Soumya Shekhar

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Legal Rights of a Wife Over Husband if the Property is in the Name of the Husband

If the divorce is mutual and the property is in the husband's name, the wife may not have any right over the said property. For instance, if the husband and wife live in a flat that was purchased in the husband's name, after divorce, the wife cannot claim her right over the same. Indian law recognizes those as the owner in whose name the property is registered. 

In such cases, the wife can demand maintenance from the husband, under the law, but cannot stake a claim to the husband’s property. 

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If The Property is Jointly Owned

Modern-day couples often buy property, which is registered in the names of both the husband and wife together. Such property is jointly-owned property. What happens to such property after divorce? Can a wife claim her share over a jointly-owned property? Yes, a wife has a share in a property that she jointly owns and her husband, even after divorce. However, for her claim to be successful, she would need to show that she also contributed to the property's purchase. If the wife has not contributed to the purchase of the property, but her name is just mentioned in the registration document, she may not get the share in the property. Furthermore, the wife’s share in the joint property is equal to the share she contributed. Hence, if contributing to joint property and their husbands, women should keep a document trail proving their contribution to the said property. 

Couples can also resort to a peaceful settlement of the joint property. Whoever wants to retain the joint property can buy the other’s share, and an out-of-court settlement can also be reached on the same. 

If the couple is separated and the divorce proceedings are ongoing? 

Please note that a wife is her husband's legal spouse till the time the court legally pronounces them as `divorced.’ Till such time, the wife has right over her husband’s property. 

Situations may arise where a husband leaves his wife and starts living with someone else or separately. In such situations, the wife and the children born out of their marriage have the right to stake a claim to the property.

If the husband marries a second time then the wife and children from the first marriage would have a claim over the property. without getting divorced from his first wife

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Wife’s Rights on Husband’s Property in India

A wife is entitled to inherit an equal share of her husband’s property. However, if the husband has excluded her from his property through a will, she does not have a right to her husband’s property. Moreover, a wife has a right to her husband’s ancestral property. She has a right to reside in her marital home and a right to be maintained by her husband.

Rights of Second Wife in Husband’s Property in India

If a man marries, without formally and legally divorcing his first wife, the second wife and her children's rights become limited. The law views the first wife as the legal wife till the time the court finalizes the divorce. 

Polygamy or having more than one wife is prohibited under Hindu law. Hence, if the first wife is living and is not legally divorced, then the second marriage assumes no legal significance. This means that the second wife will have no claim over her husband’s property. However, her children would stand to inherit their genetic father’s property. 

If the second marriage is legally valid and occurs after the first wife’s death or after the man is legally divorced from his first wife, then the second wife would get all the rights a wife would have over the husband’s property. These rights would be over the husband’s ancestral as well as self-acquired property. 

Hence, the second wife's right over her husband’s property depends upon the legal status of the marriage. It is important to check if the man you are marrying already has a living spouse or not. 

Thus, the property rights of a wife in India over her husband’s property depend on a variety of factors. It is important to know how a wife can lay claim over her husband’s property and what is her share in the same.

Property can either be self-acquired or ancestral. Ancestral property is passed on through generations—the right to inherit such property vests since birth and not depend upon the owner's death. A self-acquired property, on the other hand, is a property which one earns oneself. The right to inherit a self-acquired property depends upon the Will of the deceased. In the absence of a will, the inheritance of a self-acquired property depends on the applicable law of intestate succession. While a grandchild or a grandson has equal rights in ancestral property, such rights do not exist in a self-acquired property. Let us see what the rights of a grandson on his grandfather's property are.

When a Grandchild/Grandson Can Inherit Grandfather's Property?

• Ancestral Property

A grandson's right on his grandfather's ancestral property is by birth. It does not depend upon his father or grandfather's death. A grandson owns a share of his grandfather's property since birth. Distribution of property happens in such a way that each share gets further divided into successive generations. For instance, if the father inherited 50% of the property, the grandsons would inherit 25% each in their grandfather's property. 

• Self-acquired Property

A self-acquired property is inherited either by a will or by rules of succession. If the deceased leaves a will behind, the property is divided according to that. If no will has been left behind, then the applicable law of succession will determine if the grandson will have a right on grandfather's property. 

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By a Will (Those who read this Article also  Consulted a Lawyer about Will) 

Every adult and a mentally sound person is capable of executing a Will. The person who executes a will is known as a testator. By definition, a Will specifies to whom the properties of the testator will pass to on their death. These beneficiaries are known as the legatees of the Will. A testator has almost unlimited discretion to decide their Will's legatees (who need not their family members or relatives) and how to divide their estate amongst the legatees. 

Thus, if the deceased grandparent has left behind a Will, and that Will specifies that a grandchild will be a legatee of a specified share of their estate, then that grandchild will be entitled to inherit that share of that grandparent's estate. 

However, if the deceased grandparent has left behind a Will, but the Will has not allotted a share of his estate to the grandchild, then the grandchild cannot claim any share of the deceased's estate. 

Without A Will

If the deceased Hindu has not left behind a Will, the succession of their estate will be governed by the rules contained in the Hindu Succession Act, 1956. 

Under Hindu Law, the property comprises two types: (1) Joint Family Property and (2) Self-Acquired Property. True to its name, the clearest indication of Self-Acquired Property is that it has been acquired with the money of one's own efforts. 

A grandchild can inherit their grandparent's property only if their parent through whom they are related to that grandparent has died before that grandparent. In such a case, the share of the grandfather's property the parent in question would have inherited if they were alive will be divided amongst the mother (if she is alive) and the grandchild and their siblings. The siblings, and the mother, will divide this share equally. The siblings will both get equal shares. 

Illustration— Grandchild G is related to their grandmother GM through their father F. F has died before GM. F, if he were alive, would have been entitled to inherit 1/3 of GM's property. G has a sibling S, and a surviving mother M. Hence, the 1/3 share of GM will be divided equally amongst M and G+S. Thus, M will take get a 1/6 share, and G and S will divide their 1/6 shares equally amongst themselves. So, finally, the grandchild G will get 1/12 of the grandfather's property. 

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Property Inherited From Father

Let us also see how the property inherited from a father differs from the property a grandson inherits from his grandfather: 

• If the property is ancestral in nature, then the grandson has an equal right as his father in his grandfather's property. 

• The property inherited from the father's self-acquired property would vest in the child only after the father's death. A grandson, on the other hand, has a right to inherit his grandfather's property since birth. 

• A father can exclude his child from his self-acquired property, but a grandson cannot be excluded from his grandfather's property if the property is ancestral. 

• If the self-acquired property of the grandfather passes on to the grandchild, then he can inherit the property only after his father's death. The grandson or grandchild will get the share of his deceased father. 

Hence, the distribution of grandfather's property among his grandchildren depends heavily on the type of property it is. However, to avoid disputes, it is always best to prepare a will beforehand.

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The property of a mother devolves as per Hindu Succession Act, 1956, and the act applies to intestate succession. According to Section 15 of the Act, the following persons inherit a woman's property after her death.

• Her children

• Children of pre-deceased children

• Husband

• Mother and Father of the deceased mother

• Heirs of husband

• Heirs of father and mother

Though, during the mother's lifetime, only the mother has a right to claim her share in her father's property. As the daughter or son of such a mother, the individual can file a suit for partition through a power of attorney, which the mother will execute in her children's name.

On 11th August 2020, in the case of Vineeta Sharma vs. Rakesh Sharma, the Supreme Court of India passed a milestone judgment expressing that the Hindu Succession (Amendment) Act, 2005 will have a retrospective effect. The Amendment made in 2005 corrected Section 6 of the act to be in consonance with the constitutional belief of gender equality. The Amendment has now given a daughter equal rights as the son. The case settled the matter in inquiry; regardless of the Amendment made in 2005, it considered the daughter to have the similar right as of a son in the coparcenary property irrespective of the father being alive or dead before 2005. Father's death will not obstruct a daughter's right from claiming her share in coparcenary property. 

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DAUGHTER'S RIGHT IN PROPERTY

Until the Amendment in 2005, daughters had no right to property. They were merely members of the family and did not have a share in the property. After marriage, a daughter was viewed as a part of her husband's family. But now, a daughter has certain rights that can be exercised.

As per the Hindu Succession Act, 1956:

• Both married and unmarried daughters now have a legal right to their father and mother's property.

• Daughters can now also become the manager or Karta in ancestral property.

• Daughters have the same rights and obligations as their sons.

• Daughters have an equal right to be coparceners. 

MARRIED DAUGHTER'S RIGHT IN MOTHER'S PROPERTY

A married daughter has equivalent rights in her mother's property as the son, in the event where the mother dies intestate; the married daughter inherits the share equally with the son according to the Act of 1956. The married daughter is the legal heir of her deceased mother, and subsequently, she has the right to claim her share in her mother's property. Her mother's share in the ancestral property shall become her mother's self-acquired property if she had died intestate; her legal heirs are entitled to a share as a right.

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DAUGHTER IN LAW'S SHARE IN MOTHER IN LAW'S PROPERTY

Hindu Undivided Family (HUF) awards a daughter-in-law the status of a HUF member; however, it doesn't make her a coparcener. The daughter-in-law acquires HUF property rights through her husband's share in the HUF property (either given by the husband or received after the death of the husband). The daughter-in-law cannot claim any right on the property exclusively to her in-laws. On account of her mother-in-law's demise, her children will get the share in her property, and the daughter-in-law will acquire the rights only of her husband's share. And thus, the daughters-in-law do not have the right to self-acquired property of her in-laws. In Jitendra Kumar v Varinder Kumar the Punjab and Haryana High court held in 2016, the daughter in law cannot claim the self-acquired property of her in-laws. Similarly, in the case of SR Batra v Taruna Batra, the Supreme Court held that a mother-in-law-owned house could not be claimed as a shared household. The daughter-in-law cannot claim her right over such property.

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