Wife's right over husbands property if she contributed in the purchase
28-Aug-2023 (In Property Law)
My husband bought a one BHK flat in 2013. I helped him giving one lakh rs at the time of registration. This flat is on his name only. Do i have any legal right over this property? I am his wife.?
Among Hindu marriage is a necessary “samaskar”, a holy sacramental union, even emphasized by modern statutory law. The man is incomplete without his wife, she is ardhangini. (Half of him).The wife has been described as “A wife is the very source of Purushartha not only of dharma, artha and kama but also moksha. Those who have wives can fulfil their due obligations in this world, those that have wives can be happy; those that have wives can lead a full life. Wife is not just patni but dharmapatni- partner in the performance of spiritual as secular duties. A man cannot perform most of the yagnas without a wife. Wife is sahadharmini”.
Theoretically the couple were the joint owners of the household as well as owner of other types of property. At the time of marriage husband had to solemnly declare that he would not violate the right and interest of his partner in economic matters. The joint ownership secured her numerous rites and privileges. “It invested her with an absolute right of maintenance against her husband.” Some ancient lawgivers even permitted the wife to go to Court to restore misappropriated property from her wily husband.
The author here tries to adumbrate, tress the evolution, justify married women’s right over the spouse’s property including the marital home acquired through modes other than natural succession in the light of modern laws, Constitution and jurisprudence.
Conglomeration of statutes before enactment of Constitution and Hindu Succession Act
Before enactment of Constitution and Hindu Succession Act, married women had limited ownership in the property in the form of 1) stridhana, earned by employing her labour and skill or property gifted during marriage. Sometime even husband enforced control over it. 2) Estate acquired through succession or through instruments, partition, with life interest, where there was no right of alienation except in legal necessity as for example legal requirement for self or for the need of the heir of last legal owners or use for religious purpose or for benefit of the estate. 3) right to maintenance until death of the concerned person.
The Married women’s property Act, 1874- Its statement of object and reasons provides that The Indian Succession Act(X of 1865) section 4, declares that no person shall by marriage acquire any interest in the property of the person whom he or she marries. This section however does not apply to marriage contracted before 1st January 1866.
Part III of Indian Succession Act,1925
Section 20 of Indian Succession Act, 1925 which is a consolidating Act provides that, (1) No person shall, by marriage acquire any interest in the property of the person whom he or she marries or become incapable of doing any act in respect of his or her own property which he or she could have done if unmarried.
(2) This section---
(a) Shall not apply to any marriage contacted before the first day of January,1866.
(b) shall not apply, and shall be deemed never to have applied to any marriage one or both of the parties to which professed at the time of the marriage, the Hindu, Muhammadan, Buddhist, Sikh or Jaina religion.
Widow Remarriage Act (1856) Some important provisions can be summarised as---
2. All rights and interests which any widow may have in her deceased husband’s property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no power of alienating the same, shall upon her remarriage cease and determine as if she had died; and the next heirs of her deceased husband, or other person entitled to the property on her death, shall there upon succeed to the same.
But the position will be different if any will or testamentary disposition confer on her right to remarry and proprietary right without limited interest.
4. Nothing in this Act contained shall be construed to render any widow who, at the time of death of any person leaving any property, is a childless widow, capable of inheriting the whole or any share of such property, if before the passing of this Act she would have been incapable of inheriting the same by reason of her being a childless widow.
5. Saving of rights of widow marrying, except as provided in section 2 to 4
Except as in the three preceding sections is provided, a widow shall not, by reason of her remarriage forfeit any property or any right to which she would otherwise be entitled; and every widow who has remarried shall have the same rights of inheritance as she would have had, had such marriage been her first marriage.
The caste Disabilities Removal Act, 1850 An Act for extending the principle of section 9, Regulation VII, 1832, of the Bengal Code (throughout) India-----
Preamble—WHEREAS it is enacted by section 9, Regulation VII, 1832 of Bengal code, that “Whenever in any civil suit the parties to such suit may be of different persuasion, or where one or more of the parties to the suit shall not be either of the Muhammadan or Hindu persuasions the laws of those religion shall not be permitted to operate to deprive such property or parties of any property to which,
1.Law or usage which inflicts forfeiture of or affects, rights on change of religion or loss of caste to cease to be enforced.
1. Law or usage which inflicts forfeiture of or affects, rights on change of religion or loss of caste to cease to be enforced—so much of any law or usage in force within India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste shall cease to be enforced as law in any Court.
The Hindu Women’s Rights to property Act,1937 An Act to amend the Hindu Law governing Hindu Women’s rights to property.
Section 3-------
(1)-------
(2)-------
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be limited interest known as Hindu woman’s estate, provided however that she shall have the same right of claiming partition as a male owner,
(4) The Transfer of Property Act, 1882 It recognises valid mode of transfer of property among transferor and transferee through sections 38(Transfer by person authorised only under of certain circumstances), section 39(Transfer when third person is entitled to maintenance) 100 (charge) which are nothing but expression of limited nature of married woman or widow’s ownership over the property.
Indian Trust Act, 1882 Under this Act a married woman can be trustee of the property of her husband if the husband reposes such trust (Section 3). Children will be obviously the beneficiary of such trust. In case of immovable property, according to section 5, the declaration of trust has to be made through non testamentary instrument in writing signed by the author or the trustee and registered, or by will of the author of the trust or trustee. In case of movable property, trust is valid; if ownership (read as possession) of the property is transferred to the trustee. Section 79 provides no trust can be revoked by the author of the trusts as to defeat or prejudice what the trustee may have duly done in execution of the trust.
Role of Equity---- Historically in English law the rules and principles of equity originally administered by Court of chancery were developed as a means of circumventing the inflexibility of contemporary common law upon a basis of conscience. With the fusion of common law and equitable jurisdiction this new combined stream flowed into Indian Legal system through Article 13 and Article 372 of Constitution. Hence all statutes governing ownership and transfer of property shall conform to equity.
Indian Constitution and legislation enacted afterwards Property is a term of the widest import and subject to any limitation or qualification which the context might require. It signifies every possible interest which a person can acquire, hold and enjoy unless there is something to the contrary.
A woman shall be proper owner of her property as per her male counterpart as provided under Article 300A. After Maneka Gandhi, Article 21, 14, 15 and 300A shall be read together stiching a just, fair, reasonable standard. Parliament has the power to enact law related to property under entry 32 of union list, under VIIth schedule as provided “subject to legislation by the State, save so far as Parliament by law otherwise provides.”
Thus married woman’s proprietary right shall be governed by Central legislations such as Hindu Succession Act or in certain cases by The Protection of Domestic Violence Act unless dictate of Article 254of the Indian Constitution decides differently.
The meaning of the word repugnancy(inconsistency between central and state laws regarding proprietary right) was laid down by Fazal Ali, J in M Karunanidihi vs Union of India that,
1. It must be shown that there is clear and direct inconsistency between the two enactments [Central Act and State Act] which is irreconcilable, so that they cannot stand together or operate in the same field.
2. There can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
3. Where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.
4. Where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences. No question of repugnancy arises and both the statutes continue to operate in the same field.
The author paying full respect to the Supreme Court’s Judgment humbly points out that, The Hindu succession Act is an amending and codifying Act. The Protection of women from Domestic violence Act, 2005 satisfies proviso of clause (2) of Article 254 of Indian Constitution.
In A Cracknel vs State Section 8(1) (b) of U.P. Court of Wards Act, 1912 has become void under Article 13 of the Constitution as it infringes, Article 14, 15 and 19 (1) (f) of the Constitution.
Section 8 of the Court of Wards Act provides:
“Proprietors when to be deemed disqualified”
(1) Proprietors shall be deemed to be disqualified to manage their own property when they are---
minors;
females declared by the Provincial Government to be incapable of managing their own property;
Persons declared by the Provincial Government to be incapable of managing or unfitted to manage their own property;
Owing to any physical or mental defect or infirmity unfitting them for the management of their own property;
(2) No declaration under clause (d) of subsection (1) shall be made until the proprietor has been furnished with a detailed statement of the grounds on which it is proposed to disqualify him and had had an opportunity of showing cause why such declaration should not be made.
Court said classification must be based on reasonable grounds. It cannot be a mere arbitrary selection. Also the classification should have rational nexus with the object sought to be achieved. A woman cannot be deprived arbitrarily the right of managing her own property. Thus this provision of section 8(1s) (b) of the Act is violative of Article 15 and void under Article 13.
Hindu Succession Act ---- The Act an amending and codifying law provides under section 14 that,(1)Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
explanation--- In this subsection “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase any such property held by her as stridhana immediately before commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
In Chowdhuri vs Ajudhia it was said that any property possessed by a Hindu female, irrespective of how it was acquired, becomes her absolute property after coming into force of the Act in view of operation of section 14(1).
In Mangal vs Ratna the Court said that the word “any property possessed by a female Hindu” include actual as well as constructive possession even when the property is in the possession of a trespasser, she is in its constructive possession. Now we need to discuss relation of ownership and possession in the light of such famous classics like Salmond on Jurisprudence.
Salmond explains that the main difference between ownership and possession is that possession is determinate. The owner has normally right to use and enjoy thing owned. Ownership right consist of smaller rights as for example an owner of property can grant lease, easement, and profit to different person. Husband and wife being joint owner means (wife being owner by virtue of possession) that it is a duplicate ownership and with a death of one joint owner, survivor become the sole owner.
Salmond also explains that possession consists of a corpus possessionis and animus possidendi that is power to use the thing possessed and the existence of grounds for the expectation that possessor’s use will not be interfered with. The latter consist of intent to appropriate to oneself the exclusive use of thing possessed. Husband and wife being same in the eye of law (not criminal law) are in concurrent possession of a thing; if the claims are not adverse, mutually destructive, or admit of concurrent realisation.
Theoretically the couple were the joint owners of the household as well as owner of other types of property. At the time of marriage husband had to solemnly declare that he would not violate the right and interest of his partner in economic matters. The joint ownership secured her numerous rites and privileges. “It invested her with an absolute right of maintenance against her husband.” Some ancient lawgivers even permitted the wife to go to Court to restore misappropriated property from her wily husband.
The author here tries to adumbrate, tress the evolution, justify married women’s right over the spouse’s property including the marital home acquired through modes other than natural succession in the light of modern laws, Constitution and jurisprudence.
Conglomeration of statutes before enactment of Constitution and Hindu Succession Act
Before enactment of Constitution and Hindu Succession Act, married women had limited ownership in the property in the form of 1) stridhana, earned by employing her labour and skill or property gifted during marriage. Sometime even husband enforced control over it. 2) Estate acquired through succession or through instruments, partition, with life interest, where there was no right of alienation except in legal necessity as for example legal requirement for self or for the need of the heir of last legal owners or use for religious purpose or for benefit of the estate. 3) right to maintenance until death of the concerned person.
The Married women’s property Act, 1874- Its statement of object and reasons provides that The Indian Succession Act(X of 1865) section 4, declares that no person shall by marriage acquire any interest in the property of the person whom he or she marries. This section however does not apply to marriage contracted before 1st January 1866.
Part III of Indian Succession Act,1925
Section 20 of Indian Succession Act, 1925 which is a consolidating Act provides that, (1) No person shall, by marriage acquire any interest in the property of the person whom he or she marries or become incapable of doing any act in respect of his or her own property which he or she could have done if unmarried.
(2) This section---
(a) Shall not apply to any marriage contacted before the first day of January,1866.
(b) shall not apply, and shall be deemed never to have applied to any marriage one or both of the parties to which professed at the time of the marriage, the Hindu, Muhammadan, Buddhist, Sikh or Jaina religion.
Widow Remarriage Act (1856) Some important provisions can be summarised as---
2. All rights and interests which any widow may have in her deceased husband’s property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no power of alienating the same, shall upon her remarriage cease and determine as if she had died; and the next heirs of her deceased husband, or other person entitled to the property on her death, shall there upon succeed to the same.
But the position will be different if any will or testamentary disposition confer on her right to remarry and proprietary right without limited interest.
4. Nothing in this Act contained shall be construed to render any widow who, at the time of death of any person leaving any property, is a childless widow, capable of inheriting the whole or any share of such property, if before the passing of this Act she would have been incapable of inheriting the same by reason of her being a childless widow.
5. Saving of rights of widow marrying, except as provided in section 2 to 4
Except as in the three preceding sections is provided, a widow shall not, by reason of her remarriage forfeit any property or any right to which she would otherwise be entitled; and every widow who has remarried shall have the same rights of inheritance as she would have had, had such marriage been her first marriage.
The caste Disabilities Removal Act, 1850 An Act for extending the principle of section 9, Regulation VII, 1832, of the Bengal Code (throughout) India-----
Preamble—WHEREAS it is enacted by section 9, Regulation VII, 1832 of Bengal code, that “Whenever in any civil suit the parties to such suit may be of different persuasion, or where one or more of the parties to the suit shall not be either of the Muhammadan or Hindu persuasions the laws of those religion shall not be permitted to operate to deprive such property or parties of any property to which,
1.Law or usage which inflicts forfeiture of or affects, rights on change of religion or loss of caste to cease to be enforced.
1. Law or usage which inflicts forfeiture of or affects, rights on change of religion or loss of caste to cease to be enforced—so much of any law or usage in force within India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste shall cease to be enforced as law in any Court.
The Hindu Women’s Rights to property Act,1937 An Act to amend the Hindu Law governing Hindu Women’s rights to property.
Section 3-------
(1)-------
(2)-------
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be limited interest known as Hindu woman’s estate, provided however that she shall have the same right of claiming partition as a male owner,
(4) The Transfer of Property Act, 1882 It recognises valid mode of transfer of property among transferor and transferee through sections 38(Transfer by person authorised only under of certain circumstances), section 39(Transfer when third person is entitled to maintenance) 100 (charge) which are nothing but expression of limited nature of married woman or widow’s ownership over the property.
Indian Trust Act, 1882 Under this Act a married woman can be trustee of the property of her husband if the husband reposes such trust (Section 3). Children will be obviously the beneficiary of such trust. In case of immovable property, according to section 5, the declaration of trust has to be made through non testamentary instrument in writing signed by the author or the trustee and registered, or by will of the author of the trust or trustee. In case of movable property, trust is valid; if ownership (read as possession) of the property is transferred to the trustee. Section 79 provides no trust can be revoked by the author of the trusts as to defeat or prejudice what the trustee may have duly done in execution of the trust.
Role of Equity---- Historically in English law the rules and principles of equity originally administered by Court of chancery were developed as a means of circumventing the inflexibility of contemporary common law upon a basis of conscience. With the fusion of common law and equitable jurisdiction this new combined stream flowed into Indian Legal system through Article 13 and Article 372 of Constitution. Hence all statutes governing ownership and transfer of property shall conform to equity.
Indian Constitution and legislation enacted afterwards Property is a term of the widest import and subject to any limitation or qualification which the context might require. It signifies every possible interest which a person can acquire, hold and enjoy unless there is something to the contrary.
A woman shall be proper owner of her property as per her male counterpart as provided under Article 300A. After Maneka Gandhi, Article 21, 14, 15 and 300A shall be read together stiching a just, fair, reasonable standard. Parliament has the power to enact law related to property under entry 32 of union list, under VIIth schedule as provided “subject to legislation by the State, save so far as Parliament by law otherwise provides.”
Thus married woman’s proprietary right shall be governed by Central legislations such as Hindu Succession Act or in certain cases by The Protection of Domestic Violence Act unless dictate of Article 254of the Indian Constitution decides differently.
The meaning of the word repugnancy(inconsistency between central and state laws regarding proprietary right) was laid down by Fazal Ali, J in M Karunanidihi vs Union of India that,
1. It must be shown that there is clear and direct inconsistency between the two enactments [Central Act and State Act] which is irreconcilable, so that they cannot stand together or operate in the same field.
2. There can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
3. Where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.
4. Where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences. No question of repugnancy arises and both the statutes continue to operate in the same field.
The author paying full respect to the Supreme Court’s Judgment humbly points out that, The Hindu succession Act is an amending and codifying Act. The Protection of women from Domestic violence Act, 2005 satisfies proviso of clause (2) of Article 254 of Indian Constitution.
In A Cracknel vs State Section 8(1) (b) of U.P. Court of Wards Act, 1912 has become void under Article 13 of the Constitution as it infringes, Article 14, 15 and 19 (1) (f) of the Constitution.
Section 8 of the Court of Wards Act provides:
“Proprietors when to be deemed disqualified”
(1) Proprietors shall be deemed to be disqualified to manage their own property when they are---
minors;
females declared by the Provincial Government to be incapable of managing their own property;
Persons declared by the Provincial Government to be incapable of managing or unfitted to manage their own property;
Owing to any physical or mental defect or infirmity unfitting them for the management of their own property;
(2) No declaration under clause (d) of subsection (1) shall be made until the proprietor has been furnished with a detailed statement of the grounds on which it is proposed to disqualify him and had had an opportunity of showing cause why such declaration should not be made.
Court said classification must be based on reasonable grounds. It cannot be a mere arbitrary selection. Also the classification should have rational nexus with the object sought to be achieved. A woman cannot be deprived arbitrarily the right of managing her own property. Thus this provision of section 8(1s) (b) of the Act is violative of Article 15 and void under Article 13.
Hindu Succession Act ---- The Act an amending and codifying law provides under section 14 that,(1)Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
explanation--- In this subsection “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase any such property held by her as stridhana immediately before commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
In Chowdhuri vs Ajudhia it was said that any property possessed by a Hindu female, irrespective of how it was acquired, becomes her absolute property after coming into force of the Act in view of operation of section 14(1).
In Mangal vs Ratna the Court said that the word “any property possessed by a female Hindu” include actual as well as constructive possession even when the property is in the possession of a trespasser, she is in its constructive possession. Now we need to discuss relation of ownership and possession in the light of such famous classics like Salmond on Jurisprudence.
Salmond explains that the main difference between ownership and possession is that possession is determinate. The owner has normally right to use and enjoy thing owned. Ownership right consist of smaller rights as for example an owner of property can grant lease, easement, and profit to different person. Husband and wife being joint owner means (wife being owner by virtue of possession) that it is a duplicate ownership and with a death of one joint owner, survivor become the sole owner.
Salmond also explains that possession consists of a corpus possessionis and animus possidendi that is power to use the thing possessed and the existence of grounds for the expectation that possessor’s use will not be interfered with. The latter consist of intent to appropriate to oneself the exclusive use of thing possessed. Husband and wife being same in the eye of law (not criminal law) are in concurrent possession of a thing; if the claims are not adverse, mutually destructive, or admit of concurrent realisation.
Disclaimer: The above query and its response is NOT a legal opinion in any way whatsoever as this is based on the information shared by the person posting the query at lawrato.com and has been responded by one of the Divorce Lawyers at lawrato.com to address the specific facts and details.
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