The Bombay High Court recently ruled in the favour of two daughters, and their mother who were thrown out of the house by the father. The Father tried to transfer the ancestral property share to his son from a second marriage.
The father opposed the previous ruling and stated that because the property belongs to his ancestors and not self-owned, the first wife and two daughters have no rights over it. He also quoted the Hindu Succession Act under which they would be eligible for the share in his self-acquired property, if at all.
A single bench Justice Phansalkar-Joshi rejected the father’s claim. Referring to past rulings and judgements passed by Bombay HC and the Supreme Court, she said that children born from void marriage have rights on their parent’s property, but such rights should be restricted if it is ancestral joint property.
“It is authoritatively laid down that the children of a void marriage, though are regarded as legitimate, such children would not be entitled to any share in the properties, which are the ancestral coparcenary joint family properties of their father.
Justice Phansalkar-Joshi also added that the children born from a second marriage are rightfully legitimate, however, their right to get the share in coparcenary properties or in the property of their parents arises only after the death of the parents and not during their lifetime.
A city-based Lawyer opines, According to Hindu succession act, this decision is justified. if As per the Hindu succession act there are be four shares in ancestorial property and if at all children of the second wife want a share they’ll get only their fathers share.
The father has the total right of the property only if it is self-earned, in that case only the father has full right for its disposal through his will. The second wife cannot claim the property in case the marriage was solemnized when the first wife was living or wasn’t divorced, he added.
Lata Mankar, City activist says, “The judgement does not seem to be so life-changing. it is actually adverse if the children from the first marriage are actually not supportive or are interested more in property and the father is willing to nominate the children from second marriage as his heirs.”
I think the freedom should lie with the father, because only he knows who will be a good heir or who are genuinely going to take care of him and are not only after his property.
Mankar further adds, But it is good judgement as it will definitely lower the chaos or confusion or distress over property heirs or distribution as the court has now legally defined what belongs to whom. It will also reduce the chances of criminal misbehaviour to gain the property.
Mayur Gade, an active citizen says, “According to the Indian Constitution, every Indian is equal. So the law should be the same for every religion. And thus the inheritance law should be same for every citizen.
In my personal opinion, every legal child of a father should have an equal share in the father’s property(inherited or gained) and this should be applicable to not just second marriage offspring but every one.
For example, if tomorrow the father sells the ancestorial property and buys some another property which is going to be fathers personal property, how is the government then going to give justice? , Gade added.
Preety Sabrewal, Home Baker says, Shouldn’t all the children be given equal rights?
If we consider this case both the girls are married and have rights in their husband’s property.
Also, According to the section16 of Hindus marriage act “The relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents.
A child born in such a relationship is innocent and is entitled to all the rights, which are given to other children born in valid marriage ” If they are viewed independently, they should have equal shares, Sabrewal added.
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