This article has been written by Ananya Bose, a student at Hidayatullah National Law University, Raipur. It discusses in detail the rights of women over the property of husband and jointly owned property after divorce.

It has been published by Rachit Garg.

Introduction 

Divorce is the legal dissolution of a marriage, which can be done in court. Mentally, going through the process of divorce is tiresome and stressful for both partners. Legal settlements like alimony, maintenance, and property make the task more problematic. A couple can very well be financially stable throughout their marriage but after separation, it can be altogether a different story. They need to understand and be aware of the laws and procedures which exist to figure out who gets what part in the property in order to resolve one of the most concerning problems.

Property rights are the legal rights to obtain, possess, sell, and transfer property, as well as the rights to receive rent, keep one’s salary, enter into contracts, and file lawsuits. One of the most delicate issues during this time is women’s property rights following divorce. The right of women to their husband’s property for the purposes of a divorce property settlement relies on a variety of factors, including how the couple became separated and the reasons for the separation.

Property rights of a wife after divorce if the property is in her husband’s name

In case of mutual divorce, if the property is in the name of the husband, in the eyes of law, the wife has no right over the property. According to the Registration Act, 1908, the property belongs to the person under whose name the property has been registered. When it comes to the bank, it belongs to the person under whose name the loan has been granted and is accountable to pay the loan instalments. 

Even if the wife has not contributed financially to building the house, the husband has no right to ask her to leave the house until and unless they are lawfully divorced by a competent authority. She has the right to stay in the house until the time their marriage is annulled by a competent authority. After they are divorced, the wife has the right to ask for maintenance and livelihood costs for her and her children, however, she cannot ask for the property in a divorce settlement. 

For example: The husband buys an apartment for his wife and himself after they get married, and it is registered in his name. The husband and wife lived in an apartment together during their marriage. 

When a divorce is in issue, however, the wife will lose all rights to that apartment, while the husband will maintain complete ownership.

In a bit different scenario, where the wife and husband together have bought the apartment but it is registered under the name of the husband, the wife cannot claim it. However, she can show her monetary assistance in buying the property through bank statements and other proof.

Property rights of a wife after divorce in a joint property

There are a variety of reasons why a couple purchases joint property like tax savings, easy savings or where both contribute to purchasing the house. Where the property is registered as joint property, the woman has the right to claim a stake in the property in case of divorce. In line with the amount and percentage of the contribution, the court can grant her a share as a part of the divorce settlement. 

For this woman’s property rights, she must produce documentation of her contributions in order to acquire property in her husband’s name. To assert her rights, she can provide the account statements. If the couple buys a home together, it is considered joint ownership.  According to the Hindu Succession Act, 1956, as a co-owner, the woman has the right to remain in the property until the divorce is finalised and the divorce property settlement is finalised. This has also been established by a three-judge Bench of Supreme court in the case of Satish Ahuja v. Sneha Ahuja (2020). Here, the father-in-law of the women filed a case for an injunction for the women to immediately leave the house. It was contested by him that the property neither belonged to the son nor to his daughter-in-law. Here, it was held by the Court that the woman had the right to residence irrespective of her husband’s share in the property.

Either wife or the husband can start the process of settling their part of the property with the one who wishes to keep it. This can be done before or during the divorce process, and they are also liable to pay the portion based on current market conditions.

Section 27 of the Hindu Marriage Act, 1956

new legal draft

This Section gives the court the authority to decide on the matters of property which are presented jointly to the couple at the time of marriage. However, the properties which the spouses buy during the existence of their marriage would not be covered under this provision. 

If any one of the spouses wants to get an order under this Section, he or she must put up an application before the proceedings of divorce are over. However, the Court has no jurisdiction to pass an order related to any other property owned jointly or individually. 

In case, the parties enter into a settlement agreement with regards to such property, the court may keep a record of the same. However, a contrary view has also been seen in the case of Kampta Prasad v. Omwati (1971) where the Allahabad High Court established that it is not correct. 

In the case of Satya Pal v. Sushila (1983), it was found that the application of the wife under this Section for the purpose of recovery of jewellery and other stuff from the husband was not maintainable. 

In Basudev v. Chhaya (1991), it was found that the wife has the right to remain in the matrimonial home till the termination of the marriage.

Property rights of a wife if the husband does not divorce the wife but strands her

In the unlikely event of a husband leaving his wife and not taking divorce, the property rights of women state that her children as well as she herself has the right to declare share over their father’s property. In case the husband has kids from another woman, they have the right to property proportionally. In case, there exists property which is owned by the husband, the first wife and her children would have the initial right over the property that is owned by their biological father.

In this case, the father/husband becomes the property’s fourth shareholder, and the children from the second marriage, as well as the second wife, will claim their portion entirely from the father’s share. To obtain a full share, the second wife should marry the guy only after the first wife’s divorce property settlement. As a result, the second wife is treated as a legally married woman, and she and her children can only claim women’s property rights while they are in the relationship.

In the case of Khadal v. Hulash (1989), it was found that if one party denies the spousal relationship or duties, it entitles the other to maintenance. According to Section 24 of the Hindu Marriage Act (1955), claims can be made for the personal maintenance of the one claiming the maintenance and for the expenses incurred by them during the proceedings. The claim can only be made when it is proved that the one claiming the amount has no means to fulfil their personal expense as well as the expense of proceedings of the court. Once these facts are established, the court may pass an order to pay the claimant on a monthly or periodic basis and a lump sum amount for the proceedings. 

Stamp duty charges on acquired properties during divorce

There are taxes applied on the transfer of property between different parties. For example, when properties are transferred between siblings, the taxes apply in the same way as an open market sale. Though property transferred among spouses is exempted from the long-term capital gains tax, there remains another tax which is the stamp duty. Even though there are no such stamp duty concessions when it comes to transferring property between the divorced spouse, things are different.

They need to convert the property from their joint names to a single partner’s name because each has a proportionate share of the money or other assets. This type of transaction is exempt from stamp duty land tax if it occurs as a result of judicial separation or an agreement between the parties about divorce, nullity of the wedding, legal separation, or the dissolution of a civil partnership. A land transaction return will be required in order to seek relief.

Property rights of a wife after divorce in terms of movable property

According to the Transfer of Property Act (1882) property of every description except immovable property is known as movable property.

Stridhan

According to the Smritikars, these are those properties that the woman is gifted at the time of marriage. These might include jewellery, cash etc. the wife has the right over these properties after divorce too. However, in cases where the husband has contributed to buying these gifts, he has the right to claim his stake after divorce.

Any property that the women acquired as a part of partition would not be Stridhan but women’s estate as held in the case of Debi Mangal Prasad Singh v. Mahadeo Prasad Singh by the Allahabad High Court. However, after the Hindu Succession Act of 1956, it was declared by Section 14 of the Act that the joint property received by partition to be an absolute property or Stridhan. As the owner of absolute property, a woman has complete control over its alienation, which means she may give, sell, lease, trade, mortgage, or do whatever she wants with it.

In the case of Bhagwandeen Doobey v. Maya Baee (1869), it was held by the Privy Council that the properties which are given to the wife by the males would not come under the ambit of stridhan but would be known as the women’s estate. 

It has now been established in the case of Pratibha Rani v. Suraj Kumar and Another (1985) as to what consists of Stridhan by the Supreme Court – 

  1. Gifts exchanged before the nuptial fire. 
  2. Gifts presented during the wedding. 
  3. Gifts presented by her mother-in-law or father-in-law as a token of affection on the occasion of her marriage. 
  4. Gifts from the moms, dads, and brothers of the women.

In Smt. Rashmi Kumar v. Mahesh Kumar Bhada (1996), it was held by the Supreme Court of India that when a wife entrusts her husband or any other member of the family with her property and that person willfully misappropriated it or allows someone else to do so, he commits the offence of Criminal Breach of Trust.  

Investment and insurance 

The wife has no right over the investments made by his husband under his name. She can also not claim any insurance for which payment has been made under the name of the husband.

However, if the marriage is not dissolved legally and the couple has merely started leaving separately, the wife can claim the insurance amount in the unfortunate event of the husband’s death.

Property rights of a wife to husband’s possessions before divorce

Though now there is a clear understanding of women’s rights in case of divorce, we need to take a look at the rights she has while she is married.

She has the right to reside in the marital home and to be given maintenance by her husband.

If, on the other hand, the husband decides in his will to deny her the right to his property, she will not be able to place a claim on it. 

The wife’s property rights on her husband’s property, whether movable or immovable, are determined by a variety of criteria. Even when a couple is divorcing, the bulk of disagreements come during the property settlement process. At such a moment, one must be aware of one’s rights.

The Supreme Court held in the case of B.P. Achala Anand v. S. Appi Reddy and Another (2005)  that a wife’s right to stay in the married house is guaranteed by personal laws. A wife has the right to her husband’s assistance. Within his house, she has the right to live and be protected. She also has the right to separate residency if she is forced to live apart from her husband owing to his behaviour, his unwillingness to keep her in his own house, or other reasonable reasons. The wife’s right to a place to live is part of her maintenance entitlement. For the purposes of maintenance, the term “wife” includes a divorced wife.

Another important case in this respect is Bharat Heavy Plates v. Vessels Ltd. (1985) Here, the husband and wife along with three children used to live in the quarter provided by the company. However, after some days the couple started developing differences and therefore the husband left the marital home. He not only left the home but also wrote a letter to the company to terminate his lease agreement. The wife went to court for an injunction against their eviction from the house. The Court considered the facts that the quarter was intended for the employee’s use and that the husband was obligated to provide shelter for the wife and children. The quarter had been identified by both the husband and the corporation as the marital house, where the wife also resided. The sum of rent was ordered to be withdrawn from the husband’s paycheck.

Conclusion

For both the husband and the woman, divorce may be a very stressful scenario. Aside from the emotional strain, there are a number of legal issues that must be addressed during the divorce process, which adds to the stress.

There should be provisions under the law where the court should have the power to make arrangements and settlements with regards to properties which are jointly owned or individual not only in favour of either party or both the parties but also in favour of their children since they are the ones most hit by the proceedings.

Women’s property rights have developed and evolved over time for the betterment of the position of women in India. Especially, in countries like India where women are mostly not working or are extremely underpaid, financial support after divorce becomes important. Sometimes, financial restraints do not allow a woman to get divorced and she continues living in miserable conditions. Hence, it becomes more important to have laws that help women grow and become independent. But this doesn’t mean that it should be at the expense of men being deprived of their rights. There needs to be a balance.

Frequently Answered Questions (FAQs)

Is it possible for a woman to claim property after a divorce?

A woman can assert her rights and contribution to the property in court during a divorce. If the property is only in the name of the husband in such a case, a woman is unable to obtain a portion of the property unless she can show that she gave her share at the time of purchase.

In a joint property, what property rights do divorced women have?

If the property is registered as a joint property of a couple that is getting married, the wife will be entitled to claim it after the divorce process. The court will award him his portion based on his contribution to the property.

Is it possible for a divorced wife to claim her mother-in-law’s property? 

A wife cannot claim the ancestral property until and unless partition for the same has been done and the husband has a portion in the same.

References


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