Property rights of a wife after divorce in

India

Introduction 
Divorce is the legal dissolution of a marriage, which can be done in court.
Mentally, going through the process of divorce is tiresome and stressful for
both partners. Legal settlements like alimony, maintenance, and property
make the task more problematic. A couple can very well be financially stable
throughout their marriage but after separation, it can be altogether a different
story. They need to understand and be aware of the laws and procedures which
exist to figure out who gets what part in the property in order to resolve one of
the most concerning problems.

Property rights are the legal rights to obtain, possess, sell, and transfer
property, as well as the rights to receive rent, keep one’s salary, enter into
contracts, and file lawsuits. One of the most delicate issues during this time is
women’s property rights following divorce. The right of women to their
husband’s property for the purposes of a divorce property settlement relies on
a variety of factors, including how the couple became separated and the
reasons for the separation.

Property rights of a wife after

divorce if the property is in her
husband’s name
In case of mutual divorce, if the property is in the name of the husband, in the
eyes of law, the wife has no right over the property. According to the
Registration Act, 1908, the property belongs to the person under whose name

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the property has been registered. When it comes to the bank, it belongs to the
person under whose name the loan has been granted and is accountable to pay
the loan instalments. 

Even if the wife has not contributed financially to building the house, the
husband has no right to ask her to leave the house until and unless they are
lawfully divorced by a competent authority. She has the right to stay in the
house until the time their marriage is annulled by a competent authority. After
they are divorced, the wife has the right to ask for maintenance and livelihood
costs for her and her children, however, she cannot ask for the property in a
divorce settlement. 

For example: The husband buys an apartment for his wife and himself after
they get married, and it is registered in his name. The husband and wife lived
in an apartment together during their marriage. 

When a divorce is in issue, however, the wife will lose all rights to that
apartment, while the husband will maintain complete ownership.

In a bit different scenario, where the wife and husband together have bought
the apartment but it is registered under the name of the husband, the wife
cannot claim it. However, she can show her monetary assistance in buying the
property through bank statements and other proof.

Property rights of a wife after

divorce in a joint property
There are a variety of reasons why a couple purchases joint property like tax
savings, easy savings or where both contribute to purchasing the house. Where
the property is registered as joint property, the woman has the right to claim a
stake in the property in case of divorce. In line with the amount and percentage
of the contribution, the court can grant her a share as a part of the divorce
settlement. 

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For this woman’s property rights, she must produce documentation of her
contributions in order to acquire property in her husband’s name. To assert her
rights, she can provide the account statements. If the couple buys a home
together, it is considered joint ownership.  According to the Hindu Succession
Act, 1956, as a co-owner, the woman has the right to remain in the property
until the divorce is finalised and the divorce property settlement is finalised.
This has also been established by a three-judge Bench of Supreme court in the
case of Satish Ahuja v. Sneha Ahuja (2020). Here, the father-in-law of the
women filed a case for an injunction for the women to immediately leave the
house. It was contested by him that the property neither belonged to the son
nor to his daughter-in-law. Here, it was held by the Court that the woman had
the right to residence irrespective of her husband’s share in the property.

Either wife or the husband can start the process of settling their part of the
property with the one who wishes to keep it. This can be done before or during
the divorce process, and they are also liable to pay the portion based on current
market conditions.

Section 27 of the Hindu Marriage Act, 1956

This Section gives the court the authority to decide on the matters of property
which are presented jointly to the couple at the time of marriage. However, the
properties which the spouses buy during the existence of their marriage would
not be covered under this provision. 

If any one of the spouses wants to get an order under this Section, he or she
must put up an application before the proceedings of divorce are over.
However, the Court has no jurisdiction to pass an order related to any other
property owned jointly or individually. 

In case, the parties enter into a settlement agreement with regards to such
property, the court may keep a record of the same. However, a contrary view
has also been seen in the case of Kampta Prasad v. Omwati (1971) where the
Allahabad High Court established that it is not correct. 

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In the case of Satya Pal v. Sushila (1983), it was found that the application of
the wife under this Section for the purpose of recovery of jewellery and other
stuff from the husband was not maintainable. 

In Basudev v. Chhaya (1991), it was found that the wife has the right to remain
in the matrimonial home till the termination of the marriage.

Property rights of a wife if the

husband does not divorce the
wife but strands her
In the unlikely event of a husband leaving his wife and not taking divorce, the
property rights of women state that her children as well as she herself has the
right to declare share over their father’s property. In case the husband has kids
from another woman, they have the right to property proportionally. In case,
there exists property which is owned by the husband, the first wife and her
children would have the initial right over the property that is owned by their
biological father.

In this case, the father/husband becomes the property’s fourth shareholder,

and the children from the second marriage, as well as the second wife, will
claim their portion entirely from the father’s share. To obtain a full share, the
second wife should marry the guy only after the first wife’s divorce property
settlement. As a result, the second wife is treated as a legally married woman,
and she and her children can only claim women’s property rights while they are
in the relationship.

In the case of Khadal v. Hulash (1989), it was found that if one party denies the
spousal relationship or duties, it entitles the other to maintenance. According
to Section 24 of the Hindu Marriage Act (1955), claims can be made for the
personal maintenance of the one claiming the maintenance and for the
expenses incurred by them during the proceedings. The claim can only be
made when it is proved that the one claiming the amount has no means to fulfil

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their personal expense as well as the expense of proceedings of the court. Once
these facts are established, the court may pass an order to pay the claimant on
a monthly or periodic basis and a lump sum amount for the proceedings. 

Stamp duty charges on acquired

properties during divorce
There are taxes applied on the transfer of property between different parties.
For example, when properties are transferred between siblings, the taxes apply
in the same way as an open market sale. Though property transferred among
spouses is exempted from the long-term capital gains tax, there remains
another tax which is the stamp duty. Even though there are no such stamp duty
concessions when it comes to transferring property between the divorced
spouse, things are different.

They need to convert the property from their joint names to a single partner’s
name because each has a proportionate share of the money or other assets.
This type of transaction is exempt from stamp duty land tax if it occurs as a
result of judicial separation or an agreement between the parties about divorce,
nullity of the wedding, legal separation, or the dissolution of a civil partnership.
A land transaction return will be required in order to seek relief.

Property rights of a wife after

divorce in terms of movable
property
According to the Transfer of Property Act (1882) property of every description
except immovable property is known as movable property.

Stridhan

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According to the Smritikars, these are those properties that the woman is gifted
at the time of marriage. These might include jewellery, cash etc. the wife has
the right over these properties after divorce too. However, in cases where the
husband has contributed to buying these gifts, he has the right to claim his
stake after divorce.

Any property that the women acquired as a part of partition would not be
Stridhan but women’s estate as held in the case of Debi Mangal Prasad Singh
v. Mahadeo Prasad Singh by the Allahabad High Court. However, after the
Hindu Succession Act of 1956, it was declared by Section 14 of the Act that the
joint property received by partition to be an absolute property or Stridhan. As
the owner of absolute property, a woman has complete control over its
alienation, which means she may give, sell, lease, trade, mortgage, or do
whatever she wants with it.

In the case of Bhagwandeen Doobey v. Maya Baee (1869), it was held by the
Privy Council that the properties which are given to the wife by the males
would not come under the ambit of stridhan but would be known as the
women’s estate. 

It has now been established in the case of Pratibha Rani v. Suraj Kumar and
Another (1985) as to what consists of Stridhan by the Supreme Court – 

1. Gifts exchanged before the nuptial fire. 

2. Gifts presented during the wedding. 
3. Gifts presented by her mother-in-law or father-in-law as a token of
affection on the occasion of her marriage. 
4. Gifts from the moms, dads, and brothers of the women.

In Smt. Rashmi Kumar v. Mahesh Kumar Bhada (1996), it was held by the
Supreme Court of India that when a wife entrusts her husband or any other
member of the family with her property and that person willfully
misappropriated it or allows someone else to do so, he commits the offence of
Criminal Breach of Trust.  

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Investment and insurance 
The wife has no right over the investments made by his husband under his
name. She can also not claim any insurance for which payment has been made
under the name of the husband.

However, if the marriage is not dissolved legally and the couple has merely
started leaving separately, the wife can claim the insurance amount in the
unfortunate event of the husband’s death.

Property rights of a wife to

husband’s possessions before
divorce
Though now there is a clear understanding of women’s rights in case of
divorce, we need to take a look at the rights she has while she is married.

She has the right to reside in the marital home and to be given maintenance by
her husband.

If, on the other hand, the husband decides in his will to deny her the right to
his property, she will not be able to place a claim on it. 

The wife’s property rights on her husband’s property, whether movable or

immovable, are determined by a variety of criteria. Even when a couple is
divorcing, the bulk of disagreements come during the property settlement
process. At such a moment, one must be aware of one’s rights.

The Supreme Court held in the case of B.P. Achala Anand v. S. Appi Reddy
and Another (2005)  that a wife’s right to stay in the married house is
guaranteed by personal laws. A wife has the right to her husband’s assistance.
Within his house, she has the right to live and be protected. She also has the
right to separate residency if she is forced to live apart from her husband owing

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to his behaviour, his unwillingness to keep her in his own house, or other
reasonable reasons. The wife’s right to a place to live is part of her maintenance
entitlement. For the purposes of maintenance, the term “wife” includes a
divorced wife.

Another important case in this respect is Bharat Heavy Plates v. Vessels Ltd.
(1985) Here, the husband and wife along with three children used to live in the
quarter provided by the company. However, after some days the couple started
developing differences and therefore the husband left the marital home. He not
only left the home but also wrote a letter to the company to terminate his lease
agreement. The wife went to court for an injunction against their eviction from
the house. The Court considered the facts that the quarter was intended for the
employee’s use and that the husband was obligated to provide shelter for the
wife and children. The quarter had been identified by both the husband and the
corporation as the marital house, where the wife also resided. The sum of rent
was ordered to be withdrawn from the husband’s paycheck.

Conclusion
For both the husband and the woman, divorce may be a very stressful scenario.
Aside from the emotional strain, there are a number of legal issues that must
be addressed during the divorce process, which adds to the stress.

There should be provisions under the law where the court should have the
power to make arrangements and settlements with regards to properties which
are jointly owned or individual not only in favour of either party or both the
parties but also in favour of their children since they are the ones most hit by
the proceedings.

Women’s property rights have developed and evolved over time for the
betterment of the position of women in India. Especially, in countries like India
where women are mostly not working or are extremely underpaid, financial
support after divorce becomes important. Sometimes, financial restraints do
not allow a woman to get divorced and she continues living in miserable

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conditions. Hence, it becomes more important to have laws that help women
grow and become independent. But this doesn’t mean that it should be at the
expense of men being deprived of their rights. There needs to be a balance.

Frequently Answered Questions

(FAQs)
Is it possible for a woman to claim property
after a divorce?
A woman can assert her rights and contribution to the property in court during
a divorce. If the property is only in the name of the husband in such a case, a
woman is unable to obtain a portion of the property unless she can show that
she gave her share at the time of purchase.

In a joint property, what property rights do

divorced women have?
If the property is registered as a joint property of a couple that is getting
married, the wife will be entitled to claim it after the divorce process. The court
will award him his portion based on his contribution to the property.

Is it possible for a divorced wife to claim her

mother-in-law’s property? 
A wife cannot claim the ancestral property until and unless partition for the
same has been done and the husband has a portion in the same.

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