Division of Property
on Divorce: Special
Emphasis on HMA,
Varun Vaish 2008-74
What is property in Matrimony?
Property in matrimonial relationship may be of various forms,
such as share in a joint business venture, dowry, presentations
before, during or after marriage by friends and relations of either
party or both parties, jewellery, benefits of hire purchase,
matrimonial home and furniture and other contents thereof, loan by
one spouse to the other, various other properties pooled by them
during marriage and so forth.
On the breakdown of the marriage, the court may be approached
by either party or both parties to settle the properties among the
spouses and/or children their children.
In that event, it would not be necessary to initiate separate court
action either in civil court or elsewhere to distribute the property.
 Asutosh Mookerjee, “Marriage Separation and Divorce” 3ed.
Reprint 2005, p. 399.
What is Marriage Settlement?-
Exact definition of ‘marriage settlement’ has not been given in any statute. It
has, however, been always liberally interpreted according to circumstances.
In Princep v. Princep Justice Hill explained that all deeds are marriage
settlements whereby property is settled upon the husband in the
character of husband or upon the wife in the character of wife or upon
both in the character of husband and wife.
It was said that the Court can make settlement of their joint property for
the benefit of either spouse and/or the children. The property must of
course be joint.
 Aksam China v. Parbati AIR 1967 Ori 163.
 1929 P 225:98 LPJ 105
English Law on the Division of
Main aspect of English matrimonial law is the endeavour
of law to make adequate financial provisions for the
spouses and children and make just and proper
settlement of the property of the spouses.
The Matrimonial Causes Act, 1973, Part II deals with the,
“financial relief for parties to marriage and children of
 Dr. Paras Diwan, “The Law of Marriage and Divorce”,
5th ed. 2008, p. 716.
The principles of such property adjustments and financial
provisions have been borrowed from English Law.
The National Assistance Act, 1948 (English Law)
made provisions for children of broken families so that
their normal upbringing may not be hindered.
Then came the Maintenance Agreement Act, 1957
(English Law). Because of agreement between husband
and wife over maintenance after separation or
dissolution of marriage, the members of the family were
expected to have reasonable economic support. Such
agreement has had to be approved, modified or varied
by the court.
Section 24 lays down that on granting a decree for
divorce, nullity or judicial separation or at any time
thereafter the court may make an order that a party
shall transfer to the other
(to any child of the family or to some other person for the
benefit of the child)
such property as may be so specified, being the
property to which the first-mentioned is entitled,
either in possession or in reversion.
Part II of the Act deals with “financial relief for parties
to marriage and children of family”, and
part III related to “protection, custody etc. of children”.
English Law Section 39 enabled the innocent husband to apply for a
share in the property of a wife who had been proven
guilty of adultery.
Section 27 and 28 give the wife a right to apply for giving
protection to her self acquired property, when she
had been deserted by her husband without cause.
Section 40 of the Act empowered the court to divert any
property, which might have been settled on the guilty
spouse, for the benefit of the children and he
Funds brought into the marriage settlement by the guilty
husband might be settled wholly or partly on the wife and
Thereby the court encouraged morality and discouraged
The court should endeavour to restore the
financial position of the parties in status quo as
far as possible while ensuring that the innocent
and the children may not suffer because of the
breaking up of the marriage.
 Noel v. Noel 10 PD 179; Tarington v.
Tarington 11 PD 84.
Marriage Settlement under
English Law-One Third Rule-
Under the English Law, the Matrimonial Causes Act,
1973, the provisions of Section 25 apply “to parties”
without any distinction as to husband or wife.
Likewise, all the powers vested under Section 23 and 24
of such Act are applicable in favour of the husband or
the wife without any discrimination.
For the purpose of distribution of family assets different
norms are followed but “one-third” theory is normally
accepted at least as a starting point even if it may not
be strictly adhered to when so required in view of some
peculiar facts and circumstances
Lord Denning gave justifications to the one-third theory as the
starting point for distribution of assets in Watchel v. Watchel as
“….In any calculation the Court has to have a starting point. If it is
not to be one-third, should it be one half or one quarter? A starting
point of one third of the combined resources of the parties is as
good and rational a starting point as any other….In these days of
rising house prices, she should certainly have a share in the capital
assets which she has helped to create. The windfall should not all
go to the husband. But we do not think that it should be as much as
one-half if she is also to get periodical payments for her
maintenance and support.”
 (1973) 1 All ER 829 (CA).
Dallimer v. Dallimer (1978) 8 Fam Law 142 (CA)
Under the English law, having determined the
ownership of the family assets, the general
course would be to then apply the one-third
ratio (as normally applied in the absence of any
peculiar facts or circumstances). However in the
case of holding the matrimonial home in joint
names, and in the absence of any other special
facts and circumstances, the wife would get
Rules for Division of Property
Under English law The portion of the property to be settled on the wife and children is a
matter of judicial discretion.
Such discretion is to be used according to the facts and
circumstances of each case. The general rule is to settle and
moiety share on the wife and children.
The remainder, which may include the portion of the children (in the
absence or default of children), goes to the husband.
The circumstances for consideration include such points as
desertion, cruelty, adultery and the like as also financial
position of the parties or contribution, if any, by the husband to
The court should endeavour to restore the financial position of
the parties in status quo as far as possible while ensuring that the
innocent and the children may not suffer because of the breaking up
of the marriage.
Family Settlement in India
It has already been noted that family settlement is
prevalent in India over long years past.
In Uma Datt v. Ram Jiwan it has been observed that
the fact that the claims of the parties had been
adjusted and that the disputed property between
them had been settled amounts to a sufficient
consideration for upholding the family settlement.
Thus family settlement has always been considered to
be a legal and valid document.
 AIR 1941 Oudh 185.
The Supreme Court has also reiterated that the
courts give effect to a family settlement upon the
broad and general ground that its object is to
settle existing or future disputes regarding
property amongst members of a family.
1] Ram Charan Das v. Girija Nandini Devi AIR
1966 SC 323; Maturi Pullaiah v. Maturi
Narasimham AIR 1966 SC 1836.
In the case of Manali Singhal v. Ravi Singhal
The document being a family settlement, was found to
be a legal document and was fit to be acted upon.
Such matter went upto the apex court, which observed
that “family settlement” arrived at between the parties in
the matrimonial suit in the form of a “Memo of family
settlement” (providing maintenance, separate
residence, vehicle etc. for the wife and minor daughters)
was legal and valid.
On husband’s failure to fulfil the terms of such “family
settlement”, the wife initiated a suit for specific
performance of the “family settlement”.
 I (1999) DMC 355 (Del)
In a case under Section 27 of the Hindu Marriage Act,
the M.P. High Court held that a petition under section 27
of the Hindu Marriage Act is maintainable only in
respect of the joint property of the wife and
In other words, the wife would not be permitted to lay
her hands on the exclusive property of the husband
and vice versa. But the concept of “family settlement”
is of a larger dimension than the concept of
“disposal of property”
 Rajendra Singh v. Tulsa Bai 1 (1996) DMC 572 (MP)
Stridhan In the case of Rashmi Kumar v. Mahesh Kumar Bhada it has
been held that
the properties gifted to the bride before or at the time of marriage or
at any time thereafter are her stridhan property and not the joint
property of the husband and wife.
Even if the husband uses the same at the time of distress, he has
an obligation to restore it or its value to the wife.
hen the wife entrusts her stridhan to her husband or any member of
his family and when the husband or such member of the family
dishonestly misappropriates or converts the same to his own
use or wilfully suffers some other person to do so, he commits a
criminal breach of trust vide Sections 405 and 406 of the Indian
 (1997) 2 SCC 397.
 Pratibha Rani v. Suraj Kumar (1985) 2 SCC 370; Ajay Kumar
Ghosh v. Kajal Ghosh I (1999) DMC 224 (Cal)
Even if the house property was exclusively
owned by the husband from before marriage,
wife’s right of residence in a portion is now firmly
entrenched in our jurisprudence. Such portion
would be commensurate with the status and
lifestyles of the parties.
 Kanchan B.R. v. Akash Alias Usuf Hussain 1
(2001) DMC 574 (Del).
Section 27 of the HMA, 1955
In any proceedings 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
Section 27 of the HMA, 1955
This section has two requisites:
(i) The settlement of property cab be made only
at the time of the passing of the decree, i.e.,
when the court grants a decree in a matrimonial
cause, and not at any time subsequent thereto.
(ii) Orders relate only to the joint property of
the spouses has been presented to them at
or about the time of marriage. The property of
the parties acquired by them before or after the
marriage is not within the purview of the section.
Section 27 of the HMA, 1955
Section 27 the provision regarding disposal of property
has been made to discourage multiplicity of suit so
that the court, while deciding the matrimonial action,
may also give directions as to the disposal of the
joint properties of the husband and wife presented
to them at the time of marriage or thereabout.
 Kamla v. Bhagirath 1 (1997) DMC 344 (Raj)
Section 27- Exclusive Property
In Krishna v. Padma, the Mysore High Court held that
the property which is not presented to spouses at or
about the time of marriage is outside the purview of the
Section. But the Allahabad High Court in Kanta Prasad v.
Omwati, has taken the view that the court has power
of making necessary provisions about separate property
of the spouses, since, the court said, section 27 does not
debar the court form doing so.
 AIR 1968 Mys 226.
 AIR 1972 All 153.
Section 27- Exclusive Property
In Shukla v. Brij Bhushan, the Delhi High Court observed:
Section 27 of the Hindu Marriage Act, 1955, is a substantive
provision empowering the court in any proceeding under the said
Act to make a just and proper order regarding presented at or about
the time of the marriage of the parties and belonging jointly to both
of them. The court exercising the jurisdiction under the Act is
powerless to deal with properties exclusively belonging to one
or the other spouse.
 AIR 1982 Del 223.
 See also Sushma Kumari v. Ramesh Chand, (1982) 1 DMC 272;
Surya Kant v. Jashumati, (1981) 1 HLR 473; Sangeetha v.
Balkrishna, AIR 1994 Bom 1: (1994) 2 Civ LJ 24.
Section 27 of the HMA, 1955
The Division Bench of the Andhra Pradesh High Court
observes that the parties can approach the family court
for an appropriate order on settlement of properties
which were given at the time of marriage or acquired
out of funds given at the time,
and that what is more is that it is also permissible to
make a prayer for partition and separate possession
of any property in which such party to the marriage
claims to have contributed a share towards
acquisition of such property.
 Mariamma Ninan and Mariamma P. Thomas v. K.K.
Ninan 1 (1997) DMC 570 (DB-AP)
Section 27-for Stridhan
It was held that she was not entitled to the relief of their
recovery under section 27 of the Act. Her remedy lay by
a suit in a civil court. Neither could such an order be
based on Order 7, rule 7 read with section 151 of the
Code of Civil Procedure, 1908.
In other cases also this view has been held. The
Rajasthan High Court has also taken this view.
 Anil Kumar v. Jyoti, AIR 1987 (Raj) 157: (1987) 2
What property is covered
under Section 27. The property, as contemplated by section 27, is not the property
which is given to the time of the marriage only. It includes the
property given to the parties before or after marriage also, so
long as it is relatable to the marriage.
The expression “at or about the time of marriage” has to be
properly construed to include such property which is given at the
time of marriage as also the property given before or after
marriage to the parties become their “joint property”, implying
thereby that the property can be traced to have a connection with
All such property is covered by section 27 of the Act.
It does not extent to articles of dowry given to and exclusively
owned by the wife.
 Vinod Kumar v. State of Punjab AIR 1982 P&H 372.
What property is covered under
However the property which is not covered under this
section can also be disposed of between the parties in a
petition under this Act by exercising inherent power
under section 151 of the Code of Civil Procedure in
the interest of justice in exceptional cases.
 Sangeeta B. Kadam v. Bal Krishna R. Kadam AIR
1994 Bom 1 at 9.
What property is covered under
However ornaments given to the wife by her father in
marriage is her stridhan and the husband holds it as
a trustee and he is liable to return it to her after the
decree of divorce. The dowry on the other hand
includes not only the property presented during marriage
jointly to husband and wife but also articles presented to
wife as well.
 Surendra Dixit v. Seema Dixit (1997) 1 MPLJ 78.
 Shashikant Malviya v.Smt. Parvati Malviya, II (2000)
DMC 348 (M.P.).
Presents after marriage.
The Matrimonial Court has no jurisdiction
to make order in respect of the property
presented subsequent to the marriage.
 M.D. Krishnan v. M.C. Padma AIR
1968 Mys 225.
The words ‘which may belong jointly to both the husband
and wife’ in the section show conferment of an enabling
power to deal with jointly owned properties also but do
not restrict the Court’s power to such properties alone.
It was also held that in the view of section 21 all, powers
of a Civil Court are available while dealing with the
proceedings under the Act. Hence can pass an order
under Order 6, Rule 7 read with section 151 of the code
of civil procedure.
 Shukla v. Brij Bhushan AIR 1982 Del 223-Dissenting
from Kamla Prasad v. Smt. Oma Wati, AIR 1972 All 153.
Reasons for the Allahabad
High Court in the Sangeeta
The Bench gave very cogent arguments:
the Hindu Marriage Act imposes no bar on the Courts
regarding the disposal of other forms of property,
it is hardly fair to the parties to drive them to file another
case, nor is it fair to the Courts in view of the volume of
Filing one more case seems unnecessary and
 AIR 1994 Bom 1 paras 13-14 (DB).