Women and Law Project

7/31/2019 Women and Law Project

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WOMEN AND LAW

PROJECT

- SEX INEQUALITY IN INHERITANCE,ADOPTIONAND GUARDIANSHIP

Submitted By:-

Snehil Dixit


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ACKNOWLEDGEMENT

I, Snehil Dixit, student of 4th year B acknowledge the fact

that the project has been made with the help and assistance

of Women and Law teacher, Ms Alka Misra


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Sex Inequality in Inheritance, Adoption and Guardianship

Man and Woman are both equal and both play an important role in the development of the

society. The struggle for legal equality has been one of the major concerns for the development

of women. In India, women were considered as an oppressed section of the society. Women are

now passing through a phase between subjugation and emancipation and are entering the outside

world. However sex inequality still represents the ugly face of the society. In the society girls are

socialized from their tender age to be dependent on males. The sense of insecurity, humiliation

and helplessness always keep women at a lower level. Cultural beliefs and traditions that

discriminate against women may be discredited but they continue to exist. All the major religious

communities in India are governed by their personal laws in matters of inheritance, adoption,

guardianship etc. A number of legislations have been passed and enacted which provide for

equality and to bring women at par with men.

These Acts are:-Abolition of Sati,1829; Widow Remarriage Act, 1856; Child Marriage Restraint

Act,1929; Hindu Marriage Act,1955; Dowry Prohibition Act,1961; Maternity Benefit Act,1961;

Equal Remuneration Act,1976; Hindu Succession Act1956; Hindu Minority and Guardianship

Act,1956; Hindu Adoptions and Maintenance Act,1955; Section 125 of the Code of Criminal

Procedure etc

The Preamble of the Constitution of India promises to secure to all its citizens-Justice and

Equality. It states equality before law and equal treatment to all without any discrimination on

the ground of sex.1 The Constitution guarantees that there will be no discrimination on the

ground of sex, caste, religion and everybody is to be treated equally but special provisions can be

made for women, children, scheduled castes and scheduled tribes.2

The constitution also

provides that there shall be no discrimination on the ground of sex, caste, religion, place of birth

in public employment but special provisions can be made for women, children and scheduled

castes and tribes and these privileges do not violate the provisions of the constitution as they are

protective discrimination and have been made to bring women etc at par with men and to provide

them with equal opportunities and allow them to grow and develop and to make their lives more

comfortable.3

1Article 14 of the Constitution Of India




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Inspite of having so many enactments and provision dealing with women, the downtrodden and

poor condition of women has not been improved and still atrocities and discrimination is facedby them. The major reason behind this are the personal laws of all the religions which do not

treat girls as equals and these personal laws are not touched upon by the legislature and judiciary

because of the fear that their action might hurt the religious sentiments of the people. Since

independence a number of amendments have taken place in the personal laws so as to improve

the condition of girls but still a lot can be done to further improve the condition and to remove

the sex inequality.

HINDU

INHERITANCE

The Hindu Succession Act,1956

The Act controls and governs the succession to the property of a Hindu. It was held in Velamuri

Venkata Shiva Prasad V Kothurivenkataswarlu4that section 14 of the Act has to be taken in

its widest connotation.

In the ancient period, women had no property rights. She was not a party in the division of the

property. She only had the right to maintenance till the time she gets married and in case of

divorce she had the right to come back to her parents home and can claim maintenance.

In1937 an act was enacted- The Hindu Women Right to Property Act, 1937 which gave

women limited rights over the property. She became the limited owner of the property.

Under the Hindu Succession Act, 1956- The hindu female had limited rights over the property

and was the limited owner of the property. The hindu females were not the coparceners in the

family property and the property was divided among the sons only. The karta is the senior mostmember of the hindu undivided family. The women were not regarded as coparceners and hence

they were not considered karta of the family. The partition was done on the basis of doctrine of

survivorship, i.e, those who are alive at the time of partition will get equal rights. The hindu

4AIR 2000 SC 434


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females were not made coparceners and this was against the principle of equality as given under

Article 14 of the Constitution.

On the basis of the report of the law commission, need was felt to make some changes in the Actas the Act was discriminatory to women. Then the amendment was made in 2005 in the Hindu

Succession Act, 1956.

The 2005 Amendment abolished certain provisions of the Act:-

1) It abolished the concept of pious obligation2) Doctrine of survivorship was abolished3) The category of class 1 legal heirs changed4) Rules of disqualification was changed5) Section 6 was amended6) Section 4(2) was deleted7) Sections 23 and 24 were deleted

Hindu Females now have full or absolute rights over theproperty and now they are not just the

limited owner. The daughters are given property rights in the property. There are certain rules of

succession which have been added to the Act.

Now the daughters are coparceners by birth and will have the same rights in the property as of a

son and will have the same liabilities. If a hindu dies, his interest in the property shall devolve

by a testamentary or intestate succession and the same share will be allotted to daughters as is

allowed to a son.5

Section 6- Devolution of interest in coparcenary property.(1) On and from thecommencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family

governed by the Mitakshara law, the daughter of a coparcener shall,

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a

son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to adaughter of a coparcener:

5Section 6 of the Hindu Succession (Amendment) Act,2005


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Provided that nothing contained in this sub-section shall affect or invalidate any disposition or

alienation including any partition or testamentary disposition of property which had taken placebefore the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be

held by her with the incidents of coparcenary ownership and shall be regarded, notwithstandinganything contained in this Act or any other law for the time being in force in, as property capable

of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act,

2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall

devolve by testamentary or intestate succession, as the case may be, under this Act and not bysurvivorship, and the coparcenary property shall be deemed to have been divided as if a partition

had taken place and,

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got hadthey been alive at the time of partition, shall be allotted to the surviving child of such pre-

deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as

such child would have got had he or she been alive at the time of the partition, shall be allotted to

the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as thecase may be.

Explanation.For the purposes of this sub-section, the interest of a Hindu Mitaksharacoparcener shall be deemed to be the share in the property that would have been allotted to him if

a partition of the property had taken place immediately before his death, irrespective of whether

he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall

recognize any right to proceed against a son, grandson or great-grandson for the for the recovery

of any debt due from his father, grandfather or great-grandfather solely on the ground of thepious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any

such debt:

Property of a hindu female to be her absolute property6- Any property possessed by a female

hindu shall be her absolute property and she will be the absolute owner of the property having

full rights over the property. The property whether movable or immovable may be inherited by

succession or partition or in lieu of maintenance or arrears of maintenance or by way of gift will

be her absolute property. Earlier the property of a female were divided into- stridhan and

6Section 14 of the Hindu Succession (Amendment) Act,2005


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womans estate but now there is no such classification and she is the absolute owner of her

property.

The provisions of section 14(1) will not apply to any property acquired by way of gift or under a

will or any other instrument or under a decree or order of a civil court as given under section

14(2). If any property is given with certain restrictions then she will not be the absolute owner ofthe property.

Section 14-Property of a female Hindu to be her absolute property

(1) Any property possessed by a female Hindu, whether acquired before or after the

commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation:- In this sub-section "property" includes both movable and immovable property

acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenanceor arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after

her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other

manner whatsoever, and also any such property held by her as stridhan immediately before the

commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or

under a will or any other instrument or under a decree or order of a civil court or under an award

where the terms of the gift, will or other instrument or the decree, order or award prescribe a

restricted estate in such property.

There are certain rules of succession as to how the property is to be devolved7

- the property will

be devolved to sons and daughters and not to the husband of the deceased wife as was held in

Raghubir V Janki Prasad8that the husband will not inherit the property where she has acquired

the property from her parents.

Section 15-General rules of succession in the case of female Hindus

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in

section 16:

(a) firstly, upon the sons and daughters (including the children of any predeceased

son or daughter) and the husband

7Section 15

8AIR 1984 MP 39


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(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1)-

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the

absence of any son or daughter of the deceased (including the children of any pre-deceased son

or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein,

but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-lawshall devolve, in the absence of any son or daughter of the deceased (including the children of

any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the

order specified therein, but upon the heirs of husband.

Section 29A of the Act states the equal rights to a daughter in coparcenary property are to be

given as she is now the coparcener by birth and has full rights over the property, at partition the

property is to be divided equally.

Pratibha Rani V Suraj Kumar9the Supreme Court held that the stridhan property of married

women has to be placed in her custody, and she enjoys complete control over it, the mere fact

she is living with her husband and using the dowry items jointly does not make any difference

and affect her right of absolute ownership over property.

Thus by virtue of the Amendment (2005) in the Hindu Succession Act, equal rights have been

given to hindu females in the family property and they have become the absolute owners of theproperty as earlier under section 14 of the Act before the 2005 amendment, property was divided

into womens estate and stridhan but now after the 2005 amendment there is no such division

and she is the absolute owner of the property and also is a coparcener now in the family property.

9(1985) SC 628


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ADOPTION

The Hindu Adoption and Maintenance Act, 1956

Adoption is the transplantation of a child to the family where he/she was not born. Amendments

have taken place to remove the inequalities.

Before the commencement of the Act only son could be adopted by a hindu and the right of

adoption was only with the hindu male married, unmarried, widower, divorcee and hindu female

had no right of adoption. The right was only with the hindu female widow. The consent of wife

was not required.

But after the commencement of the Act, the hindu females whether married or unmarried,

widows have the right of adoption and in case adoption is by the husband the consent of the wife

is necessary otherwise the adoption will be void. These changes have taken place after the

commencement of the Act.

The Act states the capacity of a female hindu to take in adoption10

- any female hindu who is of

sound mind, major, has the capacity to take in adoption.

Section 8 of the Act-Capacity of a female hindu to take in adoption-Anyfemale Hindu-(a) who is sound mind,

(b) who is not a minor, and(c) who is not married, or if married, whose marriage has been dissolved or whose husband is

dead or has completely and finally renounced the world or has ceased to be a Hindu or has been

declared by a court of competent jurisdiction to be of unsound mind.Has the capacity to take a son or daughter in adoption.

As per section 7 of the Act, consent of the wife is necessary and if not taken the adoption by the

husband will be void but in certain cases consent of the wife is not required when the wife hasceased to be a hindu, renounced the world, of unsound mind.

Section 7-Capacity of a male Hindu to take in adoptionAny male Hindu who is sound mind and is not a minor has the capacity to take a son or a

daughter in adoption:

10Section 8 of the Hindu Adoption and Maintenance Act,1956


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PROVIDED that, if he has a wife living, he shall not adopt except with the consent of his wife

unless the wife has completely and finally renounced the world or has ceased to be a Hindu or

has been declared by a court of competent jurisdiction to be of unsound mind.

Explanation: If a person has more than one wife living at the time of adoption, the consent of all

the wives is necessary unless the consent of any one of them is unnecessary for any of the

reasons specified in the preceding proviso.

It was held in Krishna Chandra Sahu V Pradeep Das11the consent of wife is mandatory if the

above conditions of not taking are not proved by the husband and the adoption will be null and

void.

Before the commencement of the Act only males could be adopted but after the commencement

of the Act even females can be adopted.

Section 10 of the Act states -the persons who could be adopted- the person had to be a hindu,

has not completed the age of 15 years unless some customs allows so, the age gap between aadoptive person and the one who is adopting has to be 21 years if they are of opposite sex.

Section 9 of the Act states that both the father and mother of a child have equal rights in

adoption and the husband alone also has the right to give in adoption but consent of the wife is

mandatory.

Section 9-Persons capable of giving in adoption(1) No person except the father or mother the guardian of a child shall have the

capacity to give the child in adoption.(2) Subject to the provision of [sub-section (3) and sub-section (4)], the father, if

alive, shall alone have the right to give in adoption, but such right shall not be

exercised save with the consent of the mother unless the mother has completely

and finally renounced the world or has ceased to be a Hindu has been declared by

a court of competent jurisdiction to be of unsound mind.(3) The mother may give the child in adoption if the father is dead or has completely

and finally renounced the world or has ceased to be a Hindu or has been declared

by a court of competent jurisdiction to be of unsound mind.(4) Where both the father and mother are dead or have completely and finally

renounced the world or have abandoned the child or have been declared by a court

of competent jurisdiction to be of unsound mind or where the parentage of the

child is not known, the guardian of the child may give the child in adoption withthe previous permission of the court to any person including the guardian

himself.](5) Before granting permission to a guardian under sub-section (4), the court shall be

satisfied that the adoption will be for the welfare of the child, due consideration

being for this purpose given to the wishes of the child having regard to the age

11AIR 1982 Ori 114


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and understanding of the child and that the applicant for permission has not

received or agreed to receive and that no person has made or given or agreed to

make or give to the applicant any payment or reward in consideration of the

adoption except such as the court may sanction.

Explanation: For the purposes of this section-(i) the expression "father" and "mother" do not include an adoptive father and an

adoptive mother;

(ia) "guardian" means a person having the care of the person of a child or of both his

person and property and includes-(a) a guardian appointed by the will of the child's father or mother; and(b) a guardian appointed or declared by a court: and]

(ii) "court" means the city civil court or a district court within the local limits of whose

jurisdiction the child to be adopted ordinarily resides.

Section 10-Persons who may be adoptedNo person shall be capable of being taken in adoption unless the following conditions are

fulfilled, namely:-(i) he or she is Hindu;(ii) he or she has not already been adopted;(iii) he or she has not been married, unless there is a custom or usage applicable to the

parties which permits persons who are married being taken in adoption;(iv) he or she has not completed the age of fifteen years, unless there is a custom or

usage applicable to the parties which permits persons who have completed the age

of fifteen years being taken in adoption.


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GUARDIANSHIP

The Hindu Minority and Guardianship Act, 1956

Earlier the father was the natural guardian of a child, after him the testamentary guardian and

then the mother of a child. Mother was not considered as the natural guardian or the first

guardian but now after the enactment of the Act and the Amendment father and mother are both

guardians of a child. Both have equal rights in respect of the custody of the child and property

and both are natural and legal guardians of the child. The inequality among man and woman with

respect to guardianship has been removed. There was sex inequality in guardianship between

men and women but after the enactment of the Act and Amendments, both of them have equal

rights and have come at the same platform. The right over the child and his property are with

both mother and father.

Under the Hindu Minority and Guardianship Act, 1956, S. 4(b), minor means a person who has

not completed the age of eighteen years. A minor is considered to be a person who is physically

and intellectually imperfect and immature and hence needs someone's protection. In the modern

law of most countries the childhood is accorded protection in multifarious ways. Guardian is "a

person having the care of the person of the minor or of his property or both person and property."

It may be emphasized that in the modern law guardians exist essentially for the protection and

care of the child and to look after its welfare. This is expressed by saying that welfare of the

child is paramount consideration. Welfare includes both physical and moral well-being.

Guardians may be of the following types : 1. Natural guardians, 2. Testamentary guardians, and

3. Guardians appointed or declared by the court. There are two other types of guardians, existing under Hindu law, de facto guardians, and guardians by affinity.

Guardian is the person having the care of a person of the minor or his property or both person

and property. There are 3 kinds of guardians- natural, testamentary and guardian appointed by

the court or declared by the court.

Father is the natural guardian of his minor legitimate children, sons and daughters. Before the

enactment of the Act, 1956, father could prevent his wife (mother) from assuming the

guardianshipof her minor children even after the death of by appointing a testamentary guardian. 12

Mother is the natural guardian of the minor illegitimate child even if the father is alive. However

she is the natural guardian of legitimate children only if the father is dead or is incapable of

acting as a guardian.

12Section 6


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There was inequality even after the enactment of the Act but after the Amendment of 2010 this

inequality has been removed and now both father and mother are the natural guardian of their

legitimate children, son and daughter.

Section 6 also provides that the custody of the minor who has not completed the age of 5 years

will be with the mother.

The natural guardian has a number of rights- Right to Custody, Right over the Property, Right to

control the Movement, Right to control Education etc.

Earlier the power to appoint a guardian or testamentary guardian was with the father only but

now both father and mother have the right to appoint the guardian.

The natural guardians work for the betterment and welfare of the child.13

Section 6- Natural guardians of a Hindu minorThe natural guardian of a Hindu minor, in respect of the minors person as well as in respect ofthe minors property (excluding his or her undivided interest in joint family property), are-

(a) in the case of a boy or unmarried girl- the father, and after him, the mother,

provided that the custody of a minor who has not completed the age of five years

shall ordinarily be with the mother;(b) in the case of illegitimate boy or an illegitimate unmarried girl- the mother, and

after her, the father;(c) in the case of married girl -the husband:PROVIDED that no persons shall be entitled to act as the natural guardian of a minor

under the provisions of this section-(a) If he has ceased to be a Hindu ,or(b) If he has completely and finally renounced the world becoming a hermit

(vanaprastha) or an ascetic (yati or sanyasi)

Explanation In this section, the expression father and mother do not include a step-

father and a step-mother.

Section 8-Powers of natural guardian(1) The natural guardian of a Hindu minor has power, subject to the provisions of this

section, to do all acts which are necessary or reasonable and proper for the benefit

of the minor or for the realization, protection or benefit of the minor's estate; but

the guardian can in no case bind the minor by a personal covenant.(2) The natural guardian shall not, without the previous permission of the court-

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any

part of the immovable property of the minor, or

13Section 8


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(b) lease any part of such property for a term exceeding five years or for a

term extending more than one year beyond the date on which the minor

will attain majority.(3) Any disposal of immovable property by a natural guardian, in contravention of

sub-section (1) or sub-section(2), is voidable at the instance of the minor or any

person claiming under him.(4) No court shall grant permission to the natural guardian to do any of the acts

mentioned in sub-section (2) except in case of necessity or for an evident

advantage to the minor.(5) The Guardians and Wards Act, 1890, shall apply to and in respect of an

application for obtaining the permission of the court under sub-section (2) in all

respects as if it were an application for obtaining the permission of the court under

section 29 of that Act, and in particular-(a) proceedings in connection with the application shall be deemed to

be proceedings under that Act within the meaning of section 4A

thereof;(b) the court shall observe the procedure and have the powers specified in

sub-sections (2),(3) and (4) of section 31 of that Act; and(c) an appeal shall lie from an order of the court refusing permission to the

natural guardian to do any of the acts mentioned in sub-section (2) of this

section to the court to which appeals ordinarily lie from the decisions of

that court.(6) in this section, " court " means the City Civil Court or a District Court or a court

empowered under section 4A of the Guardians and Wards Act, 1890, within the

local limits of whose jurisdiction the immovable property in respect of which the

application is made is situate, and where the immovable property is situate within

the jurisdiction of more than one such court, means the court within the local

limits of whose jurisdiction any portion of the property is situate.

Thus, with the enactment of the Acts-The Hindu Succession Act, The Hindu Adoption and

Maintenance Act, The Hindu Minority and Guardianship Act and Amendments in these Acts,

changes have taken place and inequality has been removed and both hindu males and femaleshave equal rights in inheritance, adoption and guardianship and are at par with each other. The

condition of hindu females have been improved and they are given equal rights as given to hindu

males with respect to inheritance, adoption and guardianship.


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MUSLIM

Muslim Personal Law (shariat) application Act, 1937

Inheritance

The Islamic law of inheritance is a combination of pre Islamic custom and the rules introduced

by the Prophet. The inheritance opens on the death of the person. Before his death nobody can

claim any right in the property on the basis of his being heir apparent or heir presumptive. There

is no right by birth. Under the Muslim law, full attention has been paid to the law of succession

and blood relationships are entitled to succession. Quranic heirs and legal heirs are the main heirs

There is inequality with respect to inheritance in Muslim law. A Son gets double of what is given

to a daughter. Daughter takes as a residuary.

But the property inherited by a Muslim female is her absolute property and she has full rights of

ownership. A Muslim female both married or unmarried has a right of residence.

The heritable property first goes to the sharers, then residuary, and then distant kindred. Mother

is a sharer and, she takes 1/6thshare when there is a child or sons child and there are two

brothers, one brother, one sister, two sisters of the deceased. She takes 1/3rd share when there is

no child.

Wife takes 1/8th

share when there is a child and 1/4th

when there is no child.

Adoption

ADOPTION is not recognized under the Muslim personal law. If a Muslim person wants to

adopt a child, son or daughter, there is no law on adoption. The taking of a child has to be

acknowledged by the person before the community. The adoptive parents are caretakers and act

as trustees of the child.

Guardianship

In all schools of both sunni and shia, the father is recognized as a natural guardian and the

mother is not the natural guardian.The fathers right of guardianship exists even when the

mother has the custody of the child. The father has the right to control education, religion of the

minor, their upbringing and movement. So long the father is alive; he is the sole and supreme

guardian of his children. The mother only has the custody of the child, and the father alone is the

natural guardian and after his death, his executor under the sunni law is the legal guardian.


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In the shias, father is the natural guardian, after him the guardianship belongs to the grandfather,

then to the executor appointed by the father and then to the executor appointed by the fathers

father.

The fathers right of guardianship extends only over his minor legitimate children but not over

the illegitimate children.

The Muslim law recognizes three kinds of guardianship:-

1) Guardianship in Marriage (jabar)2) Guardianship of person of the minor for custody (hizanat)3) Guardianship of Property

a) De jureb) De factoc) Certified

In case of guardianship in marriage, father can give the children in marriage without their

consent before the age of puberty.

In case of guardian of the person of the minor for custody:-for sunnis, mother has the custody of

her male child until he has completed the age of seven years and of her female child until she has

attained puberty.

For shias, mother has the custody of her male child till the age of two years and female child tillthe age of seven years.

A mother is the de facto guardian. In Rahmeena Khatoon V Saburjanessa14the court held that

the mother loses the guardianship of the minor daughter in case she remarries.

Guardianship of minors property- father, executor appointed by fathers will, fathers father,

executor appointed by the fathers father- only they are the guardians and mother does not have

any right over the property of her child. They are not the legal guardians though they can be

appointed by father, father father, executer etc.

14AIR 1996 Gau 33


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Testamentary Guardian- among the sunnis, the father has full powers to appoint a testamentary

guardian, then the power is with the executor and in case of shias the fathers appointment is

valid only if the grandfather is not alive.

The mother has no power to appoint a testamentary guardian.

Thus there lies inequality under the Muslim law with respect to inheritance- a daughter takes in

as a residuary and gets half of what is given to a son and with respect to guardianship, only father

is the natural guardian and not the mother. Mother gets only the custody of the child till a certain

age but all the powers lies with the father.

CHRISTIAN

INHERITANCE

Indian Succession Act, 1925

(Section 31 to 49)

The daughter gets 1/4thof the sons share or Rs 5,000 whichever is less. She has no futher right

in seeking the division of properties. When the person dies, 1/3rd of the property goes to the wife

if there are lineal descendents and if there are no lineal descendents then will be given to the

wife.

A Christian daughter has no pre existing right in the family property and her rights arise when

the parents die intestate.

The property of an intestate devolves upon the wife or husband or distant kindred15

.- if an

intestate has left a widow and lineal descendents then one third properly belongs to the widow.

Special provision was added 16-where the intestate has left widow and no lineal descendents and

the net value of the property does not exceed Rs 5,000 the whole of the property belongs to the

widow.

15Section 32 of the Indian Succession Act,1925

16Section 33A of the Indian Succession Act,1925


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Section 32-Devolution of such property.-The property of an intestate devolves upon the wife

or husband, or upon those who are of the kindred of the deceased, in the order and

according to the rules hereinafter contained in this Chapter.

Explanation.--A widow is not entitled to the provision hereby made for her if, by a valid

contract made before her marriage, she has been excluded from her distributive share of herhusband's estate.

Section 33A-. Special provision whereintestate has left widow and no lineal descendants.-

(1) Where the intestate has left a widow but no lineal descendants and the net value of his

property does not exceed five thousand rupees, the whole of his property shall belong to the

widow.

(2) Where the net value of the property exceeds the sum of five thousand rupees, the widowshall be entitled to five thousand rupees thereof and shall have a charge upon the whole of such

property for such sum of five thousand rupees, with interest thereon from the date of the death

of the intestate at 4 per cent. per annum until payment.

(3) The provision for the widow made by this section shall be in addition and without prejudice

to her interest and share in the residue of the estate of such intestate remaining after payment

of the said sum of five thousand rupees with interest as aforesaid, and such residue shall be

distributed in accordance with the provisions of section 33 as if it were the whole of such

intestate's property.

(4) The net value of the property shall be ascertained by deducting from the gross value

thereof all debts, and all funeral and administration expenses of the intestate, and all other

lawful liabilities and charges to which the property shall be subject.

(5) This section shall not apply-

(a) to the property of--

(i) any Indian Christian,

(ii) any child or grandchild of any male person who is or was at the time of his death an

Indian Christian, or

(iii) any person professing the Hindu, Buddhist, Sikh or Jaina religion the succession to whose

property is, under section 24 of the Special Marriage Act, 1872

(b) unless the deceased dies intestate in respect of all his property.


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ADOPTION

There is no statutory recognition for adoption by Christians in India. The right of adoption is not

recognized and only acknowledgement is there.

GUARDIANSHIP

The Guardian and Wards Act, 1890

The court has the power to appoint a guardian for the welfare of the child to take care of the childand his property.

17

Section 7-Power of the court to make order as to guardianship

(1) Where the court is satisfied that it is for the welfare of a minor that an order should be made-

(a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian,

the court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been

appointed by will or other instrument or appointed or declared by the court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared bythe court, an order under this section appointing or declaring another person to be guardian in his

stead shall not be made until the powers of the guardian appointed or declared as aforesaid have

ceased under the provisions of this Act.

Section 17 of the Act states that -Matters to be consideredby the Court in appointing

guardian.-

1) In appointing or declaring the guardian of a minor, the Court shall, subject to theprovisions of this section, be guided by what, consistently with the law to which theminor is subject, appears in the circumstances to be for the welfare of the minor

2) In considering what will be for the welfare of the minor, the Court shall have regard tothe age, sex and religion of the minor, the character and capacity of the proposed

guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent,

17Section 7 of the Guardian and Wards Act,1890


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and any existing or previous relations of the proposed guardian with the minor or his

property.3) If the minor is old enough to form an intelligent preference, the Court may consider that

preference.

4) The Court shall not appoint or declare any person to be a guardian against his will

Section 19 states that-Guardiannotto be appointed by the Court in certain cases.- Nothing

in this Chapter shall authorize the Court to appoint or declare a guardian of the property of aminor whose property is under the superintendence of a Court of Wards, or to appoint or declare

a guardian of the person

a) of a minor who is a married female and whose husband is not, in the opinion of the Court,unfit to be guardian of her person, or

b) of a minor whose father is living and is not, in the opinion of the Court, unfit to beguardian of the person of the minor, or

c) Of a minor whose property is under the superintendence of a Court of Wards competentto appoint a guardian of the person of the minor.

In Thrity Hoshi Dolikuka V Hoshiam Shavkasha Dolikuka18

- it was held that welfare and

interest of the minor is to be considered. It is the duty of the court to appoint a guardian keeping

in mind the welfare of the child.

18AIR 1982 SC 1276


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PARSI

INHERITANCE

The Indian Succession Act,1925

(Section 50 to 56)

The children get equal shares.

When a person dies, his widow and son get double of the amount that is given to a daughter so

there lays inequality.

ADOPTION

Adoption is not recognized under the Parsi law. There is no law or Act governing the adoptionby parsis. Only acknowledgment is there and the adoptive parents are required to acknowledge

the fact that they have taken the custody of a child for his or her welfare. Adoption is legal

affiliation of a child.

GUARDIANSHIP

Indian Divorce Act,1869

Section 41 of the Act states that the court may make orders for the custody of a child in suit forseparation.

Factors to be considered when granting custody of the child:-

a) Welfare of the minorb) Age, sex of the minorc) Character and capacity of the person taking in the custodyd) The minors comfort, health and other welfare aspects


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CONCLUSION

It is said that the law without the public opinion is nothing but a bundle of papers. The gap

between men and women cannot be bridged by just enacting laws without any public support andopinion as social engineering laws are different from penal laws which are just related to injuries

and punishment and are deterrent in nature but social engineering laws are enacted to uplift the

norms of the society and are progressive in nature and therefore it should be backed by the will

of the people for whom it is enacted. It is also clear that centurys old practice cannot be

eliminated in one or two days.

In India most of the laws were not effective as they were ahead of public opinion and willingness

of the people to change the society and to give the women the status of equality in Society too

lacked, so in order to give women their respective position in the society strong Public opinion

should be created through education, seminars and by taking the help of various otherinstruments of the society such as media etc, so that the people of the society should get educated

about and change their centuries old thinking and willingly implement the laws enacted for the

emancipation for women.

To improve the status of the women in the society the need of the hour is that laws should be

enacted but they should be backed by strong public willingness and public opinion because so

long as conservative social thinking remain deep rooted in the society laws will not be able to

achieve their ends. It must be asserted that social reforms is in social thinking, behavior and laws

would be effective only if they are backed by major section of the society.


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BIBLIOGRAPHY

BOOKS REFERRED:-

1) Hindu Succession Act, 19562) Hindu Adoptions and Maintenance Act, 19563) Hindu Minority and Guardianship Act, 19564) Muslim Personal Law (Shariat) Application Act,19375) Indian Succession Act, 19256) Guardian and Wards Act, 18907) Law Relating to Women by Dr S.C.Tripathi8) Women and Law by G.P.Reddy

Women and Law Project

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Transcript of Women and Law Project