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vijay (CEO)     08 February 2012

Joint property share during divorce

hello all friends.

i vijay sharma from delhi facing a problem regarding divorce and property.

my fault is that i purchased a 3BHK on joint name of me and my wife in 2008, who left me after few months, now i dnt wish to take her back, as now no emotional bonding. she has put legal charges 498a on me as well.

i am having a son of almost 3.5 years out of wedlock, who lives with my wife.

the 3BHK flat almost costs 55-60 lacs at present. all instalmnts are being paid by me. 

PLEASE ELABORATE:

1---> CAN SHE CLAIM LEGALLY HER SHARE IN FLAT, AS ALL INSTALLMENTS ARE BEING PAID BY ME? i mean to ask what does law say, is 50% share belongs to her, even if she didnt contribute a single penny in purchasing the flat.

2----> any plans so that my flat will remain with me only?

PLEASE SUGGEST 



Learning

 11 Replies

Advocate Vishnu (Advocate)     09 February 2012

Dear vijay,

If your wife files for maintainence, then you will have to pay for your minor son and your estranged wife. So the best option for you will be to go for a settlement through court, to avoid further legal and monetary problems. It is not a matter of right on her part to demand 50 %..

Chaitanya_Lawyer_Mumbai (Lawyer)     09 February 2012

You wife is legally holding helf of ownership of your flat.

Nothing can be done about it.

Your wife can ask for maintenance for her & your son as well.

vijay (CEO)     09 February 2012

thanks mr. chaitanya. she has also filed sec 125 case against me, altho' summons havnt been recieved by me. will legal decision of this flat also be finalized in the same 125 case?

Chaitanya_Lawyer_Mumbai (Lawyer)     09 February 2012

The half-ownership of flat has got nothing to do with her maintenance petition,it is legally hers now.

In your reply to her crpc 125, you can mention that you have given her half-ownership of flat (amonting to around 30 Lacs & paying EMI for the same) to avoid maintenance to her.Still maintenance will be awarded to son.

Mention this in your 498a defence/quash as well.

To avoid such a big financial loss, check with the bank about consequences of stopping of EMI payment of the flat mortgaged to bank.

Mostly they may sell the flat & give helf of EMI paid to both the owners,this will be better for you instead of paying EMI for the next 15-20 years & getting only half of the benefit & giving half of the benefit to your 498a wife.

vijay (CEO)     10 February 2012

thankyou so much mr. chaitanya. here one more problem is that i am living in that only flat whose joint owner is my wife. and loan is on both of us names. 

Chaitanya_Lawyer_Mumbai (Lawyer)     10 February 2012

Is your wife also working,due to which loan is in both the names?

Why you alone are paying all the installments?

vijay (CEO)     10 February 2012

yes she is working. but she is living in mumbai and i am in delhi. i dont want to share my flat with her thats why i never asked her to pay the installments.

Chaitanya_Lawyer_Mumbai (Lawyer)     10 February 2012

You cannot deny her share in the flat just because you are paying the EMI,if she is the joint owner.

Legally,she is paying half of EMI,if loan is in joint name.

Check with the bank about possiblities as suggested earlier.

vijay (CEO)     10 February 2012

thanku mr. chaitanya :)

Harish (CEO)     20 September 2012

Advocate Chaitanya,

Isnt this a case of benami investment in the name of his wife......As wife, daughter and mother is excluded from Benami prohibition act.....isnt it possibble for the investor to claim back the property from the benamidar.....so husband can claim back.....

Till the hypothecation is finished, the property purchase is not finished and it can be mentioned that there is no love and affection from the husband when the purchase is finished and so there can not be any clain for the husband....

I also face the same problem and I am running the case with these views.....

Can the above be fruitful or not......

Harish (CEO)     20 September 2012

 

Supreme Court of India

Supreme Court of India

Mithilesh Kumari & Anr vs Prem Behari Khare on 14 February, 1989

Equivalent citations: 1989 AIR 1247, 1989 SCR (1) 621

Bench: Saikia, K.N.

PETITIONER:

MITHILESH KUMARI & ANR.

Vs.

RESPONDENT:

PREM BEHARI KHARE

DATE OF JUDGMENT14/02/1989

BENCH:

SAIKIA, K.N. (J)

BENCH:

SAIKIA, K.N. (J)

OZA, G.L. (J)

CITATION:

1989 AIR 1247 1989 SCR (1) 621

1989 SCC (2) 95 JT 1989 (1) 275

1989 SCALE (1)358

CITATOR INFO :

RF 1991 SC1654 (40,44)

R 1992 SC 885 (6,7,8)

ACT:

Benami Transaction-(Prohibition) Act, 1988: Sections 2(a), (c), 3(2) and 4--Prohibition of right to recover

property held benami-Whether applicable to an appeal pending on the date of commencement of Act--Delay

in disposal of appeal--Whether an action of court-Maxim actus curiae gra- vabit nemenium--Applicability of.

Constitution of India, 1950: Art. 136--Supreme Court--When can interfere with concurrent findings of fact.

Statutory Construction: Retrospective operation--Pre- sumption against--When arises--Act declaratory in

nature--Whether operates from time antecedent to enactment--Qualifying or disqualifying statute--Whether

retroactive--Remedy barred by Act--Whether corresponding right rendered unenforceable--Law Commission's

Report--Whether can be referred as external aid to construc- tion of provisions of statute.

Mithilesh Kumari & Anr vs Prem Behari Khare on 14 February, 1989

Indian Kanoon - https://indiankanoon.org/doc/1550631/ 1


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