Inheritance after Divorce in India

The institution of marriage, in a culture-rich country like India, is a sacred union. Alongside new relations and new reasons for joy, it also creates its own set of rights and liabilities for the couple. But, the path of severing this knot is filled with legal complexities which makes the process a draining and tiresome journey. Because of the legal settlement regarding the division of property, alimony, and maintenance, this intricate process becomes even more challenging for either of the divorcing couples. This pivotal chapter of the divorce has the potential to transform the entire financial dynamics of the spouses. Therefore, it is crucial for such spouses to be aware of the existing laws and procedures to settle down the issues, fairly and reasonably. This article will shed light on the problems faced by divorcing spouses to get an inheritance after divorce in India, while mainly focusing on the property rights of women.

Understanding of Ancestral Property

The ancestral property simply means property inherited from the father, grandfather, or even great-grandfather, and so on. This notion is the genesis of the concept of inheriting property and the rightful claim over such property. Ancestral property, under Hindu law, holds a unique significance as it is passed down through generations in a Hindu Undivided Family (HUF) and is jointly owned by all the members of the HUF. But, how is it any different from self-acquired property?

An Important Distinction: Self-Acquired Property vs. Ancestral Property

The claim over a property depends upon the nature of such property. Therefore, now that we have an idea about the ancestral property, we must have an understanding that how it differs from a self-acquired property before we proceed to explore the claims of different individuals in such an ancestral property after divorce.
Self-acquired property: Any movable or Immovable property acquired independently by any individual which is not the property passed down or inherited by the ancestors is said to be a Self-acquired property. The individual enjoys full ownership and control over such self-acquired property.
Ancestral property: Any movable or immovable property, inherited from the ancestors, of an individual. Such properties transverse generations within the Hindu Undivided Family (HUF). Unlike in Self-acquired property, the right to ancestral property is gained by birth, subject to the codified law governing its ownership and distribution.
 

Wife's Claim on Husband's Ancestral Property After Divorce?

The right of a wife over her husband's Ancestral Property does not exist. As per the Hindu Succession Act, of 1956, only coparceners of Hindu joint families (Mitakshra) can inherit the ancestral property, and neither the wife is a coparcener in her husband's joint family, nor she is eligible to inherit any such property. Although, Property rights may also differ according to personal laws.
Section 8 of the Hindu Succession Act, of 1956, classifies a wife as a class 1 heir which means that in the case where the husband has inherited ancestral property then the wife can claim the husband's separate property if he dies. But this doesn&rsquo t include the divorced wife of a person. Upon such divorce, the rights of a wife are limited to certain other aspects which we will come to know as we progress in this article.
 

Property Rights of a Wife After Divorce If the Property Is in Her Husband's Name

After the finalization of a divorce, it's important to understand that a wife's claim over a property registered solely in her husband's name becomes legally restricted. According to the law, the individual in whose name the property is registered holds the rightful ownership. If the wife claims to have contributed in the purchase of a property but has her name not registered, then no claim arises on such property.
However, a wife does have the right to reside in the matrimonial home, till the divorce is authorized by a competent authority. The fact that she has no contribution in the purchase of such property doesn&rsquo t effect this righ. Therefore, the husband cannot compel his wife to vacate the premises prior to the divorce being finalized.

Property Rights of a Wife After Divorce in a Joint Property

The woman can claim her share in the property during the divorce proceedings, If the spouses have their properties, registered jointly. Owning properties jointly has become a popular choice for couples in recent times, where such a property is registered under the name of both husband and wife. This not only recognizes the individualistic share of spouses, but it also ensures that at the time of divorce, the Court recognizes such claim made over such jointly owned property and awards the share in such property. The Hindu Succession Act, of 1956, also allows a wife to co-own, retain and maintain her right to the property until the divorce is completed and the settlement of property is done.

A simple process for a wife to claim what&rsquo s rightfully Her&rsquo s is:

•   Present the documents showing her contributions or share in such property.

•   Provide the account statements.

Section 27 of the Hindu Marriage Act, 1955

Under this section, the Courts are provided with the discretion to decide upon the matters of the property presented to the spouses jointly at the time of marriage. However, this provision also excludes any such property which is bought by the couples individually or jointly during their marriage.

Stamp Duty Charges on Acquired Properties During Divorce

The settlement of property among the divorcing spouses might require several transfers, but is there any concession on the stamp duty imposed on such transfers? There are stamp duties that are chargeable on the transfer of ownership between divorcing spouses. However, such stamp duty might not be levied if the transfer has resulted from judicial separation or divorce by mutual consent or the annulment of marriage. Such relief can only be claimed under these situations and the spouses must produce land transaction returns to avail it.

Property rights of a wife if the husband does not divorce the wife but strands her

In an event where a spouse deserts his wife without divorcing her, the law provides her and her children the right to claim their share of the husband's property. The law favours the wife and the children of the rightful marriage in a case where a man has children and a wife from another wedlock. Consequently, the wife and children of such an individual can claim their rights over the property that such an individual possesses.
Under these circumstances, the father or husband can become the fourth owner of the property where the children from the second marriage, alongside the second wife, will only receive their stack from the father's share of the property.
Despite this protection, the wife should make sure that the person, she is marrying has his divorce settlement completed from his first wife and that her marriage is legally binding.

Section 24 of the Hindu Marriage Act of 1955

The lengthy and tiresome process that the divorce is, it also might cause financial hardship. So, Is there any provision that provides such expenses? Yes, there do exist such provisions. Once such provision is given under Section 24 of the Hindu Marriage Act, of 1955, provides that the claim can be made not only in respect to personal maintenance but also for the expenses suffered by women during the proceedings.
It is crucial to know that such a claim should have proper evidentiary backing as the relief under this section can only be awarded when it is proved that the woman has no means to meet her day-to-day expenses as well as the expenses of the court.

Property Rights of a Wife After Divorce in Terms of Movable Property

When it comes to movable property, which includes everything except immovable assets, the Transfer of Property Act of 1882 comes into play.
Stridhan: The Treasures from Matrimony
Stridhan, representing gifts received by the wife during her wedding, falls within the category of movable property. Even post-divorce, she retains her rightful claim to Stridhan. However, if the husband has contributed financially to these gifts, he may seek a portion of them after the divorce.
The Supreme Court has clarified the components of Stridhan:

• Gifts are exchanged before the wedding ceremony.

• Gifts are bestowed during the wedding festivities.

• Tokens of love from the mother-in-law or father-in-law on the wedding day.

• Gifts from the woman's parents and siblings.

Additionally, the Supreme Court has expressed that if the wife entrusts her property's responsibility to her husband or family members, and if they deliberately misappropriate or permit its theft, they could be charged with the crime of Criminal Breach of Trust under Sections 405 and 406 of the Indian Penal Code.

Investment and insurance

When it comes to investments held under her husband's name or insurance payments made in his stead, the wife's rights are limited. However, if the marriage remains valid, and the couple finds themselves living separate lives, a silver lining emerges. In such cases, the wife reserves the right to claim the insurance proceeds following her husband's passing.
In the Indian context, the landscape of divorce and property rights is shaped by a blend of legal frameworks and personal circumstances. These regulations can vary, depending on the specific situation. Hence, seeking legal counsel becomes not just prudent, but paramount. It's through this expert guidance that both parties can fathom their entitlements, paving the way for an equitable and judicious outcome as divorce proceedings unfold.

Why do you need a property lawyer?

The process of divorce can plunge you into a whirlwind of emotions and intricacies. Balancing the aftermath of emotional turmoil, grappling with financial decisions, and steering life-altering choices can feel overwhelming all at once. It's during such trying times that the presence of a lawyer becomes not just advantageous, but absolutely indispensable.
Engaging the services of a lawyer provides you with a vital anchor. They skillfully navigate you toward the right course of action once they grasp the intricate facts and context of your case. Beyond this guidance, a lawyer emerges as a formidable protector of your interests. They ardently strive to ensure that property distribution reflects equity, securing your rightful share. With their adeptness, they illuminate the path to effectively handling both present and future assets during this challenging phase of divorce.
Amidst this complex landscape, consider LawRato's Free Legal Advice service. This platform connects you with proficient divorce and matrimonial lawyers, offering insights born from their rich expertise. Your journey through these intricate challenges deserves the unwavering support of knowledge and experience, and a property lawyer stands ready as a beacon of assurance during these testing times.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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