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Equitable Distribution Of Property Rights Post-Divorce

Marriage is an institution of two people in which peaceful co-existence and mutual harmony are important and guide the two parties to live a happy married life. this institution has its ups and downs which can sometimes cause the two parties to break apart (divorce). Divorce is defined as when two people agree to discontinue their legal relationship as a married couple before the death of either spouse. Section 13 of the Hindu Marriage Act lays out the grounds for divorce.

As a matter of fact, India is a secular country every religion in the country is governed according to their personal matrimonial laws. According to the Hindu marriage act, marriage is the solemnization of a male and a female in accordance with customary rites and ceremonial traditions. though it is the solemnization of two people in changing times due to people getting aware of their rights separation and divorce are becoming common practice.

The property right of an individual is no more a fundamental right but a human right that comes under article 300 A of the Indian constitution. now the question arises that what are the entitlement of women after divorce in accordance with Indian laws and whether the property should be equally distributed among spouses.

Historical Background
to get into the depths of the issue we have to understand the historical development of matrimonial laws in India. The laws go back to the time of Kautilya where "a woman may abandon her husband if he is of bad character, if he has become a traitor, or is likely to endanger her life, is an out-caste and lost his virginity".

Or A disaffected wife is not to be granted a divorce from her husband who is unwilling nor the husband from his wife but by mutual consent, divorce can be granted. According to Kautilya, there were various grounds for divorce such as cruelty, desertion, apostasy, impotency, and mutual consent.

This projects India as a society where the rights of women were recognized and protected. Over the time when societal norms were changing the need was felt to codify the laws relating to divorce and the first attempt was made in the year 1931 under which rights to divorce were given to both men and women on the grounds of impotency, adultery, bigamy desertion, conversion, cruelty, intoxication, if the wife is pregnant during the marriage or either the spouse is disappeared for seven years.

After this various law were passed such as the madras act of 1933, and the Hindu marriage act of 1955 which includes Hindus, Jains, Sikhs, and Buddhists, and give eight grounds for divorce to both spouses. Divorce of Christians governed through the Indian Divorce Act, of 1869. Inter-religion marriages are governed under the Special Marriage Act of 1956.

These laws became the bedrock of the present legal system that deals with present divorce cases.

there are 2 models according to which the matrimonial properties is divided i.e. Separate and Joint ownership. Equitable distribution of property means how the property should be equally distributed between a divorcing couple so that each one of them is financially stable and independent, it is a positive concept and supports the personal growth of the individual spouse.

Two main concepts should be taken into consideration other than property distribution and those are alimony and maintenance, now alimony is the economic support that one spouse is bounded to give to the other spouse during divorce and it varies from party to party keeping their financial situation in a note. section 25 of the Hindu Marriage Act deals with the concept of permanent alimony and maintenance.

When talking of divorce alimony property distribution among the couples also comes to light, property rights are the legal rights to obtain, sell, or transfer property as one wishes. division of property during a divorce is something that has always been in contention, when the property is in the name of the husband, the wife has no rights over that property.

According to the registration act 1908, the property belongs to the person under whose name it has been registered and therefore we can say that during divorce the wife can ask for maintenance and livelihood cost but not property. So what about the joint property that the couple purchased during the course of the marriage?

The simple answer to this question is, the wife can claim her stake in such joint property, after producing the needed documentation before the court of law. stridhan, movable property given to the wife at the time of marriage, can only be claimed by her. This includes cash, jewelry, cards, etc. [i] Section 27 of the Hindu marriage act, 1955 gives the court the authority to decide on matters of property that are jointly owned by the couple. These concepts are further clarified by the judiciary in their verdicts.[ii]

In the present scenario, the courts use their discretion in deciding the grant of maintenance and alimony and to determine that the judges use certain parameters like the age, level of education, and family background of the wife and a fixed percentage of maintenance There is an instant need to change the laws on this subject matter. Rather than having a needs-based approach i.e., according to the needs of the wife, it must be a rights-based approach so that it is entitled to them as a matter of right.

when there are loopholes in the laws that the legislature fails to address, the judiciary's role becomes crucial to address those problems. in the history of divorce and the claim for maintenance cases, various judgments can be referred to to understand this concept more clearly.

In the case of 'Aishwarya Atul Pusalkar v Maharashtra Housing & Area Development Authority and Others' this case was decided on 27th April 2022 in which the court rightly observed that the appellant had a 'right to reside in her matrimonial home, the court further stated that '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'.

In another case 'Rajnesh v. Neha' decided in 2020 the supreme court addressed the problem of delay and transparency and made it compulsory for all the courts 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 apex court also laid down the guidelines in which it specified the criteria for 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."

There are numerous instances where the supreme court became the savior of the rights of women but still, we have to go a long way to achieve the ideal equitable distribution the society aspires.

Divorce in any relationship is always very stressful and painful. aside from emotional problems, many physical and economic problems are connected with the happening of divorce. after seeing all the facts and case law we can dive into the conclusion, that is, property distribution to one spouse from another is not always a smooth process and is also not equally proportional, and in the Indian context, women are not entitled to their husband's property as alimony claim.

Women since time immemorial have always faced discrimination and not giving them equitable property rights is just one example it. In the present scenario, the courts use their discretion in deciding the grant of maintenance and alimony and to determine that the judges use certain parameters like the age, level of education, and family background of the wife and a fixed percentage of maintenance.

There is an instant need to change the laws on this subject matter. Rather than having a needs-based approach i.e., according to the needs of the wife, it must be a rights-based approach so that it is entitled to them as a matter of right.

Living in the 20th century we as a society have to buckle up our thoughts and should develop forward-looking thinking towards divorce. in countries like India divorce is not always accepted with open arms and is usually looked down upon, but it's high time no we should make it a new normal. sometimes financial restraints of women hamper them from taking a divorce, hence it becomes much more important and urgent to act laws that help women grow and become independent, providing them with equal property will help them to assure their future and live a life free of tension and social restraints.

According to article 15(3) state has the power to make special provisions for women and children to insure their welfare and what must be kept in mind is that it is not only the duty of the state but also the duty of every citizen to make sure that women are empowered enough to seek not only their property rights but also other necessary rights after divorce. It is the need of the hour of the legislature to bring the laws clearly specifying rights and ownership in connection with the division of property in India.

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