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After divorce, when the Hindu married couple isn't able to divide the marital property among them amicably due to an absence of a possible agreement, the competent court distributes the property as per Section 27 of the Hindu Marriage Act, 1955. The court needs to divide the shares of the property in just and proper manner.
The Hon'ble High Court in the case of Surinder Kaur v. Madan Gapal Singh, while explaining the position of Section 27 clarified that it includes not only the property which are presented to any of the spouse at the time of marriage but also at any time before or after the marriage.
Therefore, a property bought by the husband after marriage in the name of the wife falls under the ambit of Section 27 and the competent Court has the power to divide the marital property in a just and proper way among the spouses.
The Honorable Courts of India have been following a common practice of dividing the marital property based on ownership and individual contribution. The first and foremost question that the court asks before dividing the property is who has the ownership i.e. title over the property.
If there is a joint ownership over the property then it would be divided proportionally based on the contribution by each of the two spouses. To determine the share of each spouse, the court takes into consideration individual equity over the property. For instance, if the husband and the wife have joint ownership over a property X, where the husband had contributed 40% and the wife had contributed 60% of the required amount to buy that property X, then the court would determine the current value of the property X and distribute the shares proportionally based on the percentage amount contributed by each of the spouses.
In case, where there is joint ownership over the property but only one of the spouses has paid for it then the court needs to scrutinize the matter before distributing the property. Generally, in this case, shares of the property get divided equally among the spouses. But if one of the spouses successfully proves in the court that he/she has paid the full amount from his/her known sources, then he/she might acquire the whole property in dispute, irrespective of the joint ownership.
Unfortunately, in India, the law does not acknowledge the non-financial contributions made by the spouse. Owing to this grey area in our legal system, many of the Indian housewives who non-financially contribute in the property for the entirety of their married lives to manage and maintain the household fail to acquire any part of it after a divorce.
A similar scenario was highlighted in the case of Sri Arun Das v. Smt. Aparna Das where the sale deed of the property contained names of both the husband and the wife. After divorce the wife filed for partition of the suit into 50:50 ratios. The court after scrutinizing the bank details found out that the entire consideration money was paid by the husband which puts the wife in fiduciary capacity vis-a-vis husband. The court held that the wife was like a trustee of the property and as the husband contributed money for the property he becomes the sole owner of the property, irrespective of the fact that the wife's name was on the sale deed.