How is property dealt with in case of a divorce?

Last Updated at: Dec 10, 2020
How is property dealt with in case of a divorce
A recent petition in the Delhi High Court has challenged a provision of the Dissolution of Muslim Marriage Act. The petition claims the provision discriminates against Muslim women. According to the petition, the provision permits the dissolution of a marriage if the husband renounces Islam or converts to another faith, but not, if the wife does so. 


Divorce is often a complicated affair and can be confusing and arduous for the parties involved. Separating spouses often have trouble understanding their rights and obligations in a divorce. One such matter that parties often have difficulty understanding is how the property of a separating couple is dealt with, in the process of the divorce.

When spouses decide to part ways, many facets of their lives are mutually divided, including joint assets owned by them. Separation of property, however, is generally somewhat complicated and contentious, seeing as it is normally the single most valuable asset families own. In the Indian legal system, rights of each spouse on the family’s property differs based on under what circumstances the spouses had separated. To elaborate further, the separation could have been either through a contested divorce, a divorce by mutual consent, or by abandonment. Below, we’ll touch upon some of the property rights that are typically granted to spouses in the case of a divorce. It must be kept in mind that the settlement of property in case of a divorce is largely decided by courts on a case to case basis, depending on the specific facts and circumstances.

If a marriage is registered under the Hindu Marriage Act, 1955, it must be finished by the spouses getting legally separated by petitioning for legal separation. If there should be a case of a separation by shared consent, if the property is under the name of the husband, the separating wife, for the most part, won’t have any unmistakable case over the property. In any case, the spouse will have the option to receive a maintenance sum from the husband, to guarantee that the way of life that she is familiar with is kept up.

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In situations where the couple has bought a property mutually under both their names, yet is desirous of getting a separation, the two partners have the right to remain in the property until the separation procedure is finished. Neither one of the spouses can legitimately ask the other to vacate the property, as they are co-owners in such a case.

In situations where there has been no separation, however, the wife has been deserted by the husband, the wife and the children would reserve a right to individual shares in the property of the husband/father. In the event that the separating husband has other children with another partner, courts would give inclination in guarantee over the property to the first (genuine) spouse and children. For instance, if there is a property that is under the husband’s name, the real first wife and her children will have the option to guarantee their share in the property, as it is in the name of their natural and legitimate father. The spouse/father turns into the fourth owner in the property (after the first wife and children), and the subsequent wife and kids from the second marriage will only be able to claim their share from the husband’s remaining share in the property.

Additionally, it may be noted that in case of abandonment by the husband, the wife would have a right to obtain possession of all other property and items that belong to her as well (as the sole owner). The legal rights of the separating wife in this regard are encapsulated under section 27 of the Hindu Marriage Act of 1955 as well as under Section 14 of Hindu Succession Act of 1956.

It is thus also imperative that particularly in the case of immovable property, each spouse maintains a record of all documentary evidence such as bills and invoices that evidence their ownership.