A FAMILY LAW PERSPECTIV
With the changing times, many norms have also undergone changes. The concept of family has also changed greatly. In today’s family there is seen some change in the power structure and along with it changes in family types, matrimonial household, property, also have changed. In family law these changes are being studied now. But still Indian women continue to get fewer rights in comparison to men, in terms of property. In Indian there are different religion and so different criteria of property rights depending on marital status, financial status, etc. Matrimonial home has no any clear and specific mention in any acts.
There are statutes and acts like the Hindu Marriage Act, 1955; Hindu Succession Act, 1956; The Protection of Women from Domestic Violence Act, 2005 etc dealing with the concept of matrimonial home or shared household either directly or indirectly. Also this concept attracts quite a lot of debate because of the complexity in the status of the case. There arises question as, Can a wife turn out her husband or can a husband turn out his wife from the house legally? Can a wife be evicted from her husband's house? Where does the party, who has no alternative accommodation, go? etc. An issue gaining significance in the context of matrimonial reliefs and rights is that of matrimonial home. This article will try to give a clear understanding of the change in the matrimonial home in the 21st century India in the context of the rights and status of Hindu women. This article will also try to study the strains and stresses in the introduction of the concept of matrimonial property and home in the existing family system. It will emphasize on the issue to closely analyze the rights of women as there is a need to clarify the concept of matrimonial home.
Meaning of Matrimonial Home
According to Hindu Law, marriage is a sacred union. It is a bond between two persons. The family law perspective deals with the union of two persons only i.e. the male and the female and in terms of the institution of marriage, the husband and wife. It is the performance of marital duties where there is an obligation of the couple to live under one roof and which cannot be torn arbitrarily by wife’s desire to live separately for any sake. In simple sense, the home where both the parties have been living during covertures is termed to be the matrimonial home. Today marriage is also an equal economic partnership between the couple. Matrimonial property is one of the important concepts pertaining to the institution of marriage. It includes the matrimonial home and all the related properties and assets of the couple. But the term “matrimonial home” is not defined under any of the statutory provisions. It is also not defined under the matrimonial law in India too. There are many complexities in it. It is time that the Indian laws make clear provisions regarding matrimonial property and its share among spouses.
The expression matrimonial home is not used in Section 9 of the Hindu Marriage Act, 1955. Instead the word society is used. The word matrimonial home and conjugal society are used interchangeably to refer to the place where both husband and wife share society as life-partners, which is to be determined by the husband. The right to live in the shared household is an economic right of women and hence denial to such access would be considered economic abuse as per Section 3 of the Domestic Violence Act. It exists as long as the domestic relationship is present and ceases to exist from the time of divorce as it is the dissolution of the marital relationship. However, before divorce, the protection from domestic violence would exist, including the right to stay in the shared household. The question of matrimonial home arises where the husband and wife are gainfully employed at different places.
Matrimonial Home: Then & Now
Earlier the Mitakhshara and Dayabhaga schools of Hindu law maintained the Manusmriti succession laws where women remained secondary owners of landed property until the enactment of Hindu Women's Right to Property Act (1937) although Mitakhshara school acknowledged women's right to inherit property from her husband's family. During the British Indian legal history, the Privy Council preferred the Dayabhaga rule which limited Hindu female’s proprietary freedom. Under the old Hindu Law only “streedhan” (properties gifted to her at the time of marriage by both sides of the family and by relatives and friends) was the widow’s absolute property. Under the ancient Hindu laws there was no complete recognition of women rights to property. The Hindu Women’s Rights to Property Act, 1937 further brought changes to give women better rights. Also the study of other ancient and modern legal systems around the world reveals that under the entire male dominated legal systems, females have been denied the proprietary status, deteriorating their social status and reducing them to the other class, definitely of inferior human beings. Earlier women were expected to be house maker and were not allowed to work independently. But today the scenario has changed.
Women's property rights have been limited throughout the history but the modern laws governing these rights are more liberal than those of ancient Hindu society. Section 14 of the Hindu Succession Act, 1956 has ruled that all property, howsoever acquired, shall become the absolute property of a Hindu female. But an analysis of the various statutory and judicial provisions, it can be seen that women’s property status remains almost the same as it was before the emergence of the statutory era. The matrimonial home is often a family’s the most valuable asset. The matrimonial home may be owned in a variety of ways, including solely by one partner, jointly as tenants in common, or jointly as joint tenants. India follows the separate ownership model of matrimonial property distribution that does not recognize the contribution of the non working spouse, who in most of the cases is the woman.
Circumstances Leading to Change in Family Structure
With the changing dynamics of a family, we can witness various other changes too in matter of marital relations. Now a day’s working woman too contributes financially to the working of the household. Through the equal sharing of the matrimonial property, women have right over her matrimonial home too. Pertaining to the institution of marriage, matrimonial property is one of the most important issues. If studied, it can be known that the disproportionate holding of assets in such matter occurs mainly due to some inherent factors. Domestic work in not recognized as productive work in India and due to this the women’s contribution to the making of the household is not taken into consideration. Women are forced to give up their careers in order to look after their homes.
Marriage should be recognized as an equal economic partnership between husband and wife. There must be suitable legal mechanism to acknowledge the wife’s contribution to the acquisition of assets. Hindu women’s property rights depend on number of factors. It varies depending on the status of the woman in the family and her marital status: whether the woman is a daughter, married or unmarried or deserted, wife or widow or mother. It also depends on the form of property being considered whether it is hereditary or ancestral or self-acquired, land or dwelling house or matrimonial property. As in the recent past matrimonial home was to be provided by the husband only, with the passage of time women are equally contributing in the making of a matrimonial home. This should be a logical reason as to why a matrimonial home should be recognized as belonging to both the spouses.
The sense of matrimonial home in Hindu law also raised the question of whether a joint family house is considered as a matrimonial home, or whether a divorced wife may exercise her right to live in her husband's joint family house. Indian law should make it clear who provides the matrimonial home upon marriage, and which property within its ambit should be accepted as matrimonial property subject to equal distribution upon divorce or death. Section 27 of the Act does not serve the function of incorporating matrimonial home in the matrimonial property where both husband and wife share it upon dissolution of their union, if such a situation arises; and it shall provide fair economic support to the parties on divorce. The Supreme Court in Seema v . Ashwani Kumar made registration compulsory as it would serve as an evidence of marriage and would help the women in seeking matrimonial remedy as provided under Section 8 of the Hindu Marriage Act.
When the Domestic Violence Act, 2005 was introduced it included the right of a wife only to stay in the matrimonial home but through its enactment, the right of a woman to reside in her matrimonial or shared household irrespective of whether she has any right, title or interest in it has been secured. The Act also protects women in domestic relationships who are living alone or together or have lived at some point of time in a shared household with the partner. Section 17, 18 and 19 deals with the women’s right to reside in shared household. According to Section 17, every woman has a right to live in the shared household. The Act defined shared household as a household owned and rented jointly by the aggrieved woman and the related person or by the aggrieved women and the respondent, but in respect to which both has an interest, title, right, or equity; or joint family’s home in which respondent has no interest, right, or title in the property and respondent is a member. Therefore it does not have to be owned or co-owned. Unless a court order or arrangement states otherwise, both parties have a right to equitable ownership and occupancy of the matrimonial home. Without the permission of the other partner, neither spouse may sell, dispose of or encumber the matrimonial house. This is same in cases where one spouse is the registered legal owner of the home. This means that without a formal agreement or a court order, the owner spouse cannot sell the property or compel the non-owning spouse to leave. The Section 9 of the Hindu Marriage Act, 1955 provides for restoration of the matrimonial home along with the conjugal rights of the couple in case one of the spouses leaves the society of the other without any reasonable excuse. Apart from this, Section 125 of Criminal procedure code prescribes for maintenance of wives.
The Supreme Court in one of its verdict held that granting right to residence to a married woman under the domestic violence law by a criminal court is relevant and can be considered even in civil proceedings seeking her eviction from the matrimonial home. The Bombay High Court in another case has held that a woman gets the right to live in her matrimonial home or a shared household irrespective of whether it belongs to or is owned by her husband. This decision was relied on the provision of the Protection of Women through Domestic Violence Act. The Supreme Court in S.R Batra and Anr. v. Smt. Taruna Batra case held that, a shared household would not include the house owned by the parents of the husband in which the aggrieved happened to live. It dealt with the issue relating to scope and meaning of the expression shared household as to whether the property wherever the husband and wife lived together falls under the definition of shared household. The Delhi High Court has reiterated that the right to residence is available to a woman against her husband and not against the parents-in-law in a property owned by them.
The Supreme Court said that the object of the Protection of Women from Domestic Violence Act 2005 is to provide and accept women's rights to secure housing and live in a matrimonial home or a shared household, regardless of whether or not she has any title or right in the shared household. It mentioned that a shared household is defined as a place where a woman lives or has lived in a domestic relationship, either alone or with her husband, and includes a house that is owned or tenanted. In Smt. B.P. Achala Anand case, the Supreme Court observed the right of a wife to reside in the matrimonial home under personal laws. A wife is entitled to be maintained by her husband and remain under his roof and protection. She is also entitled to separate residence if she is forced to live apart from her husband due to his conduct, refusal to maintain her or for any other cause. Right to residence is a part and parcel of wife's right to maintenance. For the purpose of maintenance the term wife' includes a divorced wife too. The Supreme Court of India clearly specified the scope and ambit of Sections 14(1) & (2) of the Hindu Succession Act in V. Tulassama & Ors v. Sesha Reddi in which the court made a fine distinction between the woman's right to property and her pre-existing right to be maintained.
Tackling Matrimonial Home Issues: Solutions & Initiatives
Among the Hindus, there are no laws which in particular deal with matrimonial home and provide them with an equal share at the time of dissolution of marriage. The prevailing separation of assets principle in the matrimonial home must be replaced by co-ownership of the property as women who are not financially independent would be highly affected by financial hardships on termination of marriage. It will provide women with financial security. Equal division of matrimonial property promotes sense of equality in the relationship and it decreases the tendency of a spouse to look at the property through the lens of ownership. In some cases women, even if they face abuse, do not file for divorce because they are completely financially reliant on the other spouse. If they did, they would be homeless and without a source of income. Thus, India should replace the current separate ownership of property with community ownership of matrimonial property.
There must be a properly drafted prenuptial agreement that will have binding effect over both parties and which is legally enforceable. Section 27 of the Hindu Marriage Act must be updated to include property received, bought, inherited, or obtained in some other way during the union, regardless of whether one of the two partners has joint title and co-ownership. This would help overcome the oppression of women and would empower them. This is the most urgent need for Indian society, which must free itself from the grasp of a male-dominated society.
The Matrimonial Property (Rights of Women upon Marriage) Bill, 2012 in Maharashtra and the Marriage Laws (Amendment) Bill, 2012, are some positive steps. Awareness should be created at the grassroots level. There could also be the implementation of Uniform Civil Code. But in a country like India where there exists people from different religions it is not a possible solution to the problem. Each religion has their own rules and provisions; hence applicability of a single rule, binding on all would be a question of debate as to what common law should be applied. Policy makers have a role to play. In today's society, there must be a clear conciliation between men's demands for supremacy and women's demands for freedom and equality. At a broader level, developing a suitable law and policy on matrimonial property in India should be implemented that would acknowledgement the role played by women in establishing, nurturing and caring for the members of the family and the socio-economic and legal protection accorded to women in the matrimonial home.
The status of the women in India has transformed after the guaranteeing of equal rights and privileges to women. Protecting and promoting the rights of women is a tool for the progress of the society. Earlier women have no right to own property but with the changing time and the evolution of women rights activist and feminist movement we can see changes in the structure of earlier society. Today women have established themselves to earn a proper living in the society. They are financially independent enough to lead a proper life even without the support of the partner. But this is not the scene in all the parts of the country. Women have always been victims of subjugation and torture. It is due to this patriarchal system that women are subjugated and men are allowed to work as the sole earner. In such scenarios if there takes place divorce, matrimonial clashes, domestic violence and such happening due to which the women starts living separately from her husband, then too she still has the right to their matrimonial home. The matrimonial property in India should be equally divided to promote equality among the spouses and empower the women. Equal share in the matrimonial home provides financial security to women who devote their life towards taking care of the family and contributing in directly towards the development and progress of the family. The homemakers work is as important as the income earners. Gender inequality in culture has resulted in the deterioration of women's status in society as a whole. Such a callous attitude toward their work leads to women's inequality in society. The courts have faced dilemma to justify their stand point in moving from traditionalism to modern sphere of matrimonial home. As seen there are many loopholes in the Indian laws. There is a need to make clear provisions regarding matrimonial property and its share among spouses. Rather than introducing new laws, what is more important is the proper implementation of the existing laws and acts.
Rosy Sequeira, Woman has right to live in matrimonial home even if dad-in-law owns it: HC, ( 22nd Oct, 2017), (04:29), https://m.timesofindia.com/city/mumbai/hc-in-laws-may-own-it-but-wife-can-live-in-shared-homeshared-home-wifes-even-if-dad-in-law-owns-it-hc/amp_articleshow/61167814.cms
Deepanshi Sharma, Right to residence in Matrimonial Home, https://blog.ipleaders.in/right-to-live-in-the-shared-household/amp/
Vijender Kumar, Matrimonial Property Law in India: Need of The Hour, http://18.104.22.168:8080/jspui/bitstream/123456789/34735/1/020_Matrimonial%20Property%20Law%20in%20India%20Need%20of%20the%20Hour%20%28500-523%29.pdf
Shruti Pandey, Property Rights of Indian Women, https://www.womenslinkworldwide.org/files/gjo_article_India_caseC.%20Masilamani_en.pdf
2nd year & 4th semester
B.A LLB (Hons.)
National Law University & Judicial Academy, Assam