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Child Rights: Socio-Economic and cultural Dimensions

While India being a secular and democratic county, gives privileges and protection for various religions that flourish under the protection of the Constitution. People of different religions are governed by their respective Personal laws in all questions pertaining to succession, inheritance, marriage, divorce, etc.

Child Rights In personal Laws

Child Rights In Muslim laws:

  • Children have the right to be fed, clothed, and protected until they reach adulthood.1
  • Children must have the respect, to enjoy love and affection from their parents.
  • Children have the right to be treated equally, vis-a-vis their siblings in terms of financial gifts.2
  • The child has the right to be not forced by its step parents or its birth parents.
  • Children have the right to education.3
  • Parents are recommended to provide adequately for children in inheritance.
A Hadith says, It is better for parents to leave their children well provided (financially) than to leave them in poverty.

Child Rights in Hindu laws

Under the Hindu Law, if a marriage fulfils all the conditions laid down in Section 7 and Section 5 of the Hindu Marriage Act, 1955, 18 it is considered to be a valid marriage. Children born of such a valid marriage are alone considered legitimate. If the conditions lay down under Section 5 of the Act, are not satisfied, the resultant marriage may be void or voidable marriage as per Sections 11 and 12 of the Act.

Rights of Maintenance under Hindu law 

Before the personal laws of Hindus were codified, the old law of Mitakshara and Dayabhaga governed each and every aspect of Hindu personal issues.  The old law recognized maintenance rights of the illegitimate son of a Hindu out of his father’s coparcenary property, and his self acquired property. The father was bound to maintain his illegitimate son during the period of his minority, irrespective of the fact whether he had any property or not.

Rights of inheritance

An illegitimate child is not entitled to succeed to his father. But under the Hindu Succession Act, illegitimate children are deemed to be related by illegitimate kinship to their mother and to one another, and their legitimate descendants are deemed to be related by legitimate kinship to them and one another, and can therefore inherit from each other under the said Act. 
An illegitimate child can inherit the property of his or her mother or of his or her illegitimate brother or sister(uterine blood). A mother also can inherit the property of her illegitimate child. The father has no right to inherit the property of his illegitimate child.

Rights in Joint Family Property and Partition

Unlike a legitimate son, an illegitimate son does not acquire any interest in the ancestral property in the hands of his father; nor does he can be a coparcenary in a Joint Hindu Family.  He is also not entitled to enforce partition against the family. The father may, in his lifetime, give him a share of his property, which may be a share equal to that of the legitimate sons.
 Prior to the passing of the Hindu Succession Act, on the death of his father, an illegitimate son succeeded to his estate as a coparcener with the legitimate son of his father, and was entitled to enforce a partition against the legitimate son. Now, under the said Act, however, he cannot succeed his father, as he is not related to him by legitimate kinship.

Rights of  Guardianship

A mother has a preferential right of guardianship, as per Hindu Minority and Guardianship Act, 1956. The mother is considered the natural guardian of an illegitimate child and after her, the father is the natural guardian, and in the case of a married girl, the husband is the natural guardian. Supreme Court has recently ruled that an unwed single mother in India can be a sole guardian of the child.4

Adoption Rights in Personal laws

According to Indian law is a personal act and hence is governed by the various personal laws of the different religions. Adoption is not permitted in accordance to the personal law of Muslims, Christians, Parsis and Jews in India.

Hence they usually opt for guardianship of a child through the Guardians and Wards Act, 1890. 

The following is an outline of the provisions in this law that pertains to children below the age of 18.

This act applies to all Hindu, Buddhists, Sikhs and Jains by religion. A child, legitimate or illegitimate, whose parents or guardians were Hindu, Buddhist, Jain or Sikh is also considered under this act. A person who converted to these religions is also considered under this act.

According to the act a 'Hindu' is any person to whom this act applies. In this act a minor is any person who has not completed 18 years of age. This act supersedes any act concerning Hindu adoption and maintenance.

Custody in personal laws

Child Custody Under Hindu Law

Under the Hindu Minority and Guardianship Act, 1956, the custody of all children below the age of 5 years is given to the mother. The custody of boys and unmarried daughters is given to the father. Custody of illegitimate children is given to the mother first and then the father while the guardianship of a married girl is given to her husband. The Hindu Minority and Guardianship Act, 1956 exists in harmony with the Guardians and Wards Act, 1890.

In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother. The Supreme Court has ruled saying that in such cases the child should not be treated as ‘chattel’. It is only the child’s welfare which is the focal point for consideration.

Child Custody Under Muslim Law

Under Muslim personal law, the right to a child’s custody is given solely to a mother unless she is seen as an unfit guardian. This is called the right of hizanat and can be enforced against any person including the father. One thing must be kept in mind is that the mother’s right of child custody is not absolute and exists only if such right is beneficial and in the interest of her children. 
Thus, the welfare of the children is at the forefront of Muslim law.

The custody of a minor child in Islam is called Hizanit, which literally means the care of the infant. As per the Shariat law that applies to Muslims, the father is considered to be the natural guardian of his children irrespective of sex, but the mother is entitled to the custody of her son till the age of 7 years and of her daughter till she attains puberty.

Thus under the Muslim law a male would attain majority/adulthood when he reaches the age of 7 years and a female would attain majority on attaining puberty.

Conclusion
Although the personal law of the parties is to be taken into consideration while deciding the custody, adoption, maintenance, education of the child, the welfare of the Child is of paramount importance and cannot be over-ruled by the personal law and the welfare of the child must be the deciding factor.

However, at the same time the personal law cannot be completely sidelined as the personal law would be an important facet of the welfare of the child and must also be taken into consideration.

References:
  1. A. Arshed. Parent-Child Relationship in Islam
  2. Al-Sheha, Abdulrahman. Women In the Shade of Islam. pp. 33–34
  3. The Rights of Children In Islam
  4. ABC v. State of Delhi (NCT), (2015) 10 SCC 1

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