The division of property has been one of the most debated issues in Family Law, with the unfair and biased patriarchal attitude of the society and promoting the idea of domination of the males in the society and not letting wives or women of the society, post-separation to be treated on similar lines. The evolution was made over the period for the development of the system wherein the women were also being brought up and recognized to have the same pedestal as that of the man in the society. Various movements and rallies carried forward in history and an effort to bring about the idealization of egalitarian concepts in society. Many women in the Indian society have been a victim of the abuses that paved the way to the concept of divorce in the country or maybe due to any other factor that persisted during those times and ensured that such conditions cannot prevail over the society with the aim to progress and remove conservatism.
Concept of Divorce
The separation of two people from a marriage union is known as divorce. The purpose of divorce is to cancel out the legal viability of the rights and duties that are associated with two people coming together to form a union. The divorce, as a process right from the beginning, had put forward the belief that when two couples are unable to remain together despite all efforts being made to put an effort to hold the marriage together, they can be discharged of the duties and other accountabilities that include the conjugal rights. The concept plays an important role in the development of a new system of arrangement in the society wherein the people can stimulate themselves and adjust in accordance to their ways. Divorce is a process that takes place in two ways, mutual and contested. Once granted, they are legally not liable to stay with each other and move along as well. There is a certain amount of compensation that has to be provided by the husband to the wife for maintaining herself which is known as alimony under section 25 of the Hindu Marriage Act, 1955. The alimony is the sum of money that is paid at the time of separation. However, with the development over time, there were a lot of situations wherein the alimony was not sufficient enough for the wife, and in such cases, the legislation decided upon providing the wife with the property. The property shall be divided based on the grounds laid down in the Hindu Marriage Act for people practicing Hinduism, Sikhism, Jainism, and Buddhism.
Division of Property after divorce
The division of property post-divorce in India has a special reference that needs to be adhered to with the belief that there needs to be proper segregation of property has to be understood consistently to provide the egalitarianism concept in the society. With the rise in the number of cases and the conditions that prevailed in the houses along with the plight of the women. This led to further development and provided a way to solve the crisis out for the women and give them a better pedestal as well as look at solving the problems with the utmost importance. The logic which is behind the establishment of such an argument has been of utmost importance as there is a need to strike a balance between the division of property as well as ensuring that the division was kept in mind looking at the condition of both the husband and wife. The investigation over the period was made, which concluded that the condition of the woman often is not a great stature as she is not in a position to live off well with the income disparity based on the gender. It was analyzed that the condition of the wife is much worse than that of a widow as she is entitled to the property of the husband post his death. However, if a divorced wife is looked at, she does not inherit the property of her husband post the process is completed rather she becomes much or dependent on her parents who sometimes might not be able to provide for the same. Thus, there was a need for the establishment of the maintenance as well as for the place where there could be a division made for the property. However, the calculation for the division of property is a much harder process than the calculation of maintenance.
Division of Property in India
The case for the division of property has two parts to which the action takes place, first where the wife is an earning spouse due to which she can contribute to the money that can be used for purchasing a property. In this case, the wife is independent as she has her secured job and can feed herself off in these cases and look for ways with which they can maintain themselves. The second situation comes into action when the wife is a homemaker and is completely dependent on the income of the husband and even on the property that has been purchased by him for the same. The dependency creates a completely different situation for the establishment of the property or for maintaining the same. This idea created a lot of controversies as it became difficult for the courts to determine how the division of property can be made. Finally, in 2001, in the landmark case of White v/s White, the court held that the determination of value for the division of property will be based on the income and earnings of both the spouses as well as looking at the security of their job which will help in determining the right position of the division of the property. The divorced woman does not have hold of any of the ancestral property or any of the self-acquired property of her ex-husband. Often it happens, the price of the property bought has been paid by the husband but the property has been registered in the name of the wife to reduce the taxes during the registration. The property, after whom the naming has been done, will be considered to be the legal owner of the property. In the case of the divorce process commencing, the property shall be provided to the wife but only 50% of it will be with her. The rest of the property shall be belonging to the husband who has filed for divorce.
With the coming of the amendment in 2013, the Bill brought about a change in the division of property post the divorce. The amendment stated that in case of divorce, the property will be divided equally i.e 50-50 amongst the couple. The property which has been provided in the past as ancestral as well as the one acquired post marriage. The provision, if broken down, speaks on the fact that out of the total property, 75% of the property went to the woman, and 25 % shall go to the man. This is considered to be anti-male in nature as it gives arbitrary stature to the wife and makes the misuse of such power.
Division of property in the United Kingdom
The division of property relating to divorce cases in the United Kingdom is on similar lines with which there has been a development made. The principle philosophical ideology of Black Stone is what has been recognized in terms of development based on the philosophy of Blackstone stated “ What is mine is yours, what is yours is mine.” The distribution of property was made according to the idea that the identity of the woman is lost once she is entering into a matrimonial ceremony. In this case, the British Parliament decided to implement the idea of establishing the property and the possibilities of creating an establishment with which the property could be divided in a much easier manner. The current English legal system follows the idea where the provisions have to be made in such a manner that it ensures a sense of security for spouses as well as children, then the division of property shall take place. Thus, according to Section 39 of the Maintenance Agreement Act, 1957 UK law the husband has got a right to the property of the wife if she has been proved guilty of adultery. Similarly, according to sections 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. This was further changed when the precedents established that the 50% division wasn’t the correct way to provide the division and might result in injustice when looked at the condition of the husband. Now, the courts in England are following the one-third policy where, the Matrimonial Causes Act, 1973 states that when there is 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, and any other such factors that led to the divorce process.
The law in itself introduced for the division of property has been very contrary to the purpose of serving while the divorce process has been initiated. The idea was to strike a balance between the two and provide justice to the ongoing struggle. However, a biased decision to adjudicate justice can turn into the Frankenstein that the Government never aimed at. The laws have to be made properly and re-arranged to provide for the initial idea of an egalitarian society.
. Hindu Marriage Act, 1956, S. 27.
. Justice William Black Stone, Commentaries on the Law on England, Page. 54(Royal English Publishing House, Bristol, 1823).
. Maintenance of Agreement Act, 1957, United Kingdom, S. 39.
. Maintenance of Agreement Act, 1957, United Kingdom, S. 27.
. Maintenance of Agreement Act, 1957, United Kingdom, S. 28.
. Matrimonial Causes Act, 1973.
BY DIBYA PRAKASH LAHIRI | VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES