Legal Advice

Can wife claim husband’s paternal property

Query

My husband is a qualified doctor but he has not been practicing for seven years. I have two sons and one daughter. When my husband does not take care of us, can I claim my husband's paternal property? My husband does not own any immovable property. He is a jobless person. My father-in-law is a class one officer and he has a huge property. My husband is the only son so he will get all self acquired and ancestral property after the death of my father in law. 

Advice

In Hindu family law, a wife does not have any right in the ancestral property of her husband during his lifetime. Only coparceners of the joint Hindu family (Mitakshra) have the right to inherit ancestral property. As a wife is not a coparcener, she cannot claim any right or title over the ancestral property. However, there is a situation in which a wife can accrue rights in the ancestral property of her husband.

When the ancestral property is divided and each coparcener receives their separate share, the ancestral property becomes the self-acquired property of the coparcener. If a coparcener dies intestate, then the wife being the class I heir inherits that property.

When it comes to self-acquired property, a wife does not have any rights during the lifetime of her husband. After the death of the husband, a wife becomes entitled to a share in his self-acquired property. She will receive a share only if her husband died intestate (without making a will). If the husband has made a testamentary will and did not give any property to his wife, then the wife will not receive anything in the self-acquired property of the deceased husband.

As a legally wedded wife, a married woman has many rights despite having no title or interest in the property of her husband and the matrimonial home. She has the right to claim maintenance from her husband if he has sufficient means to maintain her. Even if her husband is not practicing his profession, he cannot evade his responsibility to pay maintenance.

Under Section 125 of the Code of Criminal Procedure (CrPC), a wife can claim maintenance from her husband. The court will presume that the husband has sufficient means to pay maintenance, as he is an able-bodied person. The husband cannot deny maintenance due to unemployment. In this situation, the wife can also claim maintenance for her sons.

Furthermore, a legally wedded wife has the right to reside in the matrimonial home, even if she has no title or right in the property. Section 17 of the Domestic Violence Act, gives a wife the right to reside in the matrimonial home, and her husband cannot evict her from there without following the legal process.

Shivendra Pratap Singh

Advocate

High Court Lucknow

Ancestral property

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