Ravi Kapoor (name changed), a Calcutta-based businessman in his forties, cannot help but heap abuse on a new amendment the Cabinet has just approved in a bill on marriage laws.

Kapoor and his wife are heading for a divorce on incompatibility grounds. If the amendment gets implemented in the near future, he stands to lose half of his residential properties, worth several crores, to his wife. According to the redrafted Marriage Laws (Amendment) Bill, a woman can get 50 per cent of her husband’s residential property after divorce. Apportioning of other assets, moveable and immoveable, owned by the husband has been left to the discretion of the courts. “This is lopsided — for no fault of theirs, in some cases, men would have no choice but concede half of their property to their wives after divorce!” says an indignant Kapoor.

The bill, currently pending in the Rajya Sabha, was originally introduced in the Lok Sabha in August 2010 by the then law minister M. Veerappa Moily and then referred to the Standing Committee on Personnel, Public Grievances, Law and Justice, which submitted its report last year. Seeking to amend the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, the proposed legislation aims to break new ground in Indian marriage laws by introducing, among other things, the provision of “irretrievable breakdown of marriage”.

But the latest amendment giving the wife a clearly defined 50 per cent share in her husband’s residential property, acquired before or during the marriage, has led to quite a kerfuffle. Many fear that the provision will hurt affluent men the most. “The wealthy or high net worth individuals can be a target. We all know women are not the only victims in marriages these days. I have handled gold-diggers myself,” says Mrunalini Deshmukh, a celebrated divorce lawyer in Mumbai, who has dealt with cases involving top celebrities in the country. “For instance, if a man, who has a Rs 50-crore residential property, gets married and then his marriage breaks down only after, say, three months, his wife will end up taking half of his property, worth Rs 25 crore. This is absurd!”

She adds that such sweeping amendments to divorce laws are highly undesirable. “Western countries consider the number of years a woman has invested in her marriage, define the responsibilities and liabilities of the wife and whether she herself has inherited properties while deciding on divorce cases,” continues Deshmukh.

“This is a bad legislation,” agrees Atindra Kumar Mukherjee, a senior divorce lawyer in Calcutta, stressing that there’s ample scope for abuse it were to come into force.

Others say that such an amendment will perhaps give rise to more and more pre-nuptial arrangements in India. Lawyers say that many Indians, especially in big cities, are already opting for pre-nups. “The proposed law is already instilling a fear pyschosis in men,” says Siddharth Shah, a divorce lawyer in Mumbai. “If the 50 per cent residential property clause comes into effect, the likelihood of pre-nup contracts being signed becomes greater. And courts would be forced to refer to such agreements while deciding on divorce cases along with claims to properties.”

Pre-nups take place in Calcutta as well, says Calcutta High Court advocate Soumya Majumdar. “It’s just like any other contract — for instance, like people apportioning properties in their wills.”

But experts hasten to add that pre-nups don’t have a legal validity yet in marriage laws in our country. “They cannot be enforced under Indian laws,” says Satish Maneshinde, a senior advocate based in Mumbai.

What lawyers further contend is that a legislation such as the Marriage Bill with its 50 per cent residential property clause is redundant, especially when there are enough laws in the country to protect women’s interests. “There are provisions (Sections 24 and 25 in the Hindu Marriage Act and Section 125 of CrPC) which deal with permanent alimony and interim maintenance for women,” says Mukherjee. “Besides, we have the Protection of Women from Domestic Violence Act of 2005 (which stipulates the right to reside in a shared household and a monthly maintenance for domestic violence victims). So do we need another law in women’s interest?”

Experts feel if the government wants to enforce the 50 per cent residential property amendment, there needs to be adequate safeguards. “Otherwise a husband apprehending or rather contemplating divorce is likely to transfer his residential property to someone else even before the initiation of a suit,” warns Jay Sengupta, senior advocate, Supreme Court and Calcutta High Court.

Deshmukh elaborates on the measures that should be taken while implementing the law, “If you bring about this legislation, an attempt should also be made to make pre-nup agreements valid under the Indian laws.”

She further says that enactment of the legislation should not be open to the judiciary to interpret it in various ways. “The amendments should be made after taking all eventualities into consideration,” says Deshmukh. “A law cannot be lopsided, favouring one side over the other — the legislation has to be fair and square to all sides. Otherwise it would be ultra vires of the Constitution!”

But not everybody feels that the proposed amendment is without merit. For instance, Satish Maneshinde is not very convinced about the gold-digger theory. “There are and always will be gold diggers. But they are a minority in society,” he says. “This (amendment) is primarily meant for women who are totally dependent on their husbands for subsistence.”

He further stresses that Indian laws are yet to give joint property rights to women. “In other parts of the world, women are given, if not half, at least one-third of the properties. But this hardly happens in India,” says Maneshinde. “In our country, the wife is known as ardhangini. So men should be willing to share.”

Says Payal Chawla, partner, Hemant Sahai Associates, a law firm in Delhi, “The recognition of both partners as equivalent stakeholders to marital resources is imperative, particularly if the wife is a full-time or part-time homemaker.”

Strangely, however, many women activists seem as much against the amendment as men. Brinda Karat, vice-president, All India Democratic Women’s Association — one of the women’s groups which wants the law ministry to rework the 50 per cent residential property provision — points out that in a country like India, most couples reside in parental homes. “So after divorce, women will have no right to in-laws’ property!”

Women activists are also arguing that women’s share in moveable properties shouldn’t be left to the mercy of the courts. They say that that instead of leaving it to courts, it should be decided in the legislation itself that moveable and immovable properties should be equally apportioned during the subsistence of marriage.

No doubt the government will notch up brownie points if it does manage to push through this pro-women amendment. One only hopes that it will also introduce proper safeguards to prevent any possible abuse of the law.