New Delhi: From divorce to death, personal laws shape some of the most profound life events in India. These laws, which are intertwined with religious beliefs and customs, impact families throughout the country, but with the current Law Commission reviving the discussion over a Uniform Civil Code, the status quo may be in for a change.
ThePrint previously looked at the personal laws for divorce and maintenance for different religious communities. Equally consequential are the laws governing custody and guardianship of a child once a couple divorces, as well as for succession and inheritance upon the death of a family member.
When it comes to custody, the separation of parents leads to complex considerations regarding the well-being and upbringing of their children. Different religious communities have their distinct frameworks for determining custody rights, encompassing factors such as age, gender, and the concept of natural guardianship.
Similarly, in matters of inheritance and succession, some religious communities have their own set of rules and regulations, with varying degrees of gender equality and prioritisation of certain family members.
Here is a closer look at the existing legal frameworks that govern custody and guardianship as well as succession and inheritance for different religious communities.
Also Read: Opposition is wrong in resisting UCC. It’s poor politics, runs against Constitution spirit
Custody & guardianship
When parents separate, the issue of child custody arises, with its resolution varying based on personal laws.
It is worth noting that the Guardians and Wards Act, 1890 (GWA), a secular law, complements different personal laws and must be interpreted harmoniously when determining custody in legal cases.
Hindus, Sikhs, Buddhists, and Jains: For children from the Hindu, Sikh, and Jain communities, custody is governed by the Hindu Minority and Guardianship Act, 1956 (HMGA), as well as the Guardians and Wards Act, 1890 (GWA). These statutes are interpreted harmoniously.
According to the HMGA, custody of a child below the age of five is typically awarded to the mother. The law, however, also recognises the customary practice of treating the father as the “natural guardian” with ultimate custody rights.
Nevertheless, over the years courts have disregarded this rule to declare that the minor child’s welfare should be of paramount consideration while deciding custody cases. In many instances, courts have given custody to close relatives where parents are either unwilling or unable to take care of the child properly.
Further, the parent who does not get physical custody is entitled to get visitation rights to meet the child through court orders.
When it comes to guardianship, the HMGA recognises only three persons as the natural guardian of a child — father, mother, and, in case a minor girl is married, her husband.
The law also allows either the mother or father to appoint a testamentary guardian — someone who is legally designated to take responsibility for the child’s care and upbringing in case the parents cannot do so.
Even if a father has appointed a testamentary guardian, a surviving mother remains the natural guardian.
Muslims: For Muslims, the mother holds the primary right to child custody, which cannot be deprived to her as long as she is not found guilty of misconduct.
However, a mother’s custody rights over her son vary across sects within the community. In some instances, this right terminates on the son turning 7, while in others it continues till the child attains the age of puberty.
As for girls, the duration of the mother’s custody right could extend until the daughter attains puberty or marries, depending on the sect.
Custody of a child devolves on the grandmothers in case the parents are not there.
Under Shia law, the father assumes custody rights if the mother is deceased. In contrast, among Malikis, only female family members are entitled to child custody.
As for guardianship, both Sunnis and Shias recognise only the father as the guardian. After his death, it either passes to the grandfather or the executor appointed by him.
The father’s right of guardianship remains even when the mother, or any other woman, is entitled to the minor child’s custody. His rights include control over the child’s education and religion.
Christians & Parsis: A Christian child’s custody is determined by the court during judicial separation proceedings. The Indian Divorce Act, 1869 says that the court may make provisions for custody, maintenance, and education of a minor child before issuing a final judgement.
There is no personal law specifically governing the custody of Parsi children. The GWA is applicable for all matters and it is left to the court’s discretion to decide in the best interest of the child.
Succession & inheritance
When it comes to distributing the property and assets of a late family member, two avenues come into play: a valid will left by the deceased or the application of personal laws.
However, certain circumstances may arise where a will is deemed not acceptable or invalid.
Under personal laws, specific provisions govern the devolution of property to different categories of beneficiaries.
Hindus, Sikhs, Jains, and Buddhists: The Hindu Succession Act, 1956 does not differentiate between a man and a woman when it comes to the inheritance of a deceased parent’s property. A Hindu woman has the same right to her parents’ property that a male does. The inheritance rights of a married daughter are exactly the same as that of an unmarried one.
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, a father holds the right to distribute it as he wishes and his children cannot object.
However, upon the father’s demise, the property is divided equally among all the children. Conversely, in the case of ancestral property, the succession follows the law and cannot be altered at the father’s discretion.
Notably, a woman whose married son dies intestate — that is, without leaving a valid will — is entitled to an equal share of his property along with his wife and children.
However, this does not hold 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 different 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 heirs accrues until the owner’s death. Further, payment of debts of the deceased takes precedence over legacies.
A Muslim cannot, by law, dispose of more than one-third of what remains of his property through a will, after payment of his funeral expenses and debts, unless the heirs consent.
As for succession, daughters are seen as rightful legal heirs of their parents’ estate, but the quantum of their share is half of that of the male heirs.
A Muslim woman is entitled to get one-eight of her husband’s property if the couple has children, else she gets one-fourth.
Christians & Parsis: The Indian Succession Act, 1925 applies in the case of Christians and Parsis. Sons and daughters have equal rights to inherit the property of their parents under this law.
A widow receives one-third of her deceased husband’s estate, with the remaining going to the children.
If the other heirs are relatives other than the children, then a widow gets half of the estate, with the remainder going to the other family members. She gets the entire property if there are neither any children nor other relatives.
This is the second of a two-part series on how the UCC could affect personal laws across religions. Read Part 1.
(Edited by Asavari Singh)
Also Read: Question for UCC critics—Why don’t you want Sharia law for Muslim criminals?