• Overseas property claim

Hi i am an Australian citizen and married to an Indian man. I can see our marriage is clearly  heading towards a divorce so my only question is can my husband claim any share in my property in Australia ? ? He has never lived in Australia or ever been here.
Asked 2 years ago in Family Law from Australia
Religion: Sikh
As per the Indian law  husband  cannot claim rights on your property in Australia. Incase you intend for divorce, it is suggested that you should apply for Mutual consent divorce which is an easy and a fast procedure.
Sudershani Ray
Advocate, New Delhi
192 Answers
25 Consultations
4.9 on 5.0
No, the position is different.
Is your sister in law working? Does she have any issue?
A wife cannot claim share in the property of her husband during his lifetime, however under the Hindu Succession Act,1956 as amended up to date she can get one share in his property if he dies intestate i.e. without leaving a Will or any other testamentary instrument with regard to his self acquired property. The other legal heir who can claim share in the property of deceased male who dies intestate is all his sons and daughters, his mother and legal heirs of his predeceased sons or/and daughters as the case maybe. 
During his lifetime a Wife during her marriage is in existence or even if her marriage get dissolved by decree of divorce she has only right to residence on certain terms and conditions, to be provided by her husband. 
Right to residence has been provided to the Wife under the Protection of women from domestic violence Act,2005. However this right she can enforce against her husband not any of his relatives. 

Now anyone saying a Indian Wife gets half the property of her husband at the time of divorce in India being granted by Indian court is misinformed. The equatable distribution of property of husband/wife at the time of divorce confuse the Indian law with US or any other foreign country's law, as in India no such equatable distribution of individual property of husband/wife exist unless it was jointly owned property.
Under the Hindu Marriage Act,1955 wife can claim Permanent alimony and maintenance on lump sum basis or monthly or periodical basis for a term not exceeding his life but in such case the income and other property of both parties, conduct of the parties and other circumstances of the case will be taken in account by the court to decide this issue. 
This right is not unqualified right and is based on all the above mentioned conditions. Hence any Hindu wife cannot claim this as her birth right to claim Permanent Alimony and maintenance from her husband as if the Family court will be too much willing to grant her this without any problem. 
More so even if the Alimony granted to either of the parties the quantum of the same can be varied, modified or rescinded anytime in future with the change of circumstance,hence although it is called Permanent alimony and maintenance it is not permanent for all purposes. 
Further, a Hindu wife can claim monthly maintenance from her husband if she has no means to maintains herself and he having sufficient means refuse or neglect to provide the same to her.This right she can claim under the various provisions of law available to her. The mean to maintain his wife has been considered the moral as well legal duty of all husbands even if they may be without job or income to do so, their means to earning is sufficient for deciding this issue,hence being unemployed for considerable period of time or having no source of income is no excuse to avoid this legal duty. 
At the same time if the wife has sufficient means to maintain herself as she may be having job or business being providing her sufficient source of income for herself or immovable property that may be charged for driving sufficient means of income for herself, in such case she may not be granted any monthly maintenance from her husband.
Sudershani Ray
Advocate, New Delhi
192 Answers
25 Consultations
4.9 on 5.0
1) i presume marriage has been solemnised under provisions of hindu marriage act 

2) file for divorce in india . your husband will not have any share in your property in australia
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
1. Spouse has no right of share in the property of another spouse by virtue of marriage. So during divorce there is no question of division of property unless and until both of them jointly own any property.

2. The same rule as stated above applies to your brother also. 

3. Spouses have right of maintenance after divorce but not on rspective properties.
Devajyoti Barman
Advocate, Kolkata
5207 Answers
54 Consultations
4.9 on 5.0
1) similarly if your brother wife files for divorce in India she will only get alimony or maintenance on her divorce . 

2) she cannot claim any share in husband property at time of divorce in India .
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
1) the mistake you and your brother made was finding life partners within same family .in such as case if one relationship breaks up the other marriage also gets affected . 

2)if after marriage your brother found that his wife had lied about her age , educational qualifications he should have filed for annulment of marriage within period of one year . 

3)your brother should make any  false statements while sponsoring his wife . if any false statements are made and it is discovered by immigration authorities your brother would be in serious trouble .your brother can be prosecuted by immigration authorities .

4)your brother should file for divorce in india on grounds of mental cruelty . state facts about her false statements of age , educational qualifications , false statements made to immigration authorities to build a case for divorce
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
1)you need evidence to substantiate your claim that your sister in law lied about her age , educational qualifications 

2) what is your brother income ? court would consider your husband financial status before deciding alimony amount 

3) his wife can claim the moon but court is not going to award her the amount she claims . 

4) the marriage has lasted only 2 years . 

5) it is doubtful that court will award her Rs 20 to 30 lakhs as alimony . 

6) thanks for your appreciation
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
1. Your assets will be divided if you apply for divorce in Australia. The husband may also get a substantial share in the property of his wife. The manner of division will be decided by the court in its discretion.

2. Unlike Australia, there is no law in India which gives to the wife or husband any share in the assets of the other spouse.

3. You may apply for divorce in India.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
1. If your brother's wife applies for divorce in India she cannot claim the assets which he owns in Australia.

2. However, she may claim financial support in the form of maintenance against him by filing a case to this effect in an Indian court. This claim mad by her can be defeated if she earns on her own. 

3. Your brother may also file for divorce in India if he fears losing a large chunk of his assets in Australia. 

4. A new law aimed at giving to the wife an equal share in the assets of her husband may be passed at any time as it is pending in the Indian Parliament for the past few years.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
1. Your husband can not claim share on any property standing in your name, be that in Australia or India,

2. If both of you file a mutual consent divorce petition, you are likely to get the decree of divorce just after 6 months from the date of filing the said application.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1. Your brother's wife will get no share on the property of your brother in case she files a divorce suit,

2. She will get her share of his property as his legal heir (if there are more than one legal heir) in case of his deemose before the decree of divorce is passed.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1. If saving of your assets, movable and immovable, is your prime concern then apply for divorce in India.

2. You and your husband may file for mutual divorce in India which would be finalized earlier than no fault divorce in Australia.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
Your brother can also file for divorce in India.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
If your respective spouses, who are Indian citizens, refuse to go for mutual divorce then you may unilaterally file for divorce on the grounds available to you under the Indian law.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
1. You should first try to save the marriage of your brother. You do not know whether his second wife, if any, will be anny better,

2. If that is not possible, engage a lawyer in India and file a petition for anuklment of the marriage for fraudulently taking his consent for marriage by suptressing facts.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1. If there is no evidence about her supression of material fact from your brother, then there is no point in filing a petition for annulment of marriage as suggested in my earlier post,

2. File a divorce suit based on acceptable ground like mental cruelty,

3. Engage a local lawyer in India..
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1) best option is to go in for divorce by mutual consent .

2) but it is doubtful that your sister in law will agree since she sees your brother as meal ticket for freedom 

3)since your brother is earning Rs 1. 5lakhs a month your sister in law can claim Rs 30,000 atleast as maintenance . 

4) if she files 498A case contest it on merits. also your brother   should obtain Anticipatory bail
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
1. If your brother does not want to stay with her, no law in India can force him to do that,

2. Your brother shall have to contest the cases to be filed by her on merits,

3. You can give some one in India POA to take care of the cases,if filed by her.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1. Be proactive and not reactive,

2. Let your brother file a divorce case first on the ground of cruelty.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1. Tye summons can be sent to any parts of the world by indian post and once track report is submitted showing that article is delivered the court will accept the effect of service as completed. The citizenship of your brother has no issue in it as citizen of any country is equally liable for rigours of law of this country like any other Indian citizen.

2. Once W/A is issued the same can be delivered in Australia through Ministry of Foreign Affairs. Thereafter Red Corner Notice may be issued as a result once he comes to india he can be arrested at the airport. Hence it will be wise for him to engage a lawyer who can keep track of the cases in indian court so he comes to know whether summons/ W/A is issued or not.

3. if 498A case is filed then it is prudent to take bail asap.
Devajyoti Barman
Advocate, Kolkata
5207 Answers
54 Consultations
4.9 on 5.0
1. Any court can serve summons to a person in any part of the world. The summons can be served through the Indian High Commission in Australia as there are reciprocal provisions in the law of every country which provide for enforcement of an order passed by a foreign court.

2. The court notices are directed to the address at which the person intended to be served resides. So it will not be directed to his parents address in India. 

3. If you do not receive the court notice an adverse order will sooner or later emanate from the court. This order can then be carried out in Australia.

4. The court will not proceed to issue a warrant of arrest against your brother unless your brother defies a court order such as the order to pay maintenance or to appear in the court. 

5. Whether the court issues a warrant to arrest on its own or on the motion made by your sister-in-law your brother can be arrested when he appears in India, or from Australia and then brought to India.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0
1) family court will issue summons . it would be sent by post and once intimation is received that it has been delivered at the address mentioned in summons it would be proper service . 

2)summons wont be sent at parents address in indi as he is not residing at said address 

3)if summons are not served no question of issue of any warrant against your brother 

4)court has to be satisfied about service of summons before any bailable / non bailable warrants are issued in 498A cases 

5)if warrant is issued against your brother on your brother arrival in india he can be arrested . so better obtain AB if 498A case is filed
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
1. His wife can always file 498A case in india on any fabricated ground including allegation of not taking her back to abroad.
2. No law can force husband to take her back to his wrong place. However refusal of do so is considered to be a torture having criminal and civil consequences.

3. yes , ask your brother to send her money regularly to weaken her case to some extent.
I may add mere sending of money does not mean he has not abandoned her since admittedly she is Indian and your brother has no proof to show that he took efforts to take her back. Wife' splace is at her husband's place , not at her parental place.
Devajyoti Barman
Advocate, Kolkata
5207 Answers
54 Consultations
4.9 on 5.0
1. Indian Courts issue Summons to the accused/defendants at the addreses shown in the application filed,

2. The Summons will be send by post and a postal track reports available through internet will prove good services of those summons to the addressed persons,

3. After Summons are serviced, the trial will proceed and the Court may pass any order as it pleases ex-parte which may include issuance arrest warrants also,

4. After that the law and its enforcement procedure will take its own course for which the accused may be arrested on arrival to India,

5. It will be prudent on your part to engage a lawyer in India without thinking that your brother will escape trail after taking up citizenship of another country.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1. There is no provision in  law in India which will compel your brother to sponsor his wife's visit to Australia,

2. He can certainly be tried against the allegations levelled against him and he also will be patiently heard by the Court through his lawyer,

3. For taking up foreign cotizenship he will neither get any special concession nor will be discriminated,

4. He shall have to answer the question put by her lawyer as to why did he not take any effort to take her to the place where he is living, after their marriage,

5. Engage a local lawyer to contest the cases,

6. Your brother shall have to face the trial and not escape it.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
5.0 on 5.0
1) your brother cannot be forced to sponsor his wife trip to australia 

2)wife can make any baseless allegations against her husband . the veracity of allegations have to be proved in court . 

3)your brother can mention the reason why he is not sponsoring her . the fact that she has lied about her age , educational qualifications and is willing to submit false certificates for obtaining visa to travel abroad makes your brother wary of sponsoring her . the reason being false statement on oath can land your brother in serious trouble and your brother can be prosecuted by the immigration authorities . 

4) merely sending money to his wife does not mean your brother has not abandoned her . the ideal position would be your brother sponsoring her visa but the immigration authorities rejecting it for making false statements by the applicant . then wife cannot say husband has abandoned her
Ajay Sethi
Advocate, Mumbai
23240 Answers
1219 Consultations
5.0 on 5.0
1. Your brother cannot be compelled under the Indian law to sponsor his wife to Australia. 

2. If your wife files criminal charges against your brother then he will have to defend himself on merits through his lawyer. The courts in India will give him sufficient opportunity to be heard in defence before giving a judicially enforceable finding on his guilt or lack of it. 

3. That the wife is living in the martial house and is being sent the necessary expenses by the husband is not a defence which will serve to rebut the case of the wife. He shall have to specifically show that he has not abandoned her. The attending circumstances will be taken into account by the court.
Ashish Davessar
Advocate, Jaipur
18102 Answers
448 Consultations
5.0 on 5.0

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