Gender sensitivity and the partition of matrimonial property

With the inception of divorce laws, though, countless women found themselves unrestricted to remit themselves of the fetters of a calamitous marriage, they also found themselves on the periphery of impecuniousness with most laws esteeming possession of property and family assets by the husband alone as his exclusive property. This was made shoddier by the fact that the aids made by a home maker were hardly ever reckoned by Indian Courts unlike in some other countries. However in order to set veracious the crevasse that exists in the social and economic position of women vis-à-vis men in Indian society, many laws have been passed and reforms made. These embrace the right to receive equal pay to inherit or own property, to maternity benefits, to terminate undesirable pregnancies and the right to be protected from husband’s cruelty. The research paper deliberates the economic rights of the Indian woman within the family edifice particularly after the cessation of marriage. The concept of divorce was not reachable to the Indian Hindu population, until the year 1955. The Hindu wife was not a coparcener but was provided with a poultry sum of economic security and shelter and a standard of living to which the husband was familiarized. With the genesis of divorce laws, the same Hindu woman could be destitute of her marital assets, compelled to leave the matrimonial home and secluded from the joint family upon divorce. The Indian woman’s economic rights have orthodoxly gyrated around maintenance, alimony & stridhan. While stridhan was absolutely the woman’s property over which her husband could not have any prerogative, alimony and maintenance were concomitant to the concept of nourishment to avert the wife from deteriorating into ‘vagrancy and destitution’ and were painstakingly distinct from an award of property This paper deals with the law as it subsists today and postulate rational recommendation to assuage additionally the monetary anxieties of women.


The notion of divorce was not reachable to the Indian Hindu population, until the year 1955. The Hindu wife was not a coparcener but was provided with a poultry sum of economic security and shelter and a standard of living to which the husband was familiarized. With the genesis of divorce laws, the same Hindu woman could be destitute of her marital assets, compelled to leave the matrimonial home and secluded from the joint family upon divorce. The Indian woman’s economic rights have orthodoxly gyrated around maintenance, alimony & stridhan. While stridhan was absolutely the woman’s property over which her husband could not have any prerogative, alimony and maintenance were concomitant to the concept of nourishment to avert the wife from deteriorating into ‘vagrancy and destitution’ and were painstakingly distinct from an award of property This paper deals with the law as it subsists today and postulate rational recommendation to assuage additionally the monetary anxieties of women.


It is significant to note that this section alongside Section 14 of the Hindu Succession Act adapt the concept of “Stridhan”.[1] The current section 27 of the Hindu Marriage Act is though inappropriately limited only to property obtainable to the parties at or about the time of their marriage which fits conjointly to them.[2] It does not extend to articles of dowry given to and exclusively owned by the wife.[3] The party who needs that the direction be issued under this section must make an application before the main proceeding terminates as the order is required to be made at the time of passing of the decree. Section 27 provides alternative remedy to civil suit and does not affect the criminal liability of any party.[4] Where a petition for divorce is rejected, there is no illegality if no finding is given on the application under section 27 of as the finding could have created disharmony between the parties to the marriage.[5]


Section 27 of the Act has a self-same narrow room as it enables the court to make such provisions as it deems fair and appropriate in respect of any property presented conjointly to husband and wife at the stage of marriage. Though the Allahabad High Court in Kanta Prasad v. Omvati[6] has opined that the court has inherent power to make arrangements in respect of the individual property it is also submitted, this is not an accurate opinion. Starved of creating any orientation to this decision, the Allahabad High Court in Satya Pal Sethi v. Sushila Sethi58, has postulated that the wife cannot uphold a claim for the retrieval of adornments under section 27 in proceedings for divorce funneled by the husband. Since adornments were the élite property of the wife as stridhan, if she wishes to recuperate the same from her husband, she will have to file a distinct suit.[7] But in Sangeeta v. Balkrishna[8], it has continued that the court can prize relief in admiration to the other belongings under section 151 of the Code of Civil Procedure, 1908.


Guidelines under section 27 concerning disposal of property can be approved only, if the property is obtainable at or about the time of marriage and conjointly owned by the parties to the proceedings under the Hindu Marriage Act,1955. As stated earlier the section does not smear to the property, articles of dowry presented to and wholly owned by the wife.[9] Nevertheless the term “belong” in the section does not denote to the title of the property in the sense of ownership and it only signifies linking with property as to its possession,[10] e.g. a husband can be restrained from confiscating ornaments kept in a locker in the course of the pendency of proceedings under section 9 to 13-B of the Act, if such adornments are obtainable at the time of marriage and the locker is operable by both the husband and wife.[11] Nevertheless a submission under the section should be made in advance for the removal of the principal petition of restitution of conjugal rights, termination of marriage or divorce, judicial separation, but in exceptional cases the court can exercise the power, even, if the application is made at a subsequent stage.[12] Not only the property presented at the time of marriage is covered under this section, but one given “about the time of marriage” also gets attracted to it.[13] Provided the same jointly belonged to both of the parties.[14] However the property which is not covered under this section can also be disposed of between the parties in a petition under this Act by exercising inherent power under section 151 of the Code of Civil Procedure in the interest of justice in exceptional cases.[15] However adornments given to the wife by her father in marriage is her stridhan and the husband holds it as a trustee and he is liable to return it to her after the decree of divorce.[16] The dowry on the other hand includes not only the property presented during marriage jointly to husband and wife but also articles presented to wife as well.[17]


The Matrimonial Court has no jurisdiction to give directive in respect of the property presented subsequent to the marriage.[18] In the absenteeism of statutory provision, the court trying matrimonial causes has no jurisdiction to deal with supplementary property rights of the parties.


It has however been held by the Allahabad High Court[19] that section 27 does not exclude the power to pass a decree relating to property belonging exclusively to either to the husband or wife as that power is inherent in the proceedings under the Act. The words ‘which may belong jointly to both the husband and wife’ in the section show conferment of an enabling power to deal with jointly owned properties also but do not restrict the Court’s power to such properties alone. It was also held that in the view of section 21 all, powers of a Civil Court are available while dealing with the proceedings under the Act. The view taken by the Allahabad High Court appears to go beyond the scope of section 27, although the result arrived at is a desirable result. The Punjab High Court[20] while dissenting from the Allahabad High Court has set out assured rations for making an order under this section. There must be a matrimonial ensuing pending under the Act before the Court and an application must be made before the decision of the proceeding. It is not incumbent on the court to make provision in the decree with regard to disposal of property and it is left to its judicial discretion. The provision so made, if any, must be fair and appropriate as the court deems having regard to the adjustment of the equities between the parties and all surrounding material circumstances. The order would enclose only that property which was obtainable at or about the time of marriage, which means not only obtainable at the marriage but at a time either prior to or after the marriage and not to those made external to the extending limit of that time. The property so obtainable may either be to the wife or to the husband or both.[21]

At the time the court is required to use its discretion, the property must belong jointly to both the husband and the wife. Any property not belonging conjointly to the husband and wife is not covered under this section.[22] A court exercising jurisdiction under the Act is immobilized to make an order concerning individual property of the partners. Such an order cannot be passed by this court even underneath Order 6, Rule 7 read with section 151 of the code of civil procedure.[23] A claim by the wife for retrieval of adornments which are her exclusive property is also outside the scope of the section.[24] The court has no jurisdiction under the section to dispose of property which is demanded by the party as exclusive property. Once it is held as a matter of fact that definite articles of dowry were given to be exclusively owned by the wife the Section is not applicable to such articles.[25] In Pratima Prajapati v. Vinay P. Prajapati the wife filed a petition in the Family Court for divorce under section 13(1)(b) of the Hindu Marriage Act and she prayed for the leave by the husband of the flat belonging to her. Without any reference to Section 27 of the Hindu Marriage Act the division bench of the Bombay High Court held that when the husband and wife are hitting an end to a relationship, the property belonging to the wife has to be given wholly to her. The husband was ordered to divest the premises and hand over its empty and peaceful proprietorship to the wife.


 In Sangeeta Balkrishna Kadam v. Balkrishna Ramchandra Kadam a Division Bench had set the trend that the court must exercise the powers vested in it under Section 151, CPC and pass orders relating to the property not covered under section 27 of the Hindu Marriage Act. The Bench gave very cogent arguments: the Hindu Marriage Act imposes no bar on the Courts regarding the disposal of other forms of property, it is hardly fair to the parties to drive them to file another case, nor is it fair to the Courts in view of the volume of litigation pending. Filing one more case seems unnecessary and superfluous.[26] A Division Bench of the Madhya Pradesh High Court agreed with the Division Bench of the Bombay High Court in the case of Surendra Dixit v. Smt. Seema Dixit[27] . It also held that the court has jurisdiction to direct the return of the property given to the bride by her parents. But the Calcutta High Court has held that under Section 27 of the Hindu Marriage Act the return of the articles and adornments which the wife claimed as her exclusive stridhan cannot be ordered. For that she can seek appropriate relief under the general law.[28] Where the wife has files a separate application in a District Court the matter raised no problem. The appropriate forum would decide the suit.[29]


The application must be made before the proceedings terminate and the order may be made at the time of the passing of the decree or liberty may be reserved to the parties to apply for an order for disposal of such property in the proceeding on any subsequent date.[30]


Section 27 in spirit lays in detail that any property obtainable at or about the time of the marriage to both the husband and wife, an application may be made conjointly by either party to the proceeding under the Act and the court may in the exercise of its discretion make provision for the disposal of such property as it deems just and proper. The operation of the rule is confined only to property presented to the parties at the time of marriage which belongs jointly to them. Before an order could be made under the section it must be shown that the property in respect of which a claim is made was obtainable at or about the time of marriage. The word “at” must unavoidably mean the actual time of marriage and “about the time of marriage” means near or rotund about the time of marriage and gifts enclosed by the section are not presents subsequently made. The manifestation, “presented at or about the time of marriage” proposes that such property must be associated with marriage. The property presented ‘at or about the time of marriage’ anticipates not only obtainable at the time of marriage but also those obtainable before or after the marriage, on condition that it is relatable to marriage.

The claim regarding presentation of such property has to be recognized on the basis of evidence. When in a matrimonial arrangement, relief is claimed under section 27, if presentation of such property is established by evidence, then an order under Section 27 has to form part of the decree which has to be passed in the matrimonial proceedings.[31] According to the Division Bench of the Delhi High Court this property naturally comes to belong to both parties because all marks and areas of distinction and division are obliterated by the marriage.[32] It is proliferated that the presents may individual as well as joint. What can be used either only by the husband or only by the wife, is their separate property and on the other hand the property which is for the usage of both of them, is the combined property. The property enclosed by the section comprises property received separately or conjointly as present at or about the time of marriage and which has come to be as a method of life in their joint useage.[33]


Even if the household property was wholly owned by the husband from before marriage, wife’s right of residence in a portion is now firmly entrenched in our jurisprudence. Such share would be commensurate with the status and lifestyles of the parties.[34] Nevertheless under Section 27 the provision concerning disposal of property has been made to discourage multiplicity of suit so that the court, while deciding the matrimonial action, may also give directions as to the disposal of the joint properties of the husband and wife presented to them at the time of marriage or thereabout. The Division Bench of the Andhra Pradesh High Court observes that the parties can approach the family court for a suitable order on settlement of properties which were given at the time of marriage or learnt out of funds given at the time, and that what is more is that it is also permissible to make a prayer for partition and separate possession of any property in which such party to the marriage claims to have donated a share towards acquisition of such property.[35]


The amendment to the Hindu Succession Act, 1956 visualizes yielding coparcener rights by birth to all daughters. We hold in mind that India’s marriage rate is objectively high and that most girls get in India get married. This would finally mean that the daughters will get property rights in both their families of birth and marital families. This seems unwarranted towards the male coparceners. After marriage the daughter is alleged to become a member of the other family. Besides all this, the most significant point to note in this regard is that as soon as they will become coparceners they will get a right to probe for partition. This will make them more susceptible for exploitation by her in laws. She might be focused to torture in case she does not entertain their demand for consuming a partition. Another significant problem in yielding coparcenary rights to the daughter is that the widow’s share in the property will be reduced. Conversely, the coparcenary property acknowledged by a daughter is considered to be her élite property and the husband will have no right over the same whether under section 27 of the Hindu Marriage Act, 1955 or otherwise. Even upon her death the belongings will not federalize upon her marital property but upon her broods or natal clan only.

Mulla in his ‘principles of Hindu law’ has also reinforced this view and has opined that if the purpose of the legislature was somewhat different then it would not have certified the son of predeceased daughter to claim partition of the dwelling household.


As per the separate property regime, the spouse who acquires the title of the property will walk away from the marriage with that property undamaged in his or her name. The court will not take into reason the separate contributions of the spouses to the formation of a property and will merely implement the right in errand of the person who holds the title of the property regardless of the influence of the other spouse. This often distinguishes against the woman who defecates title to the matrimonial household and other possessions by failing to escalate marriage as a partnership. In dealing with this problem of rights in property after marriage , the Hindu Marriage Act provided that the property conjointly presented to the spouses at or about the time of marriage may be disposed of by the court as it may reason just and appropriate. Under Section 27 of the Hindu Marriage Act, settlement of the conjointly held property must be made at the time that the decree is delivered and property obtainable to the husband and the wife before or after the marriage is not in the interior of the purview of the section.

The manifestation ‘jointly’ in the Act is noteworthy because it delineates the limits of the matrimonial courts’ jurisdiction over the dumping of such property in two venerations, first, by limiting it to property which has been given to the spouses either at or about the time of marriage and secondly, such property must have been given to them unswervingly. Section 27 hence expediently left out several other types of acquired by the spouses before or after the marriage or property jointly assimilated by the spouses during their period of wedlock for assembly of the demands of the family etc.

In as early as 1950 the English courts has previously recognized a doctrine to demarcate property held by the husband or wife after marriage where clear differentiation was not possible. Denoting to such complications, Denning L.J. remarked in Newgrosh v. Newgrosh:

“In the ordinary running of a home, where the parties agree to buy clothes or furniture, they may also agree to whom it is to belong; but if, as so often happens they have left that unsaid, the title to it depends as a rule on the nature of property bought or the investment made. It does not necessarily depend on who provided the money. If clothes are brought for the wife they are of course hers; if money is invested in the wife’s name it is presumably hers. Conversely, where money is invested in the husband’s name, it is presumably his. But if they invest money in their joint names, or if they buy furniture with it, which it is obviously intended as a continuing provision for the benefit of them together, it may properly be presumed to belong to them jointly…Full effect is, therefore, given to their intention by holding them to be joint owners”.[36]

Although the court in India has option to decree any settlement of the property to the advantage of either spouse, it is only empowered to distribute property that is jointly held by the husband and wife.[37] Courts have conservatively held that under the Hindu Marriage Act, jurisdiction is missing to deal with the property solely by one party or the other, irrespective of the time or manner in which it was acquired during the marriage. The Rajasthan High Court stated in Anil Kumar v. Jyoti[38] that section 27 discourses only that property which is conjointly owned by the couple and which has been specified to them at or about the time of their marriage.

Consequently, it was the court’s thoughtfulness brought about the fact that this provision did not distress any property belonging solely to one of the parties. The only procedure to recover possession of his or her individual property, the husband or the wife must establish a separate suit. The Special Marriage Act, 1954 includes no provision lecturing on  the settlement of any type of property upon divorce. Codified Muslim law provides only that upon divorce the wife shall obtain the property given to her unswervingly and an amount equal to the sum of mahr or dower formerly decided to be paid to her.

The existing codified personal law allocating with post-divorce property distribution is exceptionally insufficient to address the concept of joint conjugal property which treats marriage as an equal partnership in which assets are accrued as a result of work, support and fortune of both parties for the benefit of the whole family unit. Rendering to a study, even though a wife’s earnings from agricultural wage work were typically about half or two thirds of the husband’s, her contribution to household maintenance was greater than his in six of the twenty sample villages, equal or close to equal in five others and substantial in the rest.[39]

The study also presented that the proportion contributed by the wife from her income was greater than that by the husband. Typically she contributed over 90% of her earnings, while the husband rarely gave over 60 to 75% of his and sometimes even less. Another study found that majority of working women gave most or all of their earnings to a senior member of the household such as the husband.[40]

A study conducted and published by Majlis found that shelter was the most pressing need of divorcing women and provided evidence of the disastrous effects of the separate property regime for women.[41] Of 60 women who contributed in the study only six resided in the matrimonial family, three of whom did so since the husband left to live with another woman. Divorces had not been confirmed for fifty-eight of the women, which destined that women were also defenseless during divorce accounts. Thus for 90% of the women in the study, divorce or purely divorce proceedings meant loss of the matrimonial homespun.

There are some approaches to evade the inequality in the separate property system. The husband and the wife, during the marriage can settle to hold titles conjointly and in an equitable manner. During the wedding or upon divorce one spouse can agree to transfer the title of certain assets to the other one. But both these approaches of minimalizing the inequality of separate property require the accord of at least one person. Joint title necessitates some amount of prudence that may be far away at the time the couple obtained the property.

Using the device of constructive trust, the Court may also be able to enhance the suffering of the non-title croft party. Nevertheless beneficial trusts do not create legal rights for the beneficiary. The court may also coerce a spouse to sell his or her property in order to make court authorized maintenance expenditures. Despite these conducts in which the separate property regime can be ducked, it remnants a prejudiced system which fails to identify marriage as a partnership and distinguishes against women who lack title to the marital homespun and other possessions. Courts elsewhere have replied to these economic authenticities by embrowning a jurisprudence of joint matrimonial property organization where all assets acquired from the time of marriage are regarded as joint marital assets to be alienated equitably or evenly between the divorcing parties. In India, nevertheless the woman, while relishing the formal status of equality at law, in spirit remains frugally dependent on her husband. The separate property regime has occasioned in the continuation of subservience of women’s economic safeties.


The contemporary system of personal laws regarding property division is tremendously biased against women because it miscarries to safeguard that the woman will leave the marriage with the assets and economic refuge to which she is eligible. This legal establishment is prolonging gender imbalances that condense the woman itinerant and an impoverished by divorce. Observing into the abovementioned discussion, the subsequent suggestions may arise to create a more evenhanded and democratic legal scheme that will shield the rights of women who are divorced from their husbands.

  1. Separate Property: Individual property prior marriage should continue separate property to which only the proprietor will be permitted after divorce. It may comprise inheritance and gifts and there must be a mandatory provision of registration of the same. Conjecture unless invalidated should be that unregistered assets are common property.
  2. Joint Marital Property: Property learnt in the course of the marriage that will be alienated equally if the parties decide to divorce. The court must have the control to order the transfer of property from individual party to another and to order reimbursement of spousal property for the subsidy of the other spouse and children.
  3. Ante-Nuptial Agreements: The court may apply ante-nuptial contracts where both parties to the marriage settle to an alternative settlement of property. These acclaimed provisions treat marriage as a partnership of equivalents and diagnose both financial and non-financial charities of both spouses to the marriage, the household and the attainment of assets. Removal of legal restraints and legitimization of improvement of property rights is an essential and catalytic step for women. Deprived of economic rights, the rise of women as equal thespians in the conventional Indian life will persist as it has for the last six decades— slow and occasionally regressive.

Author: Atrayee De, Amity Law School, Center –Ii, Noida

Disclaimer: This article has been published in “International Journal of Socio-Legal Analysis and Rural Development (ISSN: 2455 4049), page no. 28. No part of this publication may be reproduced or transmitted in any form by means, electronic, mechanical, recording or otherwise, without prior permission from Legal Desire. All Rights Reserved.

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