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 different frameworks for determining custody, which include factors such as age, gender, and the concept of natural guardianship.
Likewise, in matters of inheritance and succession, some religious communities have their own rules and regulations with varying degrees of gender equality and prioritization of certain family members.
Here is a closer look at the existing legal frameworks governing custody and guardianship, as well as succession and inheritance for various religious communities.
Also read: The opposition is wrong in opposing the UCC. It is bad policy, contrary to the spirit of the Constitution
Custody and Guardianship
When the parents separate, the question of custody of the child arises, with the solution varying according to personal rights.
It is worth noting that the Guardians and Wards Act 1890 (GWA), a secular statute, supplements various personal statutes and must be interpreted harmoniously in determining custody in legal cases.
Hindus, Sikhs, Buddhists and Jains: For children from Hindu, Sikh and Jain communities, custody is governed by the Hindu Minority and Guardianship Act 1956 (HMGA) and the Guardians and Wards Act 1890 (GWA). These statutes are interpreted harmoniously.
According to the HMGA, custody of a child under the age of five generally rests with the mother. However, the law also recognizes the common practice of treating the father as “natural guardian” with ultimate custody.
Yet courts over the years have disregarded this rule, declaring that the best interests of the minor child should be the first priority when deciding custody cases. In many cases, courts have granted custody to close relatives when the parents were either unwilling or unable to adequately care for the child.
In addition, the parent who does not receive custody is entitled to visitation rights to meet the child by court order.
When it comes to guardianship, the HMGA only recognizes three people as natural guardians of a child: father, mother and, if an underage girl is married, her husband.
The law also allows the mother or father to appoint a testamentary guardian — someone designated by law to assume responsibility for the care and upbringing of the child if the parents are unable to do so.
Even if the father has appointed a testamentary guardian, the surviving mother remains the biological guardian.
Muslims: For Muslims, the mother has primary custody of the child, which cannot be removed from her unless she is found guilty of wrongdoing.
However, a mother’s custody of her son varies by denomination within the community. In some cases this right expires when the son reaches the age of 7, while in other cases it lasts until the child reaches puberty.
In the case of girls, the duration of the mother’s custody may extend until the daughter’s puberty or marriage, depending on the sect.
Custody of a child rests with the grandmothers unless the parents are present.
According to Shia law, if the mother dies, the father takes custody of the child. In contrast, with Malikis, only female family members are entitled to custody of the children.
As for guardianship, both Sunnis and Shias only recognize the father as guardian. After his death, it either passes to his grandfather or to his designated executor.
The father’s right of custody also applies if the mother or another woman has custody of the minor child. His rights include control over the child’s education and religion.
Christians and Parsis: Custody of a Christian child is determined by the court as part of a separation proceeding. The Indian Divorce Act 1869 states that the court may make arrangements for the custody, maintenance and upbringing of a minor child before making a final judgment.
There is no personal law that specifically regulates custody of Parsi children. The GWA applies to all matters and the court has discretion to decide in the best interest of the child.
Succession & Inheritance
When distributing the property and wealth of a deceased family member, two options come into play: a valid will by the deceased or the application of personal law.
However, there may be certain circumstances in which a will may be deemed unacceptable or invalid.
In the law of persons, specific provisions govern the transfer of property to different categories of beneficiaries.
Hindus, Sikhs, Jains and Buddhists: The Hindu Succession Act 1956 makes no distinction 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 as a man. The inheritance rights of a married daughter are exactly the same as those of an unmarried daughter.
In Hindu personal law, it should be noted that a distinction is made between ancestral and self-acquired property. In the case of self-acquired property, the father has the right to distribute it as he sees fit, and his children cannot object.
However, after the death of the father, the property is divided equally among all the children. Conversely, in the case of hereditary property, the succession follows the law and cannot be changed at the discretion of the father.
In particular, a woman whose married son dies intestate, that is, without leaving a valid will, is entitled, along with his wife and children, to an equal share in his estate.
However, this does not apply to a father. If his son dies without a will, the father receives no share of the estate as long as the son’s wife, children and mother are alive.
Muslims: Among Muslims there are different laws for Shiites and Sunnis.
However, in Islamic personal law there is no difference between ancestral and self-acquired property. This means that the person who owns the property is considered its sole owner; There are no statutory heir claims until the death of the owner. In addition, settlement of debts of the deceased takes precedence over legacies.
A Muslim cannot dispose of more than one-third of his remaining property by will after paying his funeral expenses and debts, unless the heirs agree.
In terms of inheritance, daughters are considered legal heirs to their parents’ estate, but their share is half that of male heirs.
A Muslim woman is entitled to one eighth of her husband’s wealth if the couple have children, otherwise she is entitled to one quarter.
Christians and Parsis: The Indian Succession Act of 1925 applies to Christians and Parsis. According to this law, sons and daughters have the same right to inherit their parents’ property.
A widow receives a third of her deceased husband’s fortune, the rest goes to the children.
If the other heirs are relatives other than the children, a widow will receive half of the estate, with the rest going to the other family members. She receives all the property if there are no children or other relatives.
This is the second part of a two part series on how the UCC could affect personal laws of different religions. Read Part 1.
(Edited by Asavari Singh)
also read: Question to UCC critics: Why don’t you want Sharia law for Muslim criminals?
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