Rights of wife on ancestors property of husband during divorce

928 votes

Hi,
The husband alone has the right and capacity to hold all means and property. A legal presumption about property of Hindu is that it is joint Hindu property(joint family property). Joint family property is managed by the karta or manager of the family. Joint Hindu family has no legal entity, because it has no status in absence of its members. but a coparcenary is a legal institution consisting of three generations of male heirs in the family.

All members including daughters have right in the joint Hindu family property because daughters are included in the meaning of coparcener. But mother, wife and daughter-in-law have no such right, though they are joint family members.

Section 18 of the Hindu Adoptions and Maintenance Act provides for the wife to be maintained by her husband during her lifetime. Section 19 on the other hand speaks of the right of maintenance of a widowed daughter in law by her father in law. Wife has no such right to enjoy joint Hindu property as enjoyed by the other relatives of the husband.

Wife has only one remedy to get any form of maintenance by either file a suit for partition in respect of the estate of her husband or file for divorce in order to claim maintenance. The Hindu succession Act 1956 was enacted in the 1950s, in an attempt to reform Hindu law and make it more gender just, and it was clarified that the death of a man would result in a deemed partition of his share in the joint property. This partitioned share would then be distributed equally among his children and widow. His self-acquired property would be divided equally among his sons and daughters and widow.

But the question is not the maintenance of wife but whether wife has right to get partition of her husband’s ancestral or self acquired property as a right ? In the present situation of law, wife has no such right. Hindu succession act was amended in year 2004 with a view to give share of female member of joint Hindu family in the property of joint Hindu family. But this amendment did not give precise definition of ancestral property. This amendment was based on to include daughter in the coparcenary system.

Unfortunately wife remains oust of the coparcenary system. The amendment therefore by itself cannot offer much to Hindu women. Moreover, its owner can dispose off such property during his lifetime by gift. It can be bequeath by will to anyone of his choice. A Hindu father can disinherit his wife or daughter by will, in his self-acquired property.

All women of the family including daughters and wife,are members of the Hindu joint family. They have an absolute right to be maintained out of the joint family properties. Daughters have a right to stridhan and to marriage expenses. Wife and widows have the right to be maintained for life out of joint family property.

Hindu law does not grant any rights to wives in marital property, their only chance of getting anything was on an inheritance, as equal share with the sons and daughters, if the marriage was subsisting on the death of the husband. On divorce, of course, even that right to inheritance disappears. Wife has a right only in the deceased man’s ‘‘notional’’ portion. She can’t get her part of “notional” share by partition, she has to wait until partition is claimed by sons or male member of the joint family. After the divorce wife has only one right to get maintenance out of her husband’s property if husband fails to or refuses to maintain.

Marriage laws are set to become more women-friendly with the Union Cabinet on Wednesday approving a slew of measures, including providing for sufficient compensation to wife and children from husband’s ancestral property in case of a divorce.

To put an end to prolonged legal battles in divorce cases, the Cabinet also approved a proposal that allows courts to exercise discretion in granting divorce after three years if one of the partners does not move a second ‘joint application’ for divorce with mutual consent.

The two major amendments were recommended by the Group of Ministers, headed by AK Antony, on Marriage Laws (Amendment) Bill to bring parity in laws prevailing in various states. The GoM was asked to decide whether a court can work out “sufficient compensation” for a woman from her husband’s ancestral property in case of divorce which takes place on grounds of “irretrievable breakdown of marriage.”

While the bill has a provision for share in husband’s self-acquired property, a new clause – 13F – was discussed by the GoM. It felt in case ancestral property cannot be divided, the woman should get “sufficient compensation” from her husband’s share. The compensation can be decided by court.

“A provisio 13 (b) 2 has also been added which gives judge the discretion to take ex parte decision on granting divorce if one of the two parties refuse to move a joint application. This does not mean divorce will come into effect. It means the court may grant divorce in such a situation,” an official said.

After a two year long debate, the Union Cabinet of India, chaired by Prime Minister Dr. Manmohan Singh approved the much anticipated draft bill for amendments to the Hindu Marriage Law Bill. This Bill was introduced in the Rajya Sabha in 2010 and from thereon was referred to the Parliament Standing Committee on Law and Justice and Personnel. The parliamentary panel had put forth a question mark regarding the definition of the “irretrievable breakdown of marriage” in the Hindu Marriage Act, 1955 and in the Special Marriages Act, 1954. The panel emphasized on the fact the right of the woman must be effectively protected through legal systems so as to provide women with their fair share in the matrimonial property. Prior to the amendment, property rights of the women were not protected. The inheritance rights of the adoptive children were ambiguous and there was a minimum 6 months period for reconciliation even if the couple had mutually filed for divorce. The ratified law has addressed these key issues as below:
With the priority being protections of the rights of the women, the amended bill gives the wife the right to oppose the petition for divorce filed by the husband on the grounds of irretrievable breakdown of marriage. The woman could argue that the divorce will cause her grave financial hardship and will affect the future of the children. This right to oppose however remains with the woman alone and men will not have the same right to oppose if the woman files for divorce on the same grounds.
All properties that have been purchased after the marriage are to be duly divided between husband and wife, even if the wife’s primary job has been managing household chores and children. This excludes any ancestral property that the husband may have inherited. This again aims at recognizing the rights of both working women as well as homemakers towards movable and immovable property, as well as her immense contributions towards family and child or children. In case the husband makes a decision to retain the abovementioned property, the monetary share given to the woman will be left to the discretion of the judge.
The inheritance rights will now be the same for adopted and biological children.
The amendment also states that it is up to the sitting judge to take a call on whether the divorce should be granted immediately or the statutory minimum waiting period of 6 months is to be maintained. The judge can waive the waiting period of 6-18 months if he or she is wholly convinced that reconciliation is not an option and the marriage cannot be saved.

Advocate Srinivasa Kudva LawRato

585 votes

Any property movable or immovable if it is in the name of your husband yes a wife can claim a share during the time of divorce but if it is an ancestral property and still in the names of his parents and then the wife cannot claim any share during the time of divorce

Advocate Indumathi S R LawRato