Property rights of children after their parent's divorce


The principle of inheritance is the belief that all properties, debts, assets, rights, duties, or titles of a person should be transferred to the person's lawful heir following their death. There are two ways to exercise inheritance: either by employing the rules under the applicable Indian Succession laws or by transferring the property through a "will." Though they may vary depending on the society or the religion, all succession rules are not always the same. India has a wide variety of inheritance laws, however, there are a few things to have in mind before buying property from your ancestors, such as:

  • Description of the property

  • Legal heir's ownership rights over the property
  • Number of heirs legally
  • Their predecessors' intentions, etc.

Indian laws governing inheritance

The laws that control India's inheritance laws are listed below. They technically depend on the sort of religion and succession. It is pertinent to note that India must acknowledge many different religions and accept their legitimate customs because it is a secular nation. Hinduism, Islam, and Christianity are three of the world's three largest faiths and each of these has statutory laws that govern its family laws. Therefore, the personal laws of their separate religions control India's basic family laws, which cover marriage, divorce, inheritance, and maintenance. Finding a legal heir is essential since doing so may help prevent false insurance claims and transfer property rights to the rightful heir. 

Varieties of laws

  • The Hindu Succession Act (2005): Any Hindu person is subject to this Act, although Sikh, Jain, and Buddhist persons also fall into the same group.
  • The 1925 Indian Succession Act: These laws apply to anybody who wants to make a "will" to distribute their property to anyone, regardless of their connection.
  • Application of Muslim Personal Law (Shariat) Act of 1937: Except for those who reside in Jammu and Kashmir, all Muslims in India must abide by this Act. Under this Act, sharers, and Residuaries, two different sorts of heirs, are recognized. Sharers are the kind of heirs who get the remaining property after the sharers have claimed their shares, whereas Residuaries are the type of heirs who possess specific rights to the deceased person's property.
  • The rules of Christian inheritance: There isn't a specific Act for Christians that addresses their inheritance concerns. Christians in India are controlled by and operate under the Indian Succession Act, of 1925, much as Hindu inhabitants of the country. 

After a divorce, what obligations do parents have to their kids?

Whether or not the father has custody of his kid, he is required to pay maintenance to his biological child following a divorce. However, despite receiving maintenance, the minor is not permitted to request a portion of the father's self-acquired property under the Indian Succession Act of 1925. The father's will determines whether or not to leave his children a piece of the self-acquired property.

The child is legally required to get a piece of his grandfather's ancestral property even though he may not inherit a portion of his father's self-acquired property. The children are the main victims of a divorce when a marriage splits up.

They experience trauma on an emotional and mental level. It is not necessary to add future uncertainty and concerns about property inheritance to an already stressful situation. Therefore, it's crucial to understand how a kid will inherit from their divorced parents.

Daughter's legal claim to her father's property

One of the most discussed issues relating to equity and justice has always been the daughter's rights to her portion of her father's property. Daughters acquired coparcener status over ancestral property after 2005. Even though their fathers died before 2005, the Supreme Court ruled in 2020 that daughters would have an equal claim to their father's property. This improved their ability to inherit property.

The court's ruling will benefit the coparceners' daughters, who will be granted the same property rights as boys. By their birth, they would now be entitled to inherit their father's assets. The daughter has the option to ask for a piece of the property and leave her portion in a will. But only HUF property is involved in this instance. A daughter is entitled to both the property her father inherited from her grandparents and the property her father obtained on his own. However, a parent has the right to exclude a son or a daughter from his estate by a will.

Even after her parent’s divorce, a daughter will remain a co-owner of the family home. Even if her parents get divorced, she will still be able to claim their possessions. If she has not been explicitly left out of the will of her parent's intestate, she will have a claim to the property if it was self-acquired. Before 2005, a daughter's property rights were essentially nonexistent. Because only an unmarried daughter may argue for her fair part of the property, A daughter will have the same rights and obligations that a son does start in 2005 thanks to a modification to the Indian Succession Act. The daughter will get an equal share of the inherited property, and at her father's discretion, she may also receive a portion of the self-acquired assets.

Regulations governing children born outside of marriage or in a live-in relationship

The Supreme Court permitted that any child born during a live-in relationship would be entitled to gain the right to inheritance and would be regarded as the legal heir also, according to the important ruling in the case of Vidyadhari vs. Sukhrana Bai in 2008. Additionally, the Supreme Court declared in 2015 that any couple who has been engaging in domestic partnerships, such as a live-in relationship, for a sizably long period will be regarded by the state as having engaged in marriage.

This announcement was made in the Indra Sarma vs. V.K.V Sarma case. Even though no religion acknowledges the practice of living together as a couple and the live-in relationship has a lot of shame in India, it is legal there. According to Section 16 of the Hindu Marriage Act of 1955, children born outside of marriage or from a live-in relationship have the right to inherit a portion of the father's self-acquired property even if the Indian Succession Act does not apply to them.

Child's rights in India after divorce regarding the father's property

Divorce does not impact a child's rights to his father's ancestral property. Unless a will specifically states that they are not to receive the inherited property. Property that a father has obtained on his own is his. He is free to select how he wants to get rid of it or transfer it. A kid cannot claim a piece of his father's independently obtained property as a birthright. Typically, parents leave their children their self-acquired property.

In the absence of a will specifying otherwise, a kid inherits a portion of a father's self-acquired property if he passes away without leaving a will. Children's rights to their father's property are unaffected by divorce as long as the father has a will in place; otherwise, if he passes away without one, the surviving legal heirs will be entitled to the property, and a kid is always a father's legal heir.

Indian law governing a son's ownership of his father's property

When it comes to his father's property, the son is considered a Class I heir. He has a legal claim to the land that belonged to his father's family. If his father passes away intestate, he also receives an equal portion of the assets he accumulated on his own.

Hindu law holds that the son has a birthright to his father's and grandfather's property, according to the Mitakshara School. The son cannot claim a property that the father or parents have self-acquired. However, if he can demonstrate his contribution to the property, there could be some thought given to it. Unlike inherited property, self-acquired property is unique. It is made up of his earnings and possessions that he independently obtained. A son has a birthright to his father's ancestors' property, but not to his father's privately obtained property. A son will not receive any portion of his father's self-acquired property if the father decides to leave his son out of his will.

The legal heir and co-owner of an ancestor's property is a father's son. A son inherits his fair part of the family estate if his parents split since it is his birthright. If a parent does not exclude his son from the self-acquired property or passes away without leaving a will, the son may also receive a portion of it following a divorce.


All children in India are entitled to receive their portions of their father's or forefather's ancestors' property, but they are not permitted to request their father's self-acquired property unless the father so directs. Not only the legally recognized blood heir, but even children of divorced parents, youngsters born to unmarried parents with a live-in partner, an illegitimate kid, or even a daughter, may inherit.

In the context of property inheritance and division, especially concerning the property rights of children after their parents' divorce in India, it is crucial to consult with a family lawyer or a divorce lawyer. These legal professionals specialize in family law matters and have the expertise to provide guidance on issues related to property division, including the rights of children.