Property Awards to Wives under Foreign Indian Hindu Laws

In Ohio in a divorce, property owned by spouses is categorized and awarded as separate property or marital property per Chapter 3105 of the Ohio Revised Code. Ohio residents may have married under the laws of another state, nation or culture that may treat or define property differently. Many Indians follow marriage laws pursuant to Hindu and Indian tradition.

The problem is the marriage laws of Ohio may conflict with Hindu and Indian laws or traditions. Ohio residents of Indian descent may want the court to follow the marriage laws under which they contracted, including the laws on how property should be categorized or awarded. Ohio courts are permitted to consider foreign laws under the doctrine of comity.

For those who follow Hindu and Indian tradition, that would mean following a concept known as stridhan. Stridhan is a concept under Hindu law which governs property awards to women. Stridhan is composed of two words: ‘stri’ meaning woman and ‘dhana’ meaning property

Under this law, property that can be held by a woman is divided into two categories: non-stridhan and stridhan. Non-stridhan property is “property in which she has a restricted estate.”

The Supreme Court of India defined stridhan as “property of every description belonging to a Hindu female, other than property in which she has, by law or under the terms of an instrument, only a limited estate.” In 1985, The Supreme Court of India expanded the definition of stridhan in the landmark case Pratibha Rani v. Suraj Kumar as “absolute property of a married woman during coverture.”

Stridhan includes, but is not limited to, gifts that are made before the nuptial fire, at the time of bridal procession, made by the bride’s mother-in-law or father-in-law at the time of her marriage, and gifts that are made by her mother, father or brother during the course of the marriage. These gifts often include jewelry, gowns, sarees (women’s clothing), vases, jugs and ornaments.

In Ohio, property given as gifts is distributed based on to whom the gift was made and how the property was used (was it commingled) during the course of the marriage. Some Indian husbands in America will use American laws to take stridhan that was given to their soon-to-be-ex-wife, claiming the items were gifts to both of them at the time of marriage.

However, the rule of stridhan states:

She [the wife] is the absolute owner and can deal with it in any way she likes. She may spend, sell or give it away at her own pleasure by gift or will without reference to her husband and property acquired by it is equally subject to such rights. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as in famine, illness or the like, the husband can utilize it but he is morally bound to restore it or its value when he is able to do so.

Husbands may not take their wives’ stridhan. While husbands sometimes may keep custody of the wife’s stridhan, she has the right to demand them at any time of her choosing. In 2015, the Supreme Court of India held that:

the husband is no more and no less than a pure and simple custodian acting on behalf of his wife and if he diverts the entrusted property elsewhere or for different purposes he takes a clear risk of prosecution under Section 406 of the IPC [Indian Penal Code]. On a parity of reasoning, it is manifest that the husband, being only a custodian of the stridhan of his wife, cannot be said to be in joint possession thereof and thus acquire a joint interest in the property.

As you can tell from this brief discussion, “marrying” the laws and traditions of another country with the laws in Ohio can blur the lines of what is marital or separate property in a divorce proceeding. The family law attorneys at Isaac Wiles are ready to bring these issues into focus for you if the need arises.