Govt looking at amending Marriage Act

Earlier this month, angry members of civil society protested outside the Prime Minister’s residence against a controversial amendment to the Marriage Act dealing with inherited property.

Also read: 25:75 house of happiness scheme: Too good to be true? The government has been looking at amending the marriage laws, which in the event of a divorce would give the wife an equal share of not only the property acquired by the husband during or before the marriage, but also his inherited property. The proposal aims to redefine the phrase 'residential property' to include not just the residential house but also all other properties acquired by the husband. In case other members of the family also have rights in the inherited property and it is impractical to divide it, the amendment proposes to compensate the wife with an equivalent amount of money in place of her share. One of India's top divorce lawyers Pinky Anand explains the issue on Prime Property. Nayantara Rai reports. Q: We have seen those protests outside the Prime Minister’s house on inherited property being included in the estate that has to be divided by a married couple headed for divorce. Is this a good move? What is your stance? A: That particular part may be fairly controversial for various reasons. In the recent past when the Hindu Succession Act itself was amended. daughters have an equal right of inheritance in the ancestral property, also which hitherto before 2005 was not available. So firstly daughters have arrived in the inherited property of their parents, and then in turn if you also have the same daughters when they become wife having a right to the inherited property or a share thereof, then obviously you are talking about them having two specific rights in the inherited property. Also, the nature of inherited property somehow has remained as a separate feature. So possibly this becomes a little inequitable and this may require some consideration. If you talk about division of assets of the husband and wife without inherited property in the west they have division of equitable assets and properties based upon the factum of individuals owning their own properties. There is no concept of inherited property. By and large there everybody has their own created ones or mortgaged ones most of the time. So keeping that in mind, inherited property division and a share to the wife may be overstretching it a bit. Particularly when you have the rights of various other members existing in the ancestral property, they would get disturbed. So I think we need to step a little more carefully in that territory. Q: The inherited property will be divided at the time of the divorce being granted, right? Can a divorced couple possibly claim stake, let us say, many years later when the property is actually inherited by one of the spouses? A: I do not know. It is not very clear what the government is really thinking on this perspective and I think it is still under some consideration from whatever one can gather. But generally speaking, the division of properties when you do that in various other countries which samples I am sure we are following they really happen at the time that the divorce is granted. It is the time of granting of divorce. What is the purpose otherwise? The idea is when the husband and wife are separating, the wife has contributed to the matrimonial assets by her contribution either as a housewife or as a working person. Therefore she is entitled to a share because she has contributed to the increase and the accumulation of wealth which accrues maybe in the name of the husband because the property stands in husband’s name. Therefore the right is established from those features and it becomes crystallised when the divorce is being granted because after that in any case the ways are parted. So, all devolutions or distributions of assets really come around at the time of the separation between the two spouses by way of a divorce. Q: Outside the Prime Minister’s residence, we saw mostly men protest. But the fact is many men also marry far richer women. Is the proposal on inherited property only for men? A: When you say males were protesting it is obvious, because the inherited property devolution today stands in the name of the males. It still stands there. When you are talking about women getting right in inherited property it is from the share of the males for the time being, so obviously they are the losers. Whether you agree with that or disagree with that the obvious conclusion is that the objectors will the males and not the females. Females will benefit if they get that particular share, males will lose out that share. So obviously the losing party is going to be protesting. But while talking about that that is an interesting perspective. Again here I say that we must go in tune with proper consideration when you are amending laws. You should not have a knee-jerk reaction.  Today what is happening is the government in order to possibly please the vote bank of women or to cater to the female gender is trying to make laws one after the other and at times we are making too many laws and they might be oppressive, because you cannot have a society functioning on the basis of a one-sided law. Q: Prenups are not recognised in India so what can one do to protect their property rights prior to entering a marriage? A: It is not really something which you can do to protect because ultimately the idea is that you cannot bargain away the rights that you are suppose to have. Even a broad prenups are looked at very carefully in most jurisdictions and they are not the easiest of documents to enforce. However, incidentally India doesn’t disregard, it is not as if prenups are illegal, every case will be taken on its own facts and circumstances. So, if a prenup is like a family settlement – let us take it – why do you enter into a prenup. You enter into a prenup to put an end to all disputes if they should arise, that is the contemplation of prenups. So, there is nothing wrong with prenups, they are unhealthy for a different reason. Courts are yet to come to finality about it. That is the only method to curtail the rights of anybody because this is suppose to be a voluntary document done because sometimes there is allegation of gold digger, that so and so is a gold digger therefore wants to get married and ultimately in the event of a divorce take your own stakes and then move away. So, prenups should be considered as a major instrument in this country and it is high time we started recognising them fully. We already put some effect – for example the parties have agreed and they want only this amount of maintenance or in the event of a dispute they do not want maintenance courts will pay regards to that document. Q: People pay a lot of money to get your advice, our viewers watching you right now, what can one do to protect their property rights before entering a marriage and in the case of a divorce? A: There is precious little you actually can do because the law is supposed to based upon dividing what you have. So, it is not a question of saving but one of the saving devices could be because normally even though India is right now saying that even properties that a husband has before marriage are something that will be taken into account when dividing assets. However, most countries do not take such properties into account, it is properties acquired after marriage because the concept is that you have contributed to the accumulation of wealth as a joint unit, as a family, as husband and wife. If the law is made that properties before marriage are also subject matter of division of assets then I am afraid there is very precious little you can do. If however, the properties acquired before marriage are not subject matter then that is the maximum safeguard. Even if you have properties they are not subject matter of that issue. The other thing is people actually divert the properties, they will not buy on their own name. They will buy in the name of their family members. The funds will be utilised but ultimately to buy in the name of a mother, father, sister, brother, partner, some other friend whatever it might be. That is the only one which, unfortunately, all said and done an illegal device but that is one device that people utilise to avoid liability. In any case what people tend to do is a perpetual attempt is made to show that one, the husband is suddenly at the time of dispute has become insolvent in the sense of – not technical insolvency but suddenly he has become a pauper. Secondly, he doesn’t have any right in any business, if it is a business he is an employee earning a salary of some thousand rupees instead of being a partner or a director or whatever he might be shareholder in a company. These are typical devices. The third is people will not produce their accounts and in any case, the income tax assessments in this country unfortunately are not true reflections on the income of somebody. Four, is ultimately at the time of payment, various attempts are made to avoid liability or delay the proceedings. So, there are several means there but unfortunately all of them by and large are illegal and we have to come to a point of time now in the society to realise that at the time of dissolution or if you are dissolving you marriage you will have to fork out. Q: In as little legal parlance as possible, what are the property rights that both the husband and wife have while dissolving a marriage? A: Today there is almost nothing. What you have in terms of the existing law without the possible amendments which may or may not come later, a women or a man has a right for maintenance against the other husband or wife as it may be. A wife under the Domestic Violence Act has a right to residence that is, she can live in the matrimonial home in which her husband has a right. In the event that she doesn’t get a residence right then she can get alternative residence that is, the husband must provide another place where she can live which provides a roof over her head. When there is joint property between the two, which can be dealt with at the time of divorce. Beyond that nothing more. Q: So, the sense I am getting is there is no law or any system in place for an equitable division of property and assets, which is very unlike the west where I understand follows a practice of a 50-50 division? A: First of all it doesn’t exist at all. As of now, there is no distribution of assets. However, in the proposed legislation also there is ambiguity whether it is a share and there is talk about making it 50 percent. So, ultimately, one will see because even the 50 percent, you will have to deal with for example liabilities. It can’t be 50 percent gross, net it can be. You have to value for the expenses made on that, you have to value for the continuing expenses. Suppose there is a mortgage or any kind of installments - today everything is being purchased on these kinds of issues and basis, so you will have to make provisions for that. I did hear there is a thought process that it is better to define it. As much as you can the more certain you can make a piece of law the better it is. How the cabinet and how the parliament ultimately deals with it, we will see.