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Separation Of Assets Under Matrimonial Laws In India: An Analysis

Marriage is an extremely important institution in India. Marriage is a sacrament. A matrimonial home is where a husband and wife reside together after their marriage.  One of the most significant difficulties relating to the institution of marriage is matrimonial property because owning property today represents having power and being successful in society. One’s sense of security increases with the amount of property they own. Despite the significant economic contributions that women bring to the household, they do not receive adequate financial support. Usually, they are not granted economic co-ownership with equal rights because their contribution to the family’s expansion is not viewed as productive work.


Property in a marriage can take many different forms, including dowry, gifts from friends and family of one or both partners before, during, or after the union, jewellery, benefits from a hire-purchase agreement, the marital home and all of its furnishings and other contents, loans from one spouse to the other, various other assets they accumulated while married, and so on. In the event of a divorce, either party or both parties may petition the court to divide the marital assets amongst the spouses and/or children. In that case, distributing the property would not require the initiation of a separate legal proceeding in civil court or elsewhere.[1]


Justice Hill explained in Princep v. Princep that all deeds are marriage settlements in which property is settled upon the husband in the character of husband, the wife in the character of wife, or both in the character of husband and wife. It was stated that the Court has the authority to settle their joint property for the benefit of either spouse and/or children. Of course, the property must be joint.

Section 24 of the Matrimonial Causes Act of 1950 stated that if a decree for divorce or judicial separation was issued due to the wife’s adultery, desertion, or cruelty, the court could order settlement of her property as it deem fit for the benefit of the innocent party and the children. Section 39 allowed an innocent husband to apply for a share of the property of a wife found guilty of adultery. Sections 27 and 28 give the wife the right to apply for the protection of her self-acquired property when her husband abandons her without cause. The function of the court with regard to such settlement is not to punish the guilty spouse but to protect the innocent one


The property that couples bring into a marriage is still treated as distinct property under the matrimonial property legislation in India. The “separation of property” paradigm is followed in the valuation of the matrimonial property at the time of the husband’s death or during the dissolution of the marriage. A corpus of “matrimonial property” that both spouses can exercise a claim over does not exist under such a system. The idea of the spouses entering into an economic partnership after marriage does not exist. As a result, for many women, their original net worth at the moment of marriage, along with any subsequent additions to their property achieved through their own efforts or gifts or inheritance, constitutes their entire net worth.[2]

Matrimonial property ownership is primarily based on  two concepts. The two basic models upon which this system is based are separate and joint ownership.

Separate ownership of property by husband and wife

As the name implies, all properties registered and purchased by either spouse shall remain that spouse’s even after the dissolution of the marriage; neither spouse may assert any claim to such property. As a result, there is no longer any conflict between the couple about how to divide their assets, and the parties reach an acceptable agreement.

Joint Ownership of property by husband and wife

This concept illustrates the husband and wife’s joint ownership of property. The best feature of this model is that it takes into account both financial and non-financial characteristics of the individual. As an illustration, if the husband bought the house and the wife took care of it, that will be regarded as her contribution and she will be granted equal rights in the property after the divorce.

Immovable property ownership is determined on a case-by-case basis, as is explained in more detail below.

The woman cannot in any way assert her claim to ownership of the husband’s possessions. A wife can, however, assert her ownership in the stridhan* and use her right to remain in the husband’s home.[3]

The way that movable property is handled relies on who holds the title to it. With the exception of stridhan, where a wife may only exercise her rights, all properties pass to the person in whose name they are registered. Stridhan is anything that a lady obtains throughout her lifetime. It comprises all gifts, mobile and immovable property that a woman acquires prior to marriage, during the marriage, while giving birth to a child, and while she is a widow.


 The Indian Divorce Act of 1869 has provisions for spousal property settlement and financial adjustment. Section 40 deals with the distribution of property following an absolute divorce decree or an order declaring a marriage null and void. Any post-nuptial agreement between the parties may be reviewed by the court, and it may also issue instructions pertaining to the application of the entirety or a portion of the property divided, as the court sees suitable, whether for the benefit of the woman, the husband, the children (if any) of the marriage, or both for the children and parents.

Property Protection Orders: The Indian Divorce Act, 1869, Part VI, includes property protection orders for the wife. A wife who has been deserted by her husband (and who is not covered by section 4 of the Indian Succession Act, 1865) may request a court order at any time after the desertion to protect any property she may have acquired or may acquire as well as any property of which she may have become possessed or may become possessed from her husband or his creditors or anyone claiming under him. Upon finding that there was no acceptable explanation for the wife’s desertion and that she was supporting herself through her own business or property, the court “may make and award the wife an order protecting her earnings and other property from her husband, as well as all of his creditors and claimants


According to the Hindu Marriage Act, 1955 (disposal of property) “In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper concerning any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. In any procedure, the property might be regarded as matrimonial property because this statute deals with Hindu marriages. When both the husband and the wife are provided with property at the time of the marriage that jointly belongs to both of them, the court may issue any decree regarding that property in any process under this act that it deems to be reasonable and proper.[4]

The Hindu Marriage Act of 1955 only addresses the division of the couple’s joint property. The Mysore High Court ruled in Krishna v. Padma[5] that property that is not given to spouses at or around the time of marriage is outside the Section’s jurisdiction. However, the Allahabad High Court in Kanta Prasad v. Omwati[6] took the position that the court has the authority to make the required rulings regarding the separate property of the spouses because section 27 does not preclude the court from doing so. According to the argument, the Hindu Marriage Act of 1955 forbids the court from establishing any property that is not covered by clause. Several High Courts have disagreed with the viewpoint. The Delhi High Court stated in Shukla v. Brij Bhushan that Section 27 of the Hindu Marriage Act, 1955 is a substantive provision that gives the court the authority to make a just and proper order regarding items presented at or around the time of the parties’ marriage and belonging jointly to both of them. Exclusively owned property by either spouse cannot be dealt with by the court exercising its jurisdiction under the Act. The wife argued that since the goods were given to her, they belonged to her in this situation. According to the ruling, she did not qualify for their recovery under section 27 of the Act.

If the property is owned by the husband, the wife will not be entitled to it in the event of a mutual divorce. The person in whose name the property has been registered owns it, according to the Registration Act of 1908.


In the matrimonial home the disproportionate holding of assets occurs primarily for three reasons; firstly, laws and policies in India do not recognise domestic work’ as ‘productive work’; secondly, nature and nurture responsibilities of women, where they are frequently forced to give up their careers to look after their homes, are not considered as ‘productive work’; and thirdly, even when women take up jobs, they are confined to relatively low-paid ones. The solution of these problems is also three fold: firstly, recognise ‘domestic work’ as ‘productive work’; secondly, draw women into the managerial and remunerative work; and thirdly, recognise marriage as a ‘equal economic partnership’ between husband and wife, and acknowledge wife’s contribution to the acquisition of assets by way of suitable legal mechanism.In India, there are still laws that discriminate against women for example: According to sections 15 and 16 of the Hindu Succession Act, 1956, if a woman passes away intestate, her husband’s heirs—not her parents—would be entitled to her self-acquired property. However, the husband’s relatives, not his wife’s legal heirs, are entitled to the property in the event of his (husband’s) intestate death. As a result, there is discrimination based on gender because the husband’s relatives have access to the woman’s property while the wife’s relatives do not.[7] There is still a need for an appropriate rule for divorced women regarding residence or alternate allocation. Also a proper legal framework should be there to regulate separation of assets in matrimonial cases without any discrimination on the basis of gender. 

[1] McQueen, M. P. (2022, December 7). What is marital property (common law vs. Community States)? Investopedia. https://www.investopedia.com/terms/m/maritalproperty.asp

[2] Garg, R. (2021, May 21). Division of matrimonial property after divorce. IPleaders. https://blog.ipleaders.in/division-matrimonial-property-divorce/

[3] Women’s property: Stridhan. (n.d.). Legalserviceindia.com. https://www.legalserviceindia.com/legal/article-8303-women-s-property-stridhan.html

[4] How is property divided after divorce in India? (n.d.). Rest the Case.https://restthecase.com/knowledge-bank/property-division-after-divorce-in-india

[5] M.D. Krishna vs M.C. Padma. (n.d.). Legaldata.in. https://legaldata.in/court/read/2378740

[6] Kamta Prasad v Om Wati on 05 July 1971 – Judgement – LawyerServices. (n.d.). Www.lawyerservices.in. Retrieved March 10, 2023, from https://www.lawyerservices.in/Kamta-Prasad-Versus-Om-Wati-1971-07-05

[7] Matrimonial Home: A Comprehensive Analysis. (n.d.). Legalserviceindia.com.  https://www.legalserviceindia.com/legal/article-10319-matrimonial-home-a-comprehensive-analysis.html

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