Sunday, December 15, 2013
Varun Vaish has recently posted Division of Property between Matrimonial Partners Upon Divorce – A Critical-Legal Study on SSRN in the Working Papers Series.
Here is the abstract:
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.