Rights of foreign wife of indian, within india

shainy (Querist) 03 June 2020 This query is : Resolved
Dear Respected Sirs/Madams

I am a FOREIGN lady married to Indian man. Our marriage was registered abroad and endorsed at Indian embassy and my name is included in his passport. I am now living in India with him and i am holding OCI card also. I am spending money on our married life in India; money that i brought/bringing from my own country after selling my properties there.
My husband has some property in India. But he also has two Indian sons from is previous marriage. His Indian ex wife and sons are demanding that all his property in India should only go to them and nothing should go to me. His parents are also supporting his ex-wife and not me. His undivided ancestral property is also disputed between him and brother.

How can i secure my rights financially in India? Is it enough if my husband makes a registered affidavit promising to give me some money/property in case of his death or divorce? Can he later change, cancel or over write such affidavit if he changes his mind? How to make it a non revokable affidavit?

Thank you for your valuable time and advice.
Shainy

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Raj Kumar Makkad (Expert) 03 June 2020
If your husband is a Hindu then second marriage subsisting the first one is void and thus you have no any right in the ancestral properties of your husband however, his self acquired properties can be gifted in your favour during his life time and he may also make a will in your favour. Your children born out of the aforesaid husband shall have equal rights with his children born out of his first marriage.

shainy (Querist) 03 June 2020
Dear Raj Kumar Makkad Sir,

His previous Hindu marriage was properly dissolved and divorced (by mutual consent) before our marriage. We have no children from this marriage.

The question is that 'WILL' can be revoked/changed. So even if he makes a 'will', he can change it later in life. Then where do i stand? How to make a NON REVOKEBLE AFFIDAVIT is the query here.

Thank you

Raj Kumar Makkad (Expert) 03 June 2020
There is no concept of irrevocable affidavit in India.Your marriage is valid if your husband had also took divorce from his previous wife. You are entitled to inherit the share of the properties left by your husband after his demise but the share of the children born out of his first marriage have also equal share individually with you.

Gift shall be a good option if you anticipate any foul game to be played at any stage of life by your husband.

shainy (Querist) 03 June 2020
Dear Raj Kumar Makkad Sir,

When you say 'Gift' is good option, what you mean? Do you mean 'gift deed'? There is no current possibility to sell his property and give me money or any property in my name as a 'tangible gift', though that is the the ideal path. Properties are stuck for various reasons though titles are clear. So that is why i want to get a 'legal paper' here.

Gift deed can be revoked is it not? I am neither a hindu nor indian, and our marriage was registered abroad in foreign country, not under any Indian act. So i doubt whether automatic succession of ancestral property is applicable to me.

I am just looking for a 'non-revocable document' of some kind. If it is revocable by the husband, then no point.

shainy (Querist) 03 June 2020
If we sign an 'agreement' where both of us sign and register it, will it be NON REVOCABLE by the husband alone? What are the conditions/clauses that are essential in such an agreement in our context?

Rajendra K Goyal (Expert) 03 June 2020
If previous wife has been duly divorced, she has no right on the property of her previous husband. Her sons have right on the property.
So far as ancestral property is concerned, if the property is inherited from 4 generations without any partition / division, the property would be ancestral. If such is the property your husband has right in it by birth.
On other self-acquired property, he can gift / sell/ mortgage / will in favor of any person during his life time.
There is no legal standing of Registered affidavit, if it is in form of will, it can be revoked / changed at any time.

Rajendra K Goyal (Expert) 03 June 2020
Gift deed can not be revoked. Gift deed of property has to be registered. It is not revocable. There is no need to sell property for executing gift deed.

So far as ancestral property is concerned, first has to be confirmed whether the property satisfy the definition of ancestral property. You have no right in such ancestral property.

Registered gift deed is irrevocable.

Raj Kumar Makkad (Expert) 03 June 2020
In view of your subsequent doubts/questions, I want to clear it that for the purpose of the registration of the gift-deed, there is no requirement of the sale of those properties rather the immovable properties, what so ever may be their condition, can be got gifted by way of a registered gift-deed and the same is irrevocable. There can be inserted a condition in the said gift-deed that during the life time of your husband, he shall have a right to use the property and the said gift shall become operational after his demise. Even if your marriage was registered out of India, you can get the said properties in gift and your marriage status is legal one as per Indian Law.

shainy (Querist) 03 June 2020
Dear sirs,

Thank you for the replies
Gift deed is not possible because none of the properties are registered in husbands name yet for various reasons.
1. Ancestral property still held by mother. He will inherit after death.
2. Self acquired property not yet registered. Its only under his POA.
3. Another property not yet built by builder. Part payment done.

So all three above properties cannot be 'gifted' to anyone by him YET.

Later he will sell one or more of these and give me money or property in my name. We dont know when. But UNTIL that time comes i want some paper to hold on to.

Can we make a registered POST NUPTIAL AGREEMENT backed by open dated cheques. Is it valid in india?

Raj Kumar Makkad (Expert) 03 June 2020
You are changing the facts every time. Earlier your mentioned that title of the properties is clear though the same are struck due to various reasons. First of all you decide what is your problem and what are the final facts. There shall not be any use to get changed facts by this or that way. Are you here to judge the experts or to get tentative idea of the experts?

What is the mind of your husband to safeguard your interest? Have you discussed your apprehension with him and what is his reply? Have you obtained any advice from the local lawyer on your mutual desire intending to secure your interest based on assumptions and presumptions and what is his advice?

Raj Kumar Makkad (Expert) 03 June 2020
2 properties you mentioned above, can be gifted by your husband even as on date but first one otherwise cannot be as the same is an ancestral property and the children born out of first marriage of your husband have also right over those properties.

shainy (Querist) 04 June 2020
Sir,
I had not changed any facts. I tried to summarize the case in lay terms. I used the word 'clear title' to mean clear ownership rights. Maybe choice of word was wrong, sorry about that. I am not a lawyer, i dont know perfect 'legalese' language. I wont be here if i knew.
My question was about 'whether any agreement like affidavit or 'post nuptial agreement' was valid or not in india and revocability of same. Rest was just background information.

I had not said anywhere that my husband is still married to his ex-wife. I used the word ex-wife which should be self explanatory that she is divorced. But the answer initially tried to focus on the 'validity' of her marriage and 'voidability' of my marriage. This was not called for.

Anyway, thank you for taking time.

Sudhir Kumar, Advocate (Expert) 04 June 2020
"Indian sons from is previous marriage. His Indian ex wife and sons are demanding that all his property in India should only go to them and nothing should go to me. "

IT IS NOT THEIR PAPA RULE.

YOU ARE ENTITLED TO YOUR SHARE EVEN IF HE MAKES NO will UNLESS HE TRANSFER ALL HIS PROPERTY TO xyz DURING LIFE TIME OR THERE IS A DIVORCE BEFORE HE DIES.

Raj Kumar Makkad (Expert) 04 June 2020
Ms.Shainy! We have no problem ro reply your queries if asked with proper facts. Anyway, you are legally wedded wife of your husband and your husband can also gift you properties listed in serial no. 1 & 2 by you and whereas the properties listed at serial no. 1 are concerned, you have only share in that as those exclusively cannot be gifted to you by your husband. You are always welcome to revert back in case of any legal need.

Rajendra K Goyal (Expert) 04 June 2020
You Said:
Gift deed is not possible because none of the properties are registered in husbands name yet for various reasons.
1. Ancestral property still held by mother. He will inherit after death.
2. Self acquired property not yet registered. Its only under his POA.
3. Another property not yet built by builder. Part payment done.

Reply:
1. As mentioned before, your husband has right from birth in the ancestral property. Still it is doubtful that the said property is covered under the definition of ancestral property. If the property is in the name of your husband’s mother, how it came in her name?. If the title are in her name and the property is not ancestral, she is owner of the property during her lifetime. She can will / gift / sell / mortgage in favor of anyone during her lifetime.

2. Registration may or may not be done through POA. He can register / gift this property in your favor. Show all related documents to your lawyer if want to proceed.

3. He can introduce you as co-owner of this property, builder can approached as the building is under construction.

Rajendra K Goyal (Expert) 04 June 2020
You asked:
i want some paper to hold on to. Can we make a registered POST NUPTIAL AGREEMENT backed by open dated cheques. Is it valid in india?

Reply:

You can have postdated cheques.

Rajendra K Goyal (Expert) 04 June 2020
You said:
My question was about 'whether any agreement like affidavit or 'post nuptial agreement' was valid or not in india and revocability of same. Rest was just background information.

Reply:

Discuss with some local lawyer about any such agreement, without going in detail of the language / detail / purpose / contents, nothing proper can be advised.

shainy (Querist) 04 June 2020
I am pretty sure property #1 is ancestral property, though i have not examined its papers. I was told that it was transferred from my husband's uncle (maama) to his mother after some internal arrangement within their family. Maybe my father-in-law paid the maama some money as settlement. I dont know exactly what happened. Maama inherited the property from his father.

Sir i am NOT INDIAN and NOT HINDU. I have a foreign passport and i have no aadhar card. I will only have OCI card. So can i inherit ancestral property. Are foreign ladies allowed to claim share in ancestral properties? I know that rules are different between citizens and foreigners in many countries. So i want to know what is the status in India.

Thank you

Rajendra K Goyal (Expert) 04 June 2020
The property was transferred from Mama to his mother, it may be by partition / gift / renouncing etc. In such case it may have lost the status of ancestral property.

Adv Deepak Joshi +917017821512 (Expert) 04 June 2020
Dear Querist,
Ever after such details explanations from expert I fell you are not resolved, what is could suggest is better approach some local lawyer for help, as legally nothing more to add from my side.
Regards
Adv Deepak Joshi
9456777600
Djaa.legal@gmail.com

Raj Kumar Makkad (Expert) 04 June 2020
Even if you have no Adhar Card, You are not Hindu, You are a foreign National, You do possess only OCI Card even then you are entitled to inherit the property held by you husband cited by you at Sr. no.1, however, the same is no an ancestral property as per latest fats submitted by you. The said property is also a personal property of your husband and if he desires, the said property can also be gifted to you exclusively.

Dr J C Vashista (Expert) 04 June 2020
Ms. Shainy,
Whether both sons of your husband are minor and in the care and custody of their father ?
When your mother in-law is owner of her self-acquired properties (transferred by her brother) and alive, it is not ancestral. She may dispose it during her life time. Hence your husband has no interest, claim or title over the property to execute a "Gift Deed" in your favour.
Post nupital agreement is not in practice in Indian property laws.
Very well explained and advised by experts Mr. Raj Kumar Makkad and Mr. Rajendra K Goyal, which I fully agree and appreciate.

Raj Kumar Makkad (Expert) 04 June 2020
Thanks a lot Dr. Vashishtha ji for your appreciation.

P. Venu (Expert) 04 June 2020
The simple fact is that you, along with the children (that of the first wife included), are legal heirs to the properties belonging to your husband so long as the marriage subsists or survives. It is not clear whether your husband owns any property at all. He, certainly, can convey or bequeath the property belonging to him at his discretion to anyone, you included.

Yes, post nuptial agreement is unknown to Law in this country.

Rajendra K Goyal (Expert) 05 June 2020
Thanks expert Dr. J.C. Vashishta ji for you agreeing.

Post nuptial agreement is in practice in USA.