If you are stuck in such a situation, here is what to do.

Mr. Alok, a resident of Jayanagar, finds himself in a distressing situation. After enduring what he describes as a difficult and tumultuous marriage, he decided to seek a divorce from his wife, Mrs. Priya. However, upon communicating his decision, he now fears that Mrs. Priya may initiate false legal proceedings against him and his family as a retaliatory measure.

A major point of concern for Mr. Alok is an under-construction flat he is purchasing from Apex Builders. The home loan for this property is exclusively in his name, and he has been diligently paying the down payment and all subsequent EMIs from his personal income. The loan was even sanctioned before his marriage, which lasted for about a year and a half, though they only cohabited for approximately seven months. The couple does not have any children. Since the flat is still under construction, the final registration has not been completed. Mr. Alok is worried whether this unregistered property will be considered his asset by the court when determining alimony or maintenance for Mrs. Priya. He is contemplating transferring the property to his mother’s name or simply delaying the registration until the divorce proceedings are concluded, hoping to keep it out of the financial assessment.

Advice in such cases

Navigating a contested divorce requires careful legal and financial planning. Here is some general advice for individuals in a situation similar to Mr. Alok’s:

• Asset Disclosure is Mandatory: In matrimonial proceedings, both parties are required by law to file a detailed affidavit disclosing all their assets, liabilities, income, and expenditure. Attempting to hide or conceal any asset can lead to serious legal consequences, including perjury charges.
• Status of Unregistered Property: An under-construction property, even if not yet registered, is unequivocally considered an asset. The Builder-Buyer Agreement, loan documents, and records of payments (down payment, EMIs) are substantial proof of ownership and investment. The court will consider its current market value or the amount invested to date when assessing your financial capacity.
• Risks of Transferring Property: Transferring the property to a family member, like a mother, during the pendency of a divorce can be viewed by the court as a fraudulent transfer. It may be interpreted as a deliberate attempt to deny the spouse her potential claims for maintenance. Such a transaction can be challenged and even set aside by the court.
• Delaying Registration: Postponing the registration of the property will not help. Since the financial trail (loan, bank payments) clearly points to you as the owner, the asset cannot be hidden. The court’s assessment is based on ownership and financial interest, not just the final registration deed.
• Self-Acquired Property: While the property is self-acquired and the wife may not have a direct ownership claim, its value is crucial in determining the quantum of maintenance or alimony. The court aims to ensure that the dependent spouse can maintain a similar standard of living.
• Duration of Marriage Matters: The short duration of the marriage and the absence of children are significant factors that the court will consider. Courts are often less inclined to award substantial permanent alimony in cases of short-lived marriages.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

The legal framework governing such situations is primarily civil, with potential criminal aspects if false complaints are filed.

• Hindu Marriage Act, 1955: Section 24 deals with maintenance *pendente lite* (during the proceedings), and Section 25 deals with permanent alimony and maintenance upon the passing of the divorce decree.
• Bharatiya Nyaya Sanhita, 2023 (BNS): If false criminal cases are filed, such as for cruelty, Section 85 and Section 86 of the BNS (which correspond to the old Section 498A IPC) may be invoked.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): Procedural aspects, including seeking anticipatory bail under Section 482 of the BNSS in case of apprehension of arrest based on a false complaint, are governed by this code.
• Transfer of Property Act, 1882: Section 53 of this Act can be invoked to challenge any transfer of property made with the intent to defraud creditors or subsequent transferees, which can include a spouse’s claim for maintenance.

If you are the complainant

If you are the one initiating the divorce and are facing these challenges, here are the steps to take:

• Organize Financial Documents: Meticulously gather all documents related to the property in question. This includes the loan sanction letter, builder-buyer agreement, bank statements showing all EMI payments, and proof of down payment.
• Prove Source of Funds: Compile evidence like salary slips and income tax returns to establish that the property was acquired solely through your own income, without any financial contribution from your spouse.
• Be Transparent with the Court: Do not attempt to hide assets. Make a full and honest disclosure in your financial affidavit. Transparency builds credibility, while concealment can severely damage your case.
• Document Grounds for Divorce: If you are seeking a divorce on the grounds of cruelty, start documenting instances, dates, and any available evidence (messages, emails, witnesses) that support your claim.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

If you consider yourself a victim, whether of an abusive marriage or the threat of false cases, proactive steps are necessary:

• Seek Legal Protection: If you fear false criminal cases, it is prudent to discuss the option of seeking anticipatory bail with your lawyer.
• File Your Case First: If you have strong grounds for divorce, such as cruelty, being the first to file the petition can sometimes provide a strategic advantage.
• Maintain Composure: Matrimonial disputes can be emotionally draining. Avoid any aggressive confrontation with your spouse that could be used against you. All communication should be calm and preferably documented.
• Gather Your Evidence: Collect all evidence that supports your claims, whether it’s for the divorce petition or to defend against potential false allegations.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

If a criminal complaint, especially concerning cruelty (under BNS Section 85/86), is filed by a wife, the police are generally mandated to register a First Information Report (FIR). Their subsequent actions typically involve:

• Initial Investigation: The police will investigate the complaint by recording statements from both parties and any potential witnesses.
• Arrest and Bail: While earlier arrests were common in such cases, Supreme Court guidelines now emphasize the need for a preliminary inquiry before making an arrest. If there is a threat of arrest, seeking anticipatory bail under Section 482 of the BNSS is a crucial step.
• Cooperation: It is advisable to cooperate with the police investigation while being guided by your lawyer. Present your side of the story with supporting evidence.

FAQs people normally have

Is an unregistered, under-construction property considered my asset in a divorce?
Yes, absolutely. The financial interest and ownership rights established through agreements and payment records make it a part of your asset portfolio for the purpose of calculating maintenance and alimony.

Can I transfer my property to my mother’s name to avoid paying alimony?
This is highly inadvisable. The court can see this as a fraudulent transfer intended to defeat your wife’s claim. The transaction can be legally challenged and reversed, and it will negatively impact your credibility before the court.

Does my wife automatically get a 50% share in my self-acquired property?
No. In India, there is no automatic 50% division of assets. The wife does not get a direct ownership share in the husband’s self-acquired property. However, the value of this property is a key factor in determining the amount of alimony she might be entitled to.

How does the short duration of our marriage affect the case?
A short marriage (especially one with no children) is a very important factor. Courts often reason that the wife’s lifestyle has not become irrevocably tied to the husband’s financial status in a short period. This can lead to a lower amount of permanent alimony or, in some cases, a one-time lump sum settlement instead.

What evidence is required?

To establish your case regarding the property and your financial status, you will need:

• The Builder-Buyer Agreement or Allotment Letter.
• The Home Loan Agreement and sanction letter.
• Bank account statements showing the down payment and all EMI deductions.
• Your salary slips, employment contract, and Income Tax Returns for the last 3-5 years.
• Any communication with the builder regarding the property.

How long will the investigation take?

The timeline for legal proceedings can vary significantly:

• Divorce Case: A contested divorce in India is a lengthy process. It can take anywhere from two to several years to reach a final resolution, depending on the complexity of the case and the court’s workload.
• Criminal Investigation: If an FIR is filed, the police are generally expected to complete their investigation and file a chargesheet (or a closure report) within 60 to 90 days of the arrest or first appearance of the accused.

Advocate Sudhir Rao, Supreme Court of India