Division of Property between Husband and Wife after Divorce

Aditya Pratap is a lawyer practicing in the Bombay High Court. He can be reached at aditya@adityapratap.com

Introduction of Division of property between husband and wife after divorce

Section X of the Indian Divorce Act talks about the settlement of property after divorce. The court can order the settlement of the wife’s property in the interests of the husband and the children if the cause of the dissolution of marriage is the adultery of the wife.

The court can also inquire into the existence of ante-nuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders, with reference to the application of the whole or a portion of the property settled, whether for the benefit of the husband of the wife, or of the children (if any) of the marriage, or of both children and parents, as to the Court seems fit:

Provided that the Court shall not make any order for the benefit of the parents or either of them at the expense of the children.

Provision related to Indian divorce

Under the current Hindu law, a woman gets a right on her husband’s property only after his death. Since marital bonds are considered sacrosanct and eternal in Hindu belief, there are no strong provisions in the existing law as far as property goes if a couple decides to call it quits. They are only eligible for maintenance, so to speak.

A woman’s husband’s ancestral property, which he is expected to inherit in the future, remains out of the settlement, and so does his self-acquired property. It is only in case of a joint property that a woman could claim at the time of divorce.

Joint Pain of Registered Property in a marriage

In case a property is registered in the husband’s name, he remains the sole owner of the property, and if the woman claims to have made any contribution in the purchase, she would have to prove the same in the court.

For instance, if the payment was made using the wife’s savings at the time of property purchase, her account details would be enough to prove the same. In case she is paying the monthly EMIs (in case the property is bought using a home loan), the same would reflect in her account statement. In such cases, the court would decide the contribution made by each part and divide the property accordingly.

In case the property is registered in the wife’s name only, she can claim the entire property in settlement. If the husband is able to prove his contribution, the court might order a division based on the facts.

In case the property is registered in the name of both husband and wife, it would be in their best interest to decide their share in the property based on their contribution in their purchase and divide it accordingly. Alternatively, they would sell the property and divide the proceeds.  

In case the property is bought on loan and both the parties are co-applicants, the separating couple would also have to divide their liabilities i.e. loan repayment, too. In this case, the couple might go for offloading the property or one person could get the loan transferred in their name and be responsible for the payment after buying out the other party’s share. The bank would assess the entire situation before allowing the transfer of the loan to one person since the loan was granted on the combined repayment eligibility of the couple.

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

Cases argued by Aditya Pratap can be viewed here.

Spread the word
Avatar
About Team LawZilla 76 Articles
General Account for Team LawZilla