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Adoption and Guardianship

Law states that any Indian, non-Indian or a foreigner can adopt a child who is medically fit and financially able to take care of the child. Adoption is not permitted in the personal laws of Muslims, Christians, Parsis and Jews in India. So, they generally opt for guardianship of a child through the Guardians and Wards Act, 1890.

Adoption

Adoption is more as a sacramental than a secular act. As per the Merriam-Webster legal dictionary, legal adoption means 'to take voluntarily a child (of other parents) as one's own child, especially in compliance with formal legal procedures'. Adoption can be legal as well as illegal. Under Indian law, adoption is a legal coalition between the party willing for adoption and a child. It forms the subject-matter of 'personal law' where Hindu, Buddhist, Jain or Sikh by religion can make a legal adoption. In India, there are no separate adoption laws for Muslims, Christians and Parsis, so they have to approach court under the Guardians and Wards Act, 1890 for legal adoption.

Adoption Under Hindu Law

People adopt child with different motives. The reason of adoption varies from person to person. Some adopt to despise a prospective heir who could take the property in the absence of a son or for some other reason. But the main purpose of law of adoption is to provide consolidation and relief to a childless person.

Another major reason for adoption is to rescue the helpless, the unwanted, the destitute or the orphan child, by providing the child with parents and a home. Whatever be the reason, the court need not enquire into them.

Under the Hindu Adoptions and Maintenance Act, 1956, the religious and sacramental aspects of adoption have made adoption a secular process. No religious ceremony is mandatory for the adoption. All adoptions are secular and valid after 1956.

Important Provisions for Adoption Under the Act

Requisites of a Valid Adoption (Section 6)

No adoption shall be valid unless:
  1. the person adopting has the capacity and also the right, to take in adoption; [Section 6(i)]
  2. the person giving in adoption has the capacity to do so; [Section 6(ii)]
  3. the person adopted is capable of being taken in adoption; [Section 6(iii) ]
  4. the adoption is made in compliance with the other conditions mentioned in this Chapter. [Section 6(iv)]

Capacity of a Male Hindu to Take in Adoption (Section 7)

Any male Hindu, who is of sound mind and is not a minor, has the capacity to take a son or a daughter in adoption.

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.

Further, 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 provision.

Capacity of a Female Hindu to Take in Adoption (Section 8)

Any female Hindu:
  1. who is of sound mind,
  2. who is not a minor, and
  3. 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.

Persons Capable of Giving in Adoption (Section 9)

No person, except the father or mother or the guardian of a child, shall have the capacity to give the child in adoption. [Section 9(1)]

Subject to the provisions 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 or has been declared by a court of competent jurisdiction to be of unsound mind. [Section 9(2)]

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. [Section 9(3)]

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 with the previous permission of the court to any person including the guardian himself. (Section 9(4)]

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 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. [Section 9(5)]

Persons Who may be Adopted (Section 10)

The Dharmashastras along with the provisions of Section 10 give the qualification requirements of the child to be taken in adoption.

Some of the requirements are given below:
  1. It is mandatory that the adopted child should be Hindu. A Hindu who adopts a child cannot give that child in adoption to another person even if the latter is the child's natural parent.
  2. Adoption of an abandoned or foundling child is possible. No child could be adopted whose mother in her maiden state, the adopter could not have legally married. But in modern law, no such restriction exists.
  3. The child must not have completed the age of 15 years. The adoption of a married child among all classes was invalid throughout India except in Bombay and among Jains.
  4. Now, a Hindu is free to adopt a daughter, though he cannot adopt more than one daughter.
  5. Adoption of an illegitimate child is valid.

Other Conditions for a Valid Adoption (Section 11)

In every adoption, the following conditions must be complied with:
  1. if any adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption; [Section 11(i)]'
  2. if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption; [Section 11 (ii)]
  3. if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted; [Section 11 (iii)]
  4. if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted; (Section 11 (iv)]
  5. the same child may not be adopted simultaneously by two or more persons; [Section 11(v)]
  6. the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption. [Section 11 (vi)]

Effects of Adoption (Section 12)

According to Section 12, “An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption and from such date, all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.”

Provided that:
  1. The child cannot marry any person whom he or she could not have married, if he or she had continued in the family or his or her birth; [Section 12(a)]
  2. Any property which is vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; [Section 12(b)]
  3. The adopted child should not divest any person of any estate which is vested in him or her before the adoption. [Section 12(c)]

Determination of Adoptive Mother in Certain Cases (Section 14)
  1. Where a Hindu, who has a wife living, adopts a child, She shall be deemed to be the adoptive mother. [Section 14(1)]
  2. Where an adoption has been made with the consent of more than one wife, the senior most in marriage among them shall be deemed to be the adoptive mother and the others to be stepmothers. [Section 14(2)]
  3. Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be deemed to be the stepmother of the adopted child. [Section 14(3)]
  4. Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the stepfather of the adopted child. [Section 14(4)]

Valid Adoption not to be Cancelled (Section 15)

No adoption which had been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.

Presumption as to Registered Documents relating to Adoption (Section 16)

Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.

Prohibition of Certain Payments (Section 17)
  1. No person shall receive or agree to receive any payment or other reward in consideration of the adoption of any person, and no person shall make or give or agree to make or give to any other person any payment or reward the receipt of which is prohibited by this section. [Section 17(1)]
  2. If any person contravenes the provisions of sub-section (1), he shall be punishable with imprisonment which may extend to six months, or with fine, or with both. [Section 17(2)]
  3. No prosecution under this section shall be instituted without the previous sanction of the State Government or an officer authorized by the State Government in this behalf. [Section 17(3)]

Adoption under Muslim Law

Adoption is not recognised in Muslim law. Before the Shariat Act, 1937, adoption among some Muslims was recognised by custom. According to Oudh Act, 1869, Section 29, a Muslim talukadai was permitted to adopt.

If no declaration under the Shariat Act has been made, it is open to a person to plead and prove the custom of adoption and if he succeeds, it will be given effect to. Md. Ismail V. Noor-ud-Din verdict states that adoption is recognised under custom in Jammu and Kashmir.

Guardianship

The Law of Guardianship is based on the incapacity which the law attributes to minors and to persons who are deficit in mental capacity. The guardian occupies a fiduciary position and is bound to act accordingly. For example, to manage the property of the minors and prudence with which he would manage own property.

Guardianship under Hindu Law

Section 4 (b) of the Hindu Minority and Guardianship Act, defines a guardian as “it means a person who cares the minor or his property or both

Types of Guardians

Natural Guardian

Section 4 (c) of the Hindu Minority and Guardianship Act, 1956 states that he is the one who has natural relationship with the minor. The natural guardian of a minor buy or minor unmarried girl is the father. On the death of the father, the mother becomes the natural guardian.

Guardian Appointed by Will

This type of guardian is also known as testamentary guardian. He is the person who is appointed according to the will of the child as 'to be the guardian of a child (under the age of 18)'.

Guardian Declared by Court

Court may appoint any person as guardian of child under the Guardians and Wards Act, 1890. When the court is satisfied that it is in the welfare of minor or his property or both. In declaring a person as guardian of a minor, welfare of the minor shall be the paramount consideration.

A Person Empowered to Act as such by Court of Wards

A guardian may be appointed or removed or where the management of an estate is vested, for the time being in a court of wards. Guardian of the minor, whose estate is so wasted, may be appointed under the provisions of the Court of Wards Act.

De-facto Guardian

A de-facto guardian is a person who takes continuous interest in the welfare of the minor or in the management and administration of his property without any authority of law. Section 11 of Hindu Minority and Guardianship Act, 1956 provides provisions of the de-facto guardian. It states that no person shall be entitled to dispose off deal with the property of Hindu minor on the grounds of his/her being the de-facto guardians of the minor.

Ad-hoc Guardian

The person who becomes the guardian of minor for temporary period is known as Ad-hoc Guardian.

Guardian Ad Litem

A person who is appointed to defend an action or other proceedings on behalf of minor under a disability is called Guardian ad litem. He is not de-facto guardian.

Guardianship Under Muslim Law

Under Muslim Law, Guardianship is called Hizanat. It means overall oversight of the child throughout its minority. The sources of law of guardianship are some verses of the Quran and a few hadis.

Types of Guardians Under Muslim Law

Natural Guardian

He is the one who has the right to regulate and supervise the activities of minor. All Muslim schools recognized fathers as the natural guardian of his child. He is also known as the legal guardian.


Natural guardian in the absence of father is:
  1. Executor of father.
  2. Paternal grandfather.
  3. Executor of paternal grandfather.
In Muslim law, in case of absence of above mentioned person, no one else is recognized as the natural guardian of a minor. In Shia law, if the father is absent then only paternal grandfather could act as a legal guardian.

Guardian Appointed by Will

He is appointed as the guardian of the minor according the will prescription. Only the father and in his absence, the paternal grandfather has the right to appoint the guardian by will. He is also known as testamentary guardian. A non-Muslim and a feminine might also be appointed as a testamentary guardian. But in Shia-Muslims, a non-Muslim cannot become a testamentary guardian.

Statutory Guardian

Statutory guardian is appointed by the court in the absence of natural guardian and legal guardian. A statutory guardian is appointed as per the provisions of Guardianships and Wards Act, 1890, which are applicable to all Indians irrespective of their religion.

De-facto Guardian

He could be a person who has no authority for guardianship but the circumstances provide him the responsibility to act as the guardian of a minor.

Acknowledgement of Paternity

Acknowledgement of paternity means Ikrar-e-Nasab. Where the paternity of a child, i.e. its legitimate descent from its father, cannot be proved by establishing a marriage between its parents at the time of its conception or birth, such a marriage and legitimate descent may be established by acknowledgement. Here, acknowledgement means a declaration ascertaining the paternity where although, the marriage exists but the child's paternity is doubtful because there is no direct proof of marriage. An acknowledgement may not be expressed, and may be presumed from the fact that one person has habitually and openly treated another as his legitimate child.

There are some mandatory conditions for the validity of acknowledgement, which are as follows:
  1. If the paternity of the child is doubtful, then it should neither be proved not disapproved that the child is illegitimate. If the child is illegitimate, it should not be acknowledged as legitimate child.
  2. The acknowledger should be at least twelve and half years elder to the person being acknowledged. The appearance of both acknowledger and the acknowledged should look like father and son.
  3. The person acknowledged must not be the offspring of adultery, fornication or incest (zina).
  4. A person who has attained the age of discretion has the right to repudiate the acknowledgement. The validity of the acknowledged paternity need not necessarily be confirmed by the acknowledged person.
  5. The paternity of the acknowledged must not be established in anyone else.
  6. Valid marriage of the parents of the acknowledged person and their mutual inheritance rights are the mandatory conditions for the validity of the acknowledgement of paternity. Once the acknowledgement is provided, it cannot be revoked.

Establishment of Paternity

The paternity, a relation of child and his father, cannot be established by fact. It can only be established by marriage with the mother of the child. The marriage should be valid or irregular but cannot be void.

Succession and Inheritance

The Hindu Succession Act, 1956 lays down a uniform and comprehensive system of succession, whereas attempt has been made to ensure equality inheritance rights between sons and daughters. However, Muslims in the country do not have codified property rights and are broadly governed by either of the two schools of the Muslim personal law, i.e. the Hanafi and the Shia. While the Hanafi school recognizes only those relations to the deceased which are through male whereas Shia school recognizes both.

Succession Under Hindu Law

The succession opens at the time of the death of the person whose estate is in question and is governed by Hindu law in force at that time. The law of succession under Hindu Law is described under following categories

Intestate succession and Testamentary succession

Important Definitions related to Succession

Intestate As per Section 3(g) of Hindu Succession Act, 1956, “A person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect.”

Descendants:
A person who is related to a deceased and continues to lives after his death, such as his child or grandchild.
Ascendants:
Immediate ascendants of any person are his father and mother. It means the ancestor of any person.
Heir:
A person who legally receive money or property of an intestate.
Collaterals:
It is an asset or property that an individual offers to a lender whenever he wants to acquire a loan.
Agnates:
As per Section 3(a) of Hindu Succession Act, 1956, “One person is said to be an 'agnate' of another, if the two are related by blood or adoption wholly through males.”
Cognate:
As per Section 3(c) of Act, “One person is said to be a 'cognate' of another, if the two are related by blood or adoption but not wholly through males.”
Full Blood:
When the father and mother of two persons are same.
Half Blood:
When two persons have same father but have different mother.
Uterine Blood:
When two persons have same mother but different father.

Provisions of Intestate Under Hindu Succession Act:
General Rules of Succession in Case of Males (Section 8)

The property of a Hindu male, who is dying intestate, shall devolve his property in the following ways:
  1. To the heirs, being the relatives specified in Class I of the schedule;
  2. If there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the schedule;
  3. If there is no heir of any of the two classes, then upon the agnates of the deceased;
  4. It there is no agnate, then upon the cognates of the deceased.

Heirs in Class I and Class II of Schedule

Heirs in Class I
Son; daughter, widow, mother, son of a pre-deceased son, daughter of a pre-deceased son, son of a pre-deceased daughter, daughter of a pre-deceased daughter , widow of a pre-deceased son, son of a pre-deceased son of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son, widow of a pre-deceased son of a pre-deceased son.

Heirs in Class II

Father
Son's daughter's son or daughter, brother, sister.
Daughter's son's son or daughter, daughter's daughter's son or daughter.
Brother's son or daughter, sister's son or daughter.
Father's father or mother.
Father's or brother's widow.
Father's brother or sister.
Mother's father or mother.
Mother's brother or sister.

Order of Succession Among Heirs in the Schedule (Section 9)

Among the heirs specified in the schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.

Distribution of Property among Heirs in Class I of the Schedule (Section 10)

The property of an intestate shall be divided among the heirs in Class I in accordance with the following provisions:

  1. The intestate's widow shall take one share.
  2. The surviving sons and daughters and the mother of the intestate shall each take one share.
  3. The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.

Distribution of Property among Heirs in Class II of the Schedule (Section 11)

The property of an intestate, if divided between the heirs specified in any one entry in Class II, is shared equally by such heirs.

General Rules of Succession in the Case of Female Hindus (Section 15)

The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16
  1. upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
  2. upon the heirs of the husband;
  3. upon the mother and father;
  4. upon the heirs of the father; and
  5. lastly, upon the heirs of the mother.
Order of Succession and Manner of Distribution among Heirs of a Female Hindu (Section 16)
The order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the following rules, namely

Rule 1

Among the heirs in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.

Rule 2

If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of 'the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death.

Rule 3

The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of Section 15 shall be in the same order and according to the same rules as would have applied, if the property had been the father's or the mother's or the husband's, as the case may be, and such person had died intestate in respect thereof, immediately after the intestate's death.

General Provisions related to Succession

Full Blood Preferred to Half Blood: If the relationship is same all over, then the heirs related to an intestate by full blood shall be preferred to heirs related by half blood. (Section 18)
Right of Child in Womb: A child, who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate. (Section 20)

Preferential Right to Acquire Property in Certain Cases: If there are two or more heirs specified in class I of the schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. (Section 22)

Murderer Disqualified: A person who commits murder shall be disqualified from inheriting the property of the person murdered. (Section 25)

Succession when Heir Disqualified: If any person is disqualified from inheriting any property under this act, it shall devolve as if such person had died before the intestate. (Section 27)
Disease, Defect etc. not to Disqualify: No person shall be disqualified from succeeding to any property, on the ground of any disease, defect or deformity, or save as provided, under this act. (Section 28)

Escheat

When there are no heirs or failure of heirs, then the property passes to the government by escheat. The Privy Council in The collector of Masulipatam V. Cavary Vencata Narainah said that, it is a general principle of law that the property of a person dying heirless escheats to the crown. This principle has now been incorporated in the Hindu Succession Act, 1956.
Section 29 of the Act says:
If an intestate has left no qualified heir to succeed to his or her property in accordance with the provisions of the act, such property shall devolve on the government and the government shall take the property subject to all the obligations and liabilities to which as heir would have been subject.

Testamentary Succession (Section 30)

Any Hindu may dispose of by will or other testamentary disposition, any property, which is capable of being so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.

Succession Under Muslim Law

The 'Muslim Law of Inheritance' is a super structure constructed on the foundation of pre-Islamic customary law of succession. There is no difference between the joint family property and the separate property in the Muslim Law.

But in South Indian Muslims, matrilineal (based on the kinship with the mother) system is there and also the institution of tarwad (it is the name given to a joint family consisting of males and females who have all descended in the family line from a common ancestress) is recognised. Succession comes into existence, in Muslim law, on the death of the ancestor, and only then the property vests in the heir, else not.

Customary Principles of Succession

There are four basic principles of pre-Islamic Law of Succession:

  1. Nearest male agnates.
  2. Females were excluded from inheritance.
  3. The descendants were preferred over the ascendants.
  4. There were more than one male agnates of equal degree.

Islamic Principles of Succession

The following new principles on the Principles of Customary Law of Succession, which are as follows:

  1. The husband and the wife inherit each other equally.
  2. Some near females and cognates are recognised as heirs.
  3. The parents and certain other ascendants are made heirs even when there are descendants.
  4. The newly created heirs inherit the specified shares along with customary heirs.
  5. The newly created heirs inherit the specified shares that were not entitled to inherit under the customary law.

Hanafi Law of Succession

In this law, the principles of customary law and Islamic law are merged together. The customary heirs are not deprived of their right of inheritance in the estate of the deceased, but only a portion out of the estate is taken out and given to the heirs enumerated in the Koran.

Ithana Ashari Law of Succession

In this law, the interpretation of the Koranic rules does not recognized the prior rights of agnates over cognates, or of males over females. With the exception of the rights of husband and wife, the Shia law lays down that the estate of the deceased devolves on the blood relations equally, and the females are allotted half the share allotted to the males in each grade.

Sources of Succession under Muslim Law

There are mainly four sources of succession under Muslim Law:
  1. The Holy Koran,
  2. The Sunna (means the practice of the prophet),
  3. The Ijma (means the consensus of the learned men of the community on what should be the decision on a particular point),
  4. The Qiya (means the analogical deduction of what is right and just in accordance with the good principles laid down by God).

Heirs Under Muslim Law

Muslim law recognizes two types of heirs, these are:

Sharers

Sharers are the ones who are entitled to a certain share in the deceased's property. There are 12 sharers in number which are given below:
  1. Husband
  2. Wife
  3. Daughter
  4. Daughter of son or son's son and so on
  5. Father
  6. Mother
  7. Paternal Grandfather
  8. Grandmother on male line
  9. Full sister
  10. Consanguine sister
  11. Uterine sister and
  12. Uterine brother

Sharer has to follow many conditions when he gets the share. Like, a wife takes one-fourth of a share in case when the couple is without any lineal descendants and one-eighth share otherwise, And a husband takes a half share in case when the couple is without lineal descendants, and a one-fourth share otherwise. A sole daughter takes a half share. Where the deceased has left behind more than one daughter, all daughters jointly take two-third share.

Residuaries

Residuaries would take up the share in the property that is left over, after the sharers have taken their part. If the deceased had left behind son(s) and daughter(s), then the daughters cease to be sharers and become residuaries instead, with the residue being so distributed as to ensure that each son gets double of what each daughter gets.

Testamentary and Non-testamentary Succession under Muslim Law
  1. When a person dies intestate, but has created his will before death, the inheritance is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis. But if the immovable property is in the State of West Bengal, Chennai and Bombay, then Indian Succession Act, 1925 is applicable on the Muslims. This is known as testamentary succession.
  2. In non-testamentary succession, the person dies intestate, without making a will. In such kind of succession, the Muslim Personal Law (Shariat) Application Act, 1937 is applicable on non-testamentary succession.

General Provisions Under Muslim Law

Birth Right

A Muslim child does not get the right to property on his birth, but gets only after the death of a person.

Distribution of the Property

Distribution of property can be possible in two ways under Muslim Law, which are as follows:
  1. Per Capita Distribution:

    When the estate left over by the ancestors gets equally distributed among the heirs. The share of each person depends on the number of heirs. It is mainly used in the Sunni law.
  2. Per Strip Distribution:

    The quantum of their inheritance also depends upon the branch and the number of persons belonging to that branch. It is mainly used in the Shia Law.

Rights of Female

There is no distinction between the female rights and the men's right under Muslim Law. On the death of their ancestor, nothing can prevent both girl and boy child to become legal heirs of inheritable property.

Widow's Right to Succession

No widow is excluded from the succession right. A childless Muslim widow is entitled to one-fourth of the property of the deceased husband, after meeting his funeral and legal expenses and debts.

Succession Rights of a Child in Womb

A child in the womb of its mother is competent to inherit succession rights, provided it is born alive. A child in the embryo is regarded as a living person and as such, the property vests immediately, in that child.

Escheat

When a deceased Muslim has no legal heir under Muslim law, his properties are inherited by government through the process of escheat.
Marriage Under the Special Marriage Act, 1954 (For the purpose of Inheritance)

When a Muslim contracts his marriage under the Special Marriage Act, 1954, he ceases to be a Muslim for purposes of inheritance. In fact, after the death of such a Muslim, his or her property does not devolve under Muslim Law of Inheritance. The inheritance of the properties of such Muslims is governed by the provisions of the Indian Succession Act, 1925 and Muslim Law of Inheritance is not applicable.

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