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Can the wife claim property after divorce?

Avik Chakravorty

When the Marriage Laws (Amendment) Bill was moved or proposed by the United Progressive Alliance (UPA) government led by Congress in 2010 in the Rajya Sabha, couples were hopeful that their exit from their troubled marriage would be easier in comparison with the legal wrangling previously. If the Bill had passed, separated couples would have been able to seek divorce under the plea that the marriage cannot be revived or the rift is irreconcilable. This Bill also alluded to getting rid of the six-month mandatory cooling period followed by a year of separation prior to couples filing for mutual consent divorce.


There were those with dogged determination opposing the move citing far-reaching negative consequences, a Parliamentary Standing Committee, suggested the addition of a new clause in the draft, that as far as property rights women can stake a claim to the property of their former husbands.


The committee was of the opinion that women with property rights staking a claim on their former husband’s property would result in monetary implication which may deter former husbands who might be misusing the provisions of the clause that the Marriage is beyond redemption. The committee also let the courts decide what ought to be the ex-wife’s share in the ex-husband’s property.

 According to the Hindu law that is currently in effect, as any property lawyer would advise, a woman can rightfully stake a claim on her ex-husband’s property only after the ex-husband passes away. As marital bonds are deemed sacred and eternal, there aren’t any strong arguments in the current property law should a couple decide to split. They qualify for maintenance only.


Any possible inheritance of the ancestral property of an ex-wife’s husband in future, as well as self-acquired property, would be excluded from the settlement. Only in the case of a jointly-owned property that an ex-wife can stake a claim while getting divorced which could be quite mind-boggling.


The owner of the property actually is the person in whose name the property has been registered. In other words, in the eyes of the law, he is the actual sole owner. If the husband’s name is on the property registration documents then he is the one and only owner. Any possible claims of the ex-wife of having contributed to purchasing the property would have to be proven in a court of law.


If the property was purchased using the ex-wife’s savings, the details of her account as proof would suffice. Alternatively, if she pays her monthly EMIs then it would be visible on her bank statement. If that is indeed the case, then the contribution made by each party would be decided by the court and the property would be divided accordingly.


In case of the property registered in the ex-wife’s name only, she would be the sole claimant of the entire property during settlement. If the ex-husband’s contribution can be proven, the court in all likelihood order partitioning of the property according to the facts presented before the court.


If in case both the ex-spouses are joint owners of the property, it would be prudent to finalize their shares according to their contribution in purchasing the property and partitioning it accordingly. The other option is selling the property and sharing the sale proceeds.

If a loan as co-applicants was taken to purchase the property the estranged couple would need to split their liabilities including loan repayment, as well. The couple may decide to offload the property or a co-applicant might want to transfer the loan in their own name and be liable to pay off the loan after buying out the share of the other party. One ought to be aware of the fact that the bank would assess or analyze the whole situation prior to permitting loan transfer to a single person as the very basis of granting the loan was that the couple was found to be eligible on the basis of combined repayment.  


For a detailed discussion with a lawyer of your choice you might want to contact Vidhikarya Legal Services where you would be connected to best lawyers. 

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