Property Distribution After Divorce in India

Posted On : February 28, 2022
Property Distribution After Divorce in India
Divorce is a tough patch in anyone's life. People have numerous queries related to the after-effects of divorce. Many people have doubts regarding property distribution after divorce in India. Property rights of wife after divorce in India have been explained here.
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Divorce is a tough patch in anyone's life. People have numerous queries related to the after-effects of divorce. Many people have doubts regarding property distribution after divorce in India. Property rights of the wife after divorce in India have been explained here.


Marriage is a union of two people, more of a sacrament in the case of a country of culture like India. The institution of marriage brings its own set of rights and liabilities for each one of the spouses. However, when such a marriage breaks, the liabilities are also supposed to find their dead end. Among other difficulties of a collapsing phase of life, property distribution after divorce is another tiresome task. It is better if the husband and wife can resolve the matter amicably. However, there are times when courts have to play their part to save the interest of the husband as well as the property rights of the wife after divorce in India.


Divorce and its Consequences

Marriage is the prerequisite of divorce, which signifies the union of two souls. However, when these two souls can not stand each other’s company, they seek divorce. It leads to an end to the title of ‘husband’ and ‘wife’ and their liabilities to each other. The process includes delineating the liabilities and results in the division of valuable assets as well.


Prenuptial Agreement in India

‘Pre’ means before and ‘nuptial’ means relating to marriage. Hence, a prenuptial agreement may be understood as the terms agreed upon by the husband and wife before solemnizing their marriage. Such terms usually constitute how the husband and wife will proceed with the divorce, if so happens, including the terms for division of property. In India, a prenuptial agreement is invalid and has no weightage in the courts of law while deciding divorce matters.


If you have your doubts after reading this, find a divorce lawyer in Kolkata.


Property Rights of Wife After Divorce in India

In our society, especially the typical Indian households, men are accounted for financial support while women are supposed to do the household chores, that is how a typical house runs. But due to whatever reasons, when brakes are applied to such a household, the wife is said to lose social as well as financial dignity. Therefore, to save such wives from a pathetic situation, the law supports women financially through certain provisions as given below:

  • Streedhan - The wife is entitled to retain all the valuable properties gifted to her at the time of marriage. Wife holds absolute rights[1] over the gifts received by her before, during and after the course of marriage through her family, her in-laws, her own or husband’s friends, etc. 
  • Mahr/ Dower - Even under Muslim law, Mahr is the consideration payable by the husband as a symbol of respect towards his wife. Dower is the absolute right of a Muslim wife. The amount of Mahr is agreed upon at the time of marriage.
  • Maintenance - During marriage as well as at the time of divorce proceedings, a husband is liable to maintain his wife by paying a certain amount of financial support to her. The same has been recognized under Indian criminal laws[2] as well.
  • Alimony – The law obliges parties to a marriage with alimony or spouse support after divorce. It may be a one-time amount or a monthly financial support, as the court may decide. It may be noted that property distribution after divorce does not include alimony.


Property Distribution After Divorce in India

The distribution of property in case of divorce may vary in several instances. If parties are not able to reach a consensus while deciding the distribution, courts have to step in. Courts[3] consider several factors while deciding the property distribution after divorce.


Separate Ownership

In the case of self-acquired property of any of the spouses, the other party does not have any right over such property. The main aspect to be proved here is that the person is the absolute owner of the property and payment for such property has been made through the personal income of such owner, be it the husband or wife. It must be noted that the burden of proving such ownership lies on the claimant.


Joint Ownership

In case the property is owned jointly by husband and wife, such property or the proceeds have to be divided in half. But, if there is evidence to support the ratio of payment made by the parties, then the proceeds from such property are divided in accordance with the investment made by the parties. For example, if a husband contributed 75% while the wife contributed 25% of finances while buying an immovable property, the proceeds are also supposed to be shared in 75:25, i.e., 3:1.


Benami Transaction

In India, it is normal to buy a property in the name of the wife out of a trustworthy relationship while the husband pays the wholesome amount. In such cases, the wife is the real owner of such property because such property falls within the ambit of Section 4 of the Benami Property Transactions Act, 1988. However, if the husband can prove the known source of payment[4] in pursuance of buying such property, he can still claim his right over the ownership of land in such a case.



Ancestral Property

In India, the society is family-oriented at its very foundation. Marriage as well as birth give rise to several rights for the parties involved including financial rights. The question here arises as to whether a daughter-in-law is entitled to any share in the ancestral property of her husband. The answer here is negative because interest in the ancestral property is accessed through birth and not marriage. Hence, property distribution after divorce in India does not grant any right to the ex-daughter-in-law in the ancestral property.



It is settled that Indian law respects the sacrament of marriage and promotes the financial security of the spouses through provisions like maintenance and alimony. With the above-mentioned legal concepts, one can conclude that property distribution after divorce is more dependent upon who contributed more to such property. However, the court decides matters on a case-to-case basis.  



1. How is property distributed after divorce?

Ans: If the husband and wife jointly own property, the property or proceeds must be divided in half. However, if there is proof to substantiate the parties' payment ratio, the proceeds from such property are shared in accordance with the parties' investment.

2. Does the wife get 50% property after divorce?

Ans: Yes, only during the pendency of the divorce not after the divorce. For example- if the husband and wife jointly own and pay for the property and if the wife is separated or abandoned by the husband, she can claim her share from the husband's share, in addition to the 50% share in her name.  She also has the right to remain in the house until the divorce is finalized.

3. What are the property rights of the wife after divorce?

Ans: The wife becomes the sole owner of everything she has, including her jewellery, insurance policy, bonds, and Fixed Deposits (FD). She also has the right to retrieve the jewellery that was presented to her by her family and is now in the possession of her in-laws.

4. Can my husband claim my property after divorce?

Ans: No. If the property is in the husband's name but the wife paid for it: The husband can claim it unless the wife can establish that she contributed to the property's purchase, in which case she can stake a claim in the property.


[1] Section 14 of Hindu Succession Act, 1956.

[2] Section 125 of Code of Criminal Procedures, 1973.

[3] Courts are empowered to decide upon the disposal of matrimonial property as per Section 27 of the Hindu Marriage Act, 1955.

[4] Debika Chakraborty vs Pradip Chakraborty, S.A. 577 of 2008.


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According to the petitioner, this was illegal inasmuch as while only Rs. 8,000/-per annum were charged to the members occupying the residential flats Rs. 32,000/- per annum were sought to be recovered from her by way of society charges/maintenance which was highly discriminatory. As the petitioner's grievance was not addressed to she stopped making payment to the society. The society thereafter made an application for recovery of arrears of the dues with interest from the petitioner to the Asstt. Registrar of Co-operative Societies under Section 101 of the Maharashtra Co-operative Societies Act, 1961(for short 'the Act'). The petitioner opposed the said application contending that the payment was withheld on account of excessive demand. She also contended that was liable to pay to interest. On 23rd December 2002, the Asstt. Registrar issued a certificate of recovery in favour of the respondent No. 1 society in the amount claimed by it. Aggrieved petitioner challenged the recovery certificate by filing a revision before the Divisional Joint Registrar. By an order dated 7th December, 2004, the Divisional Joint Registrar dismissed the revision application. That order is impugned in this petition. 3. Learned counsel for the petitioner submits that while the society was issuing bills by way of society charges/maintenance charges at the rate of Rs. 8,000/- p.a. (Rs. 2,000/- per quarter) to each of the flat holder members, it was wrongly issuing the bills in the sum of Rs. 32,000/- p.a. (Rs. 8,000/- per quarter) to the petitioner in respect of the shop premises. She submits that no additional service whatsoever was provided by the respondent No. 1 society to the petitioner or to the shop allotted to the petitioner nor was any additional amount spent for the maintenance of the shop and therefore the society was not entitled to treat the petitioner differently from other members. Learned counsel for the society submits that the sum of Rs. 32,000/- per annum consisted of two parts viz. Rs. 16,000/- for society charges/maintenance charges and a sum of Rs. 16,000/- as non-occupation charges. As regards the charges for society charges/maintenance charges, he submits that a resolution has been passed by the general body of the society in its meeting dated 1st July, 2001 authorising the society to levy society charges/maintenance charges in respect of the commercial premises at twice the rate of charges for the residential premises and therefore the society was entitled to recover Rs. 16,000/- per annum instead of Rs. 8,000/- p.a. in respect of shop premises occupied by the petitioner. As regards the non-occupation charges of Rs. 16,000/- the counsel submits that the petitioner was not personally occupying the shop but had let it out and therefore the society was entitled to non-occupation charges under the bye laws of the society. 4. In view of the rival submissions of the parties, two points arise for my consideration. i)Whether under the Act, Rules or bye-laws the society is entitled to recover society charges/maintenance for commercial premises at twice the rate charged for the residential premises? ii) Whether the society is entitled in law to recover non-occupation charges as claimed by it? Regarding Point No. 1. 5. Learned counsel for the petitioner submits that total number of members in the society are 29 out of which 28 persons occupy the residential premises and only the petitioner occupies one non residential unit. Therefore the residential flat holders have a brute majority in the society and petitioner's lone voice is not heard. Taking advantage of the brute majority the flat holders want to subsidise the charges for the maintenance of their flats by recovering higher maintenance charges from her - the holder of a commercial premises. The society has no authority in law to treat the members differently and levy the charges for the commercial premises at a rate twice the rate of the residential premises. Though the area of the shop is much smaller than the area of the smallest residential flat, the petitioner never objected for paying the society charges/maintenance at the same rate as that of the residential flat-holders. There should be equality in sharing of the burden of expenses for maintenance and common expenses which are recovered by the society as service charges or maintenance charges. They should be recovered equitably and equally from all the members. In support of these submissions learned counsel for the petitioner relies upon the decision of this Court in Venus Co-operative Housing Society Ltd. v. Dr. J.Y. Detwani reported in 2004(5) Mh.L.J. 197 = 2003(3) All. M.R. 570. 6. In case of Venus Co-operative Housing Society the flats of different sizes, 284 small flats with two bedrooms and 39 large flats with four bedrooms. The society passed a resolution levying the different maintenance charges as per the area of the flats and issued a circular to that effect to members. Disputants who were the holders of the larger flats challenged the circular as also the resolution by filing a dispute under Section 91 of the Act before a co-operative Court. The co-operative Court declared the resolution of the society to be illegal and not binding on the disputants. The decision of the co-operative Court was confirmed by the appellate tribunal. The order was impugned by the society by way of a Writ Petition. This Court held that the resolution of the society levying differential charges on the basis of the area of the flats was arbitrary, unreasonable, without any rational and without any source of power. It held that services of the society were enjoyed by all the members equally and there was no reason for the society to make the large flat holders pay more on the basis of the area of the flats. It held that though the supremacy of the general body cannot be doubted, even the supreme general body had to pass resolutions considering all facts and circumstances of the matter. The general body cannot pass arbitrary and unreasonable resolutions merely because it is supreme and it has a large majority in favour of any issue on the agenda. 7. In the present case the society is recovering differential amounts by way of a property tax on the basis of the area of the flats at the rate of 30.81 per sq. ft. per annum of the area. That has rightly not been challenged by the petitioner, as the property tax payable to Municipal authority would obviously vary according to the area of a flat. However, so far as the charges for the society services or maintenance are concerned, no material was adduced before the Asstt. Registrar to show that any additional services were provided to the petitioner or any additional maintainence was incurred by the Society on account of petitioner being a holder of commercial premises. In the affidavit in reply filed in this Court also, it is not even be alleged that any additional services are provided to the petitioner by reason of her being the holder of commercial premises. In my view, the society was not entitled to levy society charges/maintenance charges for commercial premises at twice the rate that of a residential premises. I am in respectful agreement with the view expressed by this Court in Venus Cooperative Housing Society v. J.Y. Detwani (supra) in this respect. Regarding point No. 2. 8. Learned counsel for the society submits that under bye-law No. 45 of the bye-laws of the Society, a member is required to take previous permission of the managing committee before letting out and giving or giving on leave and licence basis or caretaker basis his premises or any part thereof. Clause (2) of bye-law No. 45 provides that no member shall be permitted to sub-let or give on leave and licence based or caretaker basis any part of the premises unless he makes an application in the prescribed format and in the application gives an undertaking that he would pay non-occupancy charges to the society at such rate as is decided in the meeting of the general body of the society. He therefore submits that the Society was entitled to levy non-occupancy charges of Rs. 16,000/- per month as claimed by it. 9. Learned counsel for the petitioner submits that in the bills issued by the society, it has not claimed any non-occupancy charges but had claimed the entire amount is claimed as society charges/maintenance charges and there is no basis for the contention that Rs. 32,000/- were divided into two parts viz. Rs. 16,000/-as society charges and Rs. 16,000/- as non-occupancy charges. He further challenges the validity of the bye-law and in any event submits that the charges were not claimed on the basis of this bye-law. He further submits that in any event as per the order dated 1st August, 2001, issued by the Government by virtue the powers conferred on it under Section 79-A of the Act, the Government has directed that the non-occupation charges cannot exceed 10% of the service charges. The learned counsel, therefore, submits that the service charges could not be 100% of the society charges and would have to be restricted to 10% of the service charges/maintenance charges. 10. I have perused the copy of the application made by the respondent No. 1 society to the Registrar for issuance of a certificate under Section 101 of the Act. In the said application, the society has not claimed non-occupation charges at all but has claimed the amount under two heads i.e. society maintenance charges and service charges. Thus, the contention of the learned counsel for the petitioner that Rs. 16,000/- per annum represent non-occupation charges is not borne out from facts pleaded in the application. Assuming the bye-law No. 45 to be valid it says that the society is required to fix the non-occupancy charges in the meeting of the general body. There is no pleading and there is no material on record to show that the general body meeting, the society had resolved to levy any non-occupancy charges. The directions issued by the Government under Section 79-A of the Act are binding on the society and their validity is not challenged before me. Under the said directions non-occupation charges cannot be levied at a rate more than 10% of the service charges. In law, non-occupation charges would mean charges for not personally occupying the premises i.e. either keeping the premises unused or locked or letting out or giving on license the premises. In view of the Government order issued under Section 79-A of the Act the non-occupation cannot exceed 10% of the maintenance charges applicable to the concerned flat/unit. The society was therefore not entitled to recover the charges as claimed by it in the recovery certificate. 11. Neither of the authorities below appear to have applied their mind to these aspects. In the circumstances, their adjudication has to be set aside and is accordingly set aside and the matter is remanded back to the Asstt. Registrar for deciding it afresh in the light of the observations made by this Court. 12. Rule is made absolute to the extent mentioned above.