• Mortgaged property during divorce wherein both the spouses are borrower

Me and my wife going through divorce, we had bought a property against home loan in 2018 wherein I have paid all the money and have been paying the EMI s as well till date, she is the co borrower and co owner of the property as well. I want her to get rid of this property. Is this any way possible? She has not filed any maintenance or alimony, we have a child of 6 years. I filed sole custody. Though I have been paying her school fees. She has filed divorce on the ground of cruelty and so did I on the ground of adultery (video recording as evidence). She is demanding 50% share in the property, but not paid a single penny. She had left her matrimonial house in July'2020.
My questions are;
1. Can I get sole ownership of the property?
2. Can I get custody of my girl child?
3. Can she file DV case against me in future?
4. Can I file a defamation case against her and her partner?

Any other advice if u have please tell me.
Asked 10 months ago in Property Law
Religion: Hindu

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9 Answers

Only if she agrees or settlement happens. 

It depends on order of the court if you are contesting

You filed the consent terms in divorce that she can't file

Yes you can file defamation

Prashant Nayak
Advocate, Mumbai
28058 Answers
93 Consultations

4.4 on 5.0

You can file declaratory suit that you are absolute owner of property as full consideration has been paid by you 


2) you would get visitation rights but not sole custody of your daughter 


3) after divorce wife cannot file dv case 


4) you can file defamation case against your wife and her parents 

Ajay Sethi
Advocate, Mumbai
89022 Answers
6344 Consultations

5.0 on 5.0

Dear Client,

  1. Yes, you can get that property.
  2. It's hard to answer if that case in court that solely depends on the arguments made by advocates.
  3. Yes, she can file a case but if she doesn't have any proof regarding this it's unlikely she is going to win.
  4. Defamation case on what basis, I don't understand on what you're going to file a case against them.


Anik Miu
Advocate, Bangalore
5333 Answers
57 Consultations

4.9 on 5.0

1. Since she is the joint owner of the proeprty, you may have to file a suit for declaration to declare that you only paid for the purchase of the proeprty besides repaying the home loan EMI amounts regularly.

This may sometimes help you to get the title of the entire property to your name.

2. It depends on the grounds that you have filed the child custody case and the arguments that you may present before court in this regard.

3. She may not be eligible to file DV case after the divorce is granted.

4. No such case is maintainable. you have got remedies in law for her acts of adultery provided you prove the same =with the documentary evidences, and you can divorce on the same grounds.


T Kalaiselvan
Advocate, Vellore
79184 Answers
1611 Consultations

5.0 on 5.0

As per the information gathered from your query, 

1. If you can establish that all the money is paid by you to the builder, you can file declaration suit against your wife to claim the property.


2. regarding the custody, since the matter is before the Hon'ble Court, court will take view on the same based on the fact and circumstances.


3. Once you get the divorce she can not file petition for DV.


4. If such circumstances prevails, you may do so. 

Advocate, Bangalore
584 Answers
4 Consultations

4.8 on 5.0

By default she is the half owner of this house besides you, she being the co-owner.


1. To get/claim the full ownership of the house, you will have to file a suit against her and the builder in the civil court wherein you will have to prove that the entire consideration against this property has been contributed by you.


2. yes, based on the merits of the custody case filed by you.


3. Yes


4. If they have done or are doing any act which has the effect of tarnishing your image. 




Vibhanshu Srivastava
Advocate, New Delhi
9441 Answers
251 Consultations

5.0 on 5.0

Dear Querist

My opinion on your queries are as under: -


1. No, as per Law both of you are the co-owner of the property but if she is ready then only you may get the same. apart from this if you are alone pay the EMI's then stop paying EMI's the Financer may take possession of that property and before that issue notices to you and your wife as well.


2. You may, if you proved that you are the best person for the welfare of the child and she is residing in adultery.


3. Yes, she may file DV case any time within one year from the date of divorce if any. till the divorce decree granted by the court you and her are spouse of each other and if there is any violence which falls under domestic violence then you may be prosecuted for the same before the criminal court under The Protection of Women From Domestic Violence Act-2005.


4. If you get an acquittal then you may file Defamation suit against your wife but if your father in law published any defamatory things against you then file criminal case for defamation under section 499/500 of IPC against him before the Criminal Court of area as Complaint Case.


Feel Free to Call 

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

1.You shall have to file a declaratory suit praying for a declaration that you are the sole owner of the said property since you have paid the entire consideration for buying the property for which the name of your wife as the co-owner should be deleted. In the same suit, you shall have to pray for a direction on the register to delete the name of your wife from the title deed as the co-owner of the property.


2. You can file a child custody case against your wife on the ground that the welfare of your child will be impaired since your wife is engaged with a third person in physical relationship (if any) despite staying in matrimonial relationship with you.


3. No body can stop anybody in filing any case against anybody. So, she can certainly file the DV case against you which you shall have to contest fittingly.


4. You can file the defamation suit against your wife and her paramour if they have cause defamation to you.

Kaanoon dot com is not providing numbers of Advocates. you can contact me at gangulykkatgmaildotcom or find out my number by google searching.

Krishna Kishore Ganguly
Advocate, Kolkata
26791 Answers
726 Consultations

5.0 on 5.0

If the property is in joint names, you alone cannot sell it to anyone legally. You need to file a suit against your wife and get a court order for sale and sharing of sale proceeds.

Swaminathan Neelakantan
Advocate, Coimbatore
2121 Answers
20 Consultations

4.9 on 5.0

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