law and treaty obligations.³⁶ Therefore, Indian courts are obliged to consider international conventions and norms in interpreting domestic laws, especially in situations where there is no conflict between them and where there is a gap in domestic legislation. Furthermore, countries worldwide acknowledge the importance of considering both monetary and non-monetary contributions in dividing matrimonial property upon marriage dissolution. In Kenya, for instance, laws allow for the division of matrimonial property between former spouses based on their contributions to its acquisition, highlighting the unfairness of neglecting non-monetary contributions, even when the property is registered in the name of one of the spouses.³⁷ Similarly, the Property (Relationships) Act, 1976 of New Zealand promotes gender equality by presuming equal sharing of property and valuing non-financial contributions alongside financial ones.³⁸ In the UK, property division factors include contributions to the “welfare of the family”, explicitly encompassing domestic and caregiving responsibilities.³⁹ These examples illustrate a global trend towards acknowledging and valuing the diverse contributions of spouses in marital property matters, ultimately striving for fairness and equity in property distribution upon the dissolution of marriage.

B. Proposing a standalone law for matrimonial property rights

While revisiting Section 27 may offer respite for women governed by the Hindu Marriage Act, it is evident that a more long-term solution is needed to tackle the issue concerning matrimonial property across all personal laws in India, necessitating a uniform approach. Urgent action is required from the legislature to formulate a comprehensive standalone law in this respect, prioritising fairness and equity in the division of property following divorce for individuals throughout India. To start with, drawing inspiration from the legal framework in Goa, particularly the Portuguese Civil Code, presents a viable model. Over almost five centuries, Goa has maintained a functional model of a Uniform Civil Code.⁴⁰ The existing civil laws there, encompassing marriage, divorce, child protection, and succession, are devoid of any discrimination based on caste, ethnicity, or gender.⁴¹ Justice M.B. Shah of the Bombay High Court Bench in Goa noted that there are fewer instances of violence against women in Goa compared to other States, crediting this to the fair legal system in place.⁴² Marriage here is treated as a contractual agreement, mandating civil registration.⁴³ In the absence of a prenuptial agreement outlining property distribution, customary practices prevail, assuming spouses to be married under the principle of communal acquisition of property.⁴⁴ Thus, a comprehensive examination of Goan family laws is warranted, with the potential to serve as a blueprint for national reform.

We can additionally consider looking at and integrating elements from countries like France and Croatia, which offer models that can complement the Goan framework. In France, akin to Goa, the principle of community ownership of matrimonial property prevails unless specified otherwise in a contract detailing property division upon marriage termination.⁴⁵ Interestingly, each spouse maintains full control over their separate property in France, safeguarding it from the debts of the other spouse.⁴⁶ This model fosters autonomy for both spouses regarding their individual properties while ensuring equal rights over joint property.⁴⁷ It extends financial security to the dependent spouse, recognising their invaluable non-monetary contributions crucial for marital success.⁴⁸ Likewise, an analysis of the provisions detailed in the Croatian Family Law Act of 2003 reveals that for property to qualify for inclusion in the matrimonial property, it must be obtained through the joint efforts of both spouses and have a connection to their marital relationship.⁴⁹ Spousal labour encompasses various forms, whether individual or joint, direct or indirect, as long as it generates new value.⁵⁰ Indirect contributions, such as childcare, household chores, or moral support, are integral to the community of property.⁵¹ Thus, while the Goan law treats marriage as a contract and introduces the concept of joint ownership between spouses uniform across religions, the French and Croatian laws provide additional dimensions to the understanding of matrimonial property. They acknowledge non-financial contributions of spouses in property division post-divorce and restrict matrimonial property to those acquired “in relation to the marriage”, while allowing each spouse to acquire individual property through their efforts, unrelated to the marriage. Adopting aspects of these legal frameworks could lead to a more equitable and comprehensive approach to matrimonial property rights across India.

Conclusion

The prevailing system of personal laws governing property division in India stands as a stark testament to gender bias, perpetuating inequalities that leave women vulnerable and economically disadvantaged post-divorce. While reinterpreting Section 27 of the Hindu Marriage Act represents a progressive step forward, it is merely a patch on a deeply flawed system. A more sustainable solution lies in the enactment of comprehensive legislation specifically addressing matrimonial property distribution, one that transcends communal boundaries to ensure equitable rights for wives across all communities. However, crafting such a law demands meticulous consideration of the multifaceted ramifications and nuanced needs of diverse stakeholders, especially homemakers who are disproportionately affected by existing injustices. Therefore, the formulation of a new legal framework necessitates extensive consultations with experts to navigate the complexities inherent in addressing matrimonial property rights. It is imperative that this issue no longer languishes on the periphery but is given the attention it deserves for the betterment of women across the nation.