Soumya Shekhar

Soumya Shekhar

Soumya is an independent legal consultant with over 7 years of experience. An alumnus of National Law University, Delhi and National University of Singapore, she has worked with various Tier-1 Law firms and is an expert in employment law, contract drafting and legal research. She enjoys writing and has been actively contributing articles for LegalKart for more than a year.

Property Rights of a Child after their parent's divorce

Property Rights of a Child after their parent's divorce

When a couple gets divorced, the biggest casualty of this divorce is the children. They suffer from emotional and mental trauma. Future insecurity and doubts over the inheritance of property should not be added to this already stressful time. Hence, it is important to know how a child would get a share in their parents' property after their divorce. 


Right of a daughter in her father's property

The daughter's rights in the share of her father's property have always been one of the most talked-about aspects dealing with equality and justice. After 2005, daughters became coparceners in ancestral property. In 2020, the Supreme Court held that daughters would have an equal right to their father's property, even if they passed away before 2005. This further strengthened their inheritance rights.

The coparceners' daughters will benefit from the judgment and will be given equal rights as sons in their father's property. They would now have a right to inherit their father's property by birth. The daughter can also request a share in the property and bequeath her share in a will. But this case is only limited to HUF property.

A daughter has the right to both her father's ancestral property, which has been passed from her grandfather and in the self-acquired property of her father. A father, however by will, may exclude a daughter or a son from his property. 

A daughter will continue to be a coparcener in the ancestral property, even after her parents' divorce. She will have a claim on her parents' property even after divorce. However, if the property is self-acquired, then she will have a right over the property if she has not been specifically excluded from the will of her parent's intestate. 


Child's rights on father's property after divorce in India

Children's rights in their father's ancestral property are not affected upon divorce. Unless there is a will excluding them from inheriting the ancestral property. 

A father's self-acquired property is his own. He can choose to dispose of or transfer it in any manner he pleases to choose. A child cannot claim as a birthright, share in his father's self-acquired property. Typically, parents bequeath their self-acquired property to their children. If a father dies without a will, a child has a share in his self-acquired property as well, in the absence of a will to the contrary. The rights of children in the property of their father remain unaffected after divorce but depend on the father making a will; else, if he dies intestate, the rights to inherit the property is with the surviving legal heirs, and a child irrespective of divorce is a legal heir of his/her father.


Legal rights of a son on father's property in India

The son is treated as a Class I heir of his father's property. He has a legal right over his father's ancestral property. He also has an equal share in his father's self-acquired property if the father dies intestate.  

According to the Mitakshara School under Hindu Law, the son has a right by birth in his father's and grandfather's property. If it is a self-acquired property of the parents/father, the son cannot claim it. But there can be a consideration regarding the same if he can prove his contribution to the property.  The self-acquired property is unlike ancestral property. It is created and contains his earnings and property, which he has acquired independently. 

While a son has a right by birth in his father's ancestral property, he does not have such rights in his father's self-acquired property. If the father chooses to exclude his son from his will, a son will not get any share of his father's self-acquired property. 

A son is his father's legal heir and coparcener in ancestral property. If the parents get divorced, a son gets his share of inheritance in the ancestral property, as it is his birthright. A son may also get a share of his father's self-acquired property after divorce if his father does not exclude him from the same or dies without creating a will.

What rights does a Women have in her Husband's Property?

What rights does a Women have in her Husband's Property?

A woman, apart from being a daughter and a daughter-in-law, is also a wife. In the capacity of being a wife, she has rights to her husband’s property. Indian law provides for certain rights of a wife over her husband's property. These rights are available not only to the first wife but also to the second wife. If a wife gets divorced from her husband, whether the divorce was mutual or not, decides whether the wife will get a share in the property of her ex-husband. The wife also has a right to the husband’s ancestral property through marriage. Let us see what are the various rights a wife has over her husband’s property. 


Property Rights of Wife After Divorce in India

A divorce is a highly stressful time for the couple. However, property matters further complicate things. What if the husband and wife were living together in the same house? Who gets the house after the divorce? What if they had jointly owned properties or bank accounts? Maintenance is a separate issue. Hence, it is important to know the property rights of a wife after divorce in India. 

If the property is in the name of the husband

If the divorce is mutual and the property is in the husband's name, the wife may not have any right over the said property. For instance, if the husband and wife live in a flat that was purchased in the husband's name, after divorce, the wife cannot claim her right over the same. Indian law recognizes those as the owner in whose name the property is registered. 

In such cases, the wife can demand maintenance from the husband, under the law, but cannot stake a claim to the husband’s property. 

If the property is jointly owned

Modern-day couples often buy property, which is registered in the names of both the husband and wife together. Such property is jointly-owned property. What happens to such property after divorce? Can a wife claim her share over a jointly-owned property? Yes, a wife has a share in a property that she jointly owns and her husband, even after divorce. However, for her claim to be successful, she would need to show that she also contributed to the property's purchase. If the wife has not contributed to the purchase of the property, but her name is just mentioned in the registration document, she may not get the share in the property. Furthermore, the wife’s share in the joint property is equal to the share she contributed. Hence, if contributing to joint property and their husbands, women should keep a document trail proving their contribution to the said property. 

Couples can also resort to a peaceful settlement of the joint property. Whoever wants to retain the joint property can buy the other’s share, and an out-of-court settlement can also be reached on the same. 

If the couple is separated and the divorce proceedings are ongoing? 

Please note that a wife is her husband's legal spouse till the time the court legally pronounces them as `divorced.’ Till such time, the wife has right over her husband’s property. 

Situations may arise where a husband leaves his wife and starts living with someone else or separately. In such situations, the wife and the children born out of their marriage have the right to stake a claim to the property.

If the husband marries a second time then the wife and children from the first marriage would have a claim over the property. without getting divorced from his first wife


Wife’s Rights on Husband’s Property in India

A wife is entitled to inherit an equal share of her husband’s property. However, if the husband has excluded her from his property through a will, she does not have a right to her husband’s property. Moreover, a wife has a right to her husband’s ancestral property. She has a right to reside in her marital home and a right to be maintained by her husband. 


Rights of Second Wife in Husband’s Property in India

If a man marries, without formally and legally divorcing his first wife, the second wife and her children's rights become limited. The law views the first wife as the legal wife till the time the court finalizes the divorce. 

Polygamy or having more than one wife is prohibited under Hindu law. Hence, if the first wife is living and is not legally divorced, then the second marriage assumes no legal significance. This means that the second wife will have no claim over her husband’s property. However, her children would stand to inherit their genetic father’s property. 

If the second marriage is legally valid and occurs after the first wife’s death or after the man is legally divorced from his first wife, then the second wife would get all the rights a wife would have over the husband’s property. These rights would be over the husband’s ancestral as well as self-acquired property. 

Hence, the second wife's right over her husband’s property depends upon the legal status of the marriage. It is important to check if the man you are marrying already has a living spouse or not. 

Thus, the property rights of a wife in India over her husband’s property depend on a variety of factors. It is important to know how a wife can lay claim over her husband’s property and what is her share in the same.

Married Women's Property Rights in India

Married Women's Property Rights in India

Discrimination against Indian women has continued since long. Till as recently as 2005, Indian women were not entitled to inherit property. They were not coparceners but only members of the family. In 2005, the Hindu Succession Act was amended, and hence, for the first time, daughters became coparceners. Married women are often not considered as part of their birth family. After 2005, a married woman stops being a member of her birth family but remains a coparcener. As a coparcener, she has the right to enforce partition. She can also become a Karta of a Hindu Undivided Family.

Married Women's Property Act

The Married women’s Property Act, 1874 (MWP Act) protects a married women’s property against her husband, his creditors, and his relatives. The MWP Act applies to all married women of all religions. If your husband runs a business and has creditors, they would have the first claim on his life insurance policies. If you and your husband bring such policies within the ambit of the MWP Act, then you and your children will have the first claim. MWP Act protects a married woman by ensuring that her property is not taken away by any third-party. A policy under MWP Act cannot be assigned to anyone else.

Who can be the Beneficiaries under the Married Women's Property Act?

The beneficiaries under the MWP Act are: 

  • Married woman and the child

  • Married woman alone

  • Child (both natural and adopted)

If you are a Muslim you need to have a named insurance policy. What share would go to the wife and what share would go to the child, can be expressed as percentages of share?

How will the Beneficiaries receive their benefits under the MWP Act?

MWP Act in India considers each policy as a discrete trust. Hence, the proposer also needs to name the trustees. Trustees are generally the wife or the child. The trustee can also be an adult child of the proposer or a third person. 

The moment the policy is brought under the MWP Act, a trust is created. There is no requirement to create a separate trust under the Trusts Act. Trustees can be changed at any time, but the beneficiaries once named cannot be changed. 

As stated earlier, the policy cannot be assigned. Hence, the proposer cannot take a loan against the policy. This protects the married woman’s rights to her property as no creditor can, later on, claim his right over the benefits arising from the policy.

People Also Read This: Know About Property Rights of Daughters in India

How can I get my Insurance Plan covered under the MWP Act?

When you are taking an insurance policy, inform your insurance provider that you want your insurance plan covered under the MVP Act. You would be given an addendum along with your insurance policy. You would need to fill in the name of your beneficiaries and trustees in the addendum. Please note that it is not compulsory to name trustees. You can avail of this benefit only when you are taking the policy. You would not be able to change your insurance policy later on. You cannot assign an existing insurance policy under the Act.

What are the Safeguards Under the MWP Act?

MWP Act provides the following safeguards: 

  • It protects the dependants of the proposers from losing out on the proposer’s property. In the absence of the protection of the MWP Act, a creditor may lay claim to the proposer’s property. 

  • If you are a businessman, this would protect your personal property against your business debts. 

  • If the husband’s parents want to oust the wife after the husband’s death, they will not be able to do so, if a policy is protected under the MWP Act. 

  • Till the time the beneficiaries who are named in the policy are alive, no one else will have a right to the benefits arising from the property.

  • If you are part of a joint family, covering your policy under MWP may be beneficial.

People Also Read This: Widow's Rights in a Father-in-Law's Property

Is Surrender of Policies Allowed Under the MWP Act?

The proposer should make a surrender request. The surrender request should be signed by the policyholder and the trustee. When a surrender request is made, the beneficiary should not be a minor. The maturity benefits which arise out of the policy should go to the beneficiaries named in the policy.

MWP Act in India is a great tool in the hands of married women to protect their property. A life insurance policy protected under this Act would prevent the property of the husband from being taken away by creditors or even in some cases relatives. A married woman does not have the right to property in her marital home. Hence, it is important that the property of her husband is protected to the benefit of her and her children. Not many people know about the MWP Act. Hence, very few insurance policies are covered under the same. If you run a business or stay in a joint family or even if you are a salaried employee, it would be beneficial to cover your insurance policy under the MWP Act.