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Distribution of Matrimonial Property during Divorce in India

Women’s independence, particularly in financial matters, has been identified as one of the most critical components in achieving gender equality. With the onset of divorce laws in India, many


Women’s independence, particularly in financial matters, has been identified as one of the most critical components in achieving gender equality. With the onset of divorce laws in India, many women found themselves in a position to end their abusive or unpleasant marriages, but they also found themselves on the verge of poverty, as most rules favour the husband’s exclusive or self-acquired ownership of property and family assets. This regrettable position was made worse by the fact that, unlike in some other countries, Indian courts hardly ever quantified a homemaker’s contributions. This article examines an Indian wife’s ownership rights within the family unit, particularly following a failed marriage. In doing so, it examines the property rights of women both during marriage and after divorce. This is being provided to emphasise how crucial it is to have a single matrimonial property law that ensures an equitable distribution of assets in the case of a divorce.

Matrimonial residences used to be solely the responsibility of the husband, until recent times. However, a matrimonial home should be acknowledged as belonging to both spouses, who occupy it as joint tenants. This is because women have increasingly made an equal contribution to establishing a married home. In Hindu law, the question of how much a shared family residence can be recognised as matrimonial property raises a unique issue. Think of the spouse’s share as a marriage home that they can own and enjoy separately. In that case, things may get uncomfortable, if a divorced wife intends to exercise her right to live in the husband’s joint family home.

According to Vijender Kumar, the overall approach of English law, which enables a judge to change assets, is inappropriate for India since it necessitates drawn-out legal proceedings and fails to acknowledge marriage as an equal-partnership economic arrangement.[1] In order to indicate clearly who provides the matrimonial home upon marriage, Indian law should recognise the property within its purview as “matrimonial property subject to equitable distribution upon divorce or death”.

Codification of HMA

During the codification of the Hindu Marriage Act, 1955[2] (“HMA“), an attempt was made to define “matrimonial property” as property acquired at or around the time of a spouse’s marriage. Surinder Kaur v. Madan Gapal Singh[3] held, under Section 27[4] of the HMA, property that was present “at or near the time of marriage” encompasses both gifts made to spouses at the time of marriage as well as property acquired at any point prior to or following the union. The property must have been handed to the spouses in connection with the marriage and within a reasonable time after the marriage. The duration of time is crucial in this case. The Punjab and Haryana High Court further decided that in order for a case to be heard by a court within the necessary jurisdiction, the property in question had to be owned by one of the two spouses or by both of them jointly. In Balkrishna Kamchandra Kadam v. Sangeeta Balkrishna Kadam[5], the property covered by Section 27[6] of the HMA includes both gifts made before and after marriage, not just those made to a spouse at the time of marriage. However, the Supreme Court ruled that the assets needed to be transferred in connection with the marriage.

Divorce and Property Distribution

The Hindu population of India did not have access to divorce until 1955. It was permitted only in certain restricted instances for Christians. Only in 1988 was the Parsi Marriage and Divorce Act of 1936 liberalised and expanded the circumstances under which divorce was permitted. The formal right to divorce for Muslim women was approved in 1939 under extremely restrictive conditions.[7] Women had the choice to leave a violent or unhappy marriage, but due to financial uncertainty, they rarely did so. It is important to note that stridhan, maintenance, and alimony have traditionally been the three basic economic entitlements of married Indian women. Stridhan belonged completely to the woman, and her husband had no right to it. However, maintenance and alimony were linked to the idea of subsistence in order to keep the woman from sliding into “vagrancy and destitution.”[8] Personal laws in India lack the notion of matrimonial property (as well as marriage as an economic partnership with equal rights). Indian laws’ unfortunate silence on post-divorce property division between spouses is due to the separate property system’s supremacy. Moreover, within measures for equality touted by the State’s attempt to protect all citizens’ right to equality enshrined within the Constitution of India[9], property is seen as a critical aspect for an individual’s security, advancement, and development of self-worth and, hence, the equal right to property is considered one of the most crucial. The spouse who owns the property will be allowed to get a divorce and keep the property in his or her name under the separate property system. The court will not consider how each spouse contributed to establishing the property; rather, the right shall be enforced in favour of the party who is in possession of the title to the property. As a result of failing to consider marriage as an economic partnership, this frequently discriminates against women who do not own title to the marital home or other properties. There are numerous ways to get around the separate property regime’s injustice. For instance, the husband and wife can elect to divide the titles equally during their marriage. One spouse may consent to transfer the title of specific assets to the other before, during, or after the divorce. Additionally, the Court may be able to use the constructive trust process to lessen the anguish of the non-title holding party. Constructive trusts, on the other hand, do not confer any legal rights on the beneficiary. In order to fulfil court-ordered maintenance obligations, a spouse may be forced to sell their home. Despite these shortcomings, the separate property regime is an unfair system that discriminates against women and does not recognise marriage as a partnership when they do not own the marital home or other assets.


In conclusion, most countries that have developed jurisprudence on matrimonial property distribution have done so in such a way that assets obtained by the husband and wife after marriage are distributed equally. Women significantly contribute to the domestic economy, but they frequently receive insufficient financial support. They do not consider their assistance in the family’s expansion to be a worthwhile effort. Therefore, they are generally not given any economic co-ownership with equal rights. According to Vaish, when determining the distribution of property, these regulations consider the demands and duties of caring for any children from the relationship.[10] As a result, the property is not taken by spouses in the conventional sense, i.e., property in one spouse’s name would remain in that spouse’s name. Instead, a shared pool of resources is established and evenly distributed. The goal of a divorce or marriage dissolution is for each spouse to leave the union with equal financial advantage. The laws governing property split, however, are strongly biased against women and do not guarantee that a woman would leave a marriage with the assets and security of income to which she is legally entitled. This judicial system perpetuates gender inequities, leaving women homeless and poor as a result of divorce. For women, removing legal barriers and legitimising property rights reform is a critical and catalytic first step.

Author(s) Name: Sandhya Narayanan (Jindal Global Law School)


[1] Vijender Kumar, ‘Matrimonial Property Law in India: Need of the Hour’ (2015) 57 (4) Journal of the Indian Law Institute 500

[2]Hindu Marriage Act 1955, s 27

[3]Surinder Kaur v Madan Gapal Singh (1980) AIR  P&H 334

[4] Hindu Marriage Act 1955, s 27

[5]Balkrishna Kamchandra Kadam v Sangeeta Balkrishna Kadam (1997) AIR SC 3562

[6] Hindu Marriage Act 1955, s 27

[7]Dissolution of Muslim Marriage Act, 1939

[8]K. Vimla v K. Veeraswamy JT 1991 (s) SC 182

[9]Constitution of India 1950, art 14

[10] Varun Vaish, ‘Division of Property between Matrimonial Partners upon Divorce a Critical-Legal Study’ (SSRN E-Journal, 18 November 2013) <>  accessed 03 February 2023