Can i stay in matrimonial home

You have to file a domestic violence case.  In this case you seek the residential rights of the property where you are living right now, seeking the breaking of locks of the other areas, where you were restrained from.  You can also challenge the validity of gift deed of the matrimonial home by the husband just after two months of filing the divorce petition and restraint against delienation of the said property.  This relief also independently can be filed in the family court by way of suit.  Coming to divorce petition filed in Jaipur and if you are living in Bangalore, you can file a transfer petition in Supreme Court to transfer the case from Jaipur to Bangalore.  If your husband and his friends are forcing you and your child to vacate the matrimonial home, you can get restraint orders in domestic violence case.

1. The city where apartment is, is not clear. Currently where your husband is staying is also not clear.

2. If apartment registration was in your husband’s name and he paid completely for its ownership / registration then he can sell it, rent it or even gift it even prior to divorce, during divorce proceedings and or after divorce. There is no ulterior motive attributed as some here may say to such rights of a person who owned once the apartment, no matter he is your acrimonious litigating husband. 

3. Nevertheless once gift deed is delivered and accepted it cannot be revoked. 

4. You have right to stay at a home where currently your husband stays OR seek rent in place of residence rights from husband under DV Act. 

5. You also have rights to your belongings.

1. Immediately report in The police against your husband and his friends to make unnecessary wilfully harassment of yours , by locking all utensils and daily use items and fledged away to live you alone , take the copy with you , 2. file a domestic violence case in the court and ask residence order and maintenance for the child ifyou are not working then for you also , attach police fir with your dv petition to give strengthen your case , make an objection of his gift deed which is given 2 months later after filing divorce it shows his malafide and preplaned intention , 3. if you don't know about his whereabout then make an police complaint regarding misplacing of your husband keep the copy with you . 4. Contest the divorce case on its merit .

you have a right to say in the matrimonial home.

You have full rights to stay in your matrimonial house.  The place last resided with your husband can also be considered as the matrimonial house or he is bound to put you on a rented accommodation at his cost.  Right to residence is protected to the married woman under the provisions of DV act.  Rest other things I endorse the views and suggestions of TajobsIndia to your query.

I respectfully disagree with most of the opinions rendered above. I say respectfully because all the above participating advocates are very knowledgeable. Lets look at the underlying laws:

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If your husband had paid for the apartment in which you were living together, then that 100% qualifies as a "matrimonial house. " So, thats hurdle number one that you have overcome. Now, if your divorce petition or some litigation was pending at the time he transferred the apartment, do not worry at all. That falls squarely under Section 52 of the Transfer of Property Act. Your rights in that property, including residential stay, is protected and the transfer of property is null and void for the party under litigation with respect to that immoveable property and your full rights are in place if you prevail in your litigation calling it a matrimonial house.  You can also file an application in the Divorce petition to revoke the "transfer" as a fraudulent one intended to circumvent your right to residence. Had it not been a matrimonial house, there is nothing you could have been able to do with the transfer of property to his sister's name.  I know these issues because I had sold my properties and my ex-wife was clearly upset but could not do much as they were not matrimonial homes.

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My disclaimer: I am not an advocate and it is possible that I may be wrong in view of the opinions expressed by some learned advocates here. 

@Advt Chandrasekhar..Sir is a fraudulent transfer done in this way revocable in any way ?

@Samir N...Sir thank u for an unbiased advice  !

@ Author .

1.As your husband has complete ownership of the property he is at liberty to do whatever he wants Gift / sell etc or donate it to a charity organisation in the absence of any protection order from the court .

2. @ Geeta's sentence " is a fraudulent transfer revocable " the use of the word fraudulent is not at all applicable as he owns the house  . 

3. If under DV act you claim right to residence your husband can very well state to the court that he does not want to keep you and hence it would be at the discretion of the court to provide you rentals .

4. It is not clear from your post if he is providing you maintenance else you can claim the same under DV act for you including right to your belongings and your child as you have stated that your marriage is 9 yrs old  hence i can presume that the child would be school going child .

It is not clear from your post what provoked him to file for Divorce and on what grounds . 

The propety laws from various statutes, i.e., Transfer of property Act, Specific Relief Act and local laws etc. generally give the right to the title holder to dispose off his property by sale,  transfer, gift etc. with or without consideration to anyone as he likes.By having clear  title there is strong presumption that he is the absolute owner of such property and so he is entitled to do as above said, unless there is contention from any party that his/her contribution has gone into acquiring of such property by the tile holder.   But this is not the absolute rule and there are exceptions. For instance, if the title holder of a property has heavily borrowed from someone  without any mortgage and the lender filed a suit for recovery of his amount and at the fag end of the case, if the borrower/title holder sells his property for consideration with a malafide intention  to deprive the lender to get his money, in the event of lender wins the case, then in such a situation the lender can seek permanent stay of the sale of such property against the borrower eventhough the borrower is the absolute owner and has a clear title.  Fradulent transactions can always be contested.

In Matrimonial cases also, the paradigm shifted dramatically in ownership of the properties after enactment of DV Act.  It is well known that properties are always held in India in men's name.  Even if wife is a housewife, her contribution of being housemaker, her contribution is taken into consideration by the courts for the property the husband owns after the marriage for various reasons, and the same cannot be explained herewith as it is a lengthy logic.  Suffice to say that after enactment of Domestic Violence Act, the wife has acquired a right to take permanent / temporary stay against the property owned and clear titled by husband, even though she cannot show her monetary contribution in acquiring such property by her husband.  As property suits litigation costs dear due to advalorem court fee, she can enforce her right by affixing fixed court fee in DV case.  Similarly, under the provisions of Family Court Act also, she can file permanent injunction suits against the property by affixing a nominal fixed court fee.

File an application in the Family Court under Section 53 of the Transfer of Property Act. Ask the Family Court to render the transfer null and void until all pending maintenance is paid in full and until a suitable accommodation is bought for you and/or some form of guarantee, backed by a collateral is provided for a residence to you.  Ask an alternate prayer that the transfer be subjected to a life-time, uninterrupted and unhindered stay for you and your children so that the transfer becomes fully effective ONLY after your death and/or when you become ineligible for maintenance and/or right to residence.  Among your arguments you can say that you are accustomed to this residence and want to be assured of this roof as long as you qualify for maintenance, which includes right of residence. This "same quality" of living requirement for granting maintenance heavily supports your position. Also add that the other party will not be prejudiced in any manner whatsoever as he/she will get full title as soon as you are no longer entitled to maintenance. 

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File the application in a Civil Court (e.g. Family Court) and NOT under DV Act. The criminal court will be out of jurisdiction to interfere with civil matters such as title of properties.  Under the DV Act, at most you will get an injunction in your favor from throwing you out of the apt.  You want a more permanent relief as suggested by me. 

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I find the situation interesting... I am giving pure legal advice without knowing whether you are morally entitled to this relief.  That is your private matter anyway.

I have always been advising husbands NOT to transfer/sell the main residence to avoid maintenance.  It creates more problems and solves none. This post provides an opportunity for me to show why it is idiotic to do so.

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Note that in my legal approach, it is NOT at all important whether you contributed to the purchase price or not, directly or indirectly.

My view is totally different, I disagree with Mr.chandrasekhar and samir.

 

Once a gift is given U/s 123 T.P.A 1882 it cant be revoked in this particular case.

 

A/t the statement of querist the property belongs to husband  and here,her husband has full 100% right to dispose his property via any mode led down under T.P.A 1882.

Even U/s 52 T.P.A Doctorine of Lis pendens will not effect in his legal gift deed.

Reasoning:

 

1. The plaintiff i.e, wife is not having a suit of title or execution or partition pending before civil court against her husband. Hence, the fraudulent transfer U/s 53 T.P.A will not come into picture because this gift transfer is valid under sec. 123 and has all right to be unrevoked.

2. In DVA 2005 , there is no mandates led that respondent husband has to give that particular home or residence only which wife had asked.

Here, the respondent is free to adopt another option i.e To provide rent to residence or any alternate accommodation to her erring wife.

3. Wife cant raise finger on his absolute gift deed once it has been taken by his mother through a proper acceptance. Even she cant raise finger on any of his absolute ownership and the way of disposal under any sec. of transfer of property act unless husband is not fulfiing the orders of the court.

4. An instrument of gift deed is a valid with legal authorization.So, it will be valid till her mothers demise.

 

 

ESIS

 

 

I write ONLY because I find my position rather convincing and supported by the Act/Law and NOT to oppose any opinion. That said...

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Section 53 of the Transfer of Property Act is applicable to all transactions involving transfer of property. I doubt that there is any Supreme Court judgment if Section 53 is applicable (fraudulent transfer) with respect to a gift deed intended to circumvent maintenance liability and if such liability can be classified as a "creditor" under the Transfer of Property Act. So, my conclusion, in the absence of any cogent judgment is that she should file an application and see what the Judge says. At least she would have preserved her rights for future course of action (including appeal).