An equal wheel of the marriage cart, not just a donkey

A recent HC judgment takes a giant leap in women’s rights over assets built during a marriage

In a June 21 verdict, the Madras high court ruled in favour of equal sharing of assets built during the duration of a marriage between a man and a woman. The fact that Indian law does not consider assets built during a marriage as belonging to both partners seems to be a little known fact. It is discovered usually in court, mostly by women, who seem to get a grudging settlement, and no assets. This inequity built into the very law – that assets belong to he who pays, and not she who supports the home – results in poor money and asset outcomes for women. Or women staying on in abusive homes due to the fear of being left with nothing to show for years of work during a marriage.

For women, whose contribution to the home is often relegated into an endless void, the HC judgment is a giant leap forward.

Therefore, it comes as no surprise that women are underfunded for their retirement; what is surprising is that this is not restricted to the poorer and illiterate sections of women, but is all-pervasive. A HelpAge India report Women & Ageing: Invisible or Empowered found that less than half the women surveyed felt financially secure; of the 47% who did feel secure, almost four-fifths depended on their children’s support. Two-thirds of the 7,500 women over 60 – from 20 states, two Union Territories and five metros across the mainly non-poor sections of the population – did not own any assets, and three-fourths did not have any savings.

The survey points to the stories in homes across the country playing out every day like a perpetual TV series. The stories are many, but the one I tell here is not of a poor and marginalised woman in a faraway tehsil, but of a Mumbai professional in the digital marketing business. In their late 20s, she and her husband are working hard to make it big in the city of opportunity. Like countless other families, her money runs the house and his builds the assets. A small part of her money goes towards the assets too. He tells her that all assets are in a joint name. A series of circumstances happen that get her to call the agent who buys the mutual funds directly to check why her funds are not showing against her PAN. There is a dark moment of truth when she realises that her name is not on any of the funds. Not only for the ones he buys, but also for the ones her money has bought.

This is not an isolated story, but is repeated in endless homes. Unfortunately, if such a marriage were to break, the woman will be left with no assets. Given that the existing law does not consider a community of marital property – an equal share of the assets built during the tenure of a marriage – the Madras high court judgement is an important step forward. In the words of justice Krishnan Ramasamy, “To recognise the contribution made by the wife either directly or indirectly, so far, no legislation has been enacted”. However, he continues, the court can certainly recognise the contribution made by the wife towards the assets built by her husband, either directly or indirectly. “...This court is of the considered view that the first defendant/wife has also contributed equally, though not directly but indirectly by way of looking after the home and taking care of the family for more than a decade and managing the household chores, thereby releasing the husband for gainful employment and made his stay comfortable in abroad and also to reduce the expenses and save the money for future benefit of the family including for purchasing of the assets.”

As a first-principle argument, this is a big win for women. The court is saying that it does not need an existing law to implement the community of marital property presumption. It can take note of the value of the work a woman does in managing the home and children by recognising that assets must be shared equally and need not depend on ownership through contribution. While this is good news for women who are housewives, it is also great news for qualified women who give up careers to manage the home and children. The asset-sharing judgement suddenly gives money power to the women. It allows her to step out of abusive homes with half the assets built during a marriage.

This case might go to the Supreme Court, but it is up to Parliament to enact a law for all women, and not just Hindu women, to reflect this basic equality in a marriage. Legal experts caution about the second-order impact it might have on issues such as debt and assets of salaried women that might get appropriated, but those should be worked out after a debate. Till that happens, women need to begin to take control of their financial future. Baby steps begin with knowing the household income and expense rhythms. Next are conversations about assets, their ownership and location of documents. Even if women do not understand the complexity of the financial world, it should not stop them from asking for and understanding family assets.

For women, whose contribution to the home is often relegated into an endless void, this judgement is a giant leap forward. As justice Ramasamy says, “When the husband and wife are treated as two wheels of a family cart, then the contribution made either by the husband by earning or the wife by serving and looking after the family and children, would be for the welfare of the family and both are entitled equally to whatever they earned by their joint effort”.

He has single handedly improved the position of the woman – from a donkey to an equal wheel of the cart called marriage.

Monika Halan is the author of the bestselling book Let’s Talk Money. The views expressed are personal.