When a couple marries, they often share their property and assets. But if they decide to separate, their assets are divided. Property division can be tricky, as it involves valuable possessions, with property often being one of the biggest assets a couple owns. In India, when a marriage ends, the division of property depends on how the couple separated. The rules differ based on whether the divorce is filed, if there was mutual separation, or if the wife was abandoned. Here is a summary of women’s property rights in these scenarios. To navigate these complexities and ensure your rights are protected, consulting good divorce lawyers in bangalore can provide essential legal guidance.
Property Rights of Women After Divorce
When the Couple Files for Divorce
Under the Hindu Marriage Act, of 1955, a marriage is not considered annulled until the husband and wife legally separate by filing for divorce. If a woman divorces her husband, and the property is in his name, she has no right to claim it. However, she is entitled to maintenance to maintain her lifestyle, which should be similar to her husband’s until she remarries. Once the husband remarries, the second wife can claim a share in his property. The first wife, however, loses her right to claim any part of the property. But the children from the first marriage still have the right to a share of the father’s property.
When the Wife is Abandoned by the Husband
If a woman is abandoned by her husband without a divorce, she and her children are entitled to claim a share of his property. Even if the husband has children from another marriage, the law favors the first wife and her children. For example, if the husband owns the property, the first wife and her children (two sons) can claim a right. The children from the second marriage and the second wife can only claim a portion of the husband’s share of the property.
When the Wife Owns a Share in the Property
Sometimes, a couple buys the property together, and if they divorce, the wife has the right to stay in the property until the divorce is finalized. The husband cannot force her to leave if she is a co-owner. The wife can also claim her share of the property as a part of the divorce settlement, either before or after the divorce, and the husband is responsible for giving her that share.
When Only the Wife Wants a Divorce
In certain cases, only one spouse seeks a divorce. Such cases are known as contested divorces. Under Section 13 of the Hindu Marriage Act, 1955, the wife can file for divorce under several grounds, including:
- Cruelty: Mental or physical cruelty by the spouse can be a valid reason for divorce.
- Adultery: If the husband commits adultery, the wife can file for divorce and even charge him with a criminal offense.
- Desertion: If a spouse leaves without cause, this can be a reason for divorce.
- Conversion: If one spouse converts to a different religion after marriage, the other spouse can seek a divorce.
- Mental Disorder: If a spouse suffers from mental illness and cannot fulfill marriage duties, the other party may seek divorce.
Belongings of the Abandoned or Divorced Wife
If a woman is abandoned or divorced, she has the right to keep everything that belongs to her. This includes jewelry, insurance policies, bonds, and Fixed Deposits (FD). She also has the right to recover jewelry given to her by her family in her in-laws’ possession. If her in-laws fail to return it or mistreat her, the husband or his family can be held accountable under the Hindu Succession Act, 1956, and the Hindu Marriage Act, 1955.
Experts recommend that a woman should keep receipts and proof of all gifts given to her during marriage as evidence that the items belong to her.
The Indian government is also considering a law against Non-Resident Indians (NRIs) who abandon their wives in India. The bill would include measures to revoke their passports and prevent them from working abroad.
Stamp Duty Exemptions for Property Transfer Post-Divorce
In property transfers resulting from divorce, there is an exemption from stamp duty, a tax levied on property transactions. Usually, transferring property from joint ownership to individual ownership involves stamp duty. But in cases of divorce or judicial separation, the property division under a legal settlement is exempt from stamp duty. Individuals involved in divorce should file the necessary paperwork to benefit from this exemption.
Divorced Wife’s Share in Husband’s Ancestral Property
A divorced wife does not have a claim on her husband’s ancestral property. Only a legal heir, or coparcener, has the right to a share in ancestral property. Since the wife is not a coparcener, she cannot claim any part of the ancestral property. However, if the husband inherits the property and it is divided among the heirs, a wife may claim a right to it through a will, if the husband has made one.
Does a Wife Get 50% of the Property After Divorce?
There is a misconception that a wife gets 50% of the property after divorce. However, if the property is self-acquired by the husband, the wife is not entitled to 50% ownership. The rights depend on the nature of the property and other factors, so legal advice is recommended to understand her rights.
Can a Wife Claim Husband’s Property After His Death?
After a husband’s death, a wife’s property rights are determined by two key laws:
- Hindu Succession Act, 1956: If the husband dies without a will, the wife is entitled to an equal share of his property, along with his children. If there are no children, the wife inherits the entire property.
- Indian Succession Act, 1925: This act also entitles the wife to inherit her husband’s property, whether or not he had a will. However, the share may vary based on other heirs, the type of property, and the will’s provisions.
Women’s property rights after divorce are essential for their financial security. Legal experts can help protect these rights and ensure they receive their fair share.