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wack (FM)     21 June 2010

Property papers

Is the copy of property papers (for a property owned by the respondent) enough to prove the ownership in order to get an attachment order passed in a divorce case? If not, then how can the original be obtained?


 14 Replies


Naturally, the copy of the property papers is more than enough because, it is quite natural that the originals must be always lying with the owner and you cannot have them.

wack (FM)     22 June 2010

Thank you so much ... what was meant by how they can be obtained, is whether any copy of originals can be obtained. But your answer is sufficiently clear to remove doubts.


In your question, you asked "whether copy of the property papers enough to prove ownership"?  I thought, you have with you the copy of the property papers.  Now, I try to clarify: If a person wants to prove his ownership of the property and he knows that the papers are on his name but he does not have them with him, he can obtain duplicate copies from the land registration office.  Otherwise, during the court case, by moving approvpriate application he can call for the original records from registration office.  Just  by showing the photo copies (secondary evidence) without explaining why originals (primary evidence) are not brought before the court, the owner cannot succeed.  I hope I am clear now.

wack (FM)     22 June 2010

Mr. Prabhakar Sir,

I did not frame the query right.. I have not been sufficiently clear on this .. let me give the whole picture ..

a) there is a divorce proceeding on

b) respondent has so far refused to make an appearance despite well served notice (probably because he wants an ex-parte verdict to be passed in his absence)

c) he claims to be unemployed and the petitioner has no means to prove otherwise as they stay in different parts of India

d) the only proof of his property the petitioner has, is a copy of the defendent's property ownership papers

So if it comes to passing the verdict,

a) can the petitioner ask the court to consider the attachment or transfer of ownership in her name ... and there is a subquestion ..

b) Can the defendent transfer ownership of the property while the case is still pending before court? If yes, then can this be treated as malafide intention?

Thanks in advance Sir.


(a) The matter pertains to divorce case.  If there is interim order or final order of maintenance is there in favour of the petitioner, the petitioner by filing mere photo copy of the property of the respondent, can seek the court to pass an order attaching the property, in the event of failure of maintenance by the respondent.

(b)  The petitioner cannot ask the transfer of the property in her name and court cannot grant such order.

In addition to above, if there is an apprehension in the mind of the petitioner that the attachable property would be transferred to some one else by the respondent to avoid the payment of maintenance, she can put these facts and seek the stay from the court against the third party transfer.  But, you see, it is difficult to get this relief from the family court / the court which is trying divorce case.  The better option is to file a civil suit and seek stay (temporary and permanent)  against the third party transfer of the propety of the respondent.  If the respondent does not appear as is happening in divorce case, then the petitioner can obtain ex-parte order in this case also.

wack (FM)     22 June 2010

Mr. Prabhakar Sir,

You have been extremely lucid and very helpful ... thanks. Hope you'll be available in case of further queries.

Dharmesh Manjeshwar (Advocate/Lawyer)     22 June 2010

If there is a divorce proceeding .... and the husband doesn't make an appearance despite summons being served ... then u are bound to get an ex-parte divorce .... whats the hassle ? Is the wife interested in getting divorced or interested in the husband's property .... i ask since u said divorce proceedings are on ....

Unless there is a question of maintenance or permanent alimony here ...... then there is  interest in getting the husband to appear before the court to decide on the said issue ..... But here too u are bound to get an ex-parte order ...... 

wack (FM)     22 June 2010

@Mr. Dharmesh ...


Yes, the petitioner is seeking permanent alimony but the defendent has conveniently "made himself" unemployed and has also refused to pay for the children's upkeep. That's the reason the petitioner is seeking an alimony for self and children. Is there any way by which she can successfully make him reimburse her for the amount she has spent for children & self so far?

The intention here is both divorce and alimony for the troubles endured whilst in this marriage (DV). The petitioner was forced to leave home by constant bickering and physical/mental abuse by the defendent.

Dharmesh Manjeshwar (Advocate/Lawyer)     22 June 2010

Did the Petitioner not make an application for interim maintenance ?

There is no way he can elude paying maintenance/alimony .... but the quantum sanctioned by court would certainly depend on his status and earnings ..... Petitioner has to just bring evidence before the court about his status and earnings ... if this evidence goes unchallenged because of his not appearing before the court ... Petitioner is bound to get an ex-parte order ..... and yes she can also make him reimburse the amount she has spent on the children & self so far ... 

If he does not comply/oblige the court's order ... then u have to go in for execution proceedings ....

It's really sad to see that our law is so slow ....

wack (FM)     22 June 2010

Mr. Dharmesh ..

Thanks for the quick reply ..

This petition is filed under 27(1)(d), 36 and 38 of the special marriage act. Was it the right section to file? Could 125 CrPC not have been a better choice in this case?

Counselling was conducted recently without the presence of the defendent. The next process as informed to her is to serve notice again before the possible ex-parte verdict. How long does this thing go? You are right, it's very slow and cruel towards the aggrieved party.

The main challenge here is to establish his earning status. He left job almost a year back and has chosen (apparently) to remain unemployed or has not been revealing his status.

This is unverifiable due to the meagre resources - both human and financial - available to the petitioner. Hurdle is the geographical location of both parties. That's the reason he seems to be taking chances by pushing this towards an ex-parte verdict and thereby be absolved of all responsibilities towards her and children by remaining unavailable.

The living house is the only proof of any property owned by him. Main part is to prove his earning status - whether employed or otherwise. Hence the exploration of the option of whether it can be attached. 

Dharmesh Manjeshwar (Advocate/Lawyer)     22 June 2010

Yes better option than 125 Cr. P. C. .... sections are correct .... 125 Cr. P. C. has limitations for grant of maintenance ....

Serve notices twice/thrice .... satisfy court that though being served ... the Respondent willingly chose to not appear before the court .... his defence gets striked off .......

Ur Advocate would have mentioned in your petition ... the status and earnings of ur husband .... depending on that court will grant appropriate ex-parte orders ..... U know that he is presently unemployed but there is no need for u to state that before the court ...... and there is no way that he can be absolved of all responsibilities towards his wife and children ..... I doubt u getting an attachment order from the family court now .... 




wack (FM)     22 June 2010

Thank you sir for the guidance.

Yes the advocate has clearly stated defendent's earnings but they are prior to his leaving job.

The attachment order can not be granted due to the jurisdictional limitations or is it that its not the time yet?

If, subsequent to the ex-parte verdict in own favour, the petitioner is still not able to obtain the details of defendent's whereabouts and/or employment status, what's the use of having the decree in your favour?

He seems to be aiming towards cash-strapping petitioner (who is unemployed at present and well into her savings) and make her spend to maintain self and children.

Dharmesh Manjeshwar (Advocate/Lawyer)     22 June 2010

They could be prior to leaving his job ..... but do u need to state that he has left the job ? No ...

If u do not know the whereabouts after the decree/order ... then all excercise would be futile .... 

For execution proceedings u'd need to know his whereabouts and serve him summons once again ....

It's sad to see people making fun of law .... law needs more teeth ....

wack (FM)     22 June 2010

Mr. Dharmesh ... thanks. And you are right, it doesn't need to be disclosed and definitely won't be. But the fear is what happens IF he goes absconding after ex-parte/execution verdict ...

THIS seems to be the loophole that's being exploited by some and the offenders seem to be winning the battle against the aggrieved! Can there be any other strategy? How can the sufferers get justice? Does their contribution go un-rewarded?

This way everyone can just refuse to abide the law, ignore the summons, remain unemployed for a while, go absconding once ex-parte verdict is given and get away with murder, if you like!

There has to be another way! Is there any other way? Who has jurisdiction over attachment in case the execution proceedings are initiated?



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