Distribution Of Movable And Immovable Properties During Divorce Proceedings
- The question of division of joint properties arises during negotiation and disposal of court proceedings. Joint property may be a movable or immovable property owned by two or more person and it includes assets that were acquired during the marriage i.e. jewellery, flat, land, bank accounts, shares, cars, other investments etc. Not all properties are joint properties. The assets acquired prior to marriage, self-acquired property standing in single name, inheritance, gift etc are not joint property.
- Divorce must result into severance of marital ties and fair division of joint properties. Refusal to divide joint property in a fair manner may result into prolonged litigation resulting in financial difficulties and wasting prime years of both the parties.
- In legal proceedings court wants to divide joint properties in a fair & reasonable manner keeping in mind future needs of the parting couple, their contribution for acquiring the claimed property etc.
- The joint property has three branches i.e.
- i) Both the parties have contributed for purchase of a property and the court ascertains the percentage of contribution by each spouse. The Court may divide the joint property based on the contributions made by each spouse. Each case has different factual matrix and court orders may differ accordingly. The provisions of The Transfer of property Act, 1882 come into play for defining share of the parting spouse.
- ii) One spouse has contributed for purchase of a property in joint name. In such cases division of property becomes difficult. The non-contributing spouse may claim that he/she made non-financial contributions in domestic management and/or support during the subsistence of marriage. However Indian laws do not recognise such non-financial contributions to the disadvantage of housewives.
- iii) Property is purchased in the single name of a non-contributor spouse or substantial contribution is made by the non-title holder spouse. To save stamp duty many husbands buy property in the name of their wife and they regret once matrimonial disputes arise. In such scenario the burden of proof falls on the spouse claiming exclusive or substantial contribution. The court is saddled with the duty to asses if the property purchased falls under the definition of benami transaction i.e. property stands in one person’s name and purchase is financed by different person. Usually, the person in whose name sale deed is registered is considered to be the owner of the property irrespective of who paid the purchase price. However, the said legal position can be challenged.
- Understanding and sensible spouse usually explore below mentioned options to shorten the court proceedings: –
- The parting couple may buy out each other’s share in the joint property on fair market rate and become sole owner.
- ii) In case both the husband/wife do not have financial capability to purchase each other’s share then they may sell the joint property and distribute the amount received as per mutual understanding.
- Once the warring spouses fail to reach amicable settlement for fair division of joint property, claims are decided under Section 27 of The Hindu Marriage Act, 1955. In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.
- There are three components of Section 27 of The Hindu Marriage Act, 1955.
- In any proceeding Any proceeding means proceedings initiated under Sections 9 to 13 of Hindu Marriage Act, 1955. Application for disposal of property is not maintainable after decree of divorce is passed by the court i.e. termination of main proceeding. Order under Section 27 has to be made in the decree of the main proceeding and not by a proceeding separately. The right, title or interest exclusively or jointly over any property litigating spouses will be decided by the Family court. Application under Sections 27 of Hindu Marriage Act, 1955, can be filed at any stage before passing of decree.
- Any property presented at or about the time of marriage. Any property presented at or about the time of marriage indicate property given prior to the marriage and also include property given after the marriage. It involves the concept of ‘Stridhana’. Joint Property “at or about the time of marriage”. Not the only property which is given to the wife at the time of marriage. It includes the property given to the parties before or after marriage as long as it is relatable to the marriage.
- Such property may belong jointly to both the husband and wife. The court can pass a decree about the property that falls under section 27 of the Act, i.e. the property which is joint. No order under Sec. 27 can be made with respect to the exclusive property of wife, viz. Ornaments, clothes etc. Order can be passed only with respect to joint property viz. Furniture, almirah, sewing machine, ceiling fan etc. Gift given at ‘tilak’ are also property given at or about the time of marriage and covered under the provisions of S. 27 of the Act. The position of Stridhana of a Hindu married woman’s property during coverture is absolutely clear and unambiguous. She is the absolute owner of such property and can deal with it in any manner she likes. Husband and in laws being trustees of such property are bound to return the same if and when demanded by married woman.
- Few important court are as under:-
- A. Abdul Jaleel vs T.A. Shahida Appeal (civil) 3322 of 2003, DOD : 10 April, 2003 (SC) Whether the Family Court has jurisdiction to adjudicate upon any question relating to the properties of divorced parties. Held – It is now a well-settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanation I appended to Section 7 of the Act, in our opinion, would frustrate the object wherefor the Family Courts were set up.
- Balkrishna Ramchandra Kadam AIR 1997 SC 3562; 1997 (4) Section 27 of Hindu Marriage Act. Jewellery and other property of divorced wife. The property as contemplated by Section 27 is not the only property which is given to the wife at the time of marriage. It includes the property given to the parties before or after marriage also so long as it is relatable to the marriage. The expression at or about the time of marriage has to be properly construed to include all such properties. The family court has to adjudicate upon to ascertain the property of the wife before passing a decree against the husband and cannot decline claim of wife for want of jurisdiction to adjudicate upon the issue of property.
- Urmila Rani (Smt) Vs Raj Kishan Gupta LAWS(SC)- 1993-8-57 Decided on August 04,1993 (SC) Hindu Marriage Act, 1955, Sections 27 and 13. Application under Section 27 filed by the wife in divorce petition filed by the husband under Section 13. Appellant had made no claim over the properties in the civil suit filed claiming alimony. Application even if filed long after the filing of the divorce petition and when the evidence of parties in the divorce petition was over and the case was due for final arguments is maintainable. Trial Court directed to dispose of application under Section 27.
- Anita Vs Rakesh 2010(5) Law Herald 3579 Hindu marriage Act,1955, Section 27- Disposal of Property, Application for recovery of dowry articles on basis that stridhan articles belonged (P&H) exclusively to wife. Court found that the plaintiff had failed to establish which particular articles were still in the custody of the respondent as stridhan. Direction for disposal of property that a matrimonial court could grant shall be only in relation to property which may belong jointly to both husband and wife. An exclusive property to one of spouses could not be a subject of a direction under section 27 of Hindu Marriage Act. Application not sustainable. Revision dismissed.
- Vijay Kumar Duggal Vs Kamlesh Kumari 2005(2) R.C.R. (Civil) 271 (P&H) Hindu Marriage Act,1955, Section 27- return of articles. Entire articles including gold ornaments, clothes, cash, utensils directed to be returned to wife. Held, no order for return of gold ornaments, wrist watch, clothes and cash can be passed under Section 27 of act. No case for return of utensils is made since marriage took place 17 years ago. Order can be passed in respect of iron petti, sewing machine, ceiling fan, sofa set, double bed and dining table which are joint property for joint use of parties.
- Bohti Devi Vs Karma 1996 (1) HLR 221 (P&H) Section 13 & Section 27 of HMA. No order of return of dowry articles can be passed after lapse of long time of marriage. However husband can be directed to pay cash in lieu of dowry articles.
- Neel Kanth Jaiswal Vs. Manju Lata Jaiswal AIR 2011, Recovery of stridhan. Family Court dealing with the divorce proceeding under the Hindu Marriage Act is not competent to decide the issue relating to return of stridhan in terms of Section 27 of the Act. An independent suit claiming return of stridhan is maintainable in accordance with Section 7 of Family Courts Act. Matter directly and substantially in issue of return of Stridhan decided by the court in previous divorce proceeding. Subsequent suit claiming return of stridhan. Issue of return of stridhan before both the courts cannot be said to be directly and the substantially one and same as previous suit was for divorce. Subsequent suit ‘for return of stridhan held not barred on the principles of resjudicata.
- Lalita Devi Vs Laxminarayan I (2008) DMC 351 (MP) Maintainability of Application u/s 27 of Hindu Marriage Act, 1955. Section 27-Application for disposal of Property maintainability of Application of appellant under section 27 dismissed by family court on the ground that no proceeding under the act are pending between parties. Held as per section 27 in any pending proceeding under Act, Court may make such provisions in decree as it deems just and proper with respect to any property presented, at or about time of marriage. Held – that application u/s 27 is not maintainable independently. As per Section 27 in any pending proceeding under this act court may make such provisions in the decree as it deems just proper with respect to any property presented, at or about time of marriage. It is mandatory that 5roceeding between the parties must be pending for maintainability of application u/s 27 of the act.
- Nirmala Rawendra Gupta Vs Rawendra Kumar @ Munna Gupta 1996 MPLJ 1128; AIR 1996 MP 227. Suit for recovery of ‘Stridhan’ Section 27 of HMA Order 7 Rule 7 of CPC Section 151 of CPC. In appeal, Court holding that property claimed by wife belonged to her exclusively and it did not belong jointly to both husband. Even though Section 27 of the Act is limited to article of both husband and wife jointly belonging to them and may not apply to stridhan of wife. There is nothing in Section 27 which prevents Court from adopting procedure under section 151 of Civil Procedure Code to restore the property to the wife.
- Arun Kumar Vs Smt.Indira AIR 2005 Allahabad 406 Hindu Marriage Act,1955, Section 27- Scope-Disposal of Property. All properties given in connection with the marriage either at the time of marriage or before the marriage or after the marriage can be dealt with Under Section 27 of the Act. View of presiding Officer that ornaments and wearing apparels could not be dealt with Under Section 27 of the Act erroneous.
