Hi folks My brother got married 2years back and has got a son now who is Of 8months now. We both,me and my brother . went for a tour to Haridwar ,for some rituals of our grandmother .We,got three floors where we are staying . 1st floor is mine ,2nd floor is my brother l’s. When we return ,his wife shifted her entire clothes ,furniture in the ground floor ,which was empty . Now ,she has locked the doors from inside and not allowing us to enter .When we called Police,they refused to take ny actions . PS:Property was shared by My father’s brother and 3sisters as it was on the name of my grandfather and I presumed that it belongs to my father’s brother and 3 sisters . Immediately ,My father’s sisters and his brother changed the property name on my father’s name . Now the question is ,how can we proceed to let her out of this floor or the entire property? Also ,is my property clear for smooth sale purchase without ny challenges by her ,and her son ? She is not agreeing for the divorce ,she does not have good financial background but before marriage she said ,she was educated .But after marriage ,she did not even apply for ny job . My brother want divorce and I want the property to be cleared by all means . Please suggest ,how should I proceed and how should my brother proceed .
Wife has right to stay in matrimonial home . You cannot evict her from second floor
2) enter into deed of family settlement with other relatives for division of property by metes and bounds . It should be duly stamped and registered
3) if ground floor is allotted to other relatives they can file suit for eviction of brother wife from second floor
4) Your brother can file for divorce on grounds of mental cruelty
5) burden of proof is upon brother to prove allegations in divorce proceedings
if your brother wants to terminate the matrimonial knot, then, ask him to try to settle the matter amicably with his wife involving elders/relatives/friends etc and go for Mutual Consent Divorce which will be decided in 6-18 months,
if failed, he has two options,
one option is to,
file contested divorce on the grounds of mental cruelty but it will take many years,
once he files the contested divorce she may file/claim
498a complaint
Domestic Violence case
maintenance,
so be ready for them too,
and,
the second option is to file Restitution of conjugal rights petition in the Court, to show bonafide intentions to save the matrimonial tie, however, he can withdraw the same any time,
RCR will work as a safeguard to 498a, maintenance, DV etc
as far as property is a concern, if she had not obtained any stay order on the property, then, it can be sold freely,
FYI, she can get an injunction order on the sale/transfer of the property under the domestic violence act,
AMICABLE SETTLEMENT WILL BE THE BEST OPTION
Dear Sir/Madam,
As you have stated that you have launched a police complaint but didn't work as the problem of yours is of civil nature. You need to give a notice through an advocate and then proceed to civil suit claiming injunction as per your rights. On order of civil court the locks may be broken and if required police assistance may be ordered.
Kindly contact via kaanoon.com as there is lot of experienced lawyers there and surely help you out.
1. She has occupied the ground floor which was vacant. During subsistence of her marriage she has the right to reside in her matrimonial home.
2. She cannot be evicted from the property during the subsistence of her marriage.
3. If your brother wants divorce then let him file a petition for dissolution of marriage on the ground of cruelty. Once the marriage is dissolved through a decree of divorce she will have no right to reside in the shared household.
First of all file a Partition Suit.
Than file a police complaint against her to evacuate her from the premises
First, your brother should apply for divorce in the court and ask her to vacate the ground floor. Her instead of talking you with her, ask your brother to talk with her and vacate the floor.
1. The house belongs to you. So in the first place go and enter into your own home forcefully. In doing this no crime is committed.
2. After taking possession of the house file a suit 3eviction. In a property not owned by husband the wife has no right of residence.
3. So first take possession and then file suit for eviction.
Hello,
1. If the property is in your father's name he may file a suit for evicting daughter in law from.his property and seeking permanent injunction against her on entering the premises.
In case your father is a senior citizen he may complaint and seek eviction before the Senior Citizen Maintenance and welfare tribunal.
In case father has not transferred the property in your name vide registered deed you cannot sale or transfer same.
- As per law, your brothers wife is not having any right over the property of her husband or in laws during the life time of her husband , except a residential right.
- Further, if the said property is in the name of your father , then he can removed her from his property after filing a suit for Mandatory and Permanent Injunction before the court.
- Further, if your father is old age , then he can also lodge his complaint against her under the provision of Senior citizen Act , for evicting her from his property.
- Further, as the said property is in the name of your father , he is free to sell the same to any one as per his wish and a restrained order cannot passed to stop in selling.
- Further , even your brothers son cannot claim any right over the property during the life time of his father.
- The best way of getting divorce is mutual divorce , your brother should take her consent for filing a mutual petition before the court for getting separated.
- Further , as per the Supreme Court, A well qualified wife, who is having the earning capability & capacity, but desirous of remaining idle, is not entitled to claim any maintenance from her husband.
You can contact me in Delhi via kaaanoon.com
Dear Sir,
It is criminal tress pass. Approach the civil court and get a mandatory order immediately and throw her out of the ground floor. Further lodge police complaint and approach higher police officers.
On whose name the proeprty is lying now which has been forcibly occupied by her?
If it is on your father's name, then he can take legal action against her to throw her out by taking under criminal law for criminal trespass.
Before that your brother should vacate the house and stay away outside and call her to join him in that place which would become her matrimonial home, if she refuses to join there, then he can file a divorce case against her on the grounds of cruelty.
In the meantime if she has locked the house , your father can break open the door and throw all her items outside and put a lock of is own, along with a petition seeking permanent injunction against her before the court to restrain her fro interfering and causing disturbances to him with his possession and enjoyment of the said property.
Since you are seeking two legal recourse, the two remedies which i suggest you are as follows:
1.File a suit for declaration as to the ownership as to the property and seek their eviction as a consequential relief of the suit.
2.File a contested divorce on one of the grounds mentioned under section 13(1) of the Hindu Marriage act, 1955 . It will be a contested divorce and cant be objected by his wife once the grounds are fulfilled and established.
This will make sure that your property is cleared from all possible encumbrances and your brother to get rid of the lady.
You can contact me for consultation or on linkedin,
https://www.linkedin.com/in/yuganshu-sharma-655091183/
Regards,
Please approach an Advocate whose fortes are in 145 and 146 of Cr.P.C. 1973 Criminal Proceedings before Police and Magistrate Court.
By Criminal case under section 145 and 146 Cr. P.C.1973 you may get back your property within short span of time provided your Advocate has specificaly expertise in this instant due process of law.
What is the age of your father ? If he is above 60 years of age than can obtain eviction order under senior citizen act. Daughter in law has no right to live in in laws property.
Otherwise have to file civil suit for her eviction.
Tell your brother not to finance her till vacate the ground floor. And simultanelay file case in court for her eviction. And can sell the property. Once sold she cant do anything.
If the property is distributed among the heirs, and got registered your respective shares it is clear.
However, if the same is not partitioned (family partition) as referred in your post, you need to get it partitioned in family settlement and get it registered by paying stamp duty. She cannot claim right in your property.
Wife has right to stay in matrimonial house.
You brother can file for divorce under grounds of mental cruelty and seek divorce.
If the ground floor is settled in any one of your family members, they can seek her eviction.
Give written complaint to police regarding the same. If they are not listening write a copy to higher authorities.
You can also file suit for declaration of title and permanent injunction but it will take time to dispose off the suit.
You need to evict her through both criminal and civil proceedings. You can also file partition suit if the property is not partitioned.
your father can file case for eviction against her.
he can also file mandatory injunction in the court.
1. Your father should file eviction suit against his son and daughter in law under senior citizen act.
2. Your brother should also file divorce against her as soon as possible and petition he should mention about her misbehaviour with your family.
