Answer By law4u team
Yes, children of divorced parents can claim a share in ancestral property, but the nature of their entitlement depends on various factors, primarily governed by the Hindu Succession Act, 1956 (for Hindus) and the concept of coparcenary under Hindu law. The legal rights of children in ancestral property are tied to their status as legal heirs, which typically remains unaffected by the divorce of the parents.
1. Legal Rights Under Hindu Law:
Under Hindu law, ancestral property is property that has been passed down through generations in a Hindu Undivided Family (HUF). Ancestral property is generally owned by the HUF as a collective entity, and coparceners (those who have a birthright in the property) are entitled to a share in it.
Children's Inheritance Rights: Both sons and daughters of a Hindu family have the right to claim a share in ancestral property, irrespective of whether their parents are divorced. This is because, under Section 6 of the Hindu Succession Act, 1956, children are considered coparceners and have the same rights as the male members of the family in ancestral property. The divorce between parents does not affect the children’s entitlement to their share of the ancestral property. Children born to divorced parents are entitled to claim their rightful share in the property as legal heirs.
2. Key Factors That Determine Entitlement:
Status as Coparceners: Under Hindu law, ancestral property is governed by the principle of coparcenary. This means that sons and daughters who are born into a Hindu family have a birthright in the ancestral property, as long as the property is part of the HUF and the father (or grandfather) is alive to represent the family.
As per the amendment to the Hindu Succession Act in 2005, daughters have been granted the same rights as sons in the Hindu Undivided Family (HUF) property. Therefore, even in the case of a divorce, children (both sons and daughters) retain their entitlement to a share of the ancestral property.
Divorce and Property Rights: The divorce between the parents does not affect the children’s inheritance from either parent’s family, including the ancestral property. A child's right to ancestral property is based on their relationship to the father’s ancestral line (and in some cases, the mother’s ancestral property, depending on the jurisdiction).
Example: If the father is a coparcener in a Hindu Undivided Family (HUF) with ancestral property, children of the marriage, including those from a divorced family, are still entitled to their share of that property.
Property Division After Divorce: While the divorce may affect the division of self-acquired property of the parents (i.e., property acquired by the parents during the marriage), ancestral property is typically not divisible between the parents, but rather between the children and other coparceners. The divorce has no direct impact on the children’s share in the ancestral property.
3. Entitlement to Father’s Ancestral Property:
In a divorce scenario, children do not lose their right to inherit their father’s ancestral property. If the father is a coparcener in an HUF and has ancestral property, children will be entitled to a share in that property, as long as the father is alive.
Example: If a Hindu man has ancestral property passed down from his ancestors, his children (including sons and daughters) have a birthright in that property. Even if the parents divorce, the child’s right to claim the property is unaffected by the divorce. The child remains a coparcener and has the right to demand a share from the father’s ancestral property.
4. Entitlement to Mother’s Ancestral Property:
Similarly, children also have a claim on the mother's ancestral property if the property is part of the mother’s Hindu Undivided Family. However, this scenario is less common, as traditionally, women were not considered coparceners in ancestral property. After the 2005 amendment to the Hindu Succession Act, daughters are now treated as equal coparceners, and children can thus claim a share in the mother's ancestral property as well, if she is a coparcener.
5. Inheritance of Self-Acquired Property:
It is important to note that self-acquired property of the parents (whether the father or mother) is not ancestral property, and a divorce settlement may include claims for such property. However, children of divorced parents can still claim a share in the self-acquired property of either parent upon their death, under the Indian inheritance laws (succession laws).
6. Practical Considerations:
Family Settlement: In some cases, the family may enter into a settlement or partition of ancestral property, either voluntarily or through legal proceedings. A divorce may prompt such a settlement, but the children’s rights to ancestral property, as coparceners, cannot be overridden unless they explicitly waive those rights.
Property Partitioning: The father or other coparceners may seek to partition the ancestral property to allocate specific shares. Children, including those of divorced parents, are entitled to a fair share during the partition process.
7. Example:
Case Scenario: A married couple with two children (a son and a daughter) owns a property that is inherited by the husband from his father (ancestral property). After the couple gets divorced, the children still retain their right to claim a share in their father’s ancestral property. The divorce between the parents does not affect the children’s legal entitlement to the property, and they can approach the court for partition if necessary. Similarly, the children may claim a share in the mother’s ancestral property if she is also a coparcener in a joint family.
Conclusion:
Children of divorced parents in India retain their rights to claim a share in ancestral property, provided that the property is part of the Hindu Undivided Family (HUF) and the child is a coparcener (a legal heir with a birthright in the property). Divorce does not sever a child’s right to inherit ancestral property, whether from the father or the mother, as long as the child is a legal heir. The children’s entitlement to self-acquired property of the parents, however, may depend on the terms of the divorce settlement or will.
