INHERITANCE RIGHTS OF MUSLIM ORPHANED GRANDCHILDREN AND ADOPTED CHILDREN (ESPECIALLY FEMALES) AND THE INDIAN CONSTITUTION 

Best Citation – AMINA AMIN SULTANA, INHERITANCE RIGHTS OF MUSLIM ORPHANED GRANDCHILDREN AND ADOPTED CHILDREN (ESPECIALLY FEMALES) AND THE INDIAN CONSTITUTION, 3 IJLR 50, 2022

ABSTRACT

Indian constitution has guaranteed equality before law and equal protection of laws to its entire citizen and also has provided many rights to women and children for their safeguard in every aspect of life but still Islamic property related laws are facing huge complications in delivering justice in regards to Muslim women, particularly orphaned grandchildren and adopted children. The inheritance shares are already fixed by the injunctions of Quran. So, the wasiyat is not for those Quranic sharers but for those who are not legal heirs but anyone and the will cannot be made more than 1/3rd of the hereditary property. The law of gift and will is complimentary and supplementary to law of inheritance and Muslim countries translated the law into action in the name of obligatory bequest. Considering the orphaned grandchild (specially females) status among the law of inheritance of Indian Muslims, the legislature may also consider the reformative measures of Muslim countries. In order to remove the sufferings of orphan grandchildren, the state should consider the law of compulsory bequest. The two relations i.e., orphaned grandchild and adopted child (specially female) must be given the right to inheritance through a will or bequest which cannot be more than one-third of the complete property. The customary law applied to the inheritance relating orphaned grandchild and adopted child is to be abolished and Islamic canon must be enforced on them. Moreover, although Islam does not approve of adoption but it has a better system known as kafala under which the adopter will get a child of whom he can take care in every perspective and the child will also not lose his identity. The Indian law must modify the adoption of Muslims as per kafala system, which is now followed by various other Muslims countries. And regarding the inheritance, these adopted children may be given one-third of the property by way of will. This can only happen if the option to follow either customary law or true Islamic canon under section 3 of the Shariat Act of 1937 is eradicated. The option given under the 1937 Act is unconstitutional and hence, a great amount of injustice have been going on since its implementation against the females, particularly orphaned grandchildren and adopted children.

Keywords: Constitutional provisions; Islamic law; Shariat Act, 1937; position of orphaned grandchildren and adopted children, specially females.