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.

 

Marriage is a union of two people, more of sacrament in 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 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 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 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, prenuptial agreement is invalid and has no weightage in the courts of law while deciding divorce matters.

 

If you have your own doubts after reading this, find 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 wife 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 the Muslim law, Mahr is the consideration payable by husband as a symbol of respect towards his wife. Dower is the absolute right of Muslim wife.
  • 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 financially supporting 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 for several instances. If parties are not able to reach 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 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 personal income of such owner, be it the husband or wife.

 

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 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 to 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 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.

 

Inference

It is settled that Indian law respects the sacrament of marriage and promotes 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 for such property. However, the court decides matters on a case to case basis.  

 

 

 

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

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

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

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

Written By:
Ridhi Khurana

Ridhi Khurana

Gurgaon

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