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Having gone through section 19, we are in a position to discuss what strategies or tactics can be adopted to minimize the damage if you don’t have a case filed on you yet.
If you own your own house, whether fully paid off or bank EMI still ongoing, you will be sometimes advised that it is better to sell-off the house so that your wife cannot claim residence in it or put a restraining order using Section 19 of DV Act. Of course lawyers don’t dish out this type of advice, it’s usually discussed in men’s rights forums.
The decision to sell the house or not will depend on several factors:
If husband and wife are still staying together in the house which is solely in husband’s name, then she can get a residence order under section 19 to stay in the house. In fact she can get husband to leave the house too based on domestic violence allegations — whether true or not, the order depends on how well you dispute the allegations and what the judge finally orders. So a husband may be deprived of own house for which he might still be paying EMI, as is common in most cases. The cases may drag on for many years, during which time the husband pays EMI, and also pays rent for his separate accommodation. So in a way this adds to the husband’s financial burden because he may be ordered to pay maintenance amount separately. Of course on flip side, husband should use this as argument to reduce the maintenance claiming that wife doesn’t need any money for rent since she is staying in husband’s own house.
The real-estate and housing market prices move in cycles (go up mostly) due to their own industry dynamics, interest rates cycle, state of economy, job creation etc. If one bought the house at relative peak of housing cycle and then few years later is fearing wife will file DV case, but if the housing market is depressed at that time, one may get no return or maybe even a loss on invested funds by selling at that time. Also, the cost of stamp duty and registration are charges which are quite high in India (vary from state to state), so buying and selling houses is not something which can be done every few years because the transaction costs will be quite a high proportion of the overall consideration.
On the other hand one could be in a relatively lucky situation to have invested at relative trough of the housing market, but few years later one finds oneself in a situation of fearing DV cases from wife. But at that time his house price has appreciated maybe 30-50%. In that scenario, one may very well make a decision to worry less about what one is losing in transaction costs but more about saving the invested principal in house from wife’s clutches should she get a residence order or a restraining order on the house.
In some situations, the wife is acting crazy on you but both of you are still staying in the same house. In that situation, selling the house will be almost impossible since any purchaser would like to see the house at least and it will be difficult to do so when wife is living in the same house.
If however wife has already left for her parents’ house and living apart from you, then selling the house may become a real possibility since you can show the prospective buyers the place easily in her absence.
So the decision to sell the house or not is really best taken based on analyzing and weighing carefully the above factors. Ultimately it’s a person’s own understanding of the situation combined with his confident action that can save the day. Whatever decision you end up making, don’t regret the decision based on how the events actually unfolded in future. In a situation of uncertainty, there is no way of knowing beforehand what is the optimal decision. There are only probabilities involved. So one should carefully think about various probabilities, decide on one approach one is comfortable with, and then stick with it.
Should I transfer house to my mother’s name?
This is another question in the minds of those who have a self-acquired house and fear that upon filing DV case by wife, the house will become encumbered due to possibility of restraining order or residence order in favour of wife.
As far as legality goes, it may be perfectly legal to transfer your house to your mother’s name. The cost of stamp duty etc on a transfer deed is also much lesser than on a sale deed, so you can save on taxes paid to government vis-a-vis on sale of house.
However, one caveat one has to bear in mind is that we have seen a few scenarios where the mother may put her own pressure on the son after the house gets transferred in her name. Human relationships are delicate, and though it is a good idea to try to save a property going to an unscrupulous wife, sometimes the end result that is being seen is the husband starts to get pressure from his own mother who tries to run her son’s life according to what she thinks is best for him.
If one feels that there could be unnecessary entanglements later if house gets transferred to mother’s name, then selling the house maybe given higher weightage in decision making.