Property Division After Divorce in India

Law Family Law
30-May-2022
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Getting a divorce from an unhappy marriage is a very stressful and nerve-racking process. Matters like property division after divorce, alimony, and maintenance make it more debatable. Retaining a property is often considered a symbol of financial security and stability. However, it is a troubled area for most couples when it comes to the ambit of the division after divorce. 

Many questions and doubts come into the picture and most people are not aware of their constitutional rights regarding the same. 

Types of Ownership in matrimonial Property

Mainly, there are two models upon which matrimonial property ownership is based. 

Separate and Joint ownership are two main models around which this system revolves. 

Following are the various cases where ownership of properties varies:-

1. Separate Ownership of property by husband and wife–

As the name suggests, all the properties that are registered and bought by any of the spouses shall remain theirs even after the termination of the marriage, the other party cannot have any claim over it. This negates the tension between the couple, concerning the division of property between the two and gives an amicable settlement to the parties. 

2. Joint Ownership of property by husband and wife –

This model indicates the joint ownership of property by the husband and wife. The best thing about this model is that it considers the person's financial as well as non-financial aspects. For instance, if the husband has purchased the house and the wife has taken care of it, it will be considered her contribution and she will be given equal rights in the property after the divorce. Now, even this model has two cases where the scenarios change depending upon the situations, and they are as follows: 

← Contribution by both – If both parties have contributed to the property during the purchase of the property, then the court will divide the property over individual equity. For example, if the husband has contributed 45% share in the property and the wife has contributed 55%, then the market value of the property will be determined and it will be distributed to both of them in the same ratio. 

← Contribution by One – In this case, if only one spouse has contributed completely to the property, then the court determines the matter before allocating the property. Although there is no statutory provision for considering the non-financial contribution of a person, many judges consider that and divide the property accordingly. But again, that depends on a case-to-case basis. 

3. Immovable Property –

Ownership of immovable property depends on case to case basis which is mentioned in detail below. 

A wife cannot claim ownership of the property owned by the husband in any manner. However, a wife can claim ownership in stridhan* and can exercise her right to reside in the house of the husband. 

4. Movable Property –

Treatment of movable property depends on the title of the ownership of the movable property. All the properties go to the person in whose name it is registered except stridhan* in which a wife can solely exercise her right. 

*Whatever a woman receives during her lifetime, is considered as Stridhan. It includes all movable, immovable property, gifts, etc., that a woman receives before marriage, at the time of the marriage, during childbirth and during her widowhood.

 

What are the Property Rights of Wife after Divorce in India?

It is not an uncommon topic, to discuss the property rights of a wife after divorce in India. It is always advisable to research and know about all your property rights before filing a divorce. 

Following are the situations where the property is distributed to the wife: -

1. When property is in the name of the husband – 

During the mutual divorce procedure between a couple, if the property is registered in the husband's name, the wife typically does not have any legal claim over it. However, if the wife can provide proof such as bank statements or other valid evidence to show that she has contributed towards the purchase of the property, she may be able to make a claim for a share in the property.

2. When the Property is jointly owned – 

Nowadays, we witness many situations where the property is owned by the husband and wife jointly, for various reasons like financial advantages or tax savings, etc. In this case, when the wife owns the property jointly with her husband, the law allows her to claim division or title over it. Mostly, the claim depends on the amount contributed by the wife. The burden of proof lies on the wife to prove the extent of the contribution she gave to the property, whether in the name of the couple jointly or the husband solely. 

3. When the couple is separated but not divorced – 

As per the law, till the time the divorce between the husband and wife is not officialized, the wife and the children have all legal rights over the property of the husband. 

4. Stridhan –

Stridhan is movable property over which the wife has all claims including but not limited to jewelry, cash, cards, etc. The gifts and jewelry given to a wife during the time of her marriage constitute stridhan and post-divorce also, the wife has full claim over it. However, if the husband has contributed to it, he can claim it in court after the divorce. 

5. Investment/Insurances – 

All the investments and insurances, and payments that are made by the husbands cannot be claimed by the wife. In the event, that the divorce is not finalized and the husband and wife are merely living separately, the wife can claim it, in case the husband dies.

Section 27 of the Hindu Marriage Act, 1955

Many times, property division after divorce becomes a complex procedure for a couple, so they tend to resort to the judicial system for the division of the same. As per Section 27 of the Hindu Marriage Act, 1955, competent courts are given the power to pass an order or decree as they deem fit about the property presented before them. The property can be of any time before or after the marriage and can belong to the husband or wife or jointly. The court must divide the property in a fair and just manner.

For further clarification, it has been established multiple times that property presented to any of the spouses before the marriage is also included in the adjudication and distribution process. All the properties bought by the husband and wife in the name of each other post-marriage are presented before the court for fair and equal distribution.

Conclusion

Unfortunately, India does not have any fixed statutory provision for matrimonial distribution of the property as it largely depends on the title ownership and contribution made towards it. It is the need of the hour for the legislature to bring the law in India, clearly stating rights and ownership concerning property division after divorce in India. Wives should get equal rights in the husband's properties if they have contributed to it non-financially. In order to navigate the current legal landscape and ensure the best possible outcome, it is crucial for individuals facing property division issues after divorce to talk with divorce lawyers. Divorce lawyers can provide invaluable guidance and leverage their expertise in family law to advocate for their client's rights during the property division process.
 

 

FAQs

1. How do courts divide property between the husband and the wife in India?

Currently, there is no fixed concept of division of property in India post-divorce. Both spouses are entitled to claim maintenance after their marriage is terminated. However, the husband shall provide maintenance to the wife if she is unable to take care of herself or the children. 

2. Can a wife claim her husband’s property after divorce in India?

No, a wife cannot claim ownership of the husband’s property before or after the marriage. 

3. Who owns the property after divorce?

The person in whose name the property is registered owns the property after the divorce if they prove that they have contributed towards it solely.

Nowadays, concerns like “what are the rights of the wife to husband’s property in India?”, come across too often. 

Rest The Case helps tackle such issues by making information accessible to all and helping the clients find a lawyer based on their requirements. 

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Author Bio: Adv. Kawaljit Singh Bhatia is an Advocate in the Supreme Court of India, Delhi High Court, and various Courts and Tribunals in Delhi. Singh did his BBA LLB from Symbiosis Law School, Pune. Singh has a diverse experience of more than 14 years of working with Corporate as well as Private clients. He has the distinction of working with top-tier firms like Cyril Amarchand Mangaldas and Trilegal. He has handled various important cases like the Maggi case, the 2G case, the Delhi Electricity Tariff case, the Explosives case, etc. Singh has also worked closely with top senior counsels in the country. Singh specializes in the field of Litigation. He is also an esteemed member of the Supreme Court Bar Association, Delhi High Court Bar Association, and International Council for Jurists (U.K). Singh strives to be cost-effective, expedient, and effective in justice and legal reliefs to his clients.