A di­vorced wife’s rights over prop­erty

The Mar­riage Laws (Amend­ment) Bill, 2013, seeks to in­tro­duce a spe­cial pro­vi­sion re­lat­ing to share of a di­vorced wife and the chil­dren in the prop­erty owned by her hus­band

HT Estates - - HTESTATES - Su­nil Tyagi

The Hindu Mar­riage Act, 1955, that cod­i­fies and gov­erns the law re­lat­ing to solem­ni­sa­tion and dis­so­lu­tion of mar­riages among Hin­dus. Over the years the gov­ern­ment has made sev­eral ef­forts to pro­tect the in­ter­ests of a di­vorced wife and her chil­dren. New laws have been en­acted and amend­ments have been made in ex­ist­ing laws to bring about changes in the pro­vi­sions of law re­lat­ing to pro­vi­sion­ing of main­te­nance of the di­vorced wife and her chil­dren.

With t he i ntent t o make mar­riage laws more wom­en­friendly the gov­ern­ment rein­tro­duced The Mar­riage Laws (Amend­ment) Bill, 2013, with some mod­i­fi­ca­tions. The Ra­jya Sabha ap­proved the rec­om­men­da­tions given by the group of min­is­ters (GOM) and passed the bill in Au­gust this year.

In the present Act, un­der Sec­tion 13, var­i­ous grounds for dis­so­lu­tion of mar­riage by a de­cree of di­vorce are pro­vided, which in­clude in­ter alia adul­tery, cru­elty, de­ser­tion, con­ver­sion to another re­li­gion, un­sound­ness of mind, vir­u­lent and in­cur­able form of lep­rosy, vene­real disease in a com­mu­ni­ca­ble form, re­nounce­ment of the world and not heard as be­ing alive for a pe­riod of seven years or more. Sec­tion 13-B of the Act also pro­vides for di­vorce by mu­tual con­sent of hus­band and wife as a ground for dis­so­lu­tion of mar­riage.

The bill in­ter alia seeks to in­tro­duce ‘ir­re­triev­able break- down of mar­riage’ as a new ground for dis­so­lu­tion of mar­riage as Sec­tion 13 C, and waive the con­di­tion of mov­ing sec­ond mo­tion by both the par­ties in cases of di­vorce by mu­tual con­sent un­der Sec­tion 12 B of the Act.

Most im­por­tantly, the bill seeks to in­tro­duce a spe­cial pro­vi­sion re­lat­ing to share of a di­vorced wife and the chil­dren in the im­mov­able and mov­able prop­er­ties owned by her hus­band. As per amend­ments pro­posed in the bill, the court while de­cid­ing com­pen­sa­tion to be paid by the hus­band to her wife and chil­dren in cases of dis­so­lu­tion of mar­riage on the grounds of ‘ir­re­triev­able break­down of mar­riage’, can in­clude a share in the im­mov­able prop­erty of the hus­band (other than in­her­ited or in­her­i­ta­ble im­mov­able prop­erty) and share in the mov­able prop­erty of the hus­band, as the Court may deem just and eq­ui­table. It has also been pro­posed that while de­ter­min­ing such com­pen­sa­tion, the Court shall also take into con­sid­er­a­tion the value of in­her­ited or in­her­i­ta­ble prop­erty of the hus­band.

Thus, though the com­pen­sa­tion to be paid to the wife and chil­dren in case of di­vorce due to ‘ir­re­triev­able break­down of mar­riage’, may in­clude a share only in the self ac­quired prop­erty of the hus­band, the courts will have power to de­ter­mine the amount of such com­pen­sa­tion con­sid­er­ing the value of in­her­ited or in­her­i­ta­ble prop­erty of the hus­band.

The bill pro­poses sim­i­lar amend­ments in the Spe­cial Mar­riage Act, 1954.

Main high­lights of the Bill in­ter alia in­clude as un­der:

In­tro­duc­ing ‘ ir­re­triev­able break­down of mar­riage’ as a new ground for di­vorce.

In­tro­duc­ing a spe­cial pro­vi­sion re­lat­ing to share of a di­vorced wife and the chil­dren in the im­mov­able and mov­able prop­erty owned by her hus­band.

Waiv­ing of the con­di­tion of mov­ing sec­ond mo­tion by both the par­ties in cases of di­vorce by mu­tual con­sent un­der Sec­tion 12 B of the Act.

The Bill pro­poses sim­i­lar amend­ments in the Spe­cial Mar­riage Act, 1954. The au­thor is a se­nior part­ner of ZEUS Law As­so­ci­ates, a cor­po­rate com­mer­cial law firm. One of its ar­eas of spe­cial­i­sa­tion is real es­tate trans­ac­tional/lit­i­ga­tion work

THINKSTOCK

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