Author: Mohit Paliwal, V Year of B.A.,LL.B from Institute of Law, Nirma University.
Marriage is scared bond between two individual mainly a man and woman, however, when this two individual decided to comes out of their marriage, or death of one led to breakdown of marriage, a question with respect to spousal property arose. The problem can be look after in two ways. Firstly, the wife contribution in the matrimonial house and secondly, the married women working in the labour force i.e. raising income for family through outside work. Thus, directly and indirectly contributing to the spousal property either by contributing in house or by working outside bringing income into family. Generally, valuation of spousal property took place upon the death or breakdown of marriage. follows the model of division of property. However, there is no system through which right of women could be measured over the spousal property, therefore, women often failed to assert their right over the spousal property. This paper, therefore, tries to elaborate this concept and will provide concept to deal with above-mentioned problem.
Definition- Spousal property
The spousal property includes the property that has been acquired by the husband and wife at or about the time of marriage. Further, the property that has been given by the friends and relatives as a gift during the marriage are also included in the ambit of spousal property in India.
The system prevailing across the world relating to spousal property
Common ownership model -
The prevailing system followed in the various developing countries is the joint property system wherein the property acquired during the marriage is considered to be in common and therefore, any diversion of such property requires the consent of both husband and wife. Both spouses has been provided with equal right in the property bought during the continuance of marriage. However, the gifts and inheritance of property during the sustenance of marriage generally considered as separate property.
Separate ownership model-
As per this model, the property that has been acquired by the spouse will going to be his/her own property even after breakdown of marriage and other spouse have no right in it. This model provides for separate administration of property whether acquired before or after the marriage. Both spouse live together but neither could be allows to claim the share in the property of each other. This system was adopted in order to stop the husband from taking the ½ of the property of wife at the time of dissolution in England.
Community ownership model-
According to this model, property is considered as common property between the husband and wife and thus, both the spouses have equal right in the share of the property irrespective of the title of the property. It is assumed that the marriage is a common partnership of two individual and therefore, it is necessary that due recognition should be given to the female partner. The purpose of this model is to promote the financial security for the female spouse.
System prevailing in India relating to spousal property-
Due to complex cultural, religious and patriarchal system, women right in spousal property is not recognized in India. The various changes has been brought up in the system through beneficial legislations. However, still India, generally, following the separate ownership model wherein the contribution of spouse is not recognized. In the case of Arun Kumar Agrawal v. National Insurance, it was observed by the Supreme Court that it is highly unfair to undermine the work of homemakers only because they do not have earning in the monetary forms. Thus, there is need to prepare new model of spousal property.
Suitable spousal property right model in India – perspective
The work of housewife is essential for maintaining the family affairs, and as important and necessary as the income of male member to the family. Non recognition of right of homemaker is major reason behind the inequalities and gender biasness prevailing in the society, and therefore, it is necessary that there should be equal distribution of property between both husband and wife which promotes equality in the society. Recognition of work of wife will reduce the inequality, and will also help in promoting constitutional value in real sense. That’s why it is necessary that India should follow the community ownership model of spousal property wherein the equal right has been provided to both spouses.
In India the problem relating to spousal property is arose because of non-recognition of domestic work. Further, women due to patriarchal nature of society is not allowed to work outside. This problem can be resolve through the recognition of domestic work in monetary terms and by adopting the community ownership model. This problem can also be resolved by adopting the model of state of Goa wherein it is necessary for every couple to register their marriage. Moreover, the parties are given freedom to decide how their property would be divided in case of breakdown of marriage. If they do not decide then the spousal property should be allowed to govern through community model.