+ Follow
Image by succo from Pixabay 

Introduction

All facets of a typical culture revolve around one single entity – “ME”. Selfishness is there in every bit of human action which is done for self-sustenance. On the other hand, is marriage – that is shaped on the foundations of trust and selfless attitude where not “ME” but “YOU” is given priority. Marriages are deemed to be an all-encompassing social setting which is an essential element of the life of a being. But not all marriages are goodies as all it seems prima facie. The distrust among the couple, the incessant fights, lack of faith, dominance of anyone over the other, cruel behavior, desertion are the reasons which make a matrimonial setting difficult to continue with. All these issues rise to the level of divorce or judicial separation when the spouses are not able to cope with each other and want to break the nuptial knot they tied (apparently for seven births). The judiciary tries its best to save this misconduct to happen but it surely cannot force anyone to stay together just for the sake of morals or ethics, everyone is entitled to the right to life under Article 21 of the Indian Constitution and that can be curtailed on unreasonable and shaky grounds.

Divorce and its various grounds

Dissolution of Marriage or Divorce is a jargon used in law in the context of matrimonial relationships. It basically means bringing the marital relationship to an end and severing ties with the spouse as a couple. It takes place when there is an irretrievable breakdown of the marriage. Section 13(1) of the Hindu Marriage Act, 1955 deals with the grounds for divorce. These grounds include nine fault grounds. Some of them are:

  1. Desertion - It means leaving the spouse without any reasonable cause and any prior consent taken from the other party. It is done against the wish of another spouse. The two essentials include that the split should have taken in reality and there are an animus deserendi i.e., there is an intention to bring the cohabitation to an end. In the case of Bipin Chander Jaisinghbhai Shah vs Prabhawati, the court held that “The offense of desertion is a path of behavior which exists independently of its duration, however as a ground for divorce it needs to exist for a duration of as a minimum of three years at once previous the presentation of the petition or, in which the offense seems as a cross-charge, of the answer.”
  2. Cruelty – It was created as a ground for divorce in 1976 through an amendment although it could have been used for judicial separation. Cruelty is not restricted to physical sense but also mental cruelty. In the case of Savitri Pandey vs Prem Chandra Pandey, it was observed that “Cruelty could also be physical or mental. Mental cruelty is that the conduct of other spouse equivalents that causes mental suffering or worry about the marital life of the opposite. Cruelty "therefore postulates the petitioner's approach with such cruelty as to trigger an accessible apprehension that it may be detrimental or harmful to him.”
  3. Insanity – It refers to the unsoundness of mind of an individual which causes the issue to the spouse in continuing their marital life with that other spouse who is incessantly experiencing irregular mental turmoil. The supreme court held that “in schizophrenic mental disorder, the petitioner should prove not merely the said mental disorder, but also establish that account the petitioner could not reasonably be expected to live with the respondent.”
  4. Conversion – Section 13(1)(ii) deals with conversion as a ground for divorce. There are two essentials which include: cessation of respondent being a Hindu and conversion is done to another religion. The court in the case of Teesta Chattoraj vs Union of India held that “Conversion to another religion is a ground for divorce, but a spouse may be denied divorce even if the other spouse has embraced some other religion if the former goaded the latter to such conversion.”

Status of Property after Divorce

The disposal of property seems a bulwark when any matrimonial relationship reaches the stage of Divorce. How property will be distributed? Can a wife claim her husband’s property after divorce? Is the husband entitled to stridhan? All these questions will be dealt with further in this article. The disposal of the spousal property is discussed under Section 27 of the Hindu Marriage Act, 1955. The section states that “In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife”. The Apex court of India in the case of Balkrishna Ramchandra Kadam vs Sangeeta Balkrishna Kadam made some pertinent observations while deliberating upon the disposal of property under section 27 of the HMA. It is said under this judgment that the ornaments and other property of the wife are not the only property that is covered by this section. Instead, it has a much wider spectrum. Any property welcomed in the garb of marriage either before or post marriage is also counted. “The expression at or about the time of marriage has to be properly construed to include all such properties.” The court must ascertain the wife’s property before announcing the judgment. The property acquired through one’s efforts and not through the marriage would not be considered for disposal under this section.

What is Streedhan and what is its status under the act?

Streedhan is a Sanskrit term that is composed of two words and even a novice can also tell at first sight what the term means. The word Stree means lady or woman and Dhan means property. As the term suggests, it belongs to a woman and any type of asset – movable or immovable is part of it in a legal sense. The foremost law to address gender inequalities in the arena of property inheritance was the Hindu Succession Act, 1956. Section 14(1) of the HSA states, “ Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.” . There is more to this section where certain things that would not constitute Streedhan are covered. Section 14(2) if described in layman’s language would mean that any property gift, will, instrument or decree which provides the women a restricted right over that property would not come under the definition of Section 14(1). The Supreme Court in the case of Pratibha Rani vs Suraj Kumar and Anr mentioned that gifts received by a Hindu Bride can be divided into three categories:

  • Property for exclusive use by women like jewellery or other ornaments, etc.
  • Articles for common use inside a matrimonial home
  • Articles received by husband or in-laws

In another case, the apex court provided for an “alternate remedy” to the wife against the husband if he refuses to return the streedhan. The term Dowry is often confused with Streedhan but there is a fine distinction between both concepts. While Dowry is a compulsive act of giving the groom and the in-laws some assets in form of gold, money, car, etc., the Streedhan is a voluntary gift given especially to the bride in good faith without any coercion or influence. Dowry is illegal and attracts the application of the Dowry Prohibition Act, 1961 whereas Streedhan is totally legal in the country.

Important facts and provisions

The possession of the property given under streedhan can be with the husband or in-laws but it belongs to the wife exclusively. Any such act of misappropriating such property by the husband or the other members of the in-laws would result in an offense of criminal breach of trust. Section 405 and 406 of the Indian Penal Code, 1860 deals with the offense of breach and its punishment. For the offense to be validated, there should be an intention to NOT restore that property to the bride and the absence of mens rea would render this section ineffective. Section 27 of the HMA doesn’t eliminate the criminal liability of the husband in case of deceitful misappropriation of the belongings of the wife. It only provides the remedy and both these sections are coextensive in civil and criminal law respectively and are essential. Any property presented jointly or individually to the spouse would be covered under Section 27. There may be instances where the deed of some immovable property is signed in name of the husband. Merely on this ground, the property will not belong to the husband solely. It will also be considered a part of that matrimonial property of the couple.

Conclusion

Marriage is a social institution that is considered to be very sacrosanct in nature and its breaking is deemed very negative in the eyes of ancient scriptures and even law. Still, divorce and judicial separations occur because it is better to live peacefully alone than in a hostile and unfriendly environment with any spouse if circumstances have risen to that level. Of Course, priority should be given to mediation among the spouse and agreeing and coping with each other’s issues and demands. In a marriage, the couple is gifted certain properties, and disposal of the same after the divorce becomes a bone of contention for the courts. Section 27 of the Hindu Marriage Act gives certain guidelines and clarification on it. The judgments by the courts have also aided in the decision of how property should be distributed and what is the status of streedhan. It belongs to the female exclusively and any act of misappropriation of streedhan by the husband or in-laws can invite punishment under the offense of criminal breach of trust.

.    .    .

Reference: 

  • Bipin Chander Jaisinghbhai Shah vs Prabhawati, 1957 SC 176
  • Savitri Pandey vs Prem Chandra Pandey, 2002 SC 591
  • Ram Narayan v. Rameshwari, 1988 AIR 2260
  • Teesta Chattoraj vs Union of India 188(2012) DLT 507
  • S 27, The Hindu Marriage Act, 1955
  • Balkrishna Ramchandra Kadam vs Sangeeta Balkrishna Kadam, AIR 1997 SC 3562
  •   Pratibha Rani vs Suraj Kumar and Anr 1985 SC 628
Discus