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Wife's rights on a property - 2nd name is hers, funded by me

Page no : 2

Tajobsindia (Senior Partner )     04 February 2011

@ Author,

 

From the briefs the facts that emerges is that there is a husband who had some property. It was self- acquired one. He plans for MCD as co-petitioner. They have a child. The hiccup here is why is transfer of one property in wife's name.

 

 

In my opinion husbands wife has no clear lein in those properties whose financial contribution husband solely born during their lifetime. I also donot subscribe to Prabhakar's Benami Properties Act usage in matrimonial matters and I also do not subscribe to his American influenced propoganda on 'compensation' to a wife simply ideating at home. Well if she voluntarily choose to become a housewife then why rake up the que. at MCD stage? Now don't give me a lame gyan that all husbands asks their wifes to become housewife's. HAd it been so then time will come that all husbands will start beating their wife and say why you not going out and working?. Have ears to hear the future truth too.

 

 

However, leaving all these reviving contentious debates of LCI family law forums and I prefer to stick to my loads and like to analyse situation in different way say;

 

 

1. If the husband acquired so many properties till his MCD stage then what is so difficult for him to part one of the properties and get over with his estranged wife?

 

 

2. In return in MoU he can always claim for decent visitation rights of his child. Anyhow it is his duty to look after needs of his child till he/she attains majority is it not so?. 

 

 

3. I could have understood the dilemma if there was only one property self acquired the way as narrated in opening briefs but when you have so many properties and the bone of contention between estranged couple here is a 'wife' then dispense her asap by transferring the property in child's name with lis not to dispose of till child attains majority. Keep mutual conditions simple but base don long innings.

 

 

4. Anyhow I don't see any lis on custody so it seems natural that the guy is comfortable with custody (physical) going with erstwhile wife so why chase the tail of an elephant when an elephant marched past you !

 

 

5. I mean you go half way and she travels the other half and ultimate aim should be to get riddance from un-cordial matrimonial situations if a person has so many properties.

 

 

6. It also seems that you are non resident Indian and have invested heavily in real estate post bubble bust! So it is assumed you know more about the 50% American splits ville and smartness American husbands show in similar situation when such properties (assets) are acquired post marriage. I would rather suggest to go ahead what I said in above para and would have walked away smilingly instead of spending my youth in Indian Courts enriching only the Lawyers out here.

 


After the MCD create a TRUST and lien-in all the rest of the properties with which she can't touch in 'future' under any 'change in circumstances' so called clauses which you also need to understand the Indian gender biased laws.

 


Thus give that one property to her on child's name with condition not to sell till child becomes major and as you say invest on SIP monthly return plan on child maint. and simply march ahead man.......


Or


alternate is to offer her money equal to that property present market rates ! You will thus still left with your attachment to the jameen whereas your joru now gone multiply your jad as you may please.

1 Like

Bhaskar for SOCIAL JUSTICE (Legal & Social Activist)     04 February 2011

I am not agreed with the views of Mr.Prabhakar.

In property disputes courts definitely look who has given the consideration for acquiring the property.

Benami property Law is applicable if you are not ready to disclose your sources of funding and have regisrterd property in the name of someone else.In that situation even property can be taken over by the government.

Regarding contribution of wife who is fighting with the husband in the court can well be imagined as per her behaviour.

In porperty transaction only direct contributions are considered by revenue department/income tax depart etc.etc.

So there is no need to give up.You are responsible for upbringing of your child as per your capacity.

Let the wife do some work and in any case if you are forced to pay maintenance then you kindly find some job for her as per her skills and provide the offer letter in the court or porpose in the court to direct her to work without any money for some NGO etc.

 

1 Like

Ambika (NA)     04 February 2011

 

Hello Guys, is'nt it this query similar to one posted here, though in this case this guy does not have a child. Now there are differing views. Just have a look 

 

 

Dear Experts 
Wife is not joining even after RCR notice.. I have have a house in joint name, but all money is paid by me only, still have half bank loan on my name . We don’t have any kid. If divorce happens what will happen to my house. How much I loose.. 

 
 

 
Expert : Devajyoti Barman 

Posted On
21 July 2010

The house will continue to be owned jointly by both of you though you can file a suit for under benami transaction act to claim the property back if you have good proof to support.

 
 

 
Expert : Adv Archana 

Posted On
21 July 2010

You will not lose anything if you can prove that all the money is paid by you. You can claim the entire house.

 
 

 
Expert : Srinath Kondapally 

Posted On
21 July 2010

50% share will goes to her at any cost, if she claims

 
 

 
Expert :s.subramanian 

Posted On
21 July 2010

the purchase of the house in joint names is sufficient proof that you both are equally entitled to the house.The repayment of the loan by you cannot and does not clothe you with any independent or absolute or exclusive title over the house.However you are entitled to sue for the recovery of the due share of the loan dues form your wife on proof of full payment with your money.Divorce will not have any effect on your mutual rights over the house. Sec.4 of the Benami Act will also be working against you since it lays down that if the property has been purchased in the name of the wife,the presumption is that it has been purchased for her welfare and benefit unless you are able to prove the contrary.

Ambika (NA)     04 February 2011

 

Read this judgement. As I am going through the old threads I came across this one. Prabahakar sir is correct. 

Read it closely and see how the year in which he has purchased the flat would become very important for whether wife can claim it or not.

https://www.lawyersclubindia.com/forum/files/23_23_benami.pdf

Pay attention to 

 

“In view of this, even the presumption under Section 3(2)(a) that the property was purchased for the
benefit of the wife and unmarried daughter will be applicable only if the said transaction had taken
place after Section 3 came into force. That presumption will not be available to any transaction which
has taken place prior to the said Act coming into force, in the present case, as the suit property was
purchased in 1981, the presumption under Section 3(2)(a) of the Act would not be ap-plicable in favour
of the defendant-wife if it is proved that the husband had purchased the property in her name.”

Tajobsindia (Senior Partner )     04 February 2011

@ Ambika

In my bachha legal opinion in front of Prabhakar this quoted by you authority gives the flat to husband so quoting this authority is on the contrary to the title of the authors post. Infact this authority infact helps the author of the post !

I am omitting making another reference to Prabhakar's post as purpose is still not solved by what he actually mean and you quoting this judgment to same post !!!.

Or I am missing something, enlighten me..............................

 

1 Like

Ambika (NA)     04 February 2011

No nothing TajobsIndia sir. If the man uses it for his favour that is OK. This was related to the discussions going on, and my understanding after reading a senior expert's view in the expert section--the last one and Prabahakar sir's views I found some qualifiers of the judgements align with what they have said...the crucial point is which year he has bought the flat.

There were no ulterior motives....

I respect the way you write your replies even if I have a different personal views on some issues within the same replies I read with keen interest,  but that does not dilute the clarity and value of your replies, sir.

Tajobsindia (Senior Partner )     04 February 2011

hmmmmmm

no no

learning (hmmmmmmmmmm well that was for me okies)

short and simple 

2 Like

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