Wife’s Claim To Husband’s Property After Divorce In India

KEY TAKEAWAYS

● In India, most cases involving divorce entitle the wife to certain rights.

● The wife is eligible to take custody of her child(ren), receive maintenance and alimony from her husband and exercise certain claims over her husband’s property in exceptional cases.

● The wife has sole claims to her stridhan received at the time of marriage.

● All assets are divided on the basis of individual equity, if it is not a contested divorce.

● The wife can claim property of the husband only if it is jointly owned at the time of divorce.

INTRODUCTION

In India, the institution of marriage is deemed to be a holy union of two souls and due to this, the question of separation or divorce arising between the couple is frowned upon and brushed under the carpet. Various religious codes have different rules and procedures relating to divorce proceedings. However, as we shall see, none of them have a strong provision for entitling the wife to her husband’s property, the whole or part thereof. This is because Indian culture does not recognise a separate property for the husband and the wife as they are supposed to live under one roof as a family. The wife is looked at as part of the family and the question of having a separation of property assets is redundant in that sense. Divorce is a tumultuous time in the lives of a married couple where they have to face emotional turmoil, which is further aggravated by the legal proceedings which are to follow. One of these hassles involves the division of the husband’s property, both movable, immovable and financial. In India, the wife usually does not have a right to claim her husband’s property except in select circumstances. However, if the divorce is not contested, division of assets takes place upon terms decided by the two parties mutually.

FINANCIAL PROPERTY

STRIDHAN

Regarding claims over movable property, the wife has exclusive rights over her stridhan, (like cash, cars and jewellery) that she might have received before the marriage, during the course of her marriage and upon the birth of her child(dren). Ownership of this stridhan can be retained by the wife even after the separation and the divorce. This includes both movable and immovable property. Hence, if the in-laws give the bride some assets, she can stake her sole claim upon it at the time of divorce. However, there is a catch to this. If the husband has contributed to the purchase of his wife’s stridhan, he can claim ownership upon it up to the extent for which he had contributed money for purchasing it.

● PRATIBHA RANI VS. SURAJ KUMAR: The Hon’ble Supreme Court laid down the difference between dowry and stridhan and held that the woman is the sole owner of her stridhan and has absolute control over it.

● SURENDRA DIXIT VS. SMT. SEEMA DIXIT: It was held that the assets that were to be given back to the wife, which had been given by her father, may be in the shape of dowry but essentially constituted as her stridhan. In such a case, the husband was a trustee on behalf of his wife. He was liable to return her stridhan to his wife.

BANK ACCOUNTS, INSURANCE AND INVESTMENTS

A bank account nominee under the law does not have any rights over the investments made by the husband or the insurance claims for which the husband had paid premium for. The role of a nominee comes into play only after the death of the account owner. Hence, the wife cannot claim the financial assets of the husband in this case. However she can make a claim on this sum after the husband’s death as the wife is deemed to be a Class I heir. The wife has equal rights to claim her share in the property as do other heirs. She can inherit it if her husband has not prepared a will, or in case a will has been prepared, the wife was not excluded from it. If the husband remarries without dissolving the first marriage, then the legal wife is entitled to his property.

● OSWAL GREENTECH VS. PANKAJ OSWAL: It was held that mere nomination does not lead to a beneficial ownership of the asset, the nominee merely holds the asset on behalf of the legal heirs. The rights of legal heirs supersede the rights of the nominee. Hence, even if the wife was not a nominee, she remains a legal heir and can claim the financial assets only after her husband’s death.

LOANS

If an immovable property, such as a house, has been financed through a loan taken jointly by both parties, they can sell the property at the market price and claim their respective shares. If one of the spouses wants to retain the house, they can opt for buying the other’s share and repaying the loan in full. However if only one person is paying the credit for the home loan, the law recognises that party as its sole possessor.

IMMOVABLE PROPERTY

Most conflicts over property occur over claims filed by the husband and wife on immovable property. While the wife is the sole owner of any property gifted to her, she does not have any claim to her husband’s property, be it ancestral or self-acquired. It can only be claimed after the death of her husband, as explained above.

Many times, to ease out financial strain and tax burdens on one of the parties to the marriage, the husband and the wife often purchase property jointly. In such a situation, the wife can claim her share upto the extent of her contribution, if she is able to prove her equity in the payments made for the purchase of the said asset.

Another situation that may arise is when the purchase is made by one party but the property is registered in the name of the other party. In this case, the law recognises the title holder as the real owner of the asset. So if the property is under the husband’s name, the wife cannot claim it unless she proves her contributions to the purchase of the same through bank statements. However, if the wife did not contribute to the purchase but has her name on the registration document, she may not be entitled to claim the property.

The wife is entitled to hold onto the joint property until the divorce is approved by the court of law. Upon divorce, she is eligible to claim child support and alimony from her husband but not his property share.

● AKASAN CHIN VS. PARAVATI: The Court held that every court has the power to settle property in the name of one of the spouses till the property jointly belongs to them.

● RAJENDRA SINGH VS, TULSA BAI: The Court decided that a petition under Section 27 of the Hindu Marriage Act was maintainable only if it was their joint property in question and not their exclusive property.

THE MARRIAGE LAWS (AMENDMENT) BILL, 2013

In 2013, a bill was introduced which contained provisions dealing with a wife’s claim to her husband’s property after divorce. However, this bill lapsed shortly. According to Section 28D of this proposed bill, upon the petition of the wife, the court may order that the husband shall give her and her children a share of his immovable property, other than inherited property, to settle her claim, as deemed just and equitable. Added to this, while determining such compensation, the court would also take into account the value of the immovable property.

OTHER INSTANCES WHERE PROPERTY OF HUSBAND CAN BE RETAINED

● Under the Muslim Women (Protection of Rights on Divorce) Act, 1986, the wife is entitled to retain ‘meher’ or ‘dower’ which includes all properties given to her by her husband and his relatives.

● The Court may also consider the pre-nuptials that were entered into at the time of marriage to determine an equitable distribution of assets at the time of divorce. Pre-nuptials and post-nuptials are not defined under any of the Marriage laws, however, given the fact that they are primarily contracts, they may be made binding according to the Indian Contract Act, 1872. The only prerequisite to this is that it should have the essentials of a valid contract. One must however note that since the concept of prenuptials is viewed as opposed to public policy, they are usually deemed unenforceable under Section 23 of the Indian Contract Act, 1872.

● SUNITA DEVENDRA DESHPRABHU VS. SITA DEVENDRA DESHPRABHU: The High Court of Bombay at Goa considered the prenuptial agreement for deciding the case of separation of the parties.

● KRISHNA AIYAR VS. BALAMMAL: The validity of the agreement between the parties which provided for a future separation was refused to be upheld by the court.

● SHEELA KK VS. N G SURESH: The Kerala High Court held that there is no limitation period of a divorced wife to claim property endowed by her husband.

● MANGATMUL VS. PUNNI DEVI: It was elaborated that maintenance must also include a provision for residence. The concept of maintenance must also include a basic need for a roof over the wife’s head.

● SMT. B. P. ACHALA ANAND VS. S. APPI REDDY: The Supreme Court observed the right of a divorced wife to reside in her matrimonial home under personal laws. A wife entitled to maintenance is also entitled to his roof and protection, which may also in some cases involve a separate residence.

CONCLUSION

As we can see, the institution of marriage is sacrosanct in India which is one of the probable reasons as to why there is a lacuna in the laws that would enable the wife to stake her claim to her husband’s property after divorce. According to Section 20 of the Indian Succession Act, 1925, no person by marriage acquires any interest in the property of whom he or she marries. As a result, in most cases, it is not possible for her to claim a share in her husband’s property after divorce. When dealing with divorces, the law entitles the wife to alimony which is to be paid by the husband. However, there is no such legal provision which entitles a wife to her husband’s property. Specific bills that were introduced on this issue have lapsed as they were deemed to be ‘ani-male’. On the other hand, inheritance of a wife to her husband’s property usually occurs upon her husband’s death, subject to the various laws governing inheritance and succession.