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Report No. 66

8.8. Section 5, Married women's Property Act, 1847 and section 11, Married Women's Property Act, 1882 (English Act).-

The important differences between the English and the Indian Act1 could be summarised as follows-

(1) The Indian Act is confined to a policy taken out by the husband. The English Act covers policies taken out by either spouse.

(2) The Indian Act provides that the benefit for the wife and children in the policy has to be expressed "on the face of it". These words "on the face of it", which were present in section 10 of the Married Women's Property Act, 1870 (English), were dropped in section 11 of the English Act of 1882.

(3) The words "shall enure and be deemed to be a trust" appear in section 6 of the Indian Act2 (which are the same as what appeared in section 10 of the English Act of 1870). The words in section 11 of the English Act of 1882 are different. The English Act now contains the words "shall create a trust in favour of the objects therein named." The English Act of 1882 would, therefore, make the trust more definite than merely "deeming" it to be a trust as in section 6 of the Indian Act.

(4) Section 6 of the Indian Act makes the sum payable to special trustees or to the Official Trustee of the State (in cases where there are no special trustees), who shall hold the amount upon trusts expressed in the policy. Under section 11 of the English Act of 1882, there are no such special trustees or Official Trustees for these purposes.3 In England, the husband holds the sum in trust in the absence of appointment of trustees.

(5) In India, the creditors have, in cases of fraud a right against the (entire) proceeds of any such policy-though the word "entire" is not used. Under the English Act, the creditors are entitled to receive, out of the moneys payable under the policy, a sum equal to the premium so paid. Therefore, the creditors would be entitled to a lesser amount under the English Act than they would get in India.

(6) Under the Indian Act, the beneficiaries of the trust are to be the wife, or the wife and children or any of them. The English Act uses the words "for the benefit of his wife, or of his children, or his wife and children, or any of them." Therefore, under the English Act, the trust can be made solely for the benefit of the children without adding the mother.

(7) It is specifically mentioned in the Indian Act that so long as the trust remains, it is not subject to the control of the husband. These words are absent in the English Act of 1882.

1. Section 11, Married Women's Property Act, 1882 (English) (Appendix 3.).

2. Lalithambal v. Guardian of Indian Insurance Co., AIR 1977 Mad 645.

3. Para. 8.20, infra.

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