The Marriage Laws (Amendment) Bill, 2010, redrafted on the basis of the recommendations of a parliamentary standing committee, has been cleared by the Union Cabinet. Its highlight, no doubt, is the provision to include “irretrievable breakdown” as a ground for the grant of divorce. This conforms to recommendations made repeatedly by the Law Commission of India and the higher judiciary to enable couples to end already extinguished relationships without further fuss and bad blood, in no-fault mode. A new provision to give adopted children of divorced couples rights on a par with biological offspring is also a step in the right direction. However, the provision to allow a woman a share in her husband's property, in itself a progressive step in line with international trends, does not go far enough. The share a woman is entitled to from her husband's property acquired during the period of the marriage is to be decided by the court on a case-by-case basis, also taking into account the woman's financial state. There are too many caveats here, and leaving the question to judicial discretion and interpretation will only add to acrimony over property. Instead, clear procedures need to be set down to make the process less potentially arbitrary and painful. As it is envisaged, the provision is unlikely to prove an effective legal mechanism for a fair and equitable division of property.
Coincidentally, in February, the Planning Commission's Working Group on Women's Agency and Empowerment proposed a Right to Marital Property Act. That right aims to give separated or divorced women an equal share in property, with the onus of proving a husband's income resting on him rather than on the wife — as is the case in the current scheme of things. In Maharashtra, meanwhile, a Married Women (Property Co-ownership) Equality Bill is being discussed actively. It is meant to ensure equal rights for women in their husband's acquired property, especially in cases of divorce. Goa already has such a law, put in place by the erstwhile Portuguese rulers: when a couple in Goa divorces, half of the husband's property goes to the wife, without any questions asked. Indeed, much of the world has what is called the community property law, a regime that is based on the principle that property acquired after marriage and before actual separation (but for gifts or inheritance) is owned jointly by both spouses and is divided upon divorce, annulment or death. Such joint ownership recognises the theoretically equal contributions of both spouses in the making and the functioning of a family entity. There is one question that, however, remains to be debated further. Should the regime not be made gender-neutral, cutting both ways?