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aaliya (none)     09 May 2012

Right of wife(muslim) for residence

my client is a muslim lady she got talaq by husband we r challenging his triple talaq  ..she got RS 9000 as interim maintenance for herself n minor child order will be in the next proceeding..she wants her residence right frm her husband...although the two were staying in GOVT accommodation during marriage..the husband has his savings in a house jointly owned by his father..50%son money n 50 % fathers savings can she claim this house...the father in law already has 3 houses owned on his name..

how can she get a house..??


 5 Replies

Anjuru Chandra Sekhar (Advocate )     09 May 2012

A Hindu wife has to go through a court proceeding to get divorce, hence in the mean time she can file for residence orders under DV Act because she remains to be a wife legally (though not in spirit) till court grants a decree of divorce.  However, the divorce is guided by Muslim personal law in Muslims, and so the woman ceases to be wife the moment Talaq is pronounced by the husband.  So she ceases to be a family member, and hence she cannot claim residence under DV Act.

Adv.R.P.Chugh (Advocate/Legal Consultant (     09 May 2012

Dear Aliya,


Taking it from where Ld.Mr.Chandrashekhar left, there is no remedy under DV Act, however under the Muslim Woman ({protection of rights on divorce) Act, 1986 - in addition to right to recover dower/istridhan there is right to recieve maintenance (provision made during iddat itself) for her entire life until she remarries again. This maintenance includes Clothing,Fooding,Shelter. Children have a right to be maintained until they get major. 

Anjuru Chandra Sekhar (Advocate )     10 May 2012

@Aaliya.  The right to residence as provided by DV Act is different from the right to property.  Right to residence means having the right to dwell in the premises without having right over the property.  When you say, can she have claim over the property of her husband having 50% share of father and son, I understand that you are either asking for residence (in shared premises as mentioned in DV Act) or right over the property.  The shelter that Ld. Mr. Bharat Chugh is referring to is part of maintenance that a Muslim woman can get, which means she can stay in any rented house somewhere else using that maintenance money which perhaps contains the component of house rent as well.  However the said Muslim Woman (protection of rights on divorce) Act, 1986 does not provide for shared premises in the husband's household.


Coming to right over the property which cedes ownership on (some part of) property, according to the said Muslim Woman (protection of right on divorce) Act, 1986, Sec.3 (1)

(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to-

(d) all the properties given to her before or at the time of or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.



The phrase "properties given to her" means the right already ceded to her by way of gift settlement.  It does not include the property that is in the name of husband and father in law whose right never ceded to the Muslim woman. Hence if the property is in the name of husband and father in law, she cannot claim that property, neither for residence nor for property rights.  However in that property any moneys belonging to the Muslim woman is involved, it may be decided on merits by court.



There is a difference between rights of a Widowed Muslim woman and rights of a Divorced Muslim woman as per Muslim Law itself.  As per Muslim law, a widowed Muslim woman has a right to residence for one year, whereas a divorced woman is only eligible for maintenance. 



The Muslim woman (Protection of rights on divorce) 1986 did not take the "residence" issue into consideration like DV Act did.










Follow the instruction of Experts. I Agree

sharmilla ram (general manager)     20 May 2012

as par muslim law no.but try luck as par hindu law. most of the judges does not know muslim law.99% chance to get right to residence same house as well as they can put injection to father inlaw property.may be judge can give right to her in father inlaw property. as par muslim law even son can not claim his father property.he has full right to give any one even servant also.regarding grand father property if his father died before grandfather died than grandson has no claim anything.a man ving only daughter than daughter will not get full property from her father.this is all muslim law but in india its not try better luck.even 24 HMA also applicable for muslim lady.for man it will take year n year to proof this law is not applicable for muslim men but for the time being lady will get all benifet.

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