Up Close And Personal

Marriage And Divorce

Hindu: The Hindu Marriage Act, 1955, bans polygamy, allows women to divorce, but can’t inherit marital property once divorced.

Muslim: Marriage is a civil contract, or nikahnama, and women are also owners of property. Dissolution of Muslim Marriages Act, 1939, states rules for women seeking a divorce, but men are exempted from such guidelines. A Law Commission report says polygamy is permitted, but it is often misused by men who convert to Islam solely for keeping another spouse.

Christian: The law was amended in 2001 to remove unfair rules such as a woman’s divorce plea against an adulterous husband would hold only if she also alleges cruelty. But a wife’s infidelity is good enough ground for a man to break his marriage legally. The amendments do not hold for Christian-majority Nagaland, governed by the 1961 Naga Accord.

Parsi: The jury system, done away with after the 1959 Commander K.M. Nanavati case, continues in divorce matters. The “third party” in an adultery case can become a codefendant. A Parsi marrying outside the community loses all inheritance rights.

Sikh: The Anand Marriage Act of 1909 does not have a provision for divorce. Sikh couples rely on the Hindu law.

Law Commission Observation

“If a universal age for majority is recognised, and that grants all citizens the right to choose their governments, surely, they must then be also considered capable of choosing their spouses.” The commission says the divorce procedure should be simplified across all personal laws. “Lengthy procedures incentivise the use of severe grounds such as cruelty and adultery in order to secure a divorce which may have been prompted merely by inability of the partners to find mental, emotional or physical compatibility.”

Custody And Guardianship

Hindu: Parents are natural guardians of minor kids, and the husband is the guardian of his wife, according to the Hindu Minority and Guardianship Act, 1956.

Muslim: The Shariat Application Act of 1937 says the Muslim personal law applies in such matters, though rules aren’t expressly codified and prevalent regional customs are followed. The Muslim personal law says minors cease to be so after attaining puberty.

Christian: The statutes codifying Christian law do not deal with custody or guardianship, but remedy can be sought under the Indian Divorce Act, 1869, which covers the subject.

Parsi: The Parsi Marriage and Divorce Act, 1936, allows the court to decide the interim custody of a child in a legal case.

Law Commission Observation

“The law should not give preference to one parent over the other…It is further followed by the suggestions, wherever required, to make a just case for both the parties, so that the principle of best interest of the child can be applied fairly.”

Adoption

Hindu: Adopted and ‘natural-born’ children are equal. The Hindu Adoption and Maintenance Act, 1956, says a man must get his wife’s consent before adopting a child—­unless she is of unsound mind or has converted to another religion. The act was amended in 2010 to allow a married woman to adopt a child.

Muslim: The practice of Kafala allows a child to be put under a foster parent’s care. Various other adoption methods are also followed.

Christian: There is no singular statute on adoption; the overarching Guardians and Wards Act is mostly followed. Syrian Christians of Kerala follow a specific custom on this.

Parsi: There is no Parsi-specific legislation.

Law commission observation

“As non-Hindus do not have an enabling law to adopt a child”, those seeking an adoption can do it under the Guardian and Wards Act, 1890. “Given the number of babies waiting to be adopted, adoption agencies strongly advocate the creation of a robust and clear adoption law.”

Inheritance/Succession

Hindu: If a man dies without a will, the property goes to heirs in the order of Class I, Class II, agnates and cognates. Class I heirs are sons, daughters, wife, mother, etc. Class II comprises father, son’s/daughter’s son, son’s/daughter’s daughter, brother, sister, etc. Agnates are relatives from the husband’s lineage; cognates from a wife’s lineage. If a woman dies without a will, the property goes to—in this order—sons, daughters and husband; heirs of husband; father and mother; heirs of father; and heirs of mother. Also, a Hindu Undivided Family gets various tax benefits.

Muslim: Shia and Sunni ways differ. There are two classes of inheritors among Sunnis—relations by blood and marriage; and unrelated successors. For Shias, there are two types of relatives: Nasab, essentially heirs by blood, and Sahbab, heirs by marriage (husband and wife).

Christian: The community follows the Indian Succession Act of 1925. There is no discrimination based on sex of heirs, people related by either full- or half-blood, but relations by adoption are not recognised.

Parsi: The Indian Succession Act, 1925, has provisions on Parsi succession without a will. These were amended to deal with gender discrimination.

Law commission observation

It doesn’t say much but acknowledges that the Indian Succession Act of 1925 is the “principal legislative measure” governing testamentary succession (through a will) for people, other than Muslims, and intestate succession (non-willed) for non-Hindu/Muslim people.