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Brachy   19 December 2015

Share in husband's residential property

Dear experts,  I am the petitioner in the contested divorce. Want to know if wife has a right to claim 50% share in husband's property bought before marriage through own money. I am aware that there was a huge uproar when the marriage laws were amended in 2013/2014 with wife getting an equal share in husband's property acquired before or after marriage, but not sure if this was really passed in the bill. Hearing diferent views on different forums. If wife has a right to the property, can i safeguard it by transfering(gifting) it to one of the family members. How will the court perceive this.

 

 

 



 5 Replies

prabhakar advocate (advocate)     19 December 2015

The bill has not been passed in Lok Sabha and there is no likelihood that the bill would pass.

saravanan s (legal advisor)     19 December 2015

No claim can be made on the husbands property after divorce unless it is jointly owned with the wife

SAINATH DEVALLA (LEGAL CONSULTANT)     19 December 2015

DOES A WIFE HAVE SHARE IN HUSBAND’S PROPERTY?

The Hindu Marriage Act 1955 provided for the maintenance during the pendency of any proceedings under the Act as well Permanent Alimony and maintenance on the finalization of the any matter where a decree if passed. Hindu Marriage Act, 1955 gives right to claim the above mentioned financial relief to both husband as well wife depending on their own income and that of the other party as well the property held by both from which there may be income incurring to them.

The Hindu Marriage Act, 1955 also provide for settlement of property jointly owned by both parties which they were presented to them at the time of marriage.

The Hindu Succession Act, 1956 provides for one share of the self acquired property of the husband to the wife as his widow that is after his death not during his lifetime and this too with a condition that the Hindu husband dies intestate that is without leaving a Will.

The Hindu Adoption and Maintenance Act, 1956 also provides for the Hindu wife to claim monthly maintenance from her husband if she has no source of income for herself to maintain herself.

Section 125 of the Criminal Procedure Code provides for monthly maintenance to wives (irrespective of their religion) from their husband if they have no source of income or mean to maintain themselves.

The Wife can seek not only right to monthly maintenance against the husband but even enforce her right to residence against him under the Protection of women from domestic violence Act,2005.

The right of wife is for monthly maintenance, permanent alimony and maintenance and right to residence against her living husband, she has no right to claim any share in any of the properties of her husband during his lifetime and even after his death she gets one share only whereas all the sons and daughters of the Hindu male also get one share each, as his mother too can claim one share, all this only if this Hindu male dies intestate without making any testamentary document devolving his whole property to someone else. No half share to Hindu wife out of her husband’s property during his lifetime or even after his death unless other class 1 heir of this Hindu is living.

“As per new Divorce law, Wife share in property would be 50% in all her husband’s residential properties, no matter what and in other properties, her share will be decided as per the court decision.”
Wife share in property owned by husband would be 50%
Earlier, before this change – a woman was entitled for a share in husband’s properties, but there was no quantum defined as per law, it would be any percentage depending on the case, but now with this suggested change, women will enjoy equal sharing without any condition in all the residential properties owned by husband. But in this case, women will have to specifically apply for her share, she should be aware about this law about “50% share”.

A major change in this amendment is that this rule is applicable to all the properties of the husband acquired before and after the marriage, whereas as the earlier law made sure that the wife gets share only in those properties which are acquired by husband only after marriage. Now men stand to lose on these front, in-case things go sour with wife.

Husband & Wife joint holder’s in a residential property

You should be clear by now, what will happen in the case where a property is registered in the joint names of husband and wife. A lot of couple register a house in joint names, a lot of times both pay’s from their respective salaries, and in some cases only one party pays (generally husband). Imagine divorce happens – Who will get how much? Women will keep her 50% part and she will also get half of her husband share in the house, so 75% wife and 25% husband.

Rights of women after divorce on other properties in India?

Apart from the mandatory 50% share in husband’s residential properties, the wife will also be entitled to get a share in other kind of properties, but the quantum is not set, as per the Bill, it will depend on “living standard of the wife”

Waiver of six months cooling period possible.

As per the old Indian law which governed the division of assets for women after divorce, it was mandatory for husband and wife to spend at-least 6 months together before applying for divorce, but with this new amendment bill, there are provisions of waiving off the 6 months cool off period or lessen it, but only if both husband and wife want it. Which means if one of the spouse wants to get divorce on an “urgent basis”, but other does not, it will not be possible. This is one of the major changes in the bill and will help those couples who do not want to serve that “6 months” cool off period of living together.

Is this a anti-male law?

A lot of groups have termed this change as anti-marriage and ant-male law and critically oppose it, they have termed it as a bill totally against males and illogical. The major issues with the amendment are as follows:

• The bill talks about only the division of Husband Properties, but not wife’s properties. So in-case women is at fault, still she will get 50% share in husband’s property, but her share of property will not be divided.
• A major disappointment for men in this bill is that, even the “person at fault” can apply for getting the share of property, and the other party will have to respond to it. Generally as per old law’s when mutual consent was not there, the victim applies for the property share and the person who is the “bad person” has to respond to it. Now with his law change, wife can seek a divorce and ask for share in property.
• If wife and husband are living apart from many years, a wife can oppose the divorce on the grounds of financial hardship, but men can not! . This is called Irretrievable breakdown of marriage.
• There are concerns raised like this law will encourage more divorce’s as women can get hold of property easily for sure.

Now there are some serious concerns due to these changes. If a husband has one residential properties, old parents who are financially dependent on him and there is divorce between husband and wife, the wife could take 50% share, in which case the men will be left with 50% property, this seems very unjustified. What is the women already owned 2 more properties on her name? She has nothing to worry! .

One serious drawback of this law is that some men, who are undergoing a bad phase of marriage, may convert their residential properties into immovable assets, or just transfer it on other names to save themselves from parting away with 50% share in worst case.

Conclusion

While there are cases where women are deprived of their share in wealth at the time of divorce in India and there was requirement of strong laws which focuses on rights of women in case of divorce in India, this amendment seems to have gone beyond what it wanted and has loopholes which can be exploited by women. With due respect to each gender, it would be great if there would have been some balanced law, and some thought should have gone for worst cases.
To summarize things, here are the take away from the changes made in marriage law’s.
• In case of divorce, Woman will have 50% share in the residential property of a man
• The wife will have to take the initiative of seeking her share in such cases.
• Women and children will also have rights in the other assets of man, which will be decided by court
• It does not matter if the property was acquired by before or after the marriage
What do you think about this amendment? Do you also feel it’s too anti-male but only designed keeping women in mind? Do you feel its correct to keep 50% share for wife in husband’s property in case of divorce as per law in India? Note that the bill still needs to be passed and right now only the cabinet has passed the changes. It is yet to become a law after getting passed in both houses.

 

Brachy   20 December 2015

Many thanks for the prompt response. I'm relieved to know that the law was not passed in the upper house. Since I own this property solely, to reduce my burden during the alimony stage, will it be a good idea to gift the property to one my relatives. Kindly advice.

jack (nothing)     30 December 2015

I think for alimony calculation propery will be counted.that is the reason he is asking advice on gifting to relatives.

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