Impact of divorce on joint property in India

Impact of divorce on joint property in India

At the time of divorce, couples are often confused and uncertain about the division of property held jointly by them. The problem arises because eventuality of separation is not contemplated while purchasing jointly and there is no proper documentation.

Matrimonial responsibilities are no longer a domain of any single spouse. Both have to participate equally. Joint ownership of husband and wife, in property purchased after marriage, is a common feature. There are various reasons for preferring joint ownership in property.

  • Rebate in stamp duty for women investors
  • Tax benefits associated with joint ownership
  • Loan eligibility increases and repayment process become easy

When couples decide to part away, there are many issues to be addressed and the most important being the division of joint property. 

Many times, estranged couples have approached us to find a solution to their problem of division of property. We generally advise them to decide the same with mutual consent because litigation in this regard can be quite toiling.

Division of property at the time of divorce:

1.    Division by mutual consent: Division of property held jointly, can be smooth if there is a mutual understanding among the two for:

  • Ownership
  • Equity
  • Contribution

The partners get their share as per the equity/contribution.

2.    Proof of Contributions made for the purchase of property: The person who holds the title is the owner even if the other partner has contributed the purchase money in total. The other partner has to prove the financial contributions made by him to get the due share.

3.    Self-acquired property or inherited property: The self-acquired property is not part of any settlement at the time of divorce. The property to be inherited in the future does not become part of the settlement.  If the ancestral property has been partitioned or has devolved as per succession law and husband or wife have got their shares, then such property becomes self-acquired property qua the spouses and is not subject to settlement at the time of divorce.

4.    Joint loan: If the joint property has been bought on loan payable by both, then the parties have to split their liabilities accordingly, or one partner can bear the loan amount and be compensated by other.

5.    Disposal of joint property as per Section 27 of Hindu Marriage Act: The Hindu Marriage Act, 1955 contains a provision u/s 27 of the Act, for disposal of property presented jointly to the spouses, at or about the time of marriage. Joint property purchased after marriage is outside the purview of this section. However, if the parties have reached a compromise regarding such properties, Court may record the same at the time of passing the decree.

6.    Maintenance: Right to maintenance includes right to residence also after divorce. However, the right depends upon the terms of the decree of divorce. In Hindu law, any party can apply for the grant of permanent alimony and maintenance pendent lite. 

The amount of maintenance if not paid as directed, can be recovered from the property of the person liable to pay the same.

Smooth Sailing:

  • It is always advisable to engage a lawyer and prepare the documents relating to purchase of the property taking care of all reasonably expected eventualities. Proper documentation defining the claims based on equity makes division an easy affair later.
  • Selling the property and sharing the proceeds is also an option.
  • In case the joint property is a dwelling house, one can retain the house, and other can be compensated monetarily.

Property rights of the second wife and her children

Property rights of second wife

Property rights of the second wife and her children can be studied and evaluated as rights of the second wife and her children born out of the second wedlock, in the property of their father.

Polygamy was recognised and acceptable among Hindus in ancient times. In modern India, we have a law in place, Hindu Marriage Act, 1955, which prohibits bigamy/polygamy. Wife is entitled to various rights if the marriage is valid under the Act.


Also Read: Legal Rights of a Wife


Valid marriage:

A marriage is valid under Hindu Marriage Act if it satisfies the conditions given under section 5 of Hindu Marriage Act, 1955.  One such condition is that at the time of marriage neither party has a spouse living or an existing valid marriage. If at the time of second marriage, any party has a spouse living or the earlier marriage has not been set aside by way of a decree of divorce/annulment, then such a second marriage is illegal.

Status of second marriage and rights of the second wife:

  • When the person governed by the provisions of Hindu Marriage Act, has married the second time and the second marriage is null and void, the second wife in such a situation has no right to inherit any property of her husband
  • If the second marriage is a valid marriage as per the provisions of the Act, then such a second wife has same rights in the property of her husband as that of the first wife.

The right of children of the second wife:

  • In case, the second marriage is a valid marriage, children born out of this wedlock share equally with the children of the first wife.
  • Even if the second marriage is void or voidable under the Hindu Marriage Act, the children of the second marriage are considered as legitimate children, and they have a right to inherit from the property of their father.
  • However, under section 16 of the Hindu Marriage Act, such children have a right to inherit the property of their parents alone.
  • They can inherit the property of their father, whether self-acquired or ancestral but not the ancestral joint family properties. It implies that they cannot inherit ancestral property other than the share of their father in the ancestral property.
  • The law says that the children of the second wife have equal rights as the children of the first wife on their father’s (self-acquired and ancestral) property. 

Read: Financial settlement during the divorce


The right of the second wife to maintenance:

If the second marriage was performed without disclosing the fact of existing first marriage, the second marriage is not valid. However, the second wife gets the status of a legally wedded wife only for claiming maintenance.  Children of such second marriage also have a right to maintenance.

This right has been recognised by courts while interpreting the law to advance the objective of the Act and to suppress the mischief of the second marriage (bigamy) as intended by the legislature.

 The right of second wife’s children from her previous marriage:

Even if the second marriage is valid under the Hindu Marriage Act, the children of the second wife from her last marriage have no right to inherit the property of deceased (their father from second marriage). The stepson is not included in the term “son” used in the class of heirs in Hindu Succession Act.  It can be a natural son or an adopted son.

Property rights of second wife are subject to the status of second marriage. If the second marriage is valid as per law, she enjoys equal rights in the property of her husband as the first wife has otherwise no right to inherit.

Muslim Woman’s Right to Property in India!

Muslim Woman’s Right to Property in India

In continuation of our previous newsletter Blog on Hindu women’s property rights in India, this time we are giving a perspective on the Muslim women’s property rights in India. Like we discussed earlier every religion practised in India is governed by its respective personal laws including the property rights.

In India, Muslims do not have classified property rights, and they are governed as per the two schools of the Muslim personal law – the Shia and the Hanafi.

Following are some general rules of inheritance for women as per the Muslim personal law:

  • A Muslim mother is qualified to inherit from her children if they are independent. She is likely to inherit one-sixth of her dead child’s property if her son is a father as well. In the absence of grandchildren, she would get the one-third share.
  • A Muslim daughter owns whatever asset she obtains. If she has no brother, she gets half of the share. It is legally hers to manage, control, and to dispose of the property whenever she desires.
  • She can also receive gifts from those she would inherit the property from.
  • Until a daughter is unmarried, she is eligible to stay at her parents’ house and seek subsistence.
  • In case of a divorce, the charge for maintenance reverts to the women’s parental family after approximately three months period is over.
  • However, in case her children are in a position to support her, the responsibility is on them.
  • In the event of the death of husband, a widow is entitled to one-eighth share in case they’ve children, but if there are no children, the woman will get only one-fourth share.
  • In case a husband has more than one wife, the share comes down to one-sixteenth.
  • Islamic law also provides financial security for the Muslim woman in the following ways:-
  • A Muslim wife is entitled to receive total money or property from her husband at the time of marriage.
  • The wife may inherit a higher amount of will when there are no heirs for the estate as prescribed by the law because a Muslim cannot give away more than one-third of his/her total property through a will.

Property Rights of Indian Daughters

Property Rights of Indian Daughters

The property rights for Indian daughters were different until the Hindu Succession Act, 1956, but were amended in 2005. Earlier, only the sons had complete power over the father’s property. Daughters enjoyed the property right only till they got married. After marriage, a daughter was considered a part of her husband’s family.

The Hindu Undivided Family(HUF):

Under the Hindu law, a HUF is a group including more than one person, all lineal descendants of a common predecessor/ancestor. The term HUF is applied to people of Hindu, Jain, Buddhist, or Sikh faith. Currently, the present laws keep the daughters in consideration and take care of their interests too.

What are the Laws for different faith that favors daughters in their fathers’ properties?

Daughters’ rights as per Hindu Succession Act, 2005

  • According to the above Act, every daughter, whether married or unmarried, is now considered a member of her father’s HUF.
  • She has now also obtained the right to be appointed as a manager/karta to her father’s HUF property.
  • Daughters have the same rights, duties, disabilities and liabilities that were earlier limited only to the sons.
  • However, a daughter can avail the benefits granted by the amendment only if her father passed away after 9/9 2005.
  • The daughters are now eligible to be a co-sharer mainly if the father and the daughter were alive on 9/9/ 2005.
  • Daughters have equal right to be coparceners. A coparcenary includes the eldest member of a family and three generations.. The coparceners obtain a right by birth over the coparcenary property.
  • A member of the coparcenary can further sell his /her share in the coparcenary to a third party, so can a daughter if she’s a Coparcener.
  • A daughter unlike the son can now as a coparcener have the right to demand the partition of her father’s property/business/house.

 Muslim daughters’ property right

  • Quranic/ Muslim laws of inheritance are extraordinarily specific. The Muslim Law provides the daughters with the right to maintenance and shelter in their parent’s house till the time they get married.
  • As per the Muslim law, both under sects Sunni and Shia, a daughter is entitled to succeed to the property of the parents, yet there are customs and statutes, the operation of which excludes a daughter from inheritance.
  • The Muslim customs and statutes are treated as valid and daughters as non-existent at the time of opening of the succession.

The property right of a Christian daughter

  • According to Christian Law, a daughter inherits equally irrespective of the fact whether she has siblings or not.
  • She also has the complete right to the personal property upon attaining majority.

Property law in India for daughters

Property law in India for daughters

The property laws for daughters and sons were different until the Hindu Succession Act, 1956, but were amended in 2005. Earlier, the sons had complete power over the father’s property. Daughters enjoyed the property right only till they got married. After marriage, a daughter was considered a part of her husband’s family.

Hindu Undivided Family (HUF)

Under the Hindu law, a HUF is a group including more than one person, all lineal descendants of a common predecessor/ancestor. The term HUF is supposed to apply to by people of Hindu, Jain, Buddhist, or Sikh faith. Currently, the laws keep the daughters in consideration and take care of their interests too.

Laws favouring daughters in their fathers’ properties:

Daughters’ rights in Hindu Succession Act, 2005

  • Earlier when a daughter got married, she discontinued being part of her father’s HUF which was seen by many as curtailing women’s property rights.
  • On 9/9/2005, the Hindu Succession Act, 1956, which governs the transference of property among Hindus, was altered.
  • According to the above Act, every daughter, whether married or unmarried, is now considered a member of her father’s HUF. She can even be appointed as ‘karta’/manager of father’s HUF property.
  • The amendment now provides for such laws that give daughters the same rights, duties, disabilities and liabilities that were earlier limited to sons.
  • However, a daughter can avail the benefits granted by the amendment only if her father passed away after 9/9 2005.
  • Moreover, the daughter is eligible to be a co-sharer mainly if the father and the daughter were alive on 9/9/ 2005.
  • Equal right to be coparceners
  • A coparcenary includes the eldest member of a family and three generations.
  • Earlier, it was said to include a son, father, a grandfather, and a great-grandfather.
  • Now women of the family can be a coparcener as well.
  • The coparceners obtain a right by birth over the coparcenary property.
  • A member of the coparcenary can further sell his /her share in the coparcenary to a third party.
  • A coparcener can file a suit asking partition of the coparcenary property but not a member.
  • Thus, a daughter, as a coparcener, can now demand the partition of her father’s property/business/house.

Muslim Law

Quranic laws of inheritance are extraordinarily specific. As per Muslim Law, daughters have right to maintenance and shelter in their parent’s house till they get married. Under Muslim law, both Sunni and Shia, a daughter is entitled to succeed to the property of the parents, yet there are customs and statutes, the operation of which excludes a daughter from inheritance. Such customs and statutes are treated as valid and daughters as non-existent at the time of opening of the succession.

Christian Law

According to Christian Law, a daughter inherits equally irrespective of the fact whether she has siblings or not. She also has the complete right to the personal property upon attaining majority.