Divorce and Joint Property in India

Introduction 

A decision to divorce is attached to several other decisions in consequence. Along with the
Custody of a minor child and providing Alimony to a spouse the court also discusses the
distribution of property that is jointly owned. During a marriage, a couple purchases a property
in the name of the wife to waive off certain stamp duties and to get the benefits in the loan
amount. The division of property becomes an issue when the couple decides to part ways.

The legal owner of the property is decided by the fact of who owns the title of that property.
The law determines the ownership by the fact whose name property is registered. The issue
arises during the divorce proceeding; however, the law has several solutions for the said
problem.

What Happens When Wife Claims?

If the property is jointly owned by the wife and husband, and it is claimed to divide the property
during divorce. The court divides it according to the share held and contribution made by
them. If in case the property is solely owned by the wife, the court counts the contribution
made by the husband while allotting him any share in it. The husband is required to show a
strong piece of evidence to prove his contribution as the court does not allow it in usual
circumstances.

In the case of Debika Chakraborty v. Pradeep Chakraborty, the husband proved his
contribution to the property even when it was registered in the name of his wife. He
succeeded in proving his fiduciary relationship with the property and that he made his wife a
trustee of the property. The Calcutta high court considered his claims gave passed the decree
in favour of the husband and the husband acquired the right to the property.

Why do People Prefer Joint Ownership?

1. To get relief in paying stamp duty at the time of registration
2. To get loan benefits
3. The repayment of loans becomes more debtor-friendly
4. To get the tax benefits related to the joint ownership of a property

Principles on which the division of the property is based:

1. Equity: The principle of equity governs the division on the fact that requires it more.
2. Ownership: On the basis of ownership, the acquisition of property is made on the fact
that who owns the title or in whose name the property is registered.
3. Contribution: The person needs strong evidence to prove his contribution to acquire
ownership.

Position in Hindu Marriage Act, 1955

If a Hindu couple is undergoing divorce proceedings and is not able to divide the property
on mutual terms, the property is divided as per the law mentioned under section 27 of the
Hindu Marriage Act, 1955.

Section 27: Disposal of property

“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.”
Under this section, the competent court is required to make the distribution in just valid
manner.
The court in the case of Surinder Kaur v. Madan Gapal Singh stated that the property
presented to any of the spouses even before the solemnization of marriage or after it is
covered under section 27 of the Hindu Marriage Act, 1955. And its disposal can be made
through the latter provision. This opinion was made to cover the property brought by the husband
in the name of the wife.

Other Models of Ownership of the Property

1. Separate Ownership

The model is followed in England. The model is based on the practice that the
property is purchased by one spouse and is retained by the other spouse can not be
claimed by the spouse who purchased it. It is applicable even if the property is
retained after the dissolution of the marriage. It is based on the principle of
individualism. The property can be distributed among the spouses by a medium of
title deeds.

2. Community Ownership

The distribution in this model is equally made between husband and wife. This model
is based on the belief that husband and wife share equal contributions of funds. It
recognizes non-financial contributions. For example, the husband bought a property and
the wife takes care of it. The wife will get an equal share. The model is not followed in India as
it does not give recognition to non-financial contributions.