Q: What are the rights of a married daughter to the ancestral property under the Succession Act? — PR Atre
A: Since your question does not specify the religion of the subject or the complete name of the act, the answer is on the presumption that the query is related to Hindu Succession Act, 1956. The succession rights of the female under the Hindu Succession Act has gone through a monumental change after the Hindu Succession (Amendment) Act, 2005 came into force. According to the amending Act of 2005, in a joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall, also by birth become a coparcener in her own right in the same manner as the son heir. She shall have the same rights in the coparcenary property as she would have had if she had been a son. She shall be subject to the same liabilities and disabilities in respect of the said coparcenary property as that of a son and any reference to a Hindu Mitakshara coparencer shall be deemed to include a reference to a daughter.
However, this provision shall not affect any disposition or alienation including partition or testamentary disposition of property that has taken place before December 20, 2004. Any property to which a Hindu woman becomes entitled by virtue of above provision shall be held by her with the incidents of coparcenary ownership and shall be regarded, as property capable of being disposed of by her by will and other testamentary disposition. Further where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act of 2005, his interest in the property of a joint Hindu family governed by the Mitakshara Law, shall devolve by testamentary or intestate succession under the Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if partition had taken place. Furthermore, the daughter is allotted the same share as allotted to a son. While the amendment does not specify if it applies to women married before the Act came into force, the courts have interpreted the same to also include married women and thus the benefit of the amendment is also available to them.
Q: My wife and I were having marital problems and last year we both agreed to go for divorce and filed a petition in the court at Bandra under section 13B. On second thoughts, I feel there is still hope for saving our marriage and I am not in favour of divorce and would like to withdraw my consent. Can I withdraw my consent after filing the petition? Will backing off now create any legal problems for me? — N Maske
A: From the analysis of the section 13B of the Hindu Marriage Act, 1955, it is apparent that just by filing the petition does not authorise the court to make a decree for divorce. There is a 6 to 18 month waiting period. This interregnum was intended to give time to the parties to reflect on their move and seek advice from family and friends. In this period one of the parties may have a second thought and decide not to proceed with the petition. There is nothing in the section which prevents such course. Under section 13B, court cannot pass divorce decree at the asking of one party and against the consent of the other.
A: Since your question does not specify the religion of the subject or the complete name of the act, the answer is on the presumption that the query is related to Hindu Succession Act, 1956. The succession rights of the female under the Hindu Succession Act has gone through a monumental change after the Hindu Succession (Amendment) Act, 2005 came into force. According to the amending Act of 2005, in a joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall, also by birth become a coparcener in her own right in the same manner as the son heir. She shall have the same rights in the coparcenary property as she would have had if she had been a son. She shall be subject to the same liabilities and disabilities in respect of the said coparcenary property as that of a son and any reference to a Hindu Mitakshara coparencer shall be deemed to include a reference to a daughter.
However, this provision shall not affect any disposition or alienation including partition or testamentary disposition of property that has taken place before December 20, 2004. Any property to which a Hindu woman becomes entitled by virtue of above provision shall be held by her with the incidents of coparcenary ownership and shall be regarded, as property capable of being disposed of by her by will and other testamentary disposition. Further where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act of 2005, his interest in the property of a joint Hindu family governed by the Mitakshara Law, shall devolve by testamentary or intestate succession under the Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if partition had taken place. Furthermore, the daughter is allotted the same share as allotted to a son. While the amendment does not specify if it applies to women married before the Act came into force, the courts have interpreted the same to also include married women and thus the benefit of the amendment is also available to them.
Q: My wife and I were having marital problems and last year we both agreed to go for divorce and filed a petition in the court at Bandra under section 13B. On second thoughts, I feel there is still hope for saving our marriage and I am not in favour of divorce and would like to withdraw my consent. Can I withdraw my consent after filing the petition? Will backing off now create any legal problems for me? — N Maske
A: From the analysis of the section 13B of the Hindu Marriage Act, 1955, it is apparent that just by filing the petition does not authorise the court to make a decree for divorce. There is a 6 to 18 month waiting period. This interregnum was intended to give time to the parties to reflect on their move and seek advice from family and friends. In this period one of the parties may have a second thought and decide not to proceed with the petition. There is nothing in the section which prevents such course. Under section 13B, court cannot pass divorce decree at the asking of one party and against the consent of the other.
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