Petition to Conduct CBI Enquiry into Murder of Dr J A Mathan

Saturday, 31 January 2009

The RIGHTS of daughters: Maintenance of Daughters out of Late Father's estates: The law

This is a collation of the Rights of the Girl-Child to inherit from the assets (Death without a will) of her late father.
In many situations, there will be evil family members who will try to grab the late father's estate as well, compete with the girl child's rights by trying to stay rent-free in father's estate, instigate against the girl-child and reap benefit from the profits of the late father's estate.

To summarise,
1. Children are eligible to inherit 2/3rd of their father's estate (in case of sudden demise, intestate i.e. without a will) in equal proportion, which has to be handed to them at the time of maturity i.e. 18 years. The widow inherits 1/3 rd of the property.

2. Girl-children in India have a right to be married with their father's money, and maintained on their father's estate (even after his death). If maintenance has not been given, then there has to be arrears of maintenance to be given as well.
There are some mothers who treat their daughters like UNTOUCHABLES and give their sons STEP-FATHERLY status .
This Child abuse & neglect has been condoned by family members in the name of SON PREFERENCE and GENDER BIAS.
Inheritance law has been mentioned before. The President Pratibha Patil has also mentioned about this earlier in December 2008 (see earlier posting). In December 2008, I've emailed details of my blog to the President of India, members of the ruling party, members of the opposition about Child abuse (to be included in a revised, gender-neutral Domestic Violence Act). Campaign about Gender-discriminatory Domestic Violence Bill has been made since 2000 by men's rights groups including Save Indian Family Foundation.

The President of India has re-iterated that Inheritance laws in India have been made free of discrimination to women since the 1980s.

Does that happen in India? Or are girl-children denied of their inheritance and told "Go fetch your own fortune?"or "Get out!" or-----
What do you say about the realities, Mrs. President? Any comments, Mr Prime Minister?
Know your inheritance laws


The author is partner, RANK Associates, Advocates, Chennai.

As you are already aware, the Law of Inheritance differs from religion to religion. The Christian Laws of Succession are codified under the Indian Succession Act, 1925. Each religion has its own prescription for distribution of properties on the death of an intestate. While codifying the rules of succession, care has been taken to retain the religious flavour.

The provisions relating to intestate succession apply as contained in the Indian Succession Act, 1925, apply to Indian Christians, Anglo-Indians, Jews, Armenians and certain Christians who are foreign nationals but are domiciled in India.

For understanding the manner in which the property is distributed on the death of an intestate as per the provisions of the Indian Succession Act, the meaning of certain terms will have to be understood.

The word "kindred" is used as interchangeable with the word "Consanguinity". The terms indicate the connection or relation of persons descended from the same stock or common ancestor.

"Lineal consanguinity" means the relationship arising out of direct line between persons like a man and his father, grandfather, great grandfather, etc, or a man, his son, grandson, great grandson, etc, in a direct ascending or a descending line. A generation constitutes a degree either ascending or descending. As such, a person's father is related to him in the first degree, being an instance of son and father, as is the case between father and son. The grandfather or grandson will be placed in the second degree. The great grandfather and the great grandson in the third degree and so on. If the consanguinity is not direct, but subsists between two persons who are descended from the same stock or ancestors, then this is called "Collateral Consanguinity".

Widow's share The position of a widow is fairly secured in intestate succession of those governed by the Act. In the case of other religions, a widow's share may increase or decrease depending on other heirs or sharers. In respect of Christians and others governed by the Act, the widow will get at least one- third of the property in any situation. It may increase depending on the other heirs.

If an intestate dies leaving wife and other lineal descendants, one-third share will go to the wife and two-thirds will be distributed between the lineal descendants as provided in the Act .

If the intestate dies leaving wife and kindred only (without leaving lineal descendants), one-half of the property will go to the wife and the balance half distributed to the kindred as provided in the Act.

If the intestate dies leaving wife only (without leaving lineal descendants or kindred), then the entire property shall belong to the wife as provided in the Act. The share of a husband surviving his wife is the same in respect of her property, if she dies intestate as that of a widow in her husband's property.

If the intestate dies leaving a surviving child or children only, then the property will be taken by the child entirely or between the children equally as the case may be.

Take an example of a person having three children. His first child has two children (two grandchildren); the second child has three (three grandchildren); and the third child has four (four grandchildren). All the three children of the person die before him. The person referred to also dies intestate leaving in all nine grandchildren. The position is that each of the grandchildren will get a one-ninth share in the property of the intestate.

If the intestate dies leaving only eight grandchildren along with two children of a deceased grandchild, then the property is divided into nine parts. Each grandchild gets a one-ninth share and the remaining one-ninth is equally divided between the two great grandchildren.

Take another example of a person having three children. His first child dies leaving four children (four grandchildren); the second child dies leaving one child (one grandchild); and the third child survives the intestate. In this case, the surviving child will get a one-third share. The four grandchildren of the first child will get a one-fourth share out of a one-third share (one-twelfth share) and one-third share will be taken by the grandchild through the second child.

Take one more example of a person having three children. His first child dies leaving four children (four grandchildren). One of the grandchildren dies leaving two children (great grandchildren); the second child dies leaving one child (one grandchild); and the third child survives the intestate. In this case, the surviving child will get a one-third share. The surviving grandchild through the second child gets a one-third share. A one-third share is divided into four parts and one part is to be allotted to the grandchild through the first child and one part is to be shared equally by the great grandchildren through the first child. A person has a son and a daughter. The son predeceases the father leaving a pregnant wife and, thereafter, the person dies intestate. In this case, the daughter will get a half share and the posthumous grandchild (child of the predeceased son) will get a half share.

If the intestate has no lineal descendants, then, after deducting the wife's share, the balance share will go to the father, if father is living and if the father is not living, but mother, brothers and sisters live, then each will get an equal share. The children of brother or sister will get their parent's share, if the brother or sister had predeceased the intestate leaving their children. In this case, if the intestate leaves only his mother, then the entire property will be taken by the mother.

The rules change depending on the degree and are complex depending on the degree of relationship of claimants. However, the examples given are sufficient for a general understanding arising in usual circumstances.

2----------------Maintenance out of late father's estate -------------
Fathers (and mothers) have to jointly maintain and pay for their daughters marriage. The obligation of getting married and starting a family is "with the purpose of raising children well". There are many parents who fail in their duty of providing for their children's food, education, emotional needs, self-esteem and other needs.

Father liable to pay for daughter’s marriage and maintenance:Even after death of father

HC Express news service

Mumbai: Stating that every father is under the obligation to maintain his daughters and even get them married, the Bombay High Court has directed a man here to reimburse the money his estranged wife spent on their daughters’ marriage.

The court was hearing an appeal filed by Kusum Rewatkar (58) of Wardha district, who sought reimbursement of the amount she spent on the marriage of her three daughters. A mother of five daughters, Kusum got divorced from her husband Nathuji, 25 years ago, after a 10-year wedlock .

Upholding her claim, the Nagpur bench of the Bombay High Court has held that “the father’s obligation to maintain the daughter and get her married arises from the very existence of the relationship”.

Under the Hindu Law, a daughter is entitled to be maintained out of the estate of the father even after his death, said Justice C L Pangarkar.

“The law envisages that a father is bound to make a provision for the marriage expenses of the daughters as part of maintenance. Therefore, if wife has spent for the performance of the marriage of the daughter, the husband would certainly be liable to reimburse the wife. He cannot escape his liability in any case,” the court said.

3--------------Maintenance law------------------------------

Source: My nation

22. Maintenance of dependants
(1) Subject to the provisions of sub-section (2) the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased.
(2) Where a dependant has not obtained, by testamentary or intestate succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependant shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate.
(3) The liability of each of the persons who takes the estate shall be in proportion to the value of the share or part of the estate taken by him or her.
(4) Notwithstanding anything contained in sub-section (2) or sub-section (3), no person who is himself or herself a dependant shall be liable to contribute to the maintenance of others, if he or she has obtained a share or part the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act.
23. Amount of maintenance
(1) It shall be in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so the court shall have due regard to the considerations set out in sub-section (2), or sub-section (3), as the case may be, so far as they are applicable.
(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to-
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified in doing so;
(d) the value of the claimant's property and any income derived from such property, or from the claimant's own earnings or from any other source;
(e) the number of persons entitled to maintenance under this Act.
(3) In determining the amount of maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to-
(a) the net value of the estate of the deceased after providing for the payment of his debts;
(b) the provision, if any, made under a will of the deceased in respect of the dependant;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependant;
(e) the past relations between the dependant and the deceased;
(f) the value of the property of the dependant and any income derived from such property; or from his or her earnings or from any other source;
(g) the number of dependants entitled to maintenance under this Act.
24. Claimant to maintenance should be a Hindu
No person shall be entitled to claim maintenance under this Chapter if he or she has ceased to be a Hindu by conversion to another religion.
25. Amount of maintenance may be altered on change of circumstances
The amount of maintenance, whether fixed by a decree of court or by agreement, either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration.
26. Debts to have priority
Subject to the provisions contained in section 27 debts of every description contracted or payable by the deceased shall have priority over the claims of his dependants for maintenance under this Act.
27. Maintenance when to be a charge
A dependant's claim for maintenance under this Act shall not be a charge on the estate of the deceased or any portion thereof, unless one has been created by the will of the deceased, by a decree of court, by agreement between the dependant and the owner of the estate or portion, or otherwise.
28. Effect of transfer of property on right to maintenance Where a dependant has a right to receive maintenance out of an estate, and such estate or any part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right or if the transfer is gratuitous; but not against the transferee for consideration and without notice of the right.

No comments: