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Rahul   18 June 2021

Property rights of wife and child during ongoing divorce?

Dear Respected Lawyers,

 

During this pandemic and lockdowns, its difficult to meet the layer and discuss this in person, and hence requesting for your assistance.

 

BACKGROUND: -

  • Hindu Marriage in 2007
  • Son was born, out of wedlock in 2008.
  • Husband/Myself, handicap due to accident, so wife left in 2009.
  • Wife never let husband or husbands side of family to see his son.
  • Husband filed for divorce in 2011.
  • Husband unemployed due to handicap status. Whereas, wife is software Engineer, and earns Rs. 82,000 / month. And has a flat in Powai-Mumbai worth 5.75 Crores.

 

Suddenly after filing for divorce from husband, wife applied for DV, 498A, Harassment cases, as well as CrPC  125, to extract money. In spite of being unemployed, court ordered husband to pay interim maintenance for son Rs. 7000/month.

 

QUESTIONS:-

  • Just because wife is earning and her maintenance was rejected, she filed for a property partition case on her husband, husbands brother ,sisters, and husbands mother. Does she has any claim on husbands property or husbands ancestral property?
  • Husband father died in 2005, well before the marriage, so fathers property was distributed among husband, mother, brother & sister. From what I understand, in this case the ANCESTERAL PROPERTY, becomes SELF-ACQUIRED PROPERTY? Right? Can wife and son put a claim on that?
  • While filing for divorce, husband transferred his plot in mothers name, just to be on safer side. Can wife or son put any claims on that?
  • Husband was in UK until his accident, mother was in Goa, brother is working and settled in Mumbai, sister is working and settled in Belgaum-Karnataka. We have all been living in separate places, but wife has put a claims for a partition suit under HUF – HINDU UN-DIVIDED FAMILY? Are wife’s or minor sons claims valid under HUF, when we all lived in different cities even before marriage?
  • IMPORTANT: While selling a plot, bank official said they see : NOTICE OF LEASE PENDING on the plot. What is that? Is it the same as SEARCH REPORT?
  • NOTICE OF LEASE PENDING is not the STAY ORDER from the court ……….right? what is it? Is it a part of SEARCH REPORT?

 

Any help with the questions would be greatly appreciated. God bless you all.



 4 Replies

P. Venu (Advocate)     19 June 2021

You have got the facts wrong, it appears. It could be that the maintenance is awarded for the child.

As regards to partition suit,  HUF is not necessarily ancestral property. No claim lies for the son, if the property is not ancestral. No definite suggestion is possible unless the documents are seen and facts discussed. Anyhow, the ancestral property which has not been partitioned four generations and in common possession.

It appears that the Notice is for LIS PENDENS (The doctrine of lis pendens literally means “pending suit,” and lis pendens notices are the machinery whereby a party with an unrecorded or unperfected claim to real property can put third persons interested in the property on notice of the claim or interest) and not LEASE PENDING. 

If the property is not ancestral, there is no cause of action  for the partition suit, hence could be got rejected.

1 Like

Vasundhara Singh (Student)     19 June 2021

I would like to answer your questions one by one.  

  1. If the property is undivided and is treated as ancestral property, then after partition also it will be distributed among the heirs in the family. The wife has no right to claim any share in the ancestral property nor she can claim anything on husbands self-acquired on inherited property. Therefore, your wife has no right to claim a share in the said property.  

  1. Once the ancestral property is divided, it becomes the self-acquired property of every heir. Since the partition took place in your family, the property becomes your self-acquired property and therefore neither you nor your son has the right to claim share on such property. It can only be disposed of according to your will.  

  1. After transferring property to your mother, she has become the legal owner of the property and it becomes her self-acquired property and your wife cannot claim it in any way.  

  1. If all the family members of your family were living in a different parts of the country having a joint property in one place, such property cannot be called under Hindu United Family as the family is not staying together. Since it is not HUF, the wife cannot claim it and even if it is proved to be HUF, the wife still cannot ask for share as she is not a coparcenar.  

Regards  

Vasundhara Singh  

1 Like

Dr J C Vashista (Lawyer)     20 June 2021

What is the opinion and advise of the lawyer engaged / paid by you, who is an able, competent and intelligent enough to satisfy your queries as s/he is well aware about facts and circumstances of the case ???

Why do you need second opinion and obligation of experts on this platform on the basis of limited facts posted by you, except the fact it is available FREE OF COST ??

1 Like

T. Kalaiselvan, Advocate (Advocate)     20 June 2021

The wife's partition suit against her husband or his relatives is not maintainable in law for any reason, because she is not entitled to any share in the proeprty as a right at least not during her husband's lifetime.

The proeprty of the deceased father of the husband is not ancestral even in the hands of his son.

It devolved on the legal heirs of the deceased person. The son or his wife are not the legal heirs of his deceased father since the husband is alive.  Hence his wife cannot claim any share in that property even on behalf of her son representing herself to be his guardian.

 

Neither the wife nor his son can claim the property or any share in it which was transferred by the husband to his mother's name.

The property left behind by his deceased father which subsequently devolved equally on all his own legal heirs cannot be termed as HUF property, hence her claim on that basis is not maintainable.

 

 

 

 

1 Like

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