Inheritance rights after divorce for women and children

Inheritance

Inheritance is transfer of assets, properties, titles, rights, etc. to the legal heir after the death of the Holder of such assets. The law of inheritance differs in various religions, communities, societies.

Inherited Property and Ancestral Property

• An Inherited Property is a property which is acquired/inherited by an individual by way of WILL or Gift.
• An Ancestral Property is an undivided property which has been held by the four generations of the male lineage of Joint Hindu Family.

 
Inheritance Rights of Woman After Divorce

Husband’s Self Acquired Property:

Right of a wife over husband’s property becomes restricted after divorce. However, the wife can reside in the matrimonial house till divorce is granted by the competent Court. Upon divorce being granted by the Court the husband shall have absolute right over the property. The wife cannot claim any rights over the property on stating that contributions was made by the wife. The person whose name appears in the property documents shall be considered as sole and absolute owner of the property.

In Joint Property:

A wife can claim her share in the property jointly owned by her and her husband during divorce proceedings. The wife shall have to furnish all the supporting documents to establish joint ownership in the said property.

On Movable Properties:

At the time of divorce the wife shall be entitled to claim her rights on the Stridhan received by her. Even though the possession of Stridhan may be with the husband/ in laws. They shall be bound to handover the possession of the same to the woman at the time of divorce, since woman is the sole and absolute owner of Stridhan.

Inheritance Rights of Children After Divorce

Self-Acquired Property of the father:

The child does not have an inherit right to claim share from the father’s self-acquired property since the discretion lies with the father regarding the distribution of self-acquired properties. In case a WILL has been executed, the property shall devolve in terms of the WILL. However, in case of absence of WILL, the child shall get its share being Class-1 legal heir.

 

Ancestral Property:

The child is entitled to receive its share from the ancestral property irrespective of the fact whether the child inherits all or part of the father’s self-acquired property. A child becomes a coparcener as soon as the child is born. The right of the child over the ancestral property remains unaffected even after divorce unless specified otherwise. In case the father remarries, the children born from the first marriage as well as the second marriage shall get the share from father’s share in an ancestral property. An adopted child shall also become a member of the coparcenary. The rights of the child over the parents’ property remains unaffected, irrespective of the parents’ marital status upon getting divorced.

What Constitutes Ancestral Property

• Property owned and held by four generations of male lineage of the Hindu Joint Family.
• A property which is undivided shall constitute as an ancestral property.

Process For Claiming Share in The Ancestral Property

Share in the Ancestral Property can be claimed by:

• Executing a Settlement Deed: A Settlement Agreement can be executed by the family members who are entitled to a share in Ancestral Property in question. Registration and/or stamping is not required while executing a Family Settlement Agreement.
• Executing a Partition Deed: The members of the family can execute a Partition Deed. A Partition Deed once executed can be registered. Such Deed should contain details of the way the property shall be distributed. The Deed ought to record information pertaining to all the properties which fall within the ambit of the Hindu undivided family properties.
• In case of disputes among family members by filing a Civil Suit for Partition of the Ancestral Property before the Competent Court: In case the members of Hindu Undivided Family are unable to come to consensus mutually about the share of each individual in the Ancestral Property or any person is ousted from the rightful share in the Ancestral Property the aggrieved can move to the Court having competent jurisdiction to adjudicate the dispute and thereby distribute the property in terms of law. The limitation for filing a Partition Suit is 12 years from the date on which an individual learns that the lawful share in the Ancestral Property has been denied to such person.

Conclusion

In view of the above the woman and children can claim their share in the husband’s/father’s property as per the terms laid down in various Acts governing the law of inheritance.