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divorcing women to soon have property rights too

For justice and dignity

Divorcing women to soon have property rights too
February 12, 2011   1:54:45 PM


Besides alimony, a woman seeking divorce will now be able to stake claim on her husband’s property, acquired during marriage. This right will be provided to women by amending the Hindu Marriage Act and the Special Marriage Act.

Women caught in a failed marriage can now heave a sigh of relief as they will not be so vulnerable after a divorce on grounds of ‘irretrievable breakdown’ of marriage. In such a scenario, the husband will have to share property acquired after marriage.

These are some of the recommendations made by the Parliamentary Committee on Law & Justice, headed by Rajya Sabha member Jayanthi Natarajan, while considering the Marriage Laws (Amendment) Bill 2010. Sources said the Government was likely to accept the recommendations.

The panel — which has many noted jurists — has suggested a number of enabling provisions to economically empower women seeking/getting divorce on grounds of irretrievable breakdown of marriage, according to sources.

“The recommendations have already been finalised and will be submitted by February 14,” said a source.

The committee has also suggested the presence of both husband and wife during the final hearing and decree of divorce. Besides, a period of separation has also been made mandatory before any party moves court to get a divorce on grounds of irretrievable breakdown of marriage. “Though some members of the panel wanted a divorce on grounds of irretrievable breakdown of marriage to be made very easy, the committee recommended adequate safeguards to protect women and prevent its misuse against them,” said a source.

The decision to amend the law was taken by the Government last year following the case of Smriti Shinde, daughter of Union Minister Sushil Kumar Shinde. Smriti had filed a petition in the Supreme Court questioning the validity of Section 13B of the Hindu Marriage Act, 1955, which requires the consent of both husband and wife for divorce.

Smriti had complained that the law could not force her to remain in wedlock if her husband chose to withdraw consent. In this connection, the court had sought a response from the Centre on December 16, 2009 — whether ‘consent’ violated a person’s fundamental right.

However, instead of a response, the Government had come out with a remedy in the form of a proposed amendment. It had said parties which have filed a petition for divorce by mutual consent suffer in case one of the parties abstains from court proceedings, leaving divorce proceedings inconclusive.

This causes considerable hardship to the party which is in dire need of divorce as the marriage has become a broken institution. To mitigate this, it was proposed to include ‘irretrievable breakdown of marriage’ as a ground for divorce.

Earlier, the Law Commission of India had also recommended inclusion of irretrievable breakdown of marriage as a separate ground for divorce in its 71st Report of 1978 but the Government had sat on it for three decades.

http://www.dailypioneer.com/317254/Divorcing-women-to-soon-have-property-rights-too.html


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NA

Good Posting, Keep it up Roshani...This is one important function on this socio-legal webiste , to keep people informed...

Ouch...Bandwiddth...


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Senior Partner

@ Roshni

Thanks for reporting this media report.

 


Since your tag is “for justice and dignity” under your name tell readers if this Amendment if donewith, is it not going to be gender biased as in anti husband so is it not too early to say you are indirectly instigating here justice for one spouse only and no dignity for another spouse as a much discussed in-person before Rajya Sabha Committee the UTK Judgment on IrBM I am reproducing the same here and add


1) This guy has a salary of Rs 15,000
2) Child is also with the husband
3) Even then he is asked to Pay Rs 5 Lakhs at once . That's almost 3 years worth of his COMPLETE salary.


He has to part with is complete life savings and is a already set live Re. in front of us of things to happen for one spouse if financial hardship clause condition is not made neutral. This is exactly what will happen in IrBM Amendment if done in HMA and SMA as per this media reporting. That's why I say if we talk of ‘for justice and for dignity’ then we should talk of it for both spouse and not for only one spouse and I am not sure if this Amendment will see the print soon but the financial hardship condition should always be objective as in for both spouse if gender neutrality in HMA The Act is to be continued otherwise now it will become tools for civil legal extortion.

 


Re.:
IrBM Judgment given by UTK HC even when SC said much before this judgment that only legislature can amend such IrBM etc…..

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
First Appeal No. 40 of 2010

Dayal Joshi
S/o Late Shri Chandramani Joshi
R/o Hindustan Zinc Smelter
Quarter No. 217-B/4, Devari
Tehsil-Girva, District Udaipur,
Rajasthan
………………. Appellant

Versus

Smt Usha Joshi
W/o Shri Dayal Joshi
D/o Bholadutt Harbola
R/o Unchapul, Harinagar
Haripurnayak, Haldwani, Nainital
…….. .Respondent

Shri A.M.Saklani, Advocate, present for the appellant Shri R.S.Sammal, with Vishal Singh, Prem Kaushal, B.S.Bhandari, Advocates, present for the respondent

Coram: Hon'ble Prafulla C. Pant, J. Hon'ble Nirmal Yadav, J.
Oral:
Hon'ble Prafulla C.Pant, J.
 
This appeal, preferred under section 19 of Family Court Act, 1984, is directed against the judgment and order dated 16.06.2010 passed by Judge, Family Court, 2 Nainital, in Suit No. 128 of 2007 whereby said court has dismissed the petition of the appellant, moved under section 13 of Hindu Marriage Act, 1955.
 

(2) Heard learned counsel for the parties and perused the papers on record.
 

(3) Brief facts of the case are that the appellant Dayal Joshi got married to respondent Uma Joshi on 24.04.1992 in Mehat Gaon, District Almora. A female child (named Khusbu) was born out of the wedlock on 31.10.1995. The appellant/husband lives in
Udaipur where he is employed with Hindustan Zinc Limited. It appears that after a couple of years of marriage, the parties to matrimony started quarreling and their relations got soured. The husband / appellant filed a divorce petition in the year 2006 alleging that his wife used to quarrel with him and did not pay respect to his parents. He has further alleged that the respondent (wife) did not even care to see her daughter Khusbu when she was suffering from illness. It is also pleaded by the husband that the wife left her matrimonial home in the year 1996 leaving the young female child with him. He has also pleaded that on several occasions he made efforts to bring back his wife but to no avail. Lastly it is pleaded by the husband 3 that for more than ten years the parties to matrimony are living separately, and now it has become impossible for them to live together, as such the decree of divorce is prayed.


(4) The respondent (wife) admitted having married to the appellant on 24.04.1992. It is also admitted to her that the female child (Khusbu) was born out of the wedlock on 31.10.1995. However, she denied rest of the allegations. She pleaded that she paid respect to her in-laws. She alleged that it was the husband who treated her with cruelty. She further pleaded that she was beaten by her husband and that is what made her to leave her husband's house in the year 1996. She has further pleaded that she is ready to live with her husband provided he undertakes not to make demand of dowry and not to harass her. She has also alleged that her husband has illicit relations with one Pushpa Papne.
 

(5) On the basis that pleading of the parties, the trial court framed following issues:-
 
(i) Whether, the respondent quarreled with her husband and in-laws as pleaded in para 2 and 3 of the divorce petition?
 
 
(ii) Whether, the respondent, leaving her eight months old female child, left her husband's house on 25.06.1996 as pleaded in para 5 and 6 in the petition?
 
(iii) Whether, the petitioner treated the respondent with cruelty and committed ` MARPEET ` against her, and she was made to leave her husband's house on 26.05.1996 as pleaded in para 5 of the written statement?
 
(iv) Whether, on 10.05.2005 the petitioner (appellant) came to the house of the respondent and cohabited with her as alleged in para 10 of the written statement, if so it effect?
 
(v) Whether, the petitioner had illicit relations with one Pushpa and out of the said relation a son was born, as alleged in para-2 of the additional plea in the written statement?
(vi) To what relief, if any, the petitioner is entitled?
 

After recording the evidence and hearing the parties, the trial court decided issue no.1, issue no.2 and issue no.3, issue no.4 in affirmative. No finding was given on issue no.5. Issue no.6 was decided in negative.
 
With these findings, the trial court dismissed the divorce petition vide impugned order dated 16.06.2010. Hence this appeal.
 

(6) Learned counsel for the appellant argued that the trial court has erred in law in holding that the respondent has not treated the petitioner with cruelty. It is further contended that the trial court has not appreciated the facts and evidence on record correctly in holding that the petitioner has not been deserted by the respondent. Lastly it is also submitted that even other wise it is a case of irretrievable breakdown of marriage, and the decree of divorce should have been granted of that ground, as the parties are admittedly living separately for last ten years (now 14 years).
 

(7) Having re assessed evidence on record, we find that small quarrels between the spouses or mere fact that the respondent did not prepare tea for the parents of the petitioner, do not constitute cruelty to entitle him decree of divorce. However, this depends on the facts and the circumstances of the case, what a particular act on part of a spouse would constitute cruelty against the other spouse.
 

(8) In the present case the marriage between the parties is admitted. It is also admitted between the parties that a female child was born out of the wedlock. It is also not disputed that said child is living with her father. Not even the fact that since 1996 they are living separately, is disputed. It has also come on the record that after this divorce petition was filed, the respondent filed a criminal complaint against her husband and in-laws on 28th of April 1996 in respect of offences punishable under section 498A, 494, 504 I.P.C., and one punishable under section 3/4 of Dowry Prohibition Act, 1961. Certainly this report appears to have been lodged after the respondent lived separately for more than ten years from her husband. This has further worsened condition and soured the relations between the parties to the matrimony, and we can say that the marriage between the parties has now been irretrievably broken down.
 

(9) In the above circumstances, we are of the view, that if we dismiss this appeal and maintain the dismissal of decree of divorce, we will be indirectly allowing the parties to the matrimony to live further miserable life all time to come. Therefore, in the interest of justice, we find it just and proper to allow this appeal and grant the decree of divorce on the ground that marriage between the parties has been irretrievably broken down. However, we are conscious of the fact that respondent Uma Joshi is not an earning member. She needs reasonable amount for her maintenance from her husband (petitioner/appellant). To asses the amount of alimony we have to see economic status of the parties. Petitioner/appellant Dayal Joshi is an employee with Hindustan Zinc Limited whose total salary in 2008 was 15,029.00 (Basic pay 8150.00, DA 6879.00, PP 00.00) as per the salary slip shown to us by the appellant. We have also to keep in mind that the daughter of the parties is living with the father. Considering all the relevant facts and circumstances we are of the view that directing the petitioner to pay one time lumpsum permanent alimony amounting Rs. 5 lakhs to his wife would meet the ends of justice.
 

(10) Accordingly, the appeal is allowed, and impugned judgment and order dated 16.06.2010 passed by Judge, Family Court, Nainital, in Suit No. 128 of 2007, is set aside. The petition moved under section 13 of Hindu Marriage Act, 1955, is allowed on the condition that the petitioner/appellant shall pay Rs. 5 lakhs as lumpsum permanent alimony to respondent (wife) within a period of three months or deposit in her favour before the trial court, within said time. In case the condition is fulfilled, the decree of divorce shall stand granted. In case the petitioner/appellant fails to comply with the condition mentioned above, this appeal shall stand dismissed.
(Nirmal Yadav, J.) (Prafulla C. Pant, J.)
26.08.2010
N.P


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For justice and dignity

@ above person

 

 u dont discuss..........you interview....

 

so i avoid answering many of ur questions,as i skip reading most of them.

 

and also because u dont use simple language to convey wot u say.u confuse!i told u this earlier also.

reading an english novel is much easier and captivating than your replies.u sound extremely hyper while replying,as if u r jumping.

secondly,i know wot i am...if u feel i am biased towards all men including genuine ones,i wont clarify further.u may continue thinking wotever u want.

now coming to wot u said to me above,.......i am not instigating anyone,because i am not involved in making of this law.i just posted this news for all to read

yes,this may be misued by women,who purposely marry a rich guy,then divorce him to get 50% of his property.

however,both genuine and faulty men will also find ways to avoid this,

they will transfer property in name of father/sibling etc,much before wife files for divorce,if they gets even a little idea that the marriage will perish soon.

after all,we indians are no.1 when it comes to manipulating and taking advantage of loopholes in the law.

now think of women whose husbands dont own any property,such as poor men...wot will they do?they will be dumped by husbands,with no security.

actually in india,assets of both spouses must be divided on 50:50 basis,as in USA,...so that no one gets rich at the cost of the other.

 

however,if the wife/husband was cruel/adulterous/deserter,only the property of the faulty spouse shud be divided;not the property of the genuine one.otherwise,it will be v.unjust to the genuine spuse...1st he faces abuses...then he's forced to share 50% of his assets with the person who abused him.

this will ensure justice to the wronged person,and a gud lesson to the faulty one...that marriage is not a play thing.


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Manager

Good News, but wait 4 amendment to be effected. This should have been passed much earlier.


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propra

This bill is a impending curse on Indian society....Which smriti pahariya/shinde and others have invoted...............

 

If the woman is a respondent then is is understood................that her right in husband's property.

But What about woman as a petitioner ?.............................. who want divorce+share in property,  for no reason or without fault of husband!!! .................and if husband is willing to defend to save marriage for the sake of kids etc and to stop errant wives.........In such cases (a few at least) husbands won't hesitate to teach lesson to wives AFTER DIVORCE !!!

 

 

This law is going to create new problems

 

Read report 71again and again..........wherein a few important issues and studies were left 'undiscussed' or treated as 'to be dicussed later' and answers of some crucial questions were kept aside.

 

 

Report 71 was a junk.

 

This Bill will officially start an era of live-ins..................Good for males ..........atleast.

 

Even though the skyies are clear in the morning...by afternoon its always likely to get it cloudy!!!! Women would be reduced to a 'material' thing, people would take even more care not to have any property...jointly...there will always be suspecion.

 

 

It's a matter of time before reorient themselves to provisions of law (Is dowry extinct from society after law was made? People came with innovative ideas instead)...

once males are equipped with this law...then they would ensure that they play safe from beginning.......and they would also be happy to get rid of woman easily!!!!...which is otherwise impossible for males to get rid of women/wife

 

Current trend (Before the law)

Woman as a petitioners (divorce)......trial/case on an average gets disposed of in 3-4 years

Man as a petitioners (divorce)......trial/case on an average gets disposed of in 7-8 years

 

After the law amendment:

Woman/man as a petitioners (divorce)......trial/case on an average gets disposed of in 3-4 years

 

Then Who's really got benefitted!!!

 

AND its going to be still problematic than 13B mutual consent!! :)

 

 

Read the whole context carefully!

 

 

Forget 'share in property' etc............ its a dream..... it will be subverted by men very nicely and quickly...

 

women are not able to prove husbands true income for maint...how will they prove the true property? Are they expecting that husbands would remain as a mute spectator?

 

This is a ploy (initiated by males) for women's organisations to somehow concede to include this 'IRBM' as a ground in the law!!!.....

 

Share in property etc they will evolve confusing caselaws laterwards!!! (yeh saare kwaaab hai!!)

 

Strategy is (in hindi) 'pathhar ke neeche se atka hua haath pahele nikalo'.

 

Property mein share...!!!...usko baad mein nipta sakte hai!!

 

By showing a lure of 'share in property' ..........Woman's organisations are going to succumb and finally say 'yes' to this bill!!!

 

Wake up!!! this a dangling carrot!!!

 

 


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Hi

Looks like every one here thinking a lot on this news. But as long as there is corruption only bad people will get benifitted from this. Innocent people will not get any benifits from this.

Always the laws will be made in such a way that it can go either way. So here also people who use influence and corrupt lower court judiciary will misuse this also.

As an example see 1st para in the news says "stake claim on her husband’s property, acquired during marriage" in the second para it says "such a scenario, the husband will have to share property acquired after marriage". Can anyone can eloborate or their understanding on this.

 
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propra

'during marriage' and 'after marriage' is he same .....i.e. during the married life

 

Its different than 'at the time of marriage'  which is already there in HMA which suggests only marriage ceremony only.

 
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For justice and dignity

whichever laws are passed in india,and whichever social customs are in india,they are misused by the beneficiaries.

for example

1. even a simple law in hindu marriage act which enables a spouse to get divorce on grounds of cruelty

MISUSE:An adulterous man/woman willing to get rid of his spouse will put false allegations of cruelty

2. the social custom of a woman having to leave her paternal home and live wid inlaws after marriage

MISUSE:The inlaws and husband(on his family's provocation) bully the daughter inlaw,so that she remains submissive to them 4ever,else mother inlaw will lose her power in the family.for example:after marriage she has to hand over all her jewels to mother inalw,as a part of custom and respect.

it's not that above customs are misused because they are wrongly framed.

the main reason is,that we indians are losing our morals...so we misuse wotever social and legal opportunities we get from society.

it's a typical indian mentality to take advantage of existing laws and social customs

for example if you have a mango tree in your compound,your neighbour,who's otherwise well off,will always try to pluck these mangoes when you are not around,or will or will hint you to share these with him,so as to maintain good neighbourly relations.this is a typical example of taking advantage of existing opportunities for free.

so in future also,whenever newer laws for men's or women's rights are passed,or new customs adopted,they will be misused always,unless we change our own typical mentalities and tendencies.,...or do our own human revolutions.


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NA

Jamai of Law, you have raised some pertinent and ponderable issues...

See, the rights ot equal property to a daughter being cicumvented by gifting away the property by a registered gift deed or registered will, to sons! It defeats the purpose...excepting when the property is ancenstral...

Or if my understanding is wrong , someone can point it out...

And What Roshni has said, well, there is also substance there...

Suggestions  for next generation of women: do not focus on marriage, postpone it till you are on your own, do not be self sacrificing, mera sab kutch tumhara hai type of wife...invest wisely, and take an active interest in how your finances are  being invested if someone else is doing it: be it your father, brother or husband. Get on to a high profile career and stick to it through thick and thin....keep your property under your posession....

Then the proposed amendmenet would be of help to women...at least in theory and where women have knowledge of their husband's property, in practice also. 

Advice only for the next generation...those who are already in the torubled waters of marriage, and have laready burnt all their stakes in the destructive fire of marriage...this advice will not do....but most such women would agree with the suggestions mentioned above...

 
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