Division of Property between Matrimonial Partners Upon Divorce – A Critical-Legal Study

39 Pages Posted: 18 Nov 2013

Date Written: March 20, 2013


The independence of women, particularly with regards to finances, has been recognized as the single most significant factor in achieving equality for women. With the onset of divorce laws, though, many women found themselves free to absolve themselves of the restraints of an unhappy or abusive marriage, they also found themselves on the brink of penury with most laws favoring ownership of property and family assets by the husband alone as his exclusive property. This was made worse by the fact that the contributions made by a home maker were hardly ever quantified by Indian Courts unlike in some other countries. However in order to set right the chasm that exists in the social and economic position of women vis-à-vis men in India society, many laws have been passed and reforms made. These include the right to receive equal pay, maternity benefits, to own or inherit property, to terminate unwanted pregnancies and the right to be protected from cruelty at the hand of husbands. The research paper discusses the economic rights of the Indian wife within the family structure especially after the breakdown of marriage. In doing so, it scrutinizes the women’s property rights at the time of marriage and upon divorce are then discussed in detail to highlight the pressing need for a uniform matrimonial property law. This Research paper confines itself to a study of economic rights of Indian women within the family structure especially after the breakdown of marriage. Post divorce maintenance and property division are of paramount importance because they signify the status of women within marriage and their contribution to the marriage.

The concept of divorce was not available to the Indian Hindu population, until the year 1955. It was permitted only in certain restricted circumstances for Christians. The Parsi Marriage and Divorce Act of 1936 permitted divorce under limited circumstances, which were only changed and made more free after an amendment in the year 1988. Muslim woman’s statutory right to divorce was granted in 1939 under extremely restrictive circumstances. Even though women had the option to leave break away from an abusive or unhappy marriage such an option was usually never exercised by women as such an act also involved economic insecurity for the woman which they would otherwise enjoy if they remained married. For example the Hindu woman became a part of her husband’s joint family upon marriage and he was duty-bound to provide her with maintenance and if his death preceded hers the joint family was responsible for her support. The Hindu wife did not become coparcener but was provided with a minimum amount of economic security and shelter and a standard of living to which the husband was accustomed.

With the advent of divorce laws, the same Hindu woman could be forced from the matrimonial home, deprived of her marital assets and isolated from the joint family upon divorce. The Indian wife’s economic rights have traditionally revolved around stridhan, maintenance and alimony. While stridhan was exclusively the woman’s property over which her husband could not have any claim, maintenance and alimony were linked to the concept of sustenance to prevent the wife from falling into ‘vagrancy and destitution’ and were distinct from an award of property. The concept of joint matrimonial property is sorely lacking in Indian personal laws. The supremacy of the separate property regime accounts for this fairly disappointing silence of the Indian laws regarding post divorce property division between spouses. This paper will deal with the law as it exists today and specify cogent recommendation to alleviate further the economics insecurities of women.

Keywords: divorce, marriage, property, separation, division, money, jewelry

Suggested Citation

Vaish, Varun, Division of Property between Matrimonial Partners Upon Divorce – A Critical-Legal Study (March 20, 2013). Available at SSRN: https://ssrn.com/abstract=2355914 or http://dx.doi.org/10.2139/ssrn.2355914

Varun Vaish (Contact Author)

NALSAR University of Law ( email )


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