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  • Category: Indian Law

    Right on property of Husband or Wife before divorce or death of a partner


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    My friend is going through a rough phase in his life and would like to dissolve his marriage. He is married according to the Indian Christian Marriage Act. He is afraid as his spouse may deny the mutual divorce. He has some doubts on the property issue and need clarification under 3 scenario.

    1st scenario :
    The couple were married in 1989 and has a daughter but after 2 years, the husband went off and never returned. Now, he is married to another women and have 2 kids but without divorce from the first wife. Now if, anything happens or he dies, who is entitled to his property?
    - Can the first wife and her daughter (now 29 years) and married claim her rights on his property? - How can they claim their rights, if any?
    - Can the second wife claim any right on her husband without divorcing the first wife.

    2nd scenario :
    The couple is married in 2014 but about to split-up. They have 2 daughters but not yet applied for severance. Now if anything happens to husband/wife,
    - Who stands the chance on their property if will is not made.
    - The property of the husband is not divide, what is the chances that his wife/husband can claim right on their ancestral property.
    - Can husband claim right on wife's property, if any?
    - What if the husband makes a will saying, she reserves no right on his property?

    3rd scenario :
    The couple is married for 5 years and going to apply for dissolution. They have 2 daughters and are separated.
    - Can husband/wife stands the chance of their ancestral property?
    - If the property of the husband is before marriage, can wife ask for a share in the husband's property made by him?
  • Answers

    2 Answers found.
  • The Cristian couples come under the purview of Indian Divorce Act 1869 while other religions in India are having different respective Acts for their marriage and divorce related issues and resolutions. Let us now examine the different scenarios.

    Scenario - 1:
    As per the Indian Divorce Act 1869, the first wife can ask for divorce If the husband went through a form of marriage with another woman. Depending on her earning potential she will also be entitled for alimony commensurate with the income of her husband. In addition she will be entitled for equal part of the property with the husband. She should immediately move to courts for divorce on this legally acceptable ground and claim for the alimony and the property. Taking care of the child will also be a thing in her favour while deciding the amount of alimony.

    Once the case is settled then only the second wife can claim anything out of the remaining property of the person.

    Scenario - 2:
    In this case the divorce is to be done on mutual consent basis as they are still together. Anyway in case of death of a partner the other partner and the two daughters get the property and other assets. As far as the ancestral property is considered, all the beneficiaries are entitled for it (in this case 2 daughters and the surviving partner). If wife dies the husband and the 2 daughters get the property of the wife also. If there is a will then the contents of the will would supersede everything else and the distribution of property will be as per the will only.

    Scenario - 3:
    In this case the husband, wife and two daughters all are entitled for the ancestral property even then the daughters are not with them. If the divorce is on mutual consent and not one sided then both the partners have to sit along and decide the distribution of property in an equitable manner failing which the other partner seek legal recourse.

    Knowledge is power.

  • The Indian Christian Marriage Act of 1872 is an act of the Parliament of India regulating the legal marriage of Indian Christians. The marriages done under this act will be governed by the rules and regulations of this act and if they want to go apart it should be done as per the Indian Divorce Act 1869,
    1. Without the consent of the first wife or without legally divorcing for the first wife, a person can't go for a second marriage. In such a case, the second wife will not have any legal right to claim for the property of the husband. If the property is earned by the husband and if he makes a will on the second wife's name, then she will have right otherwise, no. If the first wife knows that her husband married another lady she may not apply for divorce. She will insist on the husband to apply and then she will be entitled to all the benefits. So before marrying an already married person, the lady should make sure that he has taken divorce legally from the first wife.
    2. If the divorce case is not finalised, they are still partners only legally. So if anything happens to one of them, the other person will be a legal heir along with the children of them. In such a case, they will have all the rights on the property. It is ancestral property and if only a part comes to the person, his/her partner and children will have rights on the part belongs him/her.
    3. On the ancestral property of one of the partners, whether acquired before or after marriage, the other partner and their children will become the legal heir of the property. In such a case, if they want to get separated, both should come to an understanding on the distribution of the property and they should keep in mind that their children will have right on the property. If it is not happening approaching court by the other partner is the way for getting a part of the property.

    drrao
    always confident


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