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Vidya (Consultant)     14 June 2012

Mutual consent-residential property

Hello,

I need your help and advice regarding the below.

My brother got married in August 2010. He and his wife lived together till April 2011. From May 2011 his wife lived separately and is till date living separately because of misunderstanding and disagreements. They do not have kids. They will be getting divorced shortly. My brother does not have any property in his name.  My brother is planning to buy a site under his name shortly within a month for taxation purposes.

My question is regarding the amendments brought about by the government recently as quoted here.

Times of India May 18th 2012: "The government has made some crucial amendments to divorce laws, giving women half a share in the husband's residential property irrespective of whether it was acquired before or during the marriage. The amendment was cleared by the Union Cabinet on Thursday.

The wife's share in other assets owned by her husband - movable and immoveable property - has been left to the discretion of the judge."

Given the above instances, we have 1 question:

1. If my brother purchases the site, will he be made to share 50% of the ownership of the Site ? Though his wife's side are not demanding for any compensation and they want the divorce to happen amicably.

We would be greatful for a response.

Thanks in advance !



Learning

 8 Replies

**Victim** (job)     15 June 2012

The amendment is not effective yet but. Its better to buy it after divorce coz even though ur brothers wife don't want anything she still qualifies for share in property under sec crpc 125

K.K.Ganguly (Advocate)     16 June 2012

Yes, his wife will be entitled to get 50% share of his property. It is her magnanimity if she does not want to take it. 

Anjuru Chandra Sekhar (Advocate )     16 June 2012

@Vidya.  S.125 Cr.PC is only for maintenance not for share in property.  If there is joint property the Family court decides about the extent of ownership each of them is eligible for under S.27 HMA. But as of now there is no law which makes a woman eligible for share if the property is solely in the name of husband.  Relax!


(Guest)

Yes your brother may buy said property.

As per my knowledge at present no such  laws effective till yet  those make entitle to 50% share in Husband property.

She can claim for maintenance only.


(Guest)

Yes your brother may buy said property.

As per my knowledge at present no such  laws effective till yet  those make entitle to 50% share in Husband property.

She can claim for maintenance only.

Bhaskar for SOCIAL JUSTICE (Legal & Social Activist)     17 June 2012

Yes presently this law has not been passed and is not likely to b passed soon.But it is better to buy property in someone else nameo r after divorce..tx

Vidya (Consultant)     24 July 2012

Hello All,

Thanks for all your inputs & suggestions. Very sorry could not respond earlier. We had a fairly decent discussion with the girls side and since my brother has invested money in many of her interests earlier, they don't want any alimony, and wanted to close it all amicably.

Also no one in our house can afford the site for purchase (due to loan eligibility except my brother). Presently during this divorce, his wife is not aware about this property purchase. So if my brother purchases this one, and divorce is granted by mutual-consent, would his wife have right to claim in property in future (after 2-3 years or more) after divorce.

Is there a way/need to secure the property from future claims.

Thanks in advance!

Tajobsindia (Senior Partner )     24 July 2012

1. Yes
2. Till she remains un-married she can always claim "rights to residence" post divorce
3. She cannot claim it only if she "voluntarily" gives away during divorce proceedings her "rights to residence". 

The only remedy from above is to get her give statement in MCD "I am voluntarily giving away my rights to residence post divorce" and same gets replicated in final Judgment during MCD.

There are case law to remedy suggested above and I am not talking here in vaccum..


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