Child Property Rights Upon Divorce

Coverage of this Article

Key Takeaways

-The Laws of Succession are legal principles of the distribution of assets of a deceased person. These include the order in which people are to share the property/estate of the deceased person.

Introduction

-Inheritance is the practice of passing on private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual.

Who is an Heir

-An heir is a person who is intended to inherit the property of the one who died without leaving a will. According to Indian laws, a person who is determined to succeed to the estate of an ancestor who has died without making a will or mentioning a legal heir is the rightful heir of the property. 

Acquiring Property Under Hindu Succession Act

-Originally, the Hindu succession law prescribed only sons to have a legal right over the property of the father or grandfathers.

Rights upon divorce

-Divorce is understood as the legal dissolution of a marriage by a court or other competent body.

Illegitimate children

-The rights of illegitimate children are given underSection 16 (3) of the Hindu Marriage Act, 1956. 

Conclusion

-The will is an important document when dividing the property.It lays down clearly the necessary details for the division.

Questions

-Who has a right over the ancestral property as per Mitakshara Law?

Key Takeaways

• The Laws of Succession are legal principles of the distribution of assets of a deceased person. These include the order in which people are to share the property/estate of the deceased person.
• An heir is a person who is intended to inherit the property of the one who died without leaving a will. According to Indian laws, a person who is determined to succeed to the estate of an ancestor who has died without making a will or mentioning a legal heir is the rightful heir of the property.
• Divorce is understood as the legal dissolution of a marriage by a court or other competent body.
• Inheritance of ancestral property is the birth right of the child. The child becomes a coparcener by virtue of their birth and has right over the property. The divorce will not affect these rights.
• When a property is acquired individually, the children do not have a right over the property. The owner can bequeath all their interest in the asset to anyone through a will under the Hindu laws of succession.

Introduction

Inheritance is the practice of passing on private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. Traditionally, the property or assets of the parent are inherited by the child or any other close relative. The practice of inheritance is guided by the laws of succession. The laws of succession are legal principles of the distribution of assets of a deceased person. These include the order in which people are to share the property/estate of the deceased person. In India, succession laws are not governed by one overarching legislation, but by the personal laws of the parties. For Hindus, this is the Hindu Succession Act, 1956. The succession act underwent an amendment in 2005 where the scope of succession was increased. Now both men and women have an equal right to the property of the father. Succession may broadly be divided into succession where a will exists, and where it does not. A will is a written document showing the desire of a deceased person regarding the distribution of his estate. The will stipulates the division of property.As per the Indian Succession Act, 1925, a will is “a declaration or a legal document that contains specific details like the name of one or more persons who will acquire, manage, and get benefitted from an owner’s estate after his/her death.” Any person with a sound mind, who is not a minor, can create a will. When a will gets a certified copy, it is known as a ‘probate’. The copy is certified with the seal of the concerned court of law. A probate acts as evidence of the heir’s authority over a property. In the occasion that a will does not exist, the legal heir is given the property.

For a will to be valid certain conditions have to be met. Firstly, it should be a written document, where the intention of the author is clear. When interpreting the document, the document as a whole is given consideration, and it must be attested before two witnesses. When a will does not exist, the laws of succession are applied. This means heirs of the deceased will get the property. Under the Hindu Succession Act, these heirs are divided into classes showing how strong their claim is over the property.

Who is an Heir

An heir is a person who is intended to inherit the property of the one who died without leaving a will. According to Indian laws, a person who is determined to succeed to the estate of an ancestor who has died without making a will or mentioning a legal heir is the rightful heir of the property. A legal heir takes the place of the property of their ancestor, either by law or by a will. It is essential to identify a legal heir for every person owning property; they are the successors for property claims and insurance coverage. For almost all religious laws, the first legal heir is the child of the deceased.

Acquiring Property Under Hindu Succession Act

Originally, the Hindu succession law prescribed only sons to have a legal right over the property of the father or grandfathers. In 2005, the Hindu Succession Act was amended and it gave equal rights to the daughter in terms of property. Prior to 2005, sons enjoyed rights over the deceased father’s property whereas a daughter could do so only until she was unmarried. It was understood that after marriage, a woman attaches herself to the husband’s family and is, a part of another family altogether. But now, married and unmarried daughters have the same rights on their father’s property as their brothers. They are also entitled to equal duties and liabilities as their brothers. In 2018,it was also clarified that women will also be accepted as coparceners. Simply understood, coparceners are ‘joint heirs’ in Hindu Law. It refers to a person who has a legal right to his ancestral property.

Within Hindu Law, different types of property exist, and the rights of the parties over them have variations. The two main categories are

1. Ancestral Property- This is the property that was acquired atleast four generations ago. As per U.R Virupakshaiah v.Sarvamaa & Anr(2008), this is understood as any property that a Hindu inherits from their father or forefathers. Any property that is received or acquired from a person’s mother, grandmother, uncle, or even brother will not be considered as ancestral property but would be a self-acquired property.

2. Self-acquired property: Any property that is obtained or earned by one on their own is known as self-acquired property. According to C.N. Arunachala Mudaliar v. C.A Muruganatha Mudaliar (1953), any self-earned property, gifts from friends, and gifts of the nuptials are considered as self-acquired property.

Rights upon divorce

Divorce is understood as the legal dissolution of a marriage by a court or other competent body. Divorce usually entails the cancelling or reorganizing of the legal duties and responsibilities of marriage. Upon divorce, the child of the couple may be in the joint custody of both parents or in the custody of one. Succession rights do not change according to the arrangement and are the same upon divorce as they were before the divorce.

The inheritance of ancestral property is the birth right of the successor. The child can claim it even if they are not in the custody of the father. Those who inherit ancestral property have to share it, as was stated by Smt Dipo v.Wassan Singh. Any property acquired by a Hindu great grandfather can be passed up to the next three generations in equal divisions. The child becomes a coparcener by virtue of their birth and has right over the property. The divorce will not affect these rights. If the father remarries and has other children, his share will be distributed equally between the child from the first marriage, and the other children. If he adopts a child, that child too will become part of the coparcenary.

This is because according to the rules stated in the Mitakshara school of law, the child has the right to ask for his portion of the property in the father as well as grandfather’s property by birth.

The situation is not the same for the acquired property, however. When a property is acquired individually, the children do not have a right over the property. The owner can bequeath all their interest in the asset to anyone through a will under the Hindu laws of succession. If a valid Will exists at the time of death of the owner, then the acquired property will be divided according to the stipulations of the Will. If the owner dies without a will, the child from the divorce will get a consideration in the property, as they will be a Class I heir. The Child will have a right to ask for a portion of the property but will have to share it with all other legal heirs. The owner is the sole independent entity who possesses powers over the property, and they can decide who it goes to.

The Hindu Succession Act also holds that a person who has converted to another religion will still be able to inherit property. The law doesn’t disqualify a person from succeeding to a property, merely because they decided to change their faith. However, the heirs of the convert do not enjoy the same rights. If the son or daughter of a convert practices any other religion other than Hinduism, they may be disqualified from inheriting the ancestral property.

Illegitimate children

The rights of illegitimate children are given underSection 16 (3) of the Hindu Marriage Act, 1956. This states that ‘such children are only entitled to the property of their parents and not of any other relation’. What it implies is that an illegitimate child would only have the right to his father’s self-acquired property, not his ancestral property. However, it was seen in the Supreme Court ruling of2011 in Revanasiddappa & Anr v. Mallikarjun & Ors, children born out of wedlock have the right to stake a claim to their father’s self-acquired property as well as ancestral property. Despite this ruling, there has been confusion regarding the right of illegitimate children to ancestral property.

Conclusion

The will is an important document when dividing the property.It lays down clearly the necessary details for the division. In Hindu succession law, all children, despite their gender, or the marital status of the parents have a right to the ancestral property of the father. The ancestral property is the property that has been in the family for generations, and any progeny will have an equal share in it. A child is hence, a class I heir and has the first right over the property. When we talk about the father’s self-acquired property, which is attained individually, the father is entitled to divide it in any way he deems fit. In the existence of a will, there is not much scope fora dispute over the acquired property. If the father dies intestate, then all the children will have a claim over the property, even children from divorce.

Hindu law tries its best to protect the rights of the children so that the children are not affected by the nature of the relationship of the parents. This is why, as per Mitakshara law, all children have a stake in the ancestral property. The property which is owned by the mother is also inherited by her children similarly. Even if the child is not in the custody of the parent, the child has the right over the property. The aim of the laws is to maintain equality in the division of property. Property rights are a contentious topic, and often cause drifts in the family. It is always important to have a will so that property disputes do not cause issues in a family. Even though Succession Laws are present, they leave scope for multiple claims over the property, causing unnecessary litigation.

Questions

• Who has a right over the ancestral property as per Mitakshara Law?
• Who is an heir?
• What are succession laws?