Does Personal Law affect a Government employee ?
ADRM EC Railway Samastipur.
The answer is 'yes' if he is a Muslim. Well, real life is strange. Only an affected person feels the pains of misery. A Chinese philosopher had simply said that a successful King is the one who can feel the unfelt, listen to the untold and see the unseen. So, it applies to bureaucrats as well ! I would like to narrate the real story of a family which had to suffer for more than five years to get its rightful dues of the employee who had put in a long stretch of twenty-eight years before his death. It is the story of Safi Ahmed who was working as ticket collector in Samastipur division. This person from his first wife Samina Khatoon had four sons and one daughter before the lady expired. Beyond this, nothing is known of his family till he himself expired on 14th May 1998.
Somewhere in the country Muslim minor children and wards of deceased government employees are suffering ! The purpose of this study is to alleviate suffering of Muslim minor children and wards legally taken into custody. This may be done by making rectification and addition in existing rules regarding payment of share of retirement benefits of minor children to natural mother and compassionate appointment to wards of deceased government servants.
After his death, a lady named Farida Farhin having three minor daughters and one minor son, approached that she was the second wife of the deceased employee and he had married this lady after the death of his first wife. Office records did not show if Safi Ahmed had either asked for any permission for second marriage after the death of his first wife or any permission was granted to him for this. The second wife claimed for all settlement dues and so also, the children of first wife. This would have been enough, had there been no further claimants. But, now enters other person, the father of deceased employee who puts forward his claim that as per Muslim personal law, he is the guardian (and not the natural mother, Farida Farhin) of all his minor grandchildren. And therefore, he should get all settlement dues on behalf of minor grandchildren, arising out of death of his son Safi Ahmed. These three claimants continue to send their reminders regarding their claims and no one gets the benefits. After some time, all of them were instructed to get their succession certificate from competent court of law. Time passes. Succession certificate does not arrive nor any body gets the claim. Thus passed five years.
The second wife repeatedly writes to the administration. Nothing happens. Only files get more bulky. From the files, it is discovered that no Personal law comes in between the payment of settlement dues to all children of the first wife and the second wife as per extant rules. Ultimately, the entire settlement dues and pension was distributed among the children of the first wife and the second wife as per extant rules on 5th Feb. 2004, after more than five years of the death of the employee. This episode raises a few questions. After all, why this widow and her children had to suffer due to delayed payments ? Solution is bitter, but so are the pills of any ailment.
A memorandum2 by Ministry of Finance (Deptt. of Expenditure) in reference to Central Govt. Employees Group Insurance Scheme, 1980 says “A doubt has been raised whether a Muslim lady can also be deemed to be the natural guardian of her minor sons and daughters. Ministry of Law, who have been consulted in the matter, have advised that under the Muslim personal law a widowed Muslim lady cannot be a natural guardian of her minor sons and daughters. Therefore, when the payment is to be made to minor sons and daughters of a Muslim lady, it shall be made to the person producing the guardian certificate.”
Further, in the Pension booklet followed in practice in NE Railway, additional information is required to be filled up by claimants for the Provident Fund (PF) dues of the deceased employee if he was a Muslim. Instruction No.4(of SN 7) of the form mentions that “In case of Muslim employee, the paternal grandfather of the minor children of the deceased employee is considered as their natural guardian and as such the share of PF due to the minor children is payable to him (Paternal grandfather) on their behalf.”
It is not important to delve into the reasons for framing of such rules and guidelines though in consequence, somewhere in some remote corner of the country minor children might be suffering. Because, in today’s age it is less likely that either a grandfather of eighty years age, who is unable to take care of himself physically, can take care of his minor grandchildren as their guardian as much as the natural mother. Or that a major brother of twenty five years and above will take care of minor children as much as their natural mother. At this stage it is worthwhile mentioning that even to-day already there exists the provision of payment of family pension to widow irrespective of religion of concerned person. Thus, after death of a government servant, whole of the family pension is paid to Muslim widow who may be mother of number of minor children. No Muslim personal law comes in between. Thus the share of family pension of minor children is given to mother and ‘ Not ’ to any paternal grandfather or other major male relative of minor children. My thinking is very plain and simple. If Muslim personal law does not apply to family pension of Muslim widow towards receiving her minor children’s share, how can it apply to sharing of minor children’s share in provident fund, GIS, gratuity and other such payments which are the earned savings of the deceased government employee. This provision of family pension to mother shows the ray of hope. May be this provision needs to be extended. And, therefore it is logical and most natural to conclude that till the mother is alive, she should be treated as natural guardian of minor children and should succeed to the share of her minor children out of the provident fund, gratuity, GIS and other such payments due to the deceased employee. Since, entire discussion as above has no contradiction or conflict with the Muslim personal law, relevant rules as above only needs to be rectified.
Now, we can think over the provisions of adoption and guardianship in the Muslim personal law which adversely affects a government servant ? It is of common knowledge that Shariat has no provision of adoption and that adopted child has no right in the movable or immovable properly of his adoptive parents. It is reasonable to consider that the settlement benefits accrued to the heir of the deceased employee does not come under the purview of movable or immovable property, and so it is not proper to mix up Muslim personal law with this lump-sum settlement benefits.
On this point there is another basic question. Is it that the Muslims do not have any provision of adopting a child nor any alternative ? Worldwide it is accepted that adoption can be a most beautiful experience and solution for childless couples and also for single people. But, again the Muslim personal law does not provide for a definite solution of what is to be done where there is need for adoption. This brings about inequalities in the status of a Muslim who wants to adopt a child as compared to his counter part of other religions.
Sadly, in India, only Hindus are allowed to legally adopt. Other communities can only act as legal guardians to the children taken in their custody. These children taken into custody do not receive the status of own children and they only attain the status of wards. The Guardians and Wards Act, 1890, is indirectly invoked by other communities, such as Muslims, Christians, Parsis, etc. to become guardians of the child during minority. The statute does not deal with adoption as such but mainly with guardianship. The process makes the child a ward, not an adopted child. Under this Act, when children turn 21 years of age, they no longer remain wards and assume individual identities. At this stage, it is worthwhile mentioning that under Muslim law, no formal appointment by any authority is necessary for a competent and entitled person to act a guardian. But, this may lead to complication at the time when the ward comes forward for benefits he is officially entitled to. The government employee has to make an application for his appointment as the guardian of the child under the Guardians and Wards Act, 1890. For the ward, the age of majority is 21 years even for Muslims as per the Guardians and Wards Act, 1890 whereas it is 18 years under Muslim law for guardianship.
The wards do not have an automatic right of inheritance. Such guardians may bequeath their property to wards through a will or gift. Under Muslim law, no Muslim can bequeath more than one third of his estate by will and bequest would not take effect unless the heirs give their consent after the death of guardian (under Hanafi law) or before or after the death of guardian (under Shiya law). There are laid down provisions for instances when the heirs do not give consent to the bequest.
It is of common knowledge that in the country the whole of laws including Criminal Procedure Code, Indian Penal Code, Civil Procedure Code, Evidence Act, Registration Act, Commercial Laws, Tax Laws etc. are secular laws in the sense that these are not based on any religion including Islam and applied to all Indians equally. Since these laws are equally applicable and followed by all including Muslims, there is no reason why some way can not be found out to provide the rightful benefits to wards taken under the Guardians and Wards Act, 1890 ,so far as the benefit of compassionate appointment to Muslim employees is concerned. Even this will lead people to rethink on their decision of talaque, marrying more than one wife and begetting series of daughters while expecting a male child.
Now, the extant rules related to adopted son and daughter towards compassionate appointment. The Board in its letter1 has clarified that appointment of adopted sons and daughters on compassionate grounds will be subject to the conditions that “There is satisfactory proof of adoption valid legally; the adoption is legally recognized under the personal law governing the Railway servant and the legal adoption process has been completed and has become valid before the date of death/medical decategorisation / medical incapacitations (as the case may be) of the ex-employee”.
From the above it may be observed that there is no provision for the ward i.e. the child taken into custody as per the Guardians and Wards Act, 1890, towards the compassionate appointment. This appears to be discrimination due to not providing opportunity to the ward taken under custody as per law of the land. Therefore there is need for the addition in above and similar rules so that wards may not suffer and they should get all the benefits which are available to an adopted child including compassionate appointments, settlement benefits and other provisions.
The purpose of above discussion is to alleviate the suffering of Muslim minor children and wards legally taken into custody. It may be done by making rectification and addition in existing rules through payment of share of retirement benefits of minor children to natural mother and compassionate appointment to wards of deceased government servants. It is expected that the Muslim Personal Board of India would take initiative in this direction.Your views are invited at my E-mail: firstname.lastname@example.org