India is a secular country where it practices numerous religions, such as Hinduism, Buddhism, Islam, Zoroastrianism, Jainism, Christianity, Sikhism, etc. The term “secular” means that the State does not practice any particular religion, nor will it discriminate against the individuals because of their faith. At present, Indian citizens are governed under numerous personal laws depending on their caste, religion, and community.
Also Read: India’s Stand on UCC – Marriage and Divorce
ADOPTION UNDER DIFFERENT PERSONAL LAWS
Adoption is not governed under any general law; however, it is permitted under Hinduism by a statute and custom amongst a few categories of persons. Since adoption is a child’s legal affiliation, it forms the subject of personal legislation. There are no separate adoption laws for Muslims, Christians, and Parsis hence they are governed under the Guardians and Wards Act, 1980. Under the aforementioned act, they can only take a child under foster care. Once a child becomes major under foster care, he is free to break off all of his ties. A child also has no legal right to inheritance. Under the aforesaid act, foreigners who wish to adopt Indian children have to approach the court. In case, if the court has granted permission for the child to be taken out of the country, the adoption must take place outside the country according to foreign law, i.e., the law applicable to the guardian. The three distinct legal structures that are predominant are Hindu law, Islamic law, and the Guardians & Wards Act, 1890. A guardian may be a natural guardian, a guardian of the will, or one appointed by the court.
The Hindu Adoption and Maintenance Act, 1956 applies only to Hindus. Only one male child could be adopted before this act came into force however, the act has now made a provision for a female child to be adopted. In the case of Sawan Ram v. Kalawanti, the deceased died leaving his widow behind. Several assets and some portion of the property were mortgaged to another person by the widow at the time of his death and some were bestowed on the grand niece. The appellant filed a case on the ground that the mortgage and transfer were illegal since the appellant was the deceased’s closest relative. The wife adopted a child during the on-going trial, and so the lawsuit failed. The case has been re-filed after the widow died. It was held that the adoption by a female Hindu will not only be for herself but also her deceased husband. An adopted son would be considered to be a member of the deceased husband’s family. Thus, as the husband’s adopted son, he would get all the rights of a member of that family.
MAINTENANCE UNDER DIFFERENT PERSONAL LAWS
The obligation for the husband to the maintenance of the wife arises from the status of their marriage. The right to preserve falls under the matter of personal law. The right of maintenance applies to the wife, dependent children, indigent parents, and divorced women under the Criminal Procedure Code, 1973. Including this right of maintenance under the CrPC comes with the benefit of making the solution both simple and inexpensive. However, a divorced woman has no right to claim maintenance under the CrPC if she has already received it under the personal laws. Under Hindu Law, the wife has an absolute right to demand maintenance from her husband and is governed under the Hindu Adoptions and Maintenance Act, 1956, which prescribes various grounds out of which at least one must be established to demand maintenance. They are:
- Husband Suffering from any Venereal Disease
- The husband having another wife alive
- Ceased to Be a Hindu, etc.
Maintenance under Muslim law is governed by the ‘Women (Protection of Rights on Divorce) Act, 1986, which states that the divorced woman is entitled to fair and rational provision and maintenance from her former husband. The husband must do so within the period of iddat, however, his obligation is not limited to that period. If obligations on his part are not fulfilled the wife has the right to approach the Wakf Board. Provisions for the same are also made under Section 125 of the CrPC and in a landmark case of Ahmed Khan v. Shah Bano Begum, which was contentious maintenance lawsuit in India in which the Supreme Court issued a judgment in favour of the maintenance of an aggrieved divorced Muslim woman wherein Justice D.Y. Chandrachud mentioned that “Justice for all is a much more satisfying way than providing justice from case to case.”
Maintenance under the Christian Law is regulated by the Indian Divorce Act, 1869, where the wife may file a petition for alimony/maintenance in a civil court or high court and the husband is under an obligation to pay her alimony as the court may order, during her lifetime and applies only to those who follow Christianity, inter alia governs the maintenance rights of a Christian woman. The same provisions apply to Parsis, under the Parsi Marriage and Divorce Act, 1936.
LOK SABHA QUESTION ON UCC
Dr. Ramapati Ram Tripathi raised a query with the Legislative Department under the Ministry of Law and Justice. The query raised concerns as to whether the government is taking necessary steps to initiate the implementation of the Uniform Civil Code across the nation for the sake of unity and domestic integrity; and if yes, what are the details and measures made in this respect; and if not, what are the reasons for the same.
The response to this question was provided by Shri Ravi Shankar Prasad, Law & Justice Minister in which he indicated Article 44 of the Indian Constitution, further stating that the Government had asked that India’s 21st Law Commission undertake to examine and make suggestions on numerous problems related to the Uniform Civil Code.
All that individuals need to realize is that there are two distinct ideas of religion and legislation. The code does not aim to restrict the right to pursue any religion in any corner of the country, to be implemented soon.