What happens to joint property of husband and wife in case of divorce?

What happens to the joint property in case of Divorce? I have been a victim of Domestic Violence in my 27 years of marriage. My husband is too loud and abuses me physically and verbally and I don’t know how to react. I feel extremely helpless and I cannot tolerate it anymore. He calls me a prostitute.

We have 2 kids and I am more worried about my son. I did not take action earlier as I was worried about my son’s custody. My husband does not even have a regular income. I pay all EMI's for the house, electricity bills, etc. I take care of all expenses. He just wants my money.

What should I do?

Answers (1)

145 votes

If you are  being subjected to mental and physical cruelty by your husband we suggest you to register a complaint for mental as well as physical cruelty against your husband under Section 498 A of the Indian Penal Code at your nearest Police Station or can register a complaint at Protection of Women Against Domestic Violence Act in the Crime Against Women Cell. 

In case you wish to seek divorce from your husband, you may file a Divorce petition under Section 13 (1) of Hindu Marriage Act (assuming you are a Hindu) therein pleading the ground of cruelty under the Hindu Marriage Act.

The term cruelty has been specifically provided in Section 13 (1) (ia) of the Hindu Marriage Act 1955 which is reproduced here under :

Under Section 13 (1) (ia) the term cruelty includes mental as well as physical cruelty. Mental cruelty has been elaborated upon by the Supreme Court of India to include:

“Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.”

With respect to your other query, any property belonging to husband and wife shall be disposed off properly by the Court after the divorce has been finalized between the part.

Moreover, the easiest way to define the wife's share is to say she gets 50% of the share but in order to challenge this proportion you will have to in detail provide evidence about his total contribution in making / purchasing of this property, as mentioned above his contribution in the household expenses through his salary, his actual salary during his stay with his wife, etc all these will be taken in account while defining your husband's actual share in the property.

Kindly contact us for any further details and action.

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