In this article, Saksham CHHABRA from UPES (Dehradun) discusses the personal laws of Hindu and Muslims.
Personal laws are the laws that are applicable to a particular religion in common and those laws which govern the religion. These can be the custom or the legislation that has been followed for a long period of time and these are the laws from where these religions have also derived their grundnorm (Basis) and the law on these have developed and evolved. The people have been following these laws for a long period of time and these are prevalent to the people of their religion. These laws have been established keeping in mind the various beliefs and sentiments of the people.
HINDU PERSONAL LAW
The Hindu law is one of the most ancient and primitive laws that are still prevalent in today’s era and also known to the world at large. It is governed by the Hindu Succession Act of 1956, it is a codified law passed by the Parliament of India related to the Intestate (unwilled property), to amend and regulate the Intestate and Testamentary Succession under the Hindu law but in some cases, the Indian succession act plays a major role. Section 5-29 talks about the intestate succession related with the concept of women as a coparcener(a person who shares the inherited land equally) (Sections 6 & 7), male intestate and their order of succession.
(Section 8-13), female intestate and their order of succession (Section 14-16), other relationships and rights (half-blood, full-blood, Child in a womb etc) has been dealt under (Section 17-29) of the Hindu succession act. Part VI of the Indian Succession Act, 1925, starting from Section 57, expressly recognizes the right of a Hindu to dispose of his property according to the will made by him (Testamentary Succession). Schedule III provides for sections which are applicable to wills and codicils under Hindu law subject to restrictions.
Earlier, women were not treated as equals to the males and did not have the same rights in the property but after the amendment in the year 2005 they are treated as equal and possess the same right as the males and now they can also become either a Karta or a coparcener after the amendment, of which they did not possess the right earlier. The Hindu law has various acts and provisions that govern it in matters like Divorce, Marriage, Adoption, Succession, Property, Minority, Rights of the son, Pious obligation etc. which are governed by The Hindu Marriage Act, 1955, The Indian Succession Act, 1925, Guardianship and Adoption Act, 1956. These following laws are in accordance with the Hindu personal law. The Main sources of the Hindu law are the customs and legislation, from where the law has been derived.
The Hindu law of guardianship of minor children has been reformed, codified, and defined by the Hindu Minority and Guardianship Act,1956. Thus, Section 4(b) of the act, states that a minor means a person who has not completed the age of eighteen years. He is considered to be a person, who is physically and intellectually imperfect and immature, and hence needs someone’s protection. Section 6-9 deals with the concept of various guardians under the Hindu law and what are the rights and restrictions. There are certain ways in which the guardianship of the child is given to either of the parents:
1) If the couple has either a boy or an unmarried girl (legitimate), then the first guardian would be the father and after the father the mother will be considered for guardianship; but in case of a child who is less than 5 years of age, the custody of the child would always be with the mother unless the father after his death has appointed someone else as the guardian of the minor child.
2) If the couple has an illegitimate boy or girl, then the first guardian of the child is the mother and after mother, the guardian is the father unless the mother after her death has appointed a person to be the natural guardian of the minor child.
3) If the couple have a daughter and she is married then the guardian of the married daughter will be his husband.
GROUNDS FOR REMOVAL OF A GUARDIAN:
The court has the power to remove any guardian in accordance to the Section 13 of the Hindu Minority and Guardianship Act, 1956, which are as follows:
1) If he ceases to be a Hindu,
2) If he becomes a hermit or ascetic,
3) The court can remove him if his interest is against the interest of the minor.
The welfare of the minor is of utmost importance while deciding such things.
ADOPTION UNDER THE HINDU LAW:
Adoption under the Hindu law can be done in two ways:
- Within-country adoption,
- Inter-country adoption,
- The Intercountry adoption is governed by the Juvenile Justice Act. Under which there is an agency which is also known as the Central Adoption Regulating Authority.
- The landmark case of, Laxmikant Pandey vs Union of India in the year 1984, gave inter-country adoption rules and regulation got a new dimension which changed the whole scenario of rules and procedures that were earlier followed.
Under the Hindu law, the concept of adoption is followed due to certain religious beliefs. There are certain obligations in the Hindu law that are required to be performed by the son, for that purpose adoption is necessary. Thus, the Hindu law allows the adoption of a child under the Hindu Adoption and Maintenance act, 1956 and every adoption has to take place within the confines of this act and any contraventions of the provisions of this act will be void. Earlier, this act was of the concept that only a male can adopt a child but later an amendment was made and now a female can also adopt. The act is applicable in the whole of India except the state of Jammu and Kashmir and applies to any person who is a Hindu. Also, Section 6-17 of the Hindu Adoption and Maintenance Act, 1956 talk about who can adopt, what are the essentials for a valid adoption, conditions for a male and female to adopt, who can be adopted, what are the rights and relationship in the eyes of the law between the parents and the adopted child etc.
DIVORCE UNDER THE HINDU LAW:
Divorce under the Hindu Law is done under the Hindu Marriage Act. Section 10 of the Indian Divorce Act of 1869, states the right of women to apply for the divorce from her husband on certain grounds as mentioned in the section such as adultery, bigamy, desertion, etc.(See More). Also, after the amendment in the act, a new section was also inserted in it, as Section 10A, which has given the freedom to the couples to Divorce By Mutual Consent. So there are various chapters in the act that talk about the various ways of divorce while under the Hindu Marriage Act section(11-18) talks about nullity of marriage. This act lays down the rights and procedures, for judicial separation and even for remarriage if the couple wishes to and also for maintenance and settlement of cases. While section (19-30) talks about the jurisdiction and the procedure to lay down, in the process of the divorce. Divorce is a concept which has been established after the year 1956 as earlier there was no provision regarding divorce and the practice of the Sati system was prevalent in the country but since the rights and duties of the women were restricted the lawmakers recognized the need and made this act.
MUSLIM PERSONAL LAW:
When we talk about Muslim law we understand that it is a codified law and is governed by the Muslim Law (Shariat) of 1937 and all the laws related to Divorce, Maintenance, inheritance etc are governed by it.
The source from where the Muslim law is derived is mainly the Quran. Although the Muslim community is differentiated into two main groups:
- Shia Community( Shia Law)
- Sunni Community( Sunni law)
Both these communities are governed and regulated by their own laws but these laws that govern them are mainly derived from the Quran as it is believed that Quran is the Word of God and any individual who is a Muslim follows this law (A person is considered to be a Muslim when he believes that there is one god and Muhammad is the Prophet).
The Islamic law does not recognize the concept of adoption unlike the Hindu law and this was also proved in the landmark case of, Mohammed Allahabad vs Mohammad Ismail, where the court held that there is no concept of adoption under the Mohammedan law similar to adoption as under the Hindu system but the Muslim law acknowledges the concept of paternity. The basic difference between the two is that under adoption, the person who is adopted is called as the son of another person while in paternity the essentials of acknowledgment are that the acknowledgee must not be known as the son of another.
Proviso Clause– If an individual wants to adopt a child he can do so under the guardianship and wards act of 1890, with the orders of the court.
GUARDIANSHIP UNDER THE MUSLIM LAW:
These Authorities of Muslim Law tell us about the guardianship of the property of the minor, as guardianship is just an interference. Since, these authorities of Muslim law emphatically speak about the guardianship of the property of the minor, the guardianship of the person is a mere inference and since the Muslim personal law is not codified like the other laws there are certain concepts and terms that we study under this.
RIGHTS OF THE GUARDIAN:
- Power of alienation,
- Power to grant the lease,
- Power to carry on business on behalf of the minor child,
- Power to conduct partition,
- Power to incur debts and enter into contracts.
Further, the Muslim law deals with the concept of the natural guardian, testamentary guardian and guardians appointed by the court and also covers the concept of custody in terms of de facto, custody and guardianship which are of utmost importance which have been defined under the Muslim law in detail as the Muslim law is not a codified law there are concepts related to every aspect.
The Muslim law is governed by its own law known as the Shariyat. The Muslim law does not recognize the concept of separate property. There is only one property with same general rules (such as rule of representation, rule of exclusion, rule of primogeniture, rule of vested inheritance and of spec successions) for both male and female succession, if a Muslim individual dies without making a will then, after the death of an individual as per the laws, the property under his ambit of ownership would be distributed among the legal heirs after deducting some expenses and liabilities from the remaining property which is also known as the Heritable Property. The Muslim law for succession constitutes as follows:
- The Quran,
- The Ijma,
- The Sunna,
- The Qiya,
DISTRIBUTION OF PROPERTY:
Under the Muslim law, there are two schools known as the Shia and Sunni school of law. Under the Shia law the property of the deceased person is divided as PER STRIP which also means per relationship they share in the family thus, the quantum depends upon the branch in which they are and also the number of people that are present in their branch while under the Sunni law, the heritable property is divided PER CAPITA which also means per head according to which they get equal share in the heritable property. If a Muslim man or women wants to make a will of his separate property then he can only make a will of the one-third property and not more than that and the remaining property will go to the legal heirs and if the person wants to will more than one-third property then he has to take the consent of other legal heirs and if he has not taken the consent of other heirs and wills more than his right of one-third the share of property after his death, then the person to whom the property was willed will be only to the extent of one-third.
Inheritance Under The Sunni Law:
- distant kindred.
The sharers are the person who is directly entitled to a certain amount of share in the property as per capita and it is fixed by Koram(12) and after the sharers if any property is left it goes to the residuary and even after the residuary have taken their shares it will go back again to the shares. Distant kindred are those relations which are neither sharer nor residuary and property will go to them only if neither of the sharers or residuary is alive. The right of inheritance in Muslim law comes with birth, a child in a womb does not possess any right, he will have an equal right in the property only if he is born alive in the family and the shariyat law even talks about the number of shares in case of a widow with children and other cases and if any person dies without any legal heirs then his whole property goes to the government in the process called as Escheat.
Inheritance Under The Shia Law:
The order of succession under the Shia law is as follows:
- Heirs by consanguinity,
- Heirs by special case
- Group 1( parents and children and descendants of children)
- Group 2( grandparents, brother, and sisters and their descendants)
- Group 3( paternal and maternal aunt and uncles)
DOCTRINE OF AUL AND RADD:
There are cases where there arises a situation in which the total sharers exceed the heritable property, then the share is decreased proportionately. While in the case where the share of sharers is less than the heritable property the remaining part goes to the residuary and if there is no residuary then it passes on to the distant kindred.
In case of a testamentary succession, there are following cases:- (See Here)
Revocation of Muslim Wills:
A will is, by its exceptional nature, revocable. A testator may, whenever he feels like, revoke his will explicitly or implicitly. In this manner, when the deceased testator demolishes the topic of his inheritance, or totally changes its inclination, or exchanges it to someone else, revocation might be construed. In any case, the marriage of the testator after the making of the will does not revoke the will. This rule of Muhammadan Law is totally different from the rule under Indian Succession Act, 1925 where the marriage of the testator revokes his will.
Lapsing of Legacies:
Under the Sunni law, if the legatee does not survive the testator, the inheritance lapses and forms some portion of the testator’s estate, while under the Shia law If the legatee does not survive the testator, the inheritance does not lapse but rather goes to the beneficiaries of the legatee. It is just when the legatee has no beneficiaries, then the inheritance lapses.
Abatement of Legacies:
Under the Sunni Law, if the bequests surpass the bequeathable third, and the heirs don’t consent, under the Sunni law, the inheritances abate rateably. Inheritances for pious objects are likewise diminished proportionately as bequests for common purposes and don’t have priority over them. Estates for pious objects are themselves separated into three classes :
- mandatory philanthropies, e.g., an inheritance for the execution of Hajj in the interest of the expired;
- suggested, yet not required, e.g., an endowment for philanthropy on the below average overshadow those of the third.
While Shia law does not perceive the standard of abatement. Of a few bequests, the first in time prevails until the point that the bequeathable third is depleted. Where a few estates are to be found in a will, need is determined by the request in which they are mentioned. It is to be noted, in any case, that where there are successive bequests of the correct third to two different people, the later inheritance prevails.
Executor of a Muslim Will:
Under the strict Muhammadan law, an executor was simply an administrator to complete the intentions of the testator. He was a trustee named by the testator to protect and deal with his property and kids after his demise. He was not the lawful proprietor of the property of the deceased and the property did not vest in him. He had no energy to offer or contract or estrange the property in some other way. Now, under the provisions of Section 211 of the Indian Succession Act, 1925. an executor of a Muslim’s will is his legal representative for all reasons and all the property of the deceased vests in him; in this manner, he has the ability to dispose of the property at the appointed time.
DIVORCE UNDER THE MUSLIM LAW:
The Divorce under the Muslim law is governed by the Muslim Marriages act of 1939. The act says that divorce can take place under two circumstances that are:
- By wife: When in a marriage the wife wants to give divorce to the husband she can do it in 3 ways which are also known as the Judicial Divorce:
- Talaq-i tafweez
- Dissolution of Muslim marriage act
- By Husband: When the husband gives the divorce to the wife it is called as Extra Judicial Divorce and the ways are as follows:
- Talaq-i- Biddat
Under the Shia and Sunni Law, there are certain conditions that are looked before and calling a divorce a valid one is a Capacity, Formalities, and Use of Express Words, Free Consent under the Shia law. Thus, divorce is legal under the Muslim law and can be done in various ways and also there can be divorced by the way of mutual consent by both the parties.
CONCEPTS OF WILL
A will is a document in which a deceased person entrusts his property to be distributed be assets to be distributed according to his wish. Section 2(h) of Indian Succession Act, 1925 provides that Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death. The following are the terms related to a will are as follows:
WHAT DO YOU UNDERSTAND BY THE TERM CODICIL?
The codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will. The purpose of codicil is to make some small changes in the Will, which has already been executed. The codicil must be reduced to writing and has to be signed by the testator and attested by two witnesses. It is also the duty of the court to arrive at the intention of the testator by reading the Will and all the codicils.
WHO IS AN EXECUTOR?
An executor is a person who is appointed by the court to perform the necessary procedures of the will after the death of the person. The Will confers the powers to collect the outstanding, pay debts and manage the properties, the person is appointed to perform any task that is related to the will of the person.
WHAT DO YOU MEAN BY PROBATE?:
A probate is the proof of the appointment of the executor unless it is revoked by the executor and it signifies that he has the full power. The grant of probate to the executor, however, does not confer upon him any title to the property.
WHAT DO YOU UNDERSTAND BY THE CERTIFICATE OF ADMINISTRATION?
It is a certificate granted by the competent court to an administrator where there exists a Will authorizing him to administer the estate of the deceased in accordance with the Will. If the Will does not name an executor, an application can be filed in the court for grant of Letter of Administration for the property.
HOW ARE THE WILLS ATTESTED?
Attestation means signing a document for the purpose of testifying the signature of the executants. Therefore an attesting witness signing before the executants have put his mark on the Will, cannot be said to be a valid attestation. It is necessary that both the witnesses must sign in the presence of the testator but it is not necessary that the testator have to sign in their presence. It is also not necessary that the attesting witnesses should know the contents of the Will.
DIFFERENCE BETWEEN HINDU AND MUSLIM LAWS:
|HINDU LAWS||MUSLIM LAWS|
|1) Under the Hindu Law, practice of polygamy is abolished.||1) Under the Muslim Law, practice of polygamy is present under the law.|
|2) Adoption is there under the hindu law.||2) Adoption is not there under the muslim law.|
|3) Hindu law is a codified law.||3) Muslim law is not a codified law.|
|4) Under the Hindu law, there is concept of separate and ancestral property.||4) Under the Muslim Law, there is concept of only joint and single property.|
|5) Hindu Law is governed by the Hindu Succession Act, 1956.||5) Muslim law is governed by the Muslim Shariat Law Act of 1937.|
Personal laws, as we know them, are the laws that vary from religion to religion but when we study them we understand that all the laws are almost similar to each other just it is the custom and practice which is being followed since a long time. Personal laws of every religion are slightly different from the others but are mostly same but are treated with their own ways and policies. India is a secular country, with so many religions and beliefs vested in it, I personally believe that there should be same laws for each and every citizen of this country irrespective of their religion, as we all are Indians first and as per the Article 44, of the Constitution of India there should be a Uniform Civil Code in the country for all its citizens and everyone should have only one law and policy other than making it as complex as it is now.
- The Hindu Law(bare act),
- Muslim laws,
- The Indian Succession Act,(bare act),
- Guardianship and wards act,1956(bare act)
- Hindu Succession Act,(bare act)
- Hindu Marriage Act(bare act)
- Hindu Divorce act(bare act)
I agree with you to have one law for all Indians irrespective of religion but it is a distant dream as there are so many other issues sorrounding it.