A traditional Indian woman may be taught from childhood that her husband’s house is her own but, legally speaking, nothing could be further from the truth. We may have come a long way since women were forced to commit sati — so that the husband’s family wouldn’t have to share his property — but the property rights of women are far from gender just even in the 21st century.

For example, unlike in the West, Indian law does not recognise the concept of joint rights to matrimonial property.

What is matrimonial or marital property? The term generally denotes all the property acquired by a couple during their marriage or earned by either spouse during the same period. As of now, Indian women do not have the right to any of the assets in the matrimonial home; if a marriage is dissolved, the wife only has the right to maintenance.

There is a need for a holistic law that would grant women joint rights to marital property. CPM politburo member Brinda Karat raised this issue in the Rajya Sabha last month and expressed her distress over the fact that even 62 years after Independence, women are denied this right.

“The basic problem is that the government does not know what joint matrimonial property is. A recommendation to recognise joint marital property was made in 1975 by the Status of Women Committee. Unfortunately, till date, no laws have been framed to back it up,” says Karat. The Status of Women Committee is a Parliamentary committee that was set up in 1975 to look into the status of women in the country. They made some recommendations but these were finally not implemented.

Says Soumya Bhaumik, consultant, Centre for Social Research, New Delhi, “What makes it difficult to bring out a law governing marital property in India is that in the matter of property rights Indian women are highly divided. Apart from various religious communities, there are sub-groups and tribes with their own property rights. Any holistic law is going to raise an outcry as different religious groups, communities, tribes are governed by their own set of laws and it is going to be difficult to hit upon a uniform civil code.”

The Hindu Succession Act (HSA), 1956, sought to address gender inequalities in the area of inheritance. “But under the HSA, the property rights of Hindu women within their marital family are at present only available to them as widows. A divorced woman is granted no such rights, no matter what her contribution to that property really is,” says Calcutta High Court counsel Protik Prokash Banerji.

The Status of Women Committee Report in 1975 had recommended that legal recognition be given to the economic value of the contribution made by the wife through household work. This should be the basis for determining ownership of matrimonial property, rather than continuing with the archaic test of actual financial contribution. Moreover, on divorce or separation, the wife should be entitled to at least a third of the assets acquired at the time of and during the marriage. “But more than two decades later the situation remains unchanged as far as a Hindu woman’s right to marital property is concerned. None of the recommendations has been implemented,” rues Banerji.

Under Islamic law a wife is entitled to an eighth share of her husband’s property but it would be available to her only on his death. As long as the husband is alive, he is the sole owner of the property. “A divorced lady has no share in the marital property. Under Muslim law a divorced wife is entitled to maintenance only during the compulsory period of waiting or idda that lasts three months after the dissolution of marriage. After idda, the woman is free to remarry and hence she has no further share in her former husband’s property,” says Jahurul Islam, advocate, Calcutta High Court. A definitive and controversial case on maintenance for Muslim women was the Shah Bano case in 1986. As she had no means to support herself and her children after her divorce, Shah Bano had approached the court to secure maintenance from her husband. “The apex court passed a landmark judgement wherein it invoked Section 125 of the Code of Criminal Procedure, which applies to everyone, regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony. However, following outrage by certain sections, the Congress-led Parliament nullified the Supreme Court’s ruling in the Shah Bano case on divorced women’s right to maintenance,” says Islam. So forget a share in property, the Indian government has been unable to even ensure maintenance for all divorced women.

The scenario is quite different in western countries where women have it better than their Indian counterparts. In nine states in the US (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin) there exists the concept of joint marital property or community property. In these states, the formation of a marriage creates a new category of property called community property. The wife and husband have equal rights to manage their property jointly.

In all the other states, each spouse does not automatically acquire an equal interest in property obtained during marriage. Property interests depend upon each state’s constitution and statutory provisions, or an express agreement between the spouses. “It is a more common practice in the US to enter into pre-nuptial agreements in order to avoid division of assets according to the principles of community property,” says Banerji. In the UK, Section 25 of the Matrimonial Causes Act, 1973, governs the equitable distribution of property in the event of divorce.

Legal experts feel that bringing in a law granting joint property status to wives is not the perfect solution. Says Banerji, “Why is no one mentioning the rights of a woman in a live-in relationship? The law should also cover women in such relationships. Moreover the right of residence should be guaranteed to a wife so that she cannot be thrown out of her marital home whenever her husband wants.”

Replying to Karat, Union law minister M. Veerappa Moily had stated that it was time “to modernise our thinking.” He had said that the issue would be referred to the Law Commission and the National Commission for Women.

However, when The Telegraph contacted Yogesh Mehta, law officer, National Commission for Women, he said, “We have not yet received any directive on this issue of joint property rights.” The scene is no different at the Law Commission of India where A.K. Upadhyay, deputy law officer, says, “As of now we have not heard anything from the ministry. We are yet to receive any directive from the law ministry. Only then can we take up the issue.”

One can only hope that the issue does reach the authorities soon.