Hindu vs Muslim Law: Comprehensive Guide to Marriage, Divorce, Adoption and Succession in India

By: Anohita Dutta

Introduction to Hindu Marriage

Hindu marriage is traditionally viewed as a sacred union between a man and a woman, deeply rooted in religious and cultural rituals. It is considered a sacrament (samskara) rather than a contract, signifying the couple’s joint duty towards family and societal responsibilities. Governed by the Hindu Marriage Act of 1955, it emphasizes the sanctity of marriage while providing legal frameworks for dissolution in cases of significant marital discord, thus balancing tradition with modern legal principles.

According to Section 2 of the Hindu Marriage Act of 1955, this act covers:

Anyone who is a Hindu by birth
Those who have converted to Hinduism, including Virashaiva, Lingayat, Brahmo, Prarthana, or Arya Samaj
Anyone who practices Buddhism, Jainism, or Sikhism
Anyone residing in India, except those who are legally recognized as followers of Islam, Christianity, Parsis, or Judaism, or who can demonstrate that they are subject to Hindu law

Hindu marriage is considered the most binding union between husband and wife. It is viewed as an enduring relationship that lasts beyond death. Hinduism places a strong emphasis on marriage, not just for one generation but for carrying out rituals and ceremonies. A person is deemed incomplete without a spouse when engaging in any Hindu ritual.

8 Types of Hindu Marriage in the Laws of Manusmriti

Hindus regard the Laws of Manu (Manusmriti) as one of their canonical sacred books. Also known as the Manava Dharma Shastra, it is recognized as an authoritative source of advice for the customs of household and religious life for ancient Hindus, serving as a supplement to the Vedas. It is essential to understanding the patterns of ancient Indian life and continues to have a significant influence on many contemporary Hindus.

There were eight different kinds of marriage in ancient Hindu society, as described in the Laws of Manu. The term “Prashasta forms” refers to the first four types of marriage, which were considered more favorable. The remaining four types were considered less favorable and were referred to as “Aprashasta forms.”

Prashasta Forms of Marriage

Brahmana (Brahma) marriage: In this type of marriage, the father of the bride selects a man who is well-versed in the Vedas and reputed for his moral character. He then offers his daughter in marriage to this man after adorning her with expensive jewelry and clothing. This kind of marriage is seen as ideal and is still prevalent in contemporary India, where meticulously planned weddings are customary.
Rite of the Gods (Daiva): In this form, the daughter is adorned and “gifted” to a priest who conducts the marriage rite properly, including offering a sacrifice. This type of marriage was virtually abandoned as it was thought to be inferior to Brahmana even in antiquity.
Rite of the Rishis (Arsha): In this version, the bridegroom presents a cow and a bull to the father, who then gives away his daughter. This was seen as a token of gratitude rather than a payment or dowry. However, it was gradually abandoned as it was seen as a lower class of marriage compared to Brahmana, as it resembled a “sale” of the bride.
The Prajapati (Prajapatya): This ritual involves the father bestowing his daughter upon the couple, saying, “May both of you perform together your dharma.” Prajapati is viewed as the least desirable of the four Prashasta forms because the couple must carry out their civil and religious obligations jointly to get married.

Aprashasta Forms of Marriage

Rite of the Asuras (Demons): In this kind of matrimony, the bridegroom bestows wealth upon the bride and her relatives before accepting a female. It was viewed as far less favorable than the four Prashasta kinds of marriage and is commonly understood as the “selling” of a bride. This practice is no longer followed by Hindus.
Rite of the Gandharva: In this type of marriage, a girl and her lover voluntarily unite after experiencing sexual relations and physical longing. While it is not popular in modern India, a similar sort of marriage called a “love marriage” does exist. It is comparable to Western marriage in that it results from the free choice of the spouses without the involvement of other family members.
The Rakshasa Rite: This involves taking a maiden by force from her home after her kinsmen have been attacked, killed, or injured. Thankfully, forced marriages like this one are no longer practiced.
Rite of the Pisaka: In this form, a man approaches a sleeping or inebriated girl, or a mentally unstable or disabled girl, by stealth. Such “marriage” is difficult to distinguish from rape, and fortunately, it is nonexistent in contemporary India.

Ceremonies to be Performed in a Hindu Marriage

Hinduism views marriage as a sacred union consummated by a number of rituals and ceremonies that are required for a union to be deemed lawful. Three significant phases are identified where certain rituals must be carried out:

Sagai: An essential pre-wedding rite in Indian culture, the sagai (Hindu engagement) is when the families of the prospective bride and groom meet in person and pledge their religious allegiance to one another. The Hindu custom known as “Vagdanam” originates from the Vedic era, when the father of the bridegroom promises the father of the bride that they will accept their daughter and be in charge of her future well-being. In different places, alternative terms such as Mangi, Sagai, Ashirbad, or Nishchayam are used instead of engagement.
Kanyadan: The word is made up of two parts: kanya, which means maiden or girl, and daan, which means donation. It refers to the donation of a girl. There is a long-standing tradition of the bride’s father presenting his daughter to the groom and entrusting him with her future care. It is an emotional rite that honors the sacrifice a father makes to ensure his daughter’s happiness. This tradition has been followed since the Vedic era and is essential to a traditional Hindu marriage.
Saptapadi: An essential and significant part of a traditional Hindu marriage, Saptapadi involves the bride and groom participating in a rite where they walk around the sacred fire seven times while saying specific vows. This motion is also known as phera. In Hinduism, fire (Agni) is revered as a sacred entity, and promises made in front of it are considered unbreakable. Agni deva, the god of fire, is revered as both a witness to the marriage’s solemnization and a messenger of the Almighty, bestowing blessings upon the newlyweds.

Conditions of a Valid Marriage Under Hindu Law

Monogamy: Section 5(i) of the Hindu Marriage Act forbids polygamy and polyandry. It states that at the time of marriage, neither party shall be married to someone else. Under section 11 of the Act, the marriage would be deemed void if this requirement wasn’t met. Additionally, the parties would be subject to bigamy prosecution under section 17 of the Hindu Marriage Act of 1955 and sections 494 and 495 of the Indian Penal Code, 1860. Scheduled Tribes are exempt from this rule, but they need to establish a long-standing custom to practice polygamy.
Mental Capacity: The conditions are: a) Neither party, at the time of marriage: b) Is incapable of giving valid consent due to unsoundness of mind c) Has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children d) Has been subjected to recurrent attacks of insanity Section 12(1)(b) of the Act declares a marriage voidable if any of these requirements are not met. The Marriage Laws (Amendment) Act of 2001 eliminated the epilepsy clause. In a related case, the Allahabad High Court ruled that a marriage will only be declared void if one partner can no longer support the other due to their mental condition.
Age of the Parties: The legal age for marriage was initially set at 18 years for boys and 15 years for girls when the Act was passed. However, the Marriage Laws (Amendment) Act, 1976 altered the minimum age to 21 years for males and 18 years for females. According to the Pinninti Venkataramana and Anr vs State [AIR 1977 AP 43] verdict, breaking this requirement does not automatically render the marriage null and void, but is punishable under section 18(a) of the Act by simple imprisonment for a maximum of 15 days, a fine of Rs. 1000, or both. Section 10 of The Prohibition of Child Marriage Act, 2006 prescribes more severe punishment for anyone who performs, conducts, directs, or abets a child marriage.
Prohibited Degrees of Relationship: Section 5(iv) of the Act forbids the solemnization of marriage for those in relationships that are illegal in terms of degree. Section 11 of the act states that any marriage solemnized in violation of this will be void. Additionally, under section 18(b) of the act, a violation of this clause would result in simple imprisonment for up to one month, a fine of Rs. 1000, or both. People falling within a prohibited degree of relationship are defined in Section 3(g) of the Act.

Personal Opinion on Hindu Marriage

Hindu marriage is a complex tradition that combines social, cultural, and religious components to form a unique and meaningful union. Its intricate tapestry of ceremonies and ingrained traditions are among its most valuable aspects. Every ritual, from the exchange of garlands to the seven walks around the sacred fire, represents different duties and obligations that the couple will share, making the occasion more than just a union of two people but also of two families and their histories.

Hinduism views marriage as a sacred covenant that unites a couple spiritually, going beyond a simple social compact. The relationship gains great depth from this spiritual aspect, which emphasizes lifetime cooperation, mutual respect, and common spiritual goals. The purpose of the ceremonies is to invoke divine blessings and assist the couple in creating a happy and satisfying life together.

Hindu marriages can benefit from and face challenges due to the involvement of families. Positively, it provides the couple with a support system and a sense of community. However, at times, particularly in the case of arranged marriages, this involvement may take precedence over personal choices. Arranged marriages might unite compatible individuals based on common backgrounds and values, but they can also restrict individual freedom and choice.

Hindu marriage is evolving in the modern era, with a progressive move towards more individual-centric decision-making and a growing acceptance of love marriages. This blend of tradition and modernity provides a balanced approach that preserves the eternal principles of commitment and familial relationships while also allowing for personal independence and compatibility.

In conclusion, Hindu marriage offers a comprehensive framework for a lifetime of companionship because of its rich traditions and spiritual core. It is a celebration of community, love, and commitment that strikes a balance between the old and the new while providing a strong foundation for a happy married life.

Introduction to Muslim Marriage

Islam views marriage as a matrimonial contract and institution that permits sexual relations between a male and a female with the goal of creating children, fostering love, providing for one another, and building families—which are regarded as the fundamental building blocks of society. Similar to Hinduism, Islam strongly supports marriage. However, the Muslim understanding of marriage differs from the Hindu understanding, which views marriage as a sacrament rather than a civil transaction. Many scholars claim that Islamic marriage is a religious obligation. To legally fulfill one’s desire to have children, one must get married.

Islam views marriage as a “contract.” It is a unique kind of agreement that is made between a man and a woman, wherein both parties are granted specific rights and are required to carry out specific obligations. Aside from the issue of rights and obligations, marriage symbolizes a strong bond and connection between the partners. It then becomes the cornerstone for creating a strong family based on cooperation, respect, and care for one another.

Sources and Schools of Muslim Law

The sources of Muslim law include:

The Holy Quran
The Sunnah – the practice of the Prophet
The Ijma – consensus of the learned men of the community on what should be a decision on a particular point
The Qiyas – deduction of what is right and just concerning the good principles laid down by God

The four main schools of thought among Sunnis are Hanafi, Hanbali, Maliki, and Shafi’i. Over the years, these four schools have engaged in legal debate and acknowledged one another’s legitimacy. The Hanafi school of Islamic law is predominant in India.

Personal Opinion on Muslim Marriage

Muslim marriage is a complex institution that combines social, legal, and spiritual aspects to provide a comprehensive foundation for a relationship. One of its most appealing features is the emphasis on consent and agreement from both parties. The requirement of agreement from both parties demonstrates a modern and respectful approach to marriage, emphasizing the value of free will and individual choice.

The spiritual component of Nikah is very important. From Allah’s perspective, it is a sacred compact that unites not just two people but two souls in a partnership based on faith. The cornerstones of this union are the teachings of the Quran, which place a strong emphasis on love, mercy, and compassion as being necessary for a happy and satisfying partnership.

Another important feature is the comprehensive structure for marital rights and responsibilities. Mahr, the concept of a mandatory gift from the husband to the bride, represents accountability and respect. This financial provision gives the bride a sense of security and value. The emphasis on shared rights and responsibilities, such as the husband’s duty to provide and the wife’s right to maintenance, also produces a balanced partnership built on justice and consideration.

Muslim weddings often involve complex and supportive family dynamics. Families are essential in organizing and approving marriages, as well as maintaining cultural customs and societal support. However, there can be drawbacks to this commitment as well, particularly when balancing personal preferences and family expectations.

In the modern era, love matches are becoming more common in Muslim marriages, combining traditional values with contemporary notions of romance and companionship. This development preserves the institution’s sanctity and cultural richness while enabling more individual choice.

In conclusion, Muslim marriage offers a strong and respectful foundation for a lifetime commitment because it places a strong focus on mutual agreement, spiritual depth, and balanced obligations. By celebrating both personal preference and community support, it promotes a harmonious and spiritually enlightening partnership.

Divorce in Hindu Law

Definition and Theories of Divorce

The word ‘divorce’ is not defined under any statutory provisions but can be defined as a legal dissolution of judicial ties established at marriage. Divorce can be seen as a way to end a marriage that occurs between two families as well as between two individuals.

The Theories of Divorce

The Fault Theory: Also known as the Offence Theory or Guilt Theory, it highlights that a marriage may be dissolved if any of the individuals involved in the matrimonial bond unlawfully commits an infraction against the innocent partner in the marriage. In marital relationships, there must be both an innocent and a guilty partner. The innocent party can ask for divorce relief. However, if both parties are at fault, there is no recourse available.
The Mutual Consent Theory: This view is based on the idea that since two people choose to marry, they should be free to file for divorce. However, this practice has been criticized as potentially leading to more immorality by allowing people to separate quickly and end their marriages, even over minor personality disagreements.
Irretrievable Breakdown of Marriage Theory: This theory describes a marriage failing due to circumstances so dire that there is no realistic chance of the couple staying together. The surroundings and situations are so terrible that the husband and wife will never be able to cohabitate. In these situations, living apart makes more sense than maintaining the usual feelings of love, affection, and devotion that should exist between spouses. According to this theory, if a marriage cannot be saved, there is no purpose in sharing rights and obligations between partners; it should be ended.

Grounds for Divorce under The Hindu Marriage Act, 1955

The Hindu Marriage Act of 1955 provides specific reasons that can be cited for obtaining a divorce. Here are the primary grounds for divorce under the Act:

Adultery: If one spouse has engaged in voluntary sexual intercourse with another person.
Cruelty: If one spouse has treated the other with cruelty, either physical or mental.
Desertion: When one spouse abandons the other without reasonable cause for a continuous period of at least two years immediately preceding the petition.
Conversion: If one spouse converts to another religion.
Mental Disorder: If one spouse is suffering from an incurable mental disorder or insanity that makes it impossible to live together.
Communicable Disease: If one spouse is suffering from a serious communicable disease, such as leprosy or a sexually transmitted disease.
Renunciation of the World: If one spouse has renounced the world and entered a religious order.
Presumption of Death: If a spouse has not been heard from as being alive for a period of at least seven years.

Additional Grounds for Women

In addition to the above grounds, a wife has some additional grounds on which she can file for divorce:

If her husband has been guilty of rape, sodomy, or bestiality.
If her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before turning eighteen.
If there has been no resumption of cohabitation for one year or more after a decree or order of maintenance has been passed in her favor under Section 125 of the Criminal Procedure Code or under the Hindu Adoptions and Maintenance Act, 1956.

These grounds provide a legal framework for individuals seeking to end their marriages due to specific circumstances that render the marital relationship untenable.

Personal Opinion on Divorce under Hindu Marriage

Hindu divorce laws strive to balance tradition with the necessity for legal recourse in failed marriages. The Hindu Marriage Act of 1955 attempts to respect the sanctity of marriage while acknowledging the complexities of human relationships and the need for dissolution in certain circumstances.

One commendable aspect of Hindu divorce law is its emphasis on specific, well-defined grounds for divorce. This approach ensures that divorce is not taken lightly and provides a structured framework within which marital disputes can be resolved. It emphasizes the need for substantial reasons to end a marriage, which can act as a deterrent against frivolous divorce petitions and help maintain social stability.

However, the law is not without challenges. The stringent requirements for proving grounds like cruelty or desertion can sometimes prolong the suffering of individuals trapped in untenable marriages. In such cases, the legal process may appear cumbersome and emotionally taxing, highlighting a potential area for reform to make the process more humane and less adversarial.

The law’s special provisions for women, such as the right to divorce based on the husband’s guilt of rape or sodomy, or repudiation of child marriage, reflect a progressive stance towards women’s rights. These provisions recognize the unique vulnerabilities women might face in marriage and provide them with additional legal protections.

In conclusion, while Hindu divorce laws strive to balance tradition with modern legal principles, there is room for improvement. Simplifying the legal process and ensuring quicker resolution of cases could enhance the system’s responsiveness to individual needs. Overall, the Hindu Marriage Act represents a thoughtful approach to marital dissolution, respectful of cultural values while being adaptive to contemporary societal needs.

Divorce under Muslim Law

Pre-Islamic Era

In Arab society prior to Islam, husbands had unrestricted authority over divorce. They were able to divorce a woman for any reason at any time. A husband’s right to divorce was reversible at his discretion and could be granted as often as desired. In pre-Islamic Arabia, there were at least four different kinds of marital breakup procedures used. After a divorce, a woman was free to get married again, but she had to serve her iddat period first. The purpose of the iddat period was to ascertain the child’s authenticity. However, this was not a rigid norm at the time.

Post Islamic Era

Following the establishment of Islam, the Prophet disapproved of these divorce rituals and saw them as a way to weaken the foundation of society. The prophet was only able to shape the laws since they had been followed for aeons and could not be completely altered. Under some restrictions, the Prophet approved of husbands divorcing one another. The changes signalled a turning point in the development of eastern law. Women were granted the right to request a separation on the basis of legitimate grounds. The prophet believed that in order to effectively reduce the rates of divorce and remarriage, it should be mandatory for a woman to marry another man, complete the marriage, and adhere to the iddat period.

Talaq (by husband)

1. Talaq-ul-Sunnat

This form of talaq is effective in accordance with the traditions established by the Prophet. It is further divided into two parts:

Ahsan: It is referred to as the most admirable split. In this instance, the husband deserts his wife when she is free from the menstrual cycle, during the tuhr, or the month of purity. The husband abstains from sexual relations with his spouse during this time, leaving her to observe iddat. Since the divorce is still reversible during the iddat, the parties are granted the right to inherit. According to Hedaya, since the Prophet’s companions approved of it, this is the most appropriate and sanctioned divorce procedure. The husband may withdraw the divorce agreement at any time throughout the three-month iddat period or until the child is born. In Ahsan, talaq can also occur during the menstrual cycle if the marriage has not yet been consummated. If the wife is elderly or past the menstrual age, or if the husband and wife live apart, the condition of tuhr does not apply. It is not applicable to talaq in writing. Only the implied cohabitation period throughout the iddat period or express words may be used to carry out this type of talaq. Talaq becomes final and irreversible when the iddat period passes without being revoked.
Hasan: This talaq method involves the husband saying the word talaq three times in a row during the season of tuhr, or purity. It can be described as a type of divorce upon divorce in layman’s words. The first and second announcements in this instance are reversible, but they become irreversible if the third pronouncement comes after them. A fundamental component of Hasan is that the couple must refrain from sexual activity throughout the time of tuhr, and the proclamation must occur during that time.

To express it simply, it can be stated as follows:

a) The husband says talaq while the woman is serving the tuhr period and hasn’t had any sexual relations yet. He now withdraws it by speaking or engaging in sexual activity. The wife watches the menstrual cycle.

b) Once more, the woman observes the time of tuhr, and the husband says talaq prior to sexual activity. Intercourse (repudiation) comes next. The wife notices menstruation once more.

c) Now, if the spouse issues a talaq during this third hour of tuhr, it is permanent and irreversible.

2. Talaq-ul-Biddat

Ila (Vow of Continence)

A husband who is of sound mind and has reached the age of majority is said to have made Ila when he swears in God’s name that he will not engage in sexual relations with his spouse and leaves her to observe iddat. If the husband has another sexual relationship while the wife is observing the iddat period, Ila will be cancelled. It is important to remember that India does not practise ila.

Zihar (Injurious Assimilation)

To use this method of dissolving a marriage, a husband must be of sound mind and older than eighteen. The wife has the right to refuse to have sex with him if he makes any inappropriate comparisons between her and his mother or any other female. Such a rejection is permissible up until the point at which he has atoned for the legal penance. Zihar can dissolve a muta marriage, which is common among Shias and accepts no other type of divorce.

Talaq (by wife)

Talaq-e-tafweez: This is the only method available to a woman to file for divorce from her husband; however, only the husband has the authority to grant a divorce.

It’s a type of premarital or postmarital agreement that grants a woman the right to file for divorce from her husband under certain conditions, such as:

Should the husband choose to wed another woman
For a certain amount of time, the husband is unable to provide for her; other requirements must not conflict with public policy.

Personal Opinion on Divorce under Muslim Law

Reflecting on Muslim divorce laws, I find them both distinctive and multifaceted, shaped by centuries of religious and cultural traditions. The principles governing divorce in Islam, as articulated in the Quran and further codified in the Muslim Personal Law (Shariat) Application Act of 1937 and the Dissolution of Muslim Marriages Act of 1939, present a blend of flexibility and structured regulation.

One of the key strengths of Muslim divorce law is its recognition of marriage as a civil contract, allowing for multiple avenues of dissolution such as talaq (initiated by the husband), talaq-e-tafweez (delegated divorce), and khula (initiated by the wife). This framework offers a relatively straightforward path to divorce compared to other systems, ensuring that individuals are not unduly trapped in unhappy marriages. The provision for khula, in particular, is a progressive element that empowers women to seek a divorce on their own initiative, reflecting a respect for individual autonomy and gender equity.

However, there are aspects of Muslim divorce law that can be contentious. The practice of triple talaq, although now banned in India, historically allowed husbands to unilaterally dissolve a marriage instantly, leading to potential misuse and gender injustice. The recent legislative reforms in India, criminalizing triple talaq, are a positive step towards safeguarding women’s rights and ensuring fairness in the divorce process.

Additionally, the requirement for iddat (waiting period) after divorce can be seen as both a protective measure and a potential constraint, depending on the context. While it aims to clarify paternity issues and provide a cooling-off period, it can also be a period of uncertainty and financial vulnerability for women.

In conclusion, Muslim divorce laws embody a complex interplay of flexibility and tradition, aiming to provide equitable solutions within the framework of Islamic principles. While the system offers multiple pathways to dissolve a marriage, ensuring fairness and protection, continued reforms are necessary to address any residual gender biases and to adapt to contemporary societal norms. The evolution of these laws, particularly in the Indian context, underscores the ongoing effort to harmonize religious values with modern principles of justice and equality.

Adoption under Hindu Law

The word “adoption” is not defined in the Act per se, but it is a Hindu rule that is drawn from the uncodified Hindu laws of Dharmashastra, namely Manusmriti. Manusmriti defines adoption as “taking someone else’s son and raising him as one’s own.” By referring to a child rather than a son, the Hindu Adoption and Maintenance Act has significantly expanded the term of “adoption.” A child is not just a son; it also includes a girl and a boy. The act’s procedures are necessary for any adoption because, as society has evolved over time, codified and consistent laws have become necessary to support democracy. Any adoption that is made without following this legislation would be deemed null and invalid.

Who can adopt

A person needs to be a Hindu and capable of adopting a child in order to do so. Hindu women who want to adopt must follow Section 8 of the same statute, while Hindu men who want to adopt must fulfil the standards outlined in Section 7 of the act.

Capacity of a Hindu Male to adopt

Section 7 states that a male Hindu who is willing to adopt a child must fulfil the following conditions:

Attained the age of majority; and
Be of sound mind.
Must have a wife that is alive whose consent is absolutely necessary.It can be overlooked if the wife is incapable of giving consent due to insanity or other reasons.

Capacity of a Hindu Female to adopt

Section 8 of the act states that a Hindu Female willing to adopt a child must:

Have attained the age of minority;
Be of sound mind;
Be either a widow;
Divorced, or Unmarried in order to adopt.
If she has a husband who is alive, she will not have the capacity to adopt a child.

Adoption under Muslim Law

The notion of adoption does not exist in Islam, but Muslim law does recognize a substitute concept known as “Kafala,” which is more akin to sponsorship. This implies that even though the adoptive parents can give the child property, he will not have any legal claim to the inheritance of the adoptive parents. This begs the question of whether adoption is recognized by Muslim law at all. It may be ascertained that the definition of adoption in Muslim law is the sponsoring practice (Kafala), and adoption is allowed if tradition or use allow it. Prior to the Shariat Act of 1937, adoption among Muslims was accepted by custom; nevertheless, in the absence of a declaration made under this Act, any individual may demonstrate the adoption custom. Adoption is not forbidden by Muslim law, despite the absence of any provisions regarding it. Adoption is therefore permitted by Muslim law; the question is how to carry it out. The Guardians and Ward Act of 1890 and the Juvenile Justice (Care and Protection of Children) Amendment Act of 2006 provide two ways for non-Hindus to adopt a child. Under Section 8 of the Guardians and Wards Act, of 1890, any person who wishes to adopt a Muslim child may assume guardianship of the child. Instead of being regarded as their own natural child as in the case of the HAMA, a child under this Act is addressed as a ward and is not declared to be an adopted child.

Adoption was a prevalent practice in pre-Islamic Arabia. It wasn’t thought to be improper. The adopted family member was regarded as being indistinguishable from the other members. It is crucial to remember that the adopted member was entitled to inherit everything, even if this was not later confirmed. Zayd, the son of Haris, had been adopted by Prophet Mohammed. However, some academics think that the Prophet himself disapproves of adoption, as evidenced by a few Quranic texts. The pertinent Quranic verse found in S. 33. A. 4-6 is as follows:

“Allah has not made for any man two hearts in his breast: nor has He made your wives whom ye divorce by Zihar your mothers: nor has He made your adopted sons your sons. Such is (only) your (manner of) speech by your mouths. But Allah Tells (you) the Truth, and He shows the (right) way. Call them by after their fathers: that is just in the sight of Allah. But if ye know not their father’s names, (then they are) your brothers in faith, or your friends but there is no blame on you if ye make a mistake therein: (what counts is) the intention of your hearts: and Allah is Oft-Forgiving, most merciful. The Prophet is closer to the believers than their own selves, and his wives are their mothers. Blood relations among each other have closer personal ties, in the Book of Allah, than (the Brotherhood of) believers and Muhajirs.”

Although the prophet suggests that an adopted boy cannot be compared to a biological son since doing so could lead to issues, this passage does not specifically condemn adoption. The Prophet merely thinks that in God’s view, it wouldn’t be appropriate to claim another person’s son as his own.

Succession under Hindu Law

The Hindu Succession Act, 1956 is an Act relating to the succession and inheritance of property. This Act establishes a standard and all-encompassing structure that takes inheritance and succession into account. Intestate or unwilled (testamentary) succession is another topic covered by this Act. As a result, this Act incorporates and encompasses all facets of Hindu succession. This article will go into additional detail on the applicability, definitions, and basic words related to succession in the context of both males and females.

Hindu personal law regulations primarily stem from two educational institutions commonly referred to as Mitakshara School and Dayabhaga School. The Mitakshara School distinguishes between two types of property devolution. These are the following:

Devolution via Survivorship
Devolution of Succession

Only property that is coparcenary or joint family is subject to the rule of survivorship. However, succession laws are applicable to an individual’s distinct property. The Dayabhaga school, on the other hand, emphasizes succession as the sole method of property devolution. The article provides an overview of the entire Act and addresses the succession rules under it. It also explains the significant changes brought about by the devolution of coparcenary property.

Applicability of the act

The applicability of this Act is outlined in Section 2:

Anyone who practices Hinduism in any of its forms or developments, including Virashaivas, Lingayats, Brahmo, Prarthna, or Arya Samaj adherents, is covered by this Act.
Someone who practices Buddhism, Sikhism, or Jainism as a religion.
Any other individual who does not identify as a Jew, Muslim, Christian, or Parsi, unless it can be demonstrated that they would not be subject to Hindu law or tradition.

However, unless otherwise instructed by the Central Government through notification in the Official Gazette, this Section shall not apply to any Scheduled Tribes covered under the provisions of Article 366 of the Constitution.

Basic definitions under the act

Agnate: “Agnate” is defined in Section 3(1)(a). If two people are adopted exclusively by men or related by blood, they are considered agnates of one another.
Cognate: According to Section 3(1)(c), an individual is considered a “cognate” of another if they are linked to each other partially through men but mostly by blood or adoption.
Heir: A “heir” is any male or female who is qualified to inherit the intestate’s property, as defined by Section 3(1)(f).
Intestate: An individual who passes away without leaving a will is considered intestate, as per Section 3(1)(g).
Related: Section 3(1)(i) refers to kinship, which is a relationship that should be legal. It will be assumed that illegitimate children are linked to their mother and to each other, and that legitimate descendants are related to them and to each other.

Types of Succession

a) Testamentary Succession: Testamentary succession is the term used to describe the transfer of property that is governed by a will or testament. A Hindu man or woman may make a will in anyone’s name regarding property, even a portion of the undivided Mitakshara coparcenary property. This ought to be legitimate and enforceable by law. Instead of using the laws of inheritance, the distribution will take place in accordance with the terms of the will. Property may pass by the law of inheritance in cases where the will is invalid or not legally binding.

b) Intestate Succession: Intestate succession is in which an intestate/deceased person leaves no will or testament. In such a case, the property will be divided among the legitimate heirs in accordance with inheritance regulations.

Succession under Muslim law

In Indian society, each religion has its own set of laws known as its own law. Property rights are likewise governed by these personal laws. The two most important factors in transmitting property and money from one generation to the next are inheritance and succession. The process of gathering details regarding a deceased person’s assets and debts and allocating the residual assets is known as estate administration. The Indian Succession Act, 1925 (henceforth referred to as “the Act”) provides standard law governing the administration of a deceased person’s inheritance. However, the Muslim Law will still be in effect as the substantive law, outlining citizens’ rights and obligations. The latter, however, will not apply to Muslims who wed in accordance with the 1954 Special Marriage Act.

The Muslim law of succession constitutes four sources of Islamic law:

The Holy Quran;
The Sunnah- the practice of Prophet;
The Ijma — consensus of the learned men of the community on what should be a decision on a particular point;
The Qiya — deduction of what is right and just concerning the good principles laid down by God.

Devolution of Inheritance

When someone passes away, their assets may be distributed according to their testamentary will or, in the absence of a will, according to the rules of succession (intestate). The inheritance is devolved once the conditions precedent, i.e., burial costs, obligations, and bequests, are satisfied. Muslim law states that the heirs are the successors of the departed who, if they are not prevented from inheriting, are legally acknowledged by the Sharīah to inherit his estate. In certain shares, the heirs inherit the estate as tenants-in-common. Muslim law does not recognize joint tenancy; instead, the heirs are merely tenants-in-common.

The heirs are further broadly categorized into two important categories, Sharers and Residuaries.

The uterine brother, uterine sister, complete sister, consanguine sister, husband, wife, father, mother, and daughter are examples of sharers. Four of these Sharers inherit as residuary at times and as sharers at other times. The father, the daughter, the consanguineous sister, and the full sister are these.
If the estate is left over after being divided among the surviving Sharer(s), then the surviving Sharer(s) will inherit.
There is a third class of Distant Kindred, who are related by blood but are not Residuaries or Sharers. However, stepparents and stepchildren do not inherit the property from one another. The deceased’s inheritance escheats to the government upon the failure of all natural heirs.

Hanafi Law of Inheritance

The Hanafi law of inheritance only applies to potential relatives of the deceased who are descended from a male member. Every heir has a distinct portion of the inheritance and owns the assets independently.

Three categories are distinguished under Sunni law among the inheritors’ heirs:

Beneficiaries of the Quota Heirs: They receive a certain portion of the state and are typically first in line. comprises brothers, sisters, parents, grandparents, husbands, and children, among others.
After the shares have been divided to Quota-heirs, property is left over. They consist of both male and female family members who might belong to the second bloodline.
A person’s property passes to the state if they have no living relatives.

Shia Law of Inheritance

By marriage (affinity) and blood ties (consanguinity), the Shia Law splits heirs into two categories. While the heirs by affinity are referred to as heirs by Sabab, the heirs by consanguinity are also known as heirs by Nasab. Under Shia law, the partition of numerous descendants of the same class, descended from different subdivisions, is decided by strip. Put differently, the quantity of property that each of them receives depends on the property that is accessible to the particular branch that they are a part of. It is important to remember that the Shia law accepts the idea of representation in order to ascertain the share of each successor. Moreover, this formula can also be used to calculate the share payments that the descendants of a deceased aunt, sister, brother, or daughter will get under Shia law.

Conclusion

In comparing Hindu and Muslim law regarding marriage and divorce, notable differences reflect their distinct cultural and religious underpinnings. Hindu marriage, viewed as a sacrament, is governed by the Hindu Marriage Act of 1955, which prescribes specific grounds for divorce, emphasizing the sanctity of marriage while permitting dissolution in cases of significant discord. Conversely, Muslim marriage is seen as a civil contract regulated by Islamic law and the Muslim Personal Law (Shariat) Application Act, 1937. It allows for divorce through various means such as talaq, talaq-e-tafweez, khula, and judicial divorce, providing broader and more flexible grounds for dissolution. Both legal systems incorporate specific provisions to address gender-specific issues, reflecting their respective religious and cultural values while aiming to balance individual rights and marital responsibilities.

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Frequently Asked Questions (FAQs)

Q: What are the main differences between Hindu and Muslim marriage laws? A: Hindu marriage is considered a sacrament governed by the Hindu Marriage Act, 1955, while Muslim marriage is viewed as a civil contract under Islamic law. Hindu law emphasizes monogamy, while Muslim law permits polygamy for men under certain conditions.

Q: How does Hindu law define marriage compared to Muslim law? A: Hindu law sees marriage as a sacred union and lifelong commitment, while Muslim law defines it as a contractual agreement between consenting parties.

Q: What are the essential ceremonies in a Hindu marriage? A: The key ceremonies include Sagai (engagement), Kanyadan (giving away of the bride), and Saptapadi (seven steps around the sacred fire).

Q: What is the concept of nikah in Muslim marriages? A: Nikah is the Islamic marriage ceremony, which involves the couple’s consent and the presence of witnesses. It’s a contract that outlines the rights and responsibilities of both parties.

Q: What are the grounds for divorce under Hindu law? A: Grounds include adultery, cruelty, desertion, conversion to another religion, mental disorder, communicable disease, and mutual consent.

Q: How does talaq work in Muslim divorces? A: Talaq is the husband’s right to divorce his wife. It can be revocable (Talaq-ul-Sunnat) or irrevocable (Talaq-ul-Biddat), though triple talaq is now banned in India.

Q: Can Hindu women initiate divorce proceedings? A: Yes, Hindu women can file for divorce on the same grounds as men, plus additional grounds like rape, sodomy, or bestiality by the husband.

Q: What is khula in Muslim divorce law? A: Khula is a form of divorce initiated by the wife, where she can seek dissolution of marriage by returning her mahr (dower) or a mutually agreed compensation.

Q: How does adoption differ between Hindu and Muslim laws? A: Hindu law recognizes full adoption rights under the Hindu Adoption and Maintenance Act, while Muslim law doesn’t recognize adoption but allows a similar concept called Kafala (guardianship).

Q: What is the concept of Kafala in Muslim law regarding child custody? A: Kafala is a form of guardianship in Islamic law where a person takes responsibility for a child’s upbringing, education, and protection, but the child doesn’t have inheritance rights.

Q: How does succession work under Hindu law? A: Hindu succession is governed by the Hindu Succession Act, 1956, which outlines rules for both intestate (without a will) and testamentary (with a will) succession.

Q: What are the main principles of Muslim inheritance law? A: Muslim inheritance is based on Quranic injunctions and Sharia law, with fixed shares for certain heirs and residuary shares for others.

Q: What is the role of a will in Hindu and Muslim succession laws? A: In Hindu law, a person can freely dispose of their property through a will. In Muslim law, only one-third of the property can be bequeathed through a will, with the rest following Islamic inheritance rules.

Q: How do the Mitakshara and Dayabhaga schools differ in Hindu succession? A: Mitakshara recognizes inheritance by birth in ancestral property, while Dayabhaga only recognizes inheritance after the death of the owner.

Q: What are the rights of women in Hindu and Muslim inheritance laws? A: Hindu law now provides equal inheritance rights to daughters in ancestral property. Muslim law gives women a fixed share, though it’s generally less than male heirs.

Q: Can interfaith marriages occur under Hindu or Muslim personal laws? A: Interfaith marriages are not recognized under personal laws. They are conducted under the Special Marriage Act, 1954.

Q: What is the legal status of polygamy in Hindu and Muslim marriages? A: Polygamy is illegal for Hindus but permitted for Muslim men under certain conditions, though it’s increasingly discouraged.

Q: How do Hindu and Muslim laws address the concept of maintenance after divorce? A: Both laws provide for maintenance of the wife after divorce, but the specifics vary. Hindu law has more comprehensive provisions for maintenance.

Q: What are the age requirements for marriage under Hindu and Muslim laws? A: Under the Prohibition of Child Marriage Act, 2006, the minimum age for marriage is 18 for women and 21 for men, applicable to all communities.

Q: How do Hindu and Muslim laws differ in their approach to property rights within marriage? A: Hindu law recognizes the concept of joint family property, while Muslim law generally maintains separate property rights for spouses.

Also Read:

Juvenile Justice (Care and Protection of Children) Act, 2015 in India: Reformation and Rehabilitation

Right to Privacy in India: Exploring Article 21 and the Landmark Puttaswamy Judgment

Understanding Lis Pendens in India: A Comprehensive Guide to Property Disputes