Division of Assets upon Divorce: How Fairly is the Divorce Law Exhausted


By Harsha Bhatia from Department of Law, Veer Narmad South Gujarat University, Surat

Marriage and Divorce:

In India marriages are considered as the purest form of love because not only does it ties two people marrying each other but it also ties two families and gives birth to new relations. Marriages in any community or religion are considered as a sacred relation between two people. Although it is known as sacred there are certain rules and regulations which are to be followed before and during the marriage as well as after the dissolution of marriage. Divorce is a legitimate disintegration of marriage and it is among the most horrendous hardship for any couple. Marriage and Divorce are two sides of the same coin. The Indian Legal system is furnished with all the possible solutions for problems arising out of marriage and divorce. As much the same as marriage, divorce includes a protracted and dreary procedure in the Indian laws. The procedure for divorce takes one complete year and sometimes this period may also extend.

Divorce laws in India:

India is the most secular country with 6 different main religions and other tribal religions in some part of India. Along with the diversity of religions, in India there are different personal laws governing different religions since independence. The citizens of India are governed by personal laws based on their religion for civil matters such as marriage, divorce, adoption, inheritance, etc. Some of them are Hindu Marriage Act, 1955, Special Marriage Act, 1956, Foreign Marriage Act, 1969, Indian Christian Marriage Act 1872, Indian Divorce Act 1869, Indian Succession Act 1925, etc. which deals with marriage, divorce and division of assets upon divorce. With the passing time and growth of social awareness in the Indian society, the Indian legal system and the government has made sure that the divorce laws are in consonance with the gender affairs and are neutral. Divorce petition can be mutually filed by the parties to marriage or either of them can file a petition for divorce in the family court having jurisdiction in their respective cases. Theoretically, the parties to marriage are the joint owners of their property and have equal rights and duties over the property acquired during a marriage and a wife has an inherit right to ask for maintenance against her husband as a result of marriage. After the marriage is legally dissolved, the wife has a legal right to ask for alimony amount as maintenance and can also seek a part in the property of her husband which was acquired during marriage. The Supreme Court held that “A wife is entitled to be maintained by her husband. She is entitled to separate residence if by reason of husband’s conduct or by his refusal to maintain her in his own house or for other just because she is compelled to live apart from him. Right to residence is a part and parcel of wife’s right to maintenance”. The Indian Laws have given various grounds under which either party to marriage can file petition for divorce i.e., adultery, cruelty, desertion, conversion of religion, unsoundness of mind, presumption of death, etc. After the divorce has been granted by the court of law, the parties cannot retrieve the marriage and the rights in joint property are to be determined by an equitable approach wherein 50-50 is the general guideline. The rights and interest in the property acquired by the female before, during marriage or after divorce, fully remain with her. However, the assets of the parties to be marriage are divided by the court of law, after looking at the true income of both the parties and other related matters.

Division of assets:

In India, marriages are not considered as a contract between two parties, but it is considered as a sacred relation between two families. The parties to marriage may sometimes enter into a legal agreement regarding division of assets upon divorce or death of either spouses, such legal agreement is known as “pre-nuptial” agreement. The concept of “pre-nuptial” agreement is not considered valid under Hindu Marriage Act, 1955 but it is defined under the Indian Contract Act, 1872. This legal agreement is a written contract wherein, the distribution of assets and property among the parties to marriage is decided well in advance, in case of dissolution of marriage. It includes various clauses such as:

  1. Real estate property.
  2. Income of both the parties.
  3. Amount of alimony.
  4. Insurance policies and claims.
  5. Custody of a child (if any).
  6. Gifts received in marriage, etc.

Provisions for distribution of assets under various laws:

In India, all the laws regarding marriage and divorce include provisions for protecting the interests of women and children in order to uplift them in the society. The Indian Divorce Act, 1869 facilitates settlement of wife’s property upon husband or children or both where in the decree of divorce is granted on the ground of adultery by wife.

The court has the power to divert any property from the guilty spouse to an innocent spouse for the benefit of the children of the marriage. Under Muslim personal laws, the divorced wife is not entitled to any property after the dissolution of marriage by virtue of divorce. The Muslim wives could only get “Mehr” i.e., Dower upon divorce if it was not already paid to her, she had no other rights and interests in the property of her husband. However, S.3(d) of Muslim Women (Protection of Rights on Divorce) Act, 1939 provides that a divorced Muslim woman is entitled to get property that was given to her before or after marriage. Under Hindu laws, a divorced woman is entitled to get all the property which belonged to her at the time of marriage and any other property or asset which she independently acquired. Moreover, a Hindu woman has full right in the “Stridhan” which belonged to her at the time of marriage. Section 27 of the Hindu Marriage Act, 1955 allows the matrimonial courts to prescribe suitable provision in the decree with respect to any property belonging to both the parties of marriage or either of them at the time of marriage. Invoking the power under S.151 of the Code of Civil Procedure, some of the High Courts have held that

S.27 of the Hindu Marriage Act, 1955 does not exclude the power of the court to pass an appropriate order with respect to the property which may solely belong to either party of the marriage. For ensuring justified distribution of marital property, S.7 of the Family Courts Act, 1984 extends jurisdiction of the family courts for deciding disputes relating to marital property and distribution of assets and property on divorce.


All the legal statutes in India which deals with civil matters such as marriage, divorce, maintenance, etc., ensure justified distribution of marital property in the event of divorce. The property is distributed by the courts having proper jurisdiction from the statutes which implies that both the parties to marriage get just and equitable share from their marital property. All the civil matters involving divorce and dissolution of assets on divorce are dealt by the family courts ensuring the benefit of both the parties as well as the benefit of their children. The Indian laws regarding civil matters are enacted in such a manner that there is no possibility of miscarriage of justice. Even though the citizens of India are governed by different personal laws for civil matters there is a secular statute i.e., Code of Civil Procedure, which is applicable to all the citizens in case there is any loophole in the personal laws. Moreover, there is Matrimonial Causes Act, 1973 which is enacted for matters relating to matrimonial proceedings, maintenance etc., which also provides for various provisions regarding distribution of assets on divorce. Hence, it can be concluded that the Indian Divorce Laws are fairly exhausted when it comes to distribution of marital assets and property on divorce.


Smt. B.P. Achla Anand vs. S. Appi Reddy & Anr (Civil appeal no. 4250 of 2000)

Kamta Prasad vs.Smt. Om wati AIR 1972 ALL 153.


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