Inheritance rights and legal position of adopted children under Sikh Law

January 18, 2024

Inheritance rights and legal position of adopted children under Sikh Law

This article has been written by Ms. Racherla Sai Lakshmi Mallika, a Second year student of SPMVV, Tirupathi.

INTRODUCTION

Personal law is a law that applies to class or group of people. Personal evolved after the dissolution of roman empire. Tribe after tribe settle in the territories where hitcherto roman law was prevailed each tribe hold its own tribal law, and the tribal law applies to all members living within that area afterwards the basis of law changed from territorial to personal as such tribe lived under its own law. Thus, the system of personal law came into being. In India, through establishment of Mughal Empire, personal laws were emerged. Laws in India are personal, but not territorial. As India is a secular country, is proliferate in personal laws. It differs from community to community. The applicability of personal law is not based on domicile or nationality but on community to which he belongs to the Hindu community has been round up of Sikhs rights from the beginning the followers of guru with all their prevalent customs and traditions in their social and cultural affairs. So, it was natural that Hindu law continued to be applicable to them.

Sikhism is a modern religion with progressive outlook. We cannot criticize the privy council for Hindu Law applies to Sikhs. Actually, there was a chance to privy council to apply Hindu law or English law of succession to Sikhs. Third choice in the form of Sikh(personal). Law was not available. Therefore, privy council thought that to apply Hindu law correctly instead of English law. So, it can be calculated that Sikhs were generally governed by customary law in their personal(family)matters, but in the absence of any valid custom, Hindu law was applicable to them. Actually, Sikhs were not Hindus, they were forcibly put under Hindu law.

INHERITANCE RIGHTS UNDER SIKH PERSONAL LAW

General rule of Succession:

Under the general rule of succession, the direct male lineal descendant was the successor according to Sikh personal law, the female was excluded from it. Daughter’s sons and sister’s sons are excluded by near male collaterals. If any male lineal descendants are absent, the widow of successor will succeed the property, If the widow is absent, mother of diseased will obtain share. Daughters right on ancestral property of father was recognized when there is no male lineal descendants or a widow or mother or any near male collateral of diseased, surviving him. If all heirs were absent, the estate returns to the crown.

Daughters are excluded from inheritance generally in the existence of sons. The onus lies upon daughters to inherit in the existence of sons and to prove it. Example: The parties are non-agricultural and living in city and governed by personal law in such cases, daughter can acquire property with burden of proof.

Murderer and his descendants exclude from inheritance:

In general, murderer and his sons were excluded on ancestral property from inheritance, Sikhs personal law also follows same, in MST.SHAH KHANAM V. KALANDHAR KHAN, ‘A’ was accused for abetment of murder of his half-brother ‘B’. After accomplishment of seven years sentence of ‘B’, ‘B’ claimed to succeed his murdered brother’s property as a customary hire. The defendant sued that the plaintiff was excluded from inheritance, as he was abator of murder. Hence, it is invalid.

MOHAMMAD KHAN V. MST. SIS BANO related to a plea for the claim of property of murdered man by the monor son of the murderer, who was paternal uncle of his victim. Defendant was deceased’s sister in whose name the land has been mutated. It was held that both murderer and his son were in capable of succeeding to the victim’s estate.

Son’s right to enforce partition during father’s lifetime:

In the case of Hindu mithakshara school, a son can claim property during his father’s lifetime even against his will. In HARIKISHAN V. CHANDULAL, A full bench of chief court, Punjab, held that though under mithakshara school of Hindu law, a son can enforce partition even during his father’s lifetime in the Punjab this type of Hindu law is not in force.

Under customary law of Punjab, a son cannot entitle to partition of ancestral property during his father’s life time. In customary law inheritance does not vest in the son by birth in respect of ancestral property as in Hindu law by the mithakshara, so that the son cannot claim to set aside his father’s alienation or partition in his father’s life time-Per Chatterji.

Sons share equally:

The general rule in Punjab sons get equal share whether by same or different wives. Usually, in some of the families, elder son has more powers and he was superior among younger sons and elder sons preferred to get total estate or some extra share among younger sons. This rule was known as ‘Primogeniture’. According to this rule, the eldest son gets whole property of father includes movable and immovable. In such case, the younger son will only entitle to maintenance

The onus of proving custom of primogeniture obtains in the family lies upon party who lost their share. The rule of ‘Haq Sardari’ is prevailed in certain families, rule was as follows, the eldest son in the family sometimes allowed to extra share.

Pagvand or Chundavand rule of succession:

The word ‘Pagvand’ is derived from ‘Pag’ which means turban. According to this rule, all sons will get equal share or distributed equal shares among all sons. ‘Chundavand’ is ‘Chunda’ which means ‘the hair braided on the top of head’ or equal divisions among sons by each wife.

Illustration: ‘X’ has five sons from two wives. A, B, C from first wife and D, E from second wife. According to Pagvand rule, A, B, C, D, E will get equal shares, but according to Chundavand rule A,B,C from one wife will inherit one half and other half will goes to D, E from the second wife.

LEGAL POSITION OF ADOPTED CHILDREN IN SIKH FAMILIES

Adoption under customary law and adoption under Hindu law unlike in many respects. The letter is established on a spiritual idea, different from the faith that a son in mandatory to save a man’s soul from the “Hell called put” to the very natural feeling of regret that your line should become extinct; that there should be no one to constitute person in the family gatherings and offer the ‘pinda’. The importance of Hindu adoption forming true sonship, all rules regarding to it are aim to give effect to this idea the person adopted should be an infant and mother should be person who married adopter there was similar religious ceremony as like natural son. The only difference between adopted and natural son is the one which cannot destroy the birth itself.

According to Hindu Adoption and Maintenance Act, 1956 the adopted child entitled full status as natural child, and also gives same inheritance rights.

SIKH MINORITY RIGHTS

The Constitution provides rights for minorities but it does not constitute separate rights for each minority religion. Certain provisions were inserted in constitution and included which religion comes under minority religion. For all those who come under minority religion, will apply these constitutional provisions.

Article 29(1): Right of any section of the citizen to conserve its distinct language, script or culture.

Article 29(2): Restriction on denial of admission to any citizen, to any educational institution maintained or aided by the state, on grounds only of religion, rays, caste, language or any of them.

Article 30(1): Right of all religious and linguistic minorities to establish and administer educational institutions of their choice.

Article 30(2): Freedom of minority-managed educational institutions form discrimination in the matter of receiving aid from the state.

Article 347: Special provision relating to the language spoken by section of the population of any state.

Article 350A: Provision for facilities for instruction in mother tongue at primary stage.

Article 350B: Provision for a special officer for linguistic minorities and his duties.

Sikh community’s right of wearing and carrying of kirpans (exception to article 25).

SIKH PERSONAL LAWS GENDER EQUALITY

According to personal law, Men and women were treated equally, it is the significant part in Sikh community. A woman receives at most importance in the family and society. She has same right with men to grow spiritually and divine hymns in gurudwara. She is even allowed to take Baptism and eligible to participate all ceremonies. But, most of Sikh households carry of afflicted by cultural practices that detained women from doing the fundamental principal of Sikh faith.

CONCLUSION

Even though Sikhism is an independent religion, why there should not be a personal law means there is no Sikh personal law of divine origin and establishers of Sikhism had been practical enough not to dabble in the personal law which requires periodical updating.

REFERENCES

January 18, 2024