New Delhi: From divorce to death, personal laws shape some of the most profound events of life in India. These laws, which are linked to religious beliefs and customs, affect families across the country, but with the current Law Commission revive the discussion There may be a change in the status quo regarding the Uniform Civil Code.
ThePrint had earlier looked into this Personal Law for Divorce and Maintenance for different religious communities. There are equally consequential laws governing child custody and guardianship after a couple divorces, as well as succession and inheritance upon the death of a family member.
When it comes to custody, the separation of parents brings up complex considerations regarding the well-being and upbringing of their children. Different religious communities have different frameworks for determining custody rights, including factors such as age, gender, and the concept of natural guardianship.
Similarly, in matters of inheritance and succession, some religious communities have their own rules and regulations, with varying degrees of gender equality and preference for certain family members.
Here’s a closer look at the current legal frameworks that govern succession and inheritance, along with custody and guardianship for various religious communities.
custody and guardianship
When parents separate, the issue of child custody arises, the resolution of which varies depending on individual laws.
It is pertinent to note that the Guardians and Wards Act, 1890 (GWA), a secular law, complements various personal laws and has to be interpreted harmoniously while determining custody in legal matters.
Hindu, Sikh, Buddhist and Jain: For children from the Hindu, Sikh and Jain communities, custody is governed by the Hindu Minorities and Guardianship Act, 1956 (HMGA), as well as the Guardians and Wards Act, 1890 (GWA). These laws have been interpreted harmoniously.
According to the HMGA, custody of a child under the age of five is generally given to the mother. However, the law also recognizes the customary practice of treating the father as the “natural guardian” with ultimate custody rights.
Yet, over the years, courts have disregarded the rule that the welfare of the minor child must be paramount when deciding custody matters. In many cases, courts have awarded custody to close relatives where the parents are either unwilling or unable to properly care for the child.
In addition, the parent who does not get physical custody is entitled to visitation rights through court orders.
When it comes to guardianship, the HMGA recognizes only three persons as natural guardians of the child – the father, the mother, and, if the minor girl is married, her husband.
The law also allows the mother or father to appoint a testamentary guardian – someone who is legally designated to take responsibility for the care and upbringing of the child in the event of the parent’s failure to do so.
Even if the father has appointed a testamentary guardian, the surviving mother remains the natural guardian.
Muslim: For Muslims, the primary right to the care of the child rests with the mother, who cannot be deprived of it unless she is found guilty of misconduct.
However, the right of custody of a mother over her son varies in different sects of the community. In some cases, this right ends when the son is 7 years old, while in others it continues till the child attains the age of puberty.
As for girls, depending on the sect, the mother’s right of custody may extend till the daughter attains puberty or gets married.
In the absence of the parents, the custody of the child is handed over to the grandparents.
Under Shia law, if the mother dies, the father gets custody. In contrast, in Malikis, only female members of the family are entitled to custody of the child.
As far as guardianship is concerned, both Sunni and Shia recognize only the father as the guardian. After his death, it passes to either the grandfather or the executor appointed by him.
The father’s right of guardianship continues even if the mother, or any other woman, is entitled to custody of the minor child. Her rights include control over the child’s education and religion.
Christians and Parsis: Custody of a Christian child is determined by the court during judicial separation proceedings. The Indian Divorce Act, 1869 states that the court may make provision for the custody, maintenance and education of a minor child before issuing a final award.
There is no personal law specifically governing the custody of Parsi children. The GWA is applicable to all cases and it is left to the discretion of the court to decide in the best interest of the child.
succession and inheritance
When it comes to distributing the assets and properties of a deceased family member, there are two avenues: a valid Will left by the deceased or the application of personal laws.
However, certain circumstances may arise where a Will is deemed not to be acceptable or invalid.
Under personal laws, specific provisions govern the transfer of assets to different categories of beneficiaries.
Hindu, Sikh, Jain and Buddhist: The Hindu Succession Act, 1956 does not differentiate between a man and a woman when it comes to inheritance of property of deceased parents. A Hindu woman has the same right over the property of her parents as a man. The succession rights of a married daughter are exactly the same as that of an unmarried daughter.
In Hindu Personal Law, it should be noted, there is a distinction between ancestral and self-acquired property. In the case of self-acquired property, the father has the right to distribute it as he wishes and his children cannot object.
However, on the demise of the father, the property is divided equally among all the children. On the contrary, in case of ancestral property, succession is governed by law and cannot be changed at the discretion of the father.
Specifically, a woman whose married son dies intestate—that is, without leaving a valid will—is entitled to an equal share in his property along with his wife and children.
However, this is not good for a father. If his son dies intestate, the father does not get any share in the property as long as the son’s wife, children and mother are alive.
Muslims: Among Muslims there are separate laws for Shias and Sunnis.
However, under Islamic Personal Law, there is no distinction between ancestral and self-acquired property. This means that the person who owns the property is considered its absolute owner; No right of any legal heir accrues till the death of the owner. In addition, the payment of the deceased’s debts has priority over the inheritance.
By law, a Muslim cannot dispose of more than one-third of his estate through a will after paying his funeral expenses and debts, unless the heirs consent.
As far as succession is concerned, daughters are seen as the rightful legal heirs to their parents’ property, but their share is half that of male heirs.
A Muslim woman is entitled to one-eighth of her husband’s property if the couple has children, otherwise she gets one-fourth.
Christians and Parsis: Indian Succession Act, 1925 is applicable in case of Christians and Parsis. Under this law, sons and daughters have equal rights to inherit the property of their parents.
A widow gets one-third of her deceased husband’s property, the rest being given to the children.
If the heirs are relatives other than children, the widow gets half of the property, with the rest going to other family members. If there is neither any child nor any other relative, he gets the whole property.
This is the second of a two-part series on how the UCC may affect the personal laws of various religions. Reading Part – 1,
(Edited by Asawari Singh)
read this also, Question for UCC critics – why don’t you want Sharia law for Muslim criminals?