Somnath Bharti (Advocate Supreme Court and High Courts) 18 February 2013

Minor's rights in a mutual consent divorce

Is it legally enforceable/tenable to decide the minor's rights qua the property (Self or ancestral) of the father by a settlement agreement between the parents in a mutual consent divorce proceedings? Can the settlement agreement exclude the minor from laying any claim over the property of the father as and when s/he turns major? i.e. even though the mother has agreed that the minor on turning major wont claim any right in the father's property, is it legally tenable?

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stanley (Freedom) 19 February 2013

The query is a bit vague as we have not seen the MCD hence everything would depend on the terms of the MCD .

Maybe the wife may have asked for a huge amount of alimony for herself as well as the minor hence the mother has agreed that the father on turning a major wont ask for the fathers property .

if we look the other way round .

in Hindu ancestral property, three sources of law–

1) Old Hindu law

2) The Hindu Succession Act, 1956 and

3) Judicial decisions.

In order to give rights to daughters, the act introduced a legal fiction of ‘notional partition’ whereby when a male Hindu dies after the commencement of the act, (leaving behind female relatives and without executing a will) his share in the coparcenaryproperty is deemed to have been divided at the time of his death, whether actual partition has taken place or not.

a) This means that if a family consists of a father, mother, two sons and a daughter, the share of the father at the time of death, after notional partition would have been 1/4^th share in ancestral property. This is because each of the sons take one share (ascoparceners), the wife takes one share and the father takes one share as per the rules of old Hindu law (and as per judicial pronouncements which have interpreted and enlarged the scope of the Hindu Succession Act).

b) The share belonging to the father is then again sub - divided equally between all the heirs, i.e., mother, sons and daughter. This 1/4^th share goes out of the co-parcenaryproperty for all times. Thus the sons apart from inheriting 1/4^th share as coparceners in their own right, also inherit a small share in their individual capacity from the divided share of their father. The share inherited by the mother and daughter also goes out of the coparcenary property. There are conflicting judgments on whether the shares of the sons are to be treated as coparcenary properties or not after partition, by the different high courts and supreme court.

Be it minor or major, girl is having right to share and interest in the property of father except in the property earned by the father which is self acquired property.

And secondly we have Change of circumstances even after MCD where the minor can seek a claim :-)