Hindu and Muslim Law of Succession: Key Differences
Hindu Law of Succession and Muslim Law of Succession are two different and vast legal systems that primarily govern the overall process of inheritance and succession of property among Hindus and Muslims, respectively. While both systems have evolved over centuries and incorporate various regional and cultural variations, there are key differences between Hindu and Muslim law of succession. This article provides a brief discussion of key differences between the Hindu and Muslim Law of Succession.
Hindu Succession Law
In India, the inheritance and succession of property among Hindus (including Sikhs, Jains, and Buddhists) is governed by the Hindu Succession Law. Under the law, a Hindu man's property is distributed among his immediate family members equally, including his wife, children, and grandchildren. In the absence of children, the property is shared by the wife, mother, and siblings. The history of Hindu Succession Law has witnessed several significant changes. Prior to 1956, Hindu women had limited rights to inherit property. In 2005, the law underwent substantial amendments to remove gender-based discrimination. The amendments granted daughters equal rights as sons in ancestral property and expanded the scope of inheritance for women. If a Hindu dies intestate (without a will), the property is divided as per the law.
Muslim Succession Law
In India, the principles of Islamic Shariah govern Muslim Succession Law. According to the law, a Muslim's property is divided among his or her legal heirs. The heirs are classified into two categories: sharers and residuaries. Sharers are entitled to a fixed portion of the estate, which includes spouses, children, parents, and grandparents. Residuaries receive the remaining portion of the estate after the sharers have received their shares. The shares of the heirs are determined based on specific rules and proportions outlined in Shariah. The aim of the law is to ensure fair distribution of the deceased's property among eligible heirs in accordance with Islamic principles.
Source of Law
Hindu Law: Hindu Law is a codified law where the inheritance and succession of property in the Hindu religion is dealt with under the provisions of the Hindu Succession Act, 1956. This Act is not applicable in the case of marriages performed under the provisions of the Special Marriage Act, 1954. The Hindu law of succession for property is primarily derived from ancient Hindu scriptures or religious texts including the Vedas, the Manusmriti, and the Dharmashastra. Along with this, customary practices, legislative enactments, and various judicial decisions also play a significant role in influencing the Hindu law of succession.
Muslim Law: It is not a codified law. In general, there are four main sources of the Muslim Law including the Quran, Sunna, Ijma, and Qiyas. The Muslim law of succession for property is derived from the Quran, the Hadith (sayings and actions of Prophet Muhammad), and the consensus of Islamic jurists. The Muslim law of succession is a component of the Muslim Personal Law, which encompasses various aspects of personal life for Muslims, including marriage, divorce, and inheritance.
Concept of Inheritance
Hindu Law: Under Hindu law, the concept of inheritance is based on the principle of lineal descendants. The property is passed down within the family through a hierarchical order of heirs, known as the coparcenary. The Mitakshara and Dayabhaga schools of Hindu law govern the inheritance rights of different Hindu communities.
Muslim Law: In Muslim law, inheritance is governed by the concept of strict individual ownership. The property is divided among the heirs based on fixed shares prescribed by the Quran. The system of inheritance in Muslim law is known as "Wills" (Wasiyya) and is based on the principles of specified shares and obligatory heirs.
Hindu Law: This law recognizes the concept of both testamentary succession (through a will) and intestate succession (in the absence of a will). Testamentary succession allows the Hindu male or female to create a will of his/her property and distribution of property is done on the basis of will. The Hindu Succession Act of 1956 governs the intestate succession of Hindus, and it has undergone several amendments to provide equal rights to male and female heirs. Under Section 24 of the HSA, the right of a widow who re-marries after the death of her spouse is disqualified from inheriting the property of her deceased spouse. Moreover, Section 25 of the Act illustrates that “A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.” The Hindu Succession Act does not ensure whether a daughter is a coparcener or not; therefore, the 2005 amendment of the Act provided a separate section (Section 6) that defines daughters as coparceners from birth and have equal rights as male coparcener.
Muslim Law: Muslim law recognizes only testamentary succession, and the concept of a will is highly encouraged. However, in the absence of a will, the property is distributed based on the rules of intestate succession. The Muslim Personal Law (Shariat) Application Act of 1937 governs the succession of Muslims in India. In the Muslim law of succession for property, the volume of inheritance is determined after completing the primary duties of the deceased such as funeral expenses, wages, debts, and others. In Muslim Inheritance rules, a will created by a Muslim can be in favor of anyone but only one-third of the testator’s property is given.
Hindu Law: Hindu law follows the concept of survivorship, where the property passes by succession in case of death. The property is divided among the heirs according to their share, and it may be subject to certain restrictions and conditions.
Muslim Law: Muslim law follows the principle of immediate succession, where the property devolves upon the heirs immediately upon death. The property is divided among the heirs based on their prescribed shares, and there is greater flexibility in terms of testamentary disposition.
Concept of Coparcenary
Hindu Law: Hindu law recognizes the concept of coparcenary, which is a form of joint family ownership. It applies to the ancestral property and includes male descendants up to four generations from a common ancestor. Upon the death of a coparcener, his share devolves upon the surviving coparceners. Female members generally do not have rights in coparcenary property, although recent legal developments (2005 amendment) have expanded their rights.
Muslim Law: The concept of coparcenary is not applicable under Muslim law. In Muslim law, the inheritance is based on the principle of individual ownership, and each heir receives a specific share of the deceased's property.
Order of Succession
Hindu Law: In the Hindu law of succession for property, the first line of heirs is classified as Class I heirs, which includes sons, daughters, and the widow. If there are no Class I heirs, the property passes to Class II heirs, which includes parents, brothers, sisters, and their descendants. If there are no heirs in either Class I or Class II, the property devolves upon agnates (relatives through males) and, in their absence, upon cognates (relatives through females).
Muslim Law: In the Muslim law of succession for property, the heirs are divided into two types Sharers (fixed shares) and reliquaries. The first line of heirs consists of specific individuals who are entitled to Sharers, such as children, parents, and spouses. The remaining property, after the fixed shares are distributed, is divided among residuaries, who are more distant relatives (reliquaries).
Inheritance Rights for Women
Hindu Law: In recent years, Hindu law has undergone significant reforms to provide equal rights to women in matters of inheritance. Daughters now have equal rights as sons in the ancestral property, irrespective of their marital status or when the property was acquired. The property rights of daughters in Hindu succession are clearly defined after the amendment of the Hindu Succession Act in 2005, where they are also addressed as legal heirs and come under Class I heirs.
Muslim Law: The inheritance rights of women in Muslim law are governed by the principles of fixed shares and obligatory heirs. Female heirs generally receive a lesser share than male heirs. It is generally half the share of male heirs. For example, a daughter is entitled to one-half of the share of a son. However, recent court judgments have recognized the rights of Muslim women to inherit property and have challenged certain discriminatory practices.
Hindu Law: Hindu law recognizes the practice of adoption, allowing a childless couple to adopt a child and treat them as their own. Adopted children have the same rights as biological children, including the right of inheritance. However, there are specific rules and conditions governing adoption. Adoption under Indian Law by Hindu Parents is governed by the Hindu Adoption and Maintenance Act, 1969, the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Guardians and Wards Act, 1890.
Muslim Law: Adoption under Indian Law by Muslim parents is not recognized. Instead, the practice of kafala allows for the legal guardianship of a child but not the transfer of inheritance rights.
Polygamy and Multiple Marriages
Hindu Law: Hindu law prohibits polygamy and recognizes monogamous marriages.
Muslim Law: Muslim law allows polygamy, allowing Muslim men to have up to four wives simultaneously. Depending on the presence of other heirs, each wife is entitled to a specific share in the husband's property.
Right of an Unborn Child
Hindu Law: Hindu law acknowledges the ‘right to property by birth’. As per Section 20 of the Hindu Succession Act, a child in the womb at the time of the death of an intestate also has the right to inherit the property as other heirs. It states that “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.”
Muslim Law: Muslim law does not acknowledge the ‘right to property by birth’.
Hindu Law: Section 29 of the Act states that “If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the government; and the government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.”
Muslim Law: In the case of Muslim law, if there is no legal heir then the property of the deceased is inherited by the government through escheat.
To conclude, both the Hindu and Muslim Laws of Succession are efficiently used to date for managing the inheritance and succession of property among Hindus and Muslims. While Hindu law has undergone significant reforms to provide equal rights to women and recognizes adoption, Muslim law follows strict rules based on Islamic principles. Understanding the above-mentioned key differences is crucial for ensuring fair and just distribution of property among the respective communities. If a Uniform Civil Code (UCC) is implemented all over India then these laws of succession will be severely affected. As implementation of UCC will replace the personal laws of both the Hindus and Muslims with a common set of civil laws applicable to all citizens, irrespective of their religious beliefs, to promote equality and secularism in a nation.
1. Does the Muslim Law of Succession acknowledge the ‘right to property by birth’?
2. Does any state in India have a Uniform Civil Code (UCC)?