Many women in India are not aware of their legal rights. People believe that streedhan and valuable gifts received during the marriage are the only rights that a married woman can claim. However, a married woman’s rights are far beyond that. This article will discuss the rights of a married woman in a husband’s property, rights of a second wife in a husband’s property, rights in the jointly owned property, right of wife after divorce, and rights of a wife in ancestral property.
Rights of Wife in Husband’s Property
Under Hindu Succession Act, a wife can inherit her husband’s property only after his death, and such death must be intestate (i.e., without a will). A wife has been clubbed under the Class 1 heir category of legal heirs. The property can be self-acquired or ancestral property, and such property can be movable or immovable. But If the husband has excluded her from his property through a will, she cannot claim any share in her husband’s property. A wife also has a right to claim maintenance and live in her maternal home.
India being a multi-religious country, married women are given a share in their husband’s property depending upon the personal law they follow.
- The Hindu Succession Act, 2005 applies to Hindus, Buddhists, Jains, and Sikhs, where a person dies intestate (i.e., without a will).
- The Indian Succession Act, 1925 applies to the transfer of property of Hindus and Muslims as per will (testamentary succession). It is also applied to Christians, Jews, and Parsis.
- Muslim Personal Law (Shariat) Application Act, 1937 applies to Muslims if there is no registered will.
Let us look into a woman’s rights on her husband’s property as provided under different statutes.
- A Hindu, Buddhist, Jain, and Sikh wife and children are entitled to get an equal share in the husband’s property. If the woman is a widow, she will also get an equal share as that of the children. However, suppose the wife is divorced, and alimony and maintenance are settled between them. In that case, only the children will have a share in the father’s property.
- Christians, Jews, and Parsi women who are childless get a half share of the predeceased husband’s property. If she has children, she will get one-third of the share of the predeceased husband’s property.
- A Muslim woman who has no children gets one-fourth share of the predeceased husband’s property. If she has children, she would be entitled to receive a one-eighth share of the property. In the case of multiple wives, the percentage share will be further reduced accordingly. When a Muslim woman marries an ill person and consummation has not taken place. If the husband dies subsequently, the widow will not be entitled to any share in her husband’s property. However, if the husband gives divorce to his wife before his death, then the woman would be entitled to get a share in her husband’s property until she remarries.
Rights of a Woman When the Husband Deserts Her
Suppose the husband deserts his wife (lives separately or is missing) without giving divorce. In that case, the wife and her children have the right to claim a share in his property.
Rights of a Woman in Husband’s Property After Divorce
The prevalence of a woman’s right to her husband’s property after divorce depends on how the couple separated and the reason behind the separation.
The woman has a right to stay in her husband’s house until the divorce is granted or they have been declared as separated by the court.
Once the divorce has been granted, she can only claim maintenance for herself and her children and cannot claim any share in his property. However, her children can claim their share in his property.
A Muslim divorced woman can claim maintenance under Section 125 of Cr. P.C. if she has a minor child and has not remarried.
Muslim Women (Protection of Rights on Divorce) Act 1986
provides for the reasonable and fair provision of maintenance during the iddat period, amount of Mehr, and maintenance for children.
The Marriage Law (Amendment) Act, 2013
, had brought about an amendment in the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. The Act provides that the court should grant a divorce decree on the ground of irretrievable breakdown of marriage only if it is satisfied that adequate provisions for maintenance have been made. Parties are living separately for three years before filing for divorce. The wife’s right to the husband’s property has been secured.
Rights of a Second Wife in Husband’s Property
If a man marries the second time after the first wife’s death or after divorce, the second marriage is said to be legal. The wife and children have the same right as his first wife in the property of the husband.
However, suppose the second marriage is illegal (without divorce or during the first wife’s lifetime). In that case, the second wife will have no right over the husband’s property. But the children born out of a second marriage can claim a share in their father’s property.
Rights of a Wife in Jointly Owned Property
In the modern era, the couple jointly owns property or invest in property jointly for any reason such as tax saving or buying a home. If the property is registered jointly in both husband and wife’s name, the divorced wife can claim her share in the property. The court would grant the amount she contributed to such jointly owned property.
However, suppose the property is registered in the name of the husband solely. In that case, the wife can claim her share only if she can prove the amount she contributed to such property.
The wife also can settle the matter out of court by selling off her share to the husband at a current market value and letting the husband retain the property.
Rights of a Wife/Widow in Husband’s Ancestral Property
We will now look into what ancestral property is and what rights a wife has in her husband’s ancestral property?
Ancestral property is inherited up to four generations of male lineage without any division, and the right to such ancestral property is acquired by birth.
A wife can inherit the right to her husband’s ancestral property only after his death and not otherwise. In partitioning a property between her husband and children, she will have an equal share as that of her children.
In Uttarakhand, the State Government has introduced an ordinance that gives the wife a co-ownership right in the husband’s ancestral property. The husband had to migrate to other places in search of better work opportunities. This move has been initiated to make women economically independent. It has benefited around thirty-five lakhs of women in Uttarakhand.
A divorced woman who has no children or whose husband has absconded for a period of seven years will be entitled to become a co-owner in the land owned by his father. If the divorced woman remarries, she cannot be made a co-owner. Suppose the ex-husband of the divorced woman is unable to provide maintenance. In that case, she can be a co-owner of the husband’s ancestral property.
Share of Wife in Husband’s Property
Share of a wife in husband’s property can be clearly understood from the given table:
|Woman||With Child||Without Child||Divorced|
|Hindu, Buddhist, Jain, and Sikh||50%||50%||Maintenance + Children’s share|
|Christian, Jews, and Parsi||50%||33.33%||Maintenance + Children’s share|
|Muslim||25%||12.5%||Maintenance under Section 125 of Cr.P.C.|
What action can be taken if the wife’s rights have been denied?
Suppose the wife has been denied her share in the husband’s property or ancestral property. In that case, she can claim it by sending a legal notice to the party that denies her right. If she is restrained from seeking her claim, a suit for partition in a civil court can be filed. Suppose the property cannot be partitioned physically. In that case, the court can auction the property and give a share of such property to the woman. An injunction can be obtained to prevent the property from being sold during the pendency of the suit. If the property is sold without her consent, then the property buyer can be added as a party to the suit.
A wife can claim her share from her deceased husband’s property if the woman is a joint owner of the property. She can claim the share she contributed. Different religions provide different percentages to the wife. If the woman is divorced, she only has a right to maintenance. She cannot claim any ownership of the husband’s property. However, her children have a right to share the father’s property. If the woman is denied her right in husband’s property, then she can file a civil suit to enforce her rights.