Equitable Distribution Of Property On Divorce? An Answer In Article 15

Several foreign jurisdictions recognize property purchased/accumulated subsequent to marriage as "community property" and on divorce the properties are divided equally between the parties. Several other jurisdictions recognize the principle of equitable distribution of property between spouses, based on several factors such as age, duration of the marriage, requirements of the spouse claiming maintenance, etc. Immovable property is not excluded from this gamut.

Unless laws are enacted in India to enable a husband and wife to be co-sharers of the property acquired by each of them subsequent to the marriage of the parties, substantive equality between husbands and wives at the time of divorce will continue to remain a pipe dream. There should be an equitable division of the property, irrespective of whether it is solely purchased by the husband subsequent to the marriage. In India, the spectrum of couples who go through divorce is manifold. However, when one or both parties are constrained to consider divorce, in a majority of the cases, it is the woman whose financial life is completely broken and left to the discretion of the Courts. A transformation of the law in this regard will enable women to own property towards which they have made a contribution during their marriage. This entails a shift from a rights-based approach instead of a needs-based approach vis a vis the wife. This would also accord house work, which is mostly done by women, its due status by the State as a respected and economically valuable form of labour.

The State has a duty to transform rigid legal and social practices which perpetuate an unequal distribution of power between a husband and wife. The lack of laws to balance economic equality during a marriage as well as during divorce, promotes patriarchal hierarchies and fails to bring about balance within the marital relationship. This lack of balance is exposed during the time of divorce because a separating wife realizes that she is in fact entitled to no financial monies unless she makes a claim for maintenance in a Court of Law. Instead, by default there ought to be an equitable or equal distribution of the properties acquired by the parties after marriage, irrespective of which party paid for or acquired the same. Several foreign jurisdictions recognize the principles of equitable distribution of property or "community property", which reduces the financial disparity between parties at the time of divorce.

Articles 14, 15, and 16 together constitute the Constitutional code of equality. The State is therefore obligated to ensure that the rights under Article 15(1) are ensured by passing relevant laws under Article 15(3). The objective of Article 15 being to strengthen and improve the status of women, it is imperative that the economic disparity between spouses at the time of divorce are addressed as substantive equality claims.

Hence, it is necessary that in relevant cases there is an equitable distribution of income and property; and in those cases where the parties do not own any property, the existing laws of maintenance must continue to operate at a faster and more equal manner. The Courts which are often tasked with ensuring that a wife who is being constrained to separate is not left in a state of penury, have on innumerable occasions interpreted the law to protect the rights of women in these conditions. From judgements on right to residence, such as 'Aishwarya Atul Pusalkar v Maharashtra Housing & Area Development Authority and Others', decided on 27 April 2020, in which the Court observed that the appellant had a 'right to reside in her matrimonial home. Such right has a legitimate basis'. The Court went on to observe, 'Alienating an immovable asset to defeat the right of a victim lady under the said Act can constitute domestic violence, coming, inter-alia, within the ambit of the expression "economic abuse" under Section 3(iv) of 2005 Act'. On other occasions, including in the landmark judgement of the Supreme Court i.e. 'Rajnesh v. Neha' dated 4 November 2020, the Supreme Court, as a measure to address delay and transparency, made it mandatory for Courts across the country to ensure that Affidavits of Assets and Liabilities were filed by parties, at the time of filing applications/petitions making claims for alimony and maintenance. The Court laid down the criteria for determining the quantum of maintenance. Fixed percentages matching these criteria, based on the different permutations, would enable a much speedier recourse to what the law already offers.

Legal provisions enabling a separating wife to file for maintenance are viewed by the Apex Court as a measure of social justice falling 'within the Constitutional sweep of Article 15(3) of the Constitution of India'.

Grant of maintenance and alimony are entirely a discretionary exercise of the Court before which a maintenance claim is filed. A change in the present laws, must be made to enable a rights-based approach, rather than a needs-based approach based on which a fixed percentage of maintenance must be granted to the wife. The Supreme Court in 'Kalyan Dey Chowdhury vs Rita Dey Chowdhury Nee Nandy' dated 19 April, 2017, observed that, "Following Dr. Kulbhushan Kumar vs. Raj Kumari and Anr. (1970) 3 SCC 129, in this case, it was held that 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent-wife". The SC also observed that the amount of permanent alimony awarded to the wife must be befitting of the status of the parties and the capacity of the spouse to pay maintenance.

If maintenance and alimony amounts are based on fixed rules it will remove the hyberbolic screams of "lies on lies" and "career-oriented woman", often heard from the counsels of the husband during maintenance proceedings in a Court. This will also render irrelevant the need for a woman undergoing divorce to prove that she is deserving of maintenance from her husband.

Maintenance percentages must be fixed by taking into consideration factors such as age, duration of the marriage, spousal maintenance when the parties have minor children, employment status, etc. based on the different permutations. A closer look at the financial battle between separating spouses shows that it can take many months and sometimes years before any maintenance is given to the woman. Time bound and fixed percentages of maintenance amounts based on relevant factors will also lead to a speedy disposal of the divorce case. Undoubtedly, maintenance amounts must also be fixed based on the financial capacity of the husband.

Hence, legal provisions must be expanded to take into consideration all the present social and economic conditions of women undergoing divorce to cover the financial disparity which can arise upon divorce.

The author is an Advocate Practising in the Karnataka and Delhi Courts. Views are personal.