Women and Law: Struggling for the right to a matrimonial home
Women and Law
Struggling for the right to a matrimonial home
Newsletter Oct 1987
Women's groups have been demanding equal rights to property, whether parental or matrimonial, for several decades. While women are assigned "a place in the home", experience gained by women's organizations increasingly shows that no home belongs to a women. Those of us working with battered women, have shared with them the trauma of being thrown out with their children, in the middle of the night, with no where to go.
In 1975, the committee on status of women recognized women's housing problems clearly. They pointed out "that in the socio- economic situation prevailing in the country, the contribution of the female to the family’s economy is not recognized. A large number of women] participate in the family’s effort to earn a livelihood and are unpaid family workers". Particularly in the case of married women, they point out that "most married women do not have any independent source of income. Many women give up their employment after marriage or do not take up employment for many years after marriage in order to be able to devote their full time to family obligations, particularly in bringing up children. They are, therefore, economically dependent on their husband? The committee suggested ‘“that the principle of determining ownership on the basis of financial contribution is unjust and will work inequitably against women". They further suggested that "it is necessary that legal recognition be given to the economic value of the contribution made by the wife through house work for purposes of determining ownership of matrimonial property, instead of continuing the archaic test of actual financial contribution". The committee recommended “‘that on divorce or separation the wife should be entitled to at least one—third of the assets acquired at the time of and during the marriage".
The Government of India, while not following up the recommendations with legislative measures, has accepted the declaration in the Conference of Non Aligned and other developing countries, on the role of women in Development, New Delhi, 1985. Decisions regarding the right to land and property for women states:
"210: One of the forward looking basic strategies should be to provide women the title to land and property. This would be applicable to women living in rural and urban areas and those working in agriculture or industry. Women should have control over capital assets with their income. However, the number of women failing in this category would be negligible. It is, therefore, necessary that women should have joint ownership rights to all property acquired after marriage. Suitable legislations may be enacted for this purpose". The Government of India in its various recommendations to state governments has advised that Joint Pattas for agricultural land should be issued to husband and wife. Those recommendations have already been followed by some states.
Delhi Development Authority (DDA): a test case
Following Government policy declarations and concerted efforts by women's organizations, the DDA issued a notice that from 16.1.86 "all the Registrations allotments of the Hats under the various categories will be made only in the joints names of both husband and wife". i.e. ownership would be joint in the case of married persons. This progressive step which could have brought relief to many women and set an example for future legislative actions has been challenged by a resident of Delhi in the form of writ petition. The writ petition filed by Mr. V P. Sharma objects to the DDA notice on the following grounds:
(l) That the notice is violative of fundamental rights of the lndian citizen (to sell or own property).
(2) That the notice is against the principles of equality since it is not compulsory to include the name of the wife, to buy any other house/ flat in any other part of the country.
(3) That provision of public notice with retrospective effect is illegal (notice issued on l0.l2.86).
(4) In cases of marital disputes pending; in court, the DDA notice will discourage individuals from buying a flat, and will, therefore, have an adverse effect.
(5) There may be cases when a wife may have deserted her husband, and the husband due to circumstances beyond his control, is unable to file a suit for the restoring of conjugal rights. In such cases, with the implementation of DDA public notices, the situation will be worse, as the wife will not be tempted for a compromise and the husband may not be interested in purchasing a DDA flat, resulting in no shelter for the man and his children.
(6) If the DDA public notice is accepted in principle - joint ownership of other goods and assets would become the norm.
(7) Government servants or public sector employees may not bc able to get an advance to buy a house.
Intervention made by women's organization:
Karmika, at women's organisation, has intervened on behalf of several women's organizations. They point out that the DDA notice is well thought out and in line with the provisions if articles 15(3) and 38 of the Constitution of India. Joint ownership will also provide some protection to the interests of children. It is important to clarify that the Constitution does not provide for ownership of property at the cost of the general good. Land ceiling laws are proof of this.
In cases of marital conflict, there is overwhelming evidence with women`s organizations that women and children are thrown out to live precariously in a hostile environment. Alternatively, women are forced to tolerate inhuman torture against themselves and their children because they have no place to go to.
"Women’s organisations/ groups have been agitating for recognition of the concept of matrimonial property which is only just. The fear of the petitioner that "the wife will desert ...... " is totally unfounded and baseless considering the social conditions prevalent in our country. At the first hearing, the petitioner, V.P. Sharma produced some women in court, who stated that they did not want any property rights because their children would turn against them. We do not know who these women are, but it is clear that such tactics and statements make a mockery of the lives of millions of women who are struggling to have a safe roof over their heads. The DDA/ Government now has to inform the court of its logic for action. The decisions arrived at in this case are likely to determine women’s future prospects, to live in a safe and secure home.