Report No. 15
67. Settlement of property.-
The Indian Divorce Act, 1869, enacts certain provisions with reference to settlement of property. Section 40 provides that when a decree for dissolution or nullity of marriage is made, the court may inquire into the existence of any settlement, ante-nuptial or post-nuptial, and direct that the properties so settled be applied for the benefit of the husband or wife or children or both children and parents as it might deem fit. This is a salutary provision, and has been retained. Section 27 of the Hindu Marriage Act enacts that the court might 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 might belong jointly to both the husband and the wife. This will comprehend properties other than those which section 39 of the Indian Divorce Act might cover, and we have accordingly inserted a similar provision in the proposed Act.
68. Then there is section 39 of the Divorce Act, which provides that when a court passes a decree for dissolution of marriage or judicial separation on the ground of adultery of the wife, and the wife has properties of her own, the court may order such settlement of those properties to be made as it thinks reasonable, for the benefit of the husband or children of the marriage or of both. Having regard to the other provisions recommended by us, this section should be omitted. The husband has a right to claim compensation for the wife's adultery.
He has also been given a right to claim alimony, interim or permanent, in appropriate cases. In view of this, there seems to be no reason why he should claim that the properties of the wife should also be settled on him. As for the children, the court has the power to make suitable orders for their maintenance and education. It should be remembered that under the law the children have no right actually to the properties of parents, but only a right to be maintained.
That being so, there seems to be no ground for a special provision that the properties of the mother should be settled on them by reason of the adultery of the mother. On principle, therefore, it would seem that all that the law need provide is adequate and reasonable alimony for the parents and adequate maintenance and expenses for the education of the children. To go further and to enact that the wife should be deprived of a portion of her properties and the same settled on the husband and children would appear to be unduly severe and unjust, bordering on vindictiveness.
It is true that the Royal Commission has, in its Reports1, considered this question and recommended that there should be a provision for settlement of properties whenever there is a decree for divorce or nullity of marriage. For the reasons already given, we are unable to agree with this view. It may be mentioned here that no such provision has been enacted either in the Special Marriage Act, 1954, or in the Hindu Marriage Act, 1955. Our proposal to omit section 39 will bring the law in line with those two statutes.
1. Report of the Royal Commission on Marriage and Divorce, 1955 Cmd. 9678, p. 141, para. 516; p. 142, para. 520; and p. 154, para. 570.
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