This petition will be delivered to:
Prime Minister, India
Manmohan Singh
Pre-marital & inherited property is not Marital
Property, Hence must not be Divided during Divorce.
Property acquired before marriage, property gifted to a
person and inherited property is not Marital Property. The definition of
marital property is the property for which both the spouses contributed during
the fixed course of marriage. This Marital Property division law must not
become a Gold Diggers law for urban women or men.
To:
Manmohan Singh, Prime Minister, India
Subject: Pre-marital & inherited property of a person is
not Marital Property. They must be retained by the spouse who brings it to
marriage, in case the couple divorce.
Dear Sir,
Indian family system is thousands of years old. It is
important to hold wide consultations with people of India, different religious
organisations and social organisations before enacting any law than can harm the
family system in India.
Whenever any unfortunate incident of marital breakdown
happens, it must be ensured that neither husband nor the wife must benefit at
the expense of other. Neither the woman should get exploited, nor the law
facilitate extortion of men by Gold Digger.
The laws of property division have to be fair to both
spouses and they must not be extortionist to the spouse who works more or earns
more. No spouse should gain at the expense of other spouse during a divorce.
A woman who spent 15 years with her husband to bring up
children, took care of his home, took care of his elderly parents, must not
find herself with no income and accommodation, when she sacrificed her career
for the sake of the family and to bring up the children. She should certainly
get half of the property acquired by husband during those 15 years of marriage
as a matter of her right. At the same time, she should get an equal share of
her parental property or the ancestral property of her own parents.
Now-a-days the families are getting smaller and hence if she
has a brother or a sister, then she and her children should inherit half of the
property of her parents and ancestors. Similarly, if she is the only child of
her parents, then she and her children should inherit the entire ancestral
property. That way, she will be secure.
However, if a woman did not take care of children, did not
take care of the home, did not do a job, did not take care of elderly in-laws
and spent time roaming around in kitty parties, does she deserve 50% of the
property earned by the family, where the husband works 50 hours a week, takes
care of children, feeds them, manages servants and manages house? It is certain
that the responsibilities of a non-working home maker have to be clearly
codified. Similarly, if in a 15 year marriage, if the wife did a job and took
care of house, while her husband earned nothing and did not even do a job, does
he deserve 50% of property created by the family, mostly paid by wife in this
case?
The education and upbringing of the children of the
divorcing couple is the responsibility of both the mother and the father. Once
marital properties are shared equally, both parents should contribute equally
to the upbringing and education of children.
Now, should a man get a right to ancestral property of his
wife, i.e. the property that belongs to his wife’s parents? The simple answer
is no. Similarly, should a wife get a right to ancestral property of the
husband? It is again No. Should the children of the divorcing couple get a
right to ancestral property of their mother and their father? Certainly it’s a
big Yes.
So, where is the need for a big confusion and heated debates
in TV news channels?
Say, a 35 year old man and a 27 year old woman marry. The
woman’s grandfather wrote a 30 lakhs rupees worth of land property in her name
when he passed away last year. So, the woman has a property of 30 lakhs, when
she enters into the marriage. Now, both the wife and the husband work in a bank
and earn almost same salaries. However in 6 months, due to differences and
mutual compatibility problems the couple divorce to go for a mutually consented
divorce. They had almost no savings in 6 months of marriage however the wife
brought property worth of Rs.30 lakhs into the marriage. Should her property be
divided and should her husband get 50% or Rs.15 lakhs worth of property from
his wife after their marriage of 6 month’s broke down? Certainly, it is a big
NO.
Similar, if the husband of 35 years had worked in USA for 10
years and returned to India and purchased a property worth Rs.40 lakhs. Then if
the marriage between him and his wife, aged 27 breaks down in 6 months, should
she get half of his property or 20 Lakhs? Just as above, the answer is No.
We are talking about equitable distribution of property
between wife and husband during their divorce.
A typical scenario is most cases in India is, the wife and
the husband marry and stay in a rented accommodation. What happens if they
decide to separate and get divorced due to serious mutual incompatibility?
Should one of them forcibly throw the other out and should the other spouse
fight with the landlord? That’s absurd. The best way is to vacate the rented
house and go to separated rented houses or hostels or paying guest
accommodation to stay, just the way they used to do before marriage.
Now, let’s take the case where the husband, aged 35 has
bought a house of Rs.60 lakhs just before 6 months of marriage taking a loan of
Rs.40 lakhs from a bank and another gift of Rs.10 lakhs from his mother and he
contributed remaining 10 lakhs from his own savings. He and his 32 year old
wife work in a software company earning almost similar salaries. If after 2
years, they decide to divorce due to mutual incompatibility, then what happens
to the house? Should the wife forcibly stay in the house and throw her husband
out? Remember, he has paid 10 lakhs from his own pocket, his mother has paid
another 10 lakhs and he is liable to pay back the loan of 40 lakhs he owes to
the bank and he pays a monthly EMI of Rs.60,000 to the bank.
In fact, if we ask the Government of India and the Indian
Judges, they will say, as per the Domestic Violence Act, 2005, the wife is
allowed to forcibly occupy the house and the husband has to be thrown out of
the house that he owns and whose loan he is liable to pay. These are thousands
of such incidents in India in last 5-6 years, where the husbands are restrained
from selling the house and he is ordered to get out of the house so that the
wife can stay there. In the madness for respecting and protecting women, we may
accept this for the time being. Now, let’s bring the scenario that the husband
lost his job due to recession and now he is unable to pay the loan EMI of
Rs.60,000 per month?
This shows how badly drafted and unjust the Indian Domestic
Violence Act, 2005 is. They could have told the husband to keep the house or
allow him to sell the house, if he is unable to pay EMIs and pay for the rent
of the house to wife. And if husband and wife are earning similar salaries,
then there is no reason a husband should even pay the rent to wife. She can
afford it herself.
In India, there is a madness sweeping to empower women at
any cost and there is a huge misplaced trust on the Government and Judiciary
that in the land of Buddha and Ashoka, there will be justice when you put your
case in front of a policeman or a judge. So, no one believes the plight of a
man, who has lost his job and who is thrown out of his own house, for which he
is paying monthly loan EMIs and his wife stays there in that house with her new
fiancée.
The Marital Property must be divided between spouses during
a divorce. However, when such a division happens, the DEFINITION of Marital Property
is:
1. Property acquired during the marriage.
2. The property inherited by wife or husband is not marital
property.
3. The property acquired before marriage is not marital
property.
Deductions:
1. The loans taken to acquire property have to be deducted
as they are liabilities.
2. The money given as gift by parents of wife or husband
must be deducted as it is not earned during the marriage of the couple.
3. The money earned by wife or husband before marriage, but
spent for acquiring the property after marriage also has to be deducted.
4. Past savings (before marriage) used to purchase the
property has to be deducted.
5. Any loan taken by mortgaging the property has to be
deducted.
That way, there will be equity and justice in appropriate
division of marital property.
Under no circumstances the Marital Property divisions and
its laws should get muddled by other issues like alimony and child support,
which have to be dealt by the Family court separately.
If a couple have absolutely no Marital Property, then the
default alimony, child support and shared parenting procedures will apply. The
marital property division is an additional aspect and this has to be dealt in
isolation.
The basis of dividing Marital Property is, both spouses
contribute to family wealth during the marriage and it has to be divided
equitably. So, the money earned by wife or husband, before marriage has to be
kept aside. In fact, both partners must start a joint account as they marry and
they separate their earnings from their marriage from the past savings.
If one is really concerned about women, then its important
to realize that for women, there are provisions of Maintenance, Alimony in
Indian Marriage Laws. For children, there are strict provisions of Child
support laws. The division of Marital Property or property acquired during
marriage is an additional issue. However, not every couple may have marital
property. For example, the poor rural families never have any marital property
as they are very poor to save anything and buy property.
Sincerely,
[Your name]
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