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Report No. 15

46. Capacity of wife to acquire property or to enter into contracts after a decree for judicial separation.-

We should now refer to sections 24 and 25 of the Indian Divorce Act, 1869, which enact, inter ailia, that after a decree for judicial separation is made a married woman shall have the right to hold and acquire property, dispose of it inter vivos or by testamentary disposition, and to enter into contracts. This provision is based upon the common law of England under which the personality of the wife became, on marriage, merged in that of her husband, and they constituted one person in the eye of the law. The result was that marriage operated as an assignment to the husband, of the property which the wife owned at the time of the marriage. Properties acquired by her later also vested in him.

On her death, they passed to him absolutely. Likewise, any contract entered into by her only operated as one entered into on behalf of her husband. The Court of Chancery made some inroads into this law, and in 1882, the British Parliament enacted the Married Women's Property Act, providing that the properties of a woman would continue to be her own, even after marriage; that she could acquire properties in her own right after marriage; and, that she had absolute dominion over them. When the Divorce Act was enacted in 1869, it was the common law doctrine that held the field, and it is that doctrine that is reflected in sections 24 and 25 of the Divorce Act.

The common law of this country, however, was different, and conformably to it, the statute law of this country allowed married women equal rights with men in respect of property and contracts. Section 4 of the Married Women's Right to Property Act, 1874, which applies to Christians, provides that the earnings of a married woman shall be her separate property, and under section 7 of that Act, she is entitled to maintain legal proceedings with reference thereto. Section 20 of the Indian Succession Act, 1925, makes it clear that a person does not become, by marriage, subject to any disability in respect of his or her property, or acquire any interests in the property of his or her spouse.

Under the Contract Act, 1872, there is no bar to married woman entering into a contract in her own name and in her own right. The provisions of sections 24 and 25 of the Indian Divorce Act, 1869, based upon the then current English Law that marriage effaces the separate personality of the wife, and that the effect of judicial separation is to bring about its re-emergence, must, therefore, be regarded as out of tune with the common law of India and with the statutes aforesaid, and as obsolete. There being no need for those provisions, they have been omitted in the proposed enactment.

Report on the Law of Christian Marriage and Divorce Back

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