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.