The new proposed amendment in the alimony law related to inherited property, clarifies the rights of women and outlines the various situations where the wife can claim ownership of the husband’s ancestral property. VIBHA SINGH reports
Divorce is a trauma, which a woman faces both, socially and financially. Keeping the welfare of women in consideration and to give them their rightful due, the union cabinet has proposed a change, which aims to give the wife a share in the inherited or inheritable marital property of her ex-husband. This change comes at a time when laws related to division of property in divorce cases are confusing, at best. Shobha Jagtiani, a prominent laywer in the city, explains how "Ancestral property is an important concept in Hindu law. The law recognises a wife as a member of the Hindu Undivided Family (HUF) but does not give her the status of a co-partner, whereas the husband and the children are co-partners and have the right of partition in the HUF and to take their share. In contrast, a wife can get her share only upon a partition taking place at the insistance of the co-partner. If the HUF assets are undivided and not partitioned, then she cannot claim a share."
Fazaa Shroff-Garg, another city-based lawyer, opines that "The amendment bill refers to inherited or inheritable marital property, becoming a subject of compensation for a wife upon divorce. On studying the complete text of the bill, it will become clear as to how the aforesaid properties will be divided between the husband and the wife. Whether the compensation payable to the wife will become a charge on the aforesaid properties or whether the aforesaid properties will be divided between them, is to be considered. Further, if the divorce is the triggering point for the division of properties, then the future second marriage of the husband and the welfare of the second wife and his future family, will need to be considered."
At present, the USA is undergoing an alimony reform wave, as can be seen from the Florida amendment, which is challenging the concept of 'permanent alimony' by one spouse to the other, till remarriage. The proposal in the bill is similar to the present 'permanent alimony' prevalent in the US. The bill also raises several questions about inherited property, vis-a-vis joint family property, ancestral property and properties in joint occupation as residence. The proposal to give the court the discretion to determine the quantum needs to have some guideline principle with regards to the share. There cannot be unbridled discretion, which does not give any guidance to the court or the litigants.
It has been stated in the amendments that the rightful share of a woman in the inherited property will be decided by the court. Garg adds, "I am certain that the existing equitable principles, relating to 'standards', which the woman is used to during the marriage and before the marriage, will also be applicable for deciding the share of the woman in an inherited property."
Jagtiani agrees, saying, "In many HUFs, substantial property is in the form of inherited property and not self -acquired property. For example in cases where it is in the business of the HUF. In such a scenario, if a divorce were to occur, the wife would not be entitled to any property whatsoever. Thus, the proposed amendment is welcome in this regard."
However, the bill at present, does not talk about any nexus between the length of the dissolved marriage and the share to be given to the woman upon divorce. The lawmakers have to consider that in a situation such as 'no fault divorce' or 'short-lived marriage', if the properties have to be divided between spouses, then the just and equitable principles will be seriously impaired whilst doing justice to both the spouses.
Garg opines, "Some formula of the duration of the marriage, remarriage of spouses, dissolution of the marriage due to adultery by the female spouse, etc., should proportionately affect the share entitlement, which needs to be prescribed. The aforesaid observation is with the intent of having a balanced amendment, and not to have excessive provisions, which may be classified as being 'gender biased'."
It is also proposed in the bill that self acquired property be considered as an asset class held by the husband, for computing the share of the wife upon the dissolution of the marriage. The complex web of trust and companies holding the properties indirectly will be invoked and spouses will 'launder away' their properties to insulate any claims from the spouse in the event of a potential divorce in the future.
Jagtiani feels that if divorce is sought merely for obtaining the husband's ancestral property, it may result in the marriage being turned into a commodity. Also, considering that a wife shall be entitled to take a share in the HUF property, her children from this marriage may lose out on the ancestral property, if the wife takes away a chunk of the property and then remarries. This would also mean that the 'ancestral property' shall start getting depleted, instead of being passed on from generation-to-generation. The cabinet had decided against the earlier proposal of equal share for wives in their husband's property in divorce cases, since it was felt that division of inherited property may lead to further litigation.
Garg concludes by saying that "The bill will have to be seen in light of existing provisions for maintenance, under the Criminal Procedure Code read with tacit provisions of the Domestic Violence Act, related to protection against eviction of women and provision for maintenance and alimony, as upheld in various decisions. Unlike popular belief, the provisions of the bill will not remain restricted to Hindus but will affect the parties who register their marriages or marry under the Special Marriage Act, irrespective of their caste, religion or ethnicity. The review of the legal position with regards to the law relating to alimony was overdue and the move by the government is progressive and necessary."
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BYTES KEEPING THE WELFARE OF WOMEN IN CONSIDERATION AND TO GIVE THEM THEIR RIGHTFUL DUE, THE UNION CABINET HAS PROPOSED A CHANGE, WHICH AIMS TO GIVE THE WIFE A SHARE IN THE INHERITED OR INHERITABLE MARITAL PROPERTY OF HER EXHUSBAND.
THE LAW RECOGNISES A WIFE AS A MEMBER OF THE HINDU UNDIVIDED FAMILY (HUF) BUT DOES NOT GIVE HER THE STATUS OF A CO-PARTNER, WHEREAS, THE HUSBAND AND THE CHILDREN ARE COPARTNERS AND HAVE THE RIGHT OF PARTITION IN THE HUF AND TO TAKE THEIR SHARE.
source:- http://epaper.timesofindia.com/
