8:00 AM - 9:00 PM
Opening Hour Mon - Sat
Family Laws encompass the broad set of rules that are in practice regarding family matters, such as marriage, divorce, inheritance etc. There are some legally enforceable rights and duties that arise when one gives legal validation to the status of interpersonal relationships.
The justification for having laws that affect the most private aspects of our life is to ensure protection of individual rights and to uphold certain norms that are essential to human dignity. Another reason is that laws act as agents of social change and may succeed in improving the status of individuals in society.
There are five broad sets of family laws in India – Hindu law, which governs all Hindus as also Buddhists, Jains and Sikhs; Muslim law for the Muslims; Christian law for the Christians; Parsi law for the Parsi’s and a secular law i.e. the Special Marriage Act. The religion-based laws are derived from religious texts. These laws have also been amended from time to time by parliamentary legislation.
Hindu law has been substantially altered on account of extensive legislation enacted post-independence. Christian and Parsee laws have been changed more recently in the last few decades through legislation. Muslim law has been the least modified and hence retains most of the text and interpretation of the times when its religious texts were written.
A Hindu marriage is treated as a sacrament and not a contract. For a Hindu marriage to have legal validity, it must mandatorily be registered under the Hindu Marriage Act. There are some other conditions that must be fulfilled for a Hindu marriage for being legally valid. If a marriage is not legally valid, or contravenes certain grave aspects of the law which are specified in the Act, the marriage is automatically null and void and annulment can be granted to it. There are also some marriages that are voidable at the option of either party to the marriage.
Under Hindu law, the ‘degrees of prohibited relationship’ refers to the proximity of the two individuals through their lineal ascendants and the law states that a match may not be made within those degrees.
This provision has a scientific basis as it is known that the offspring’s physical and mental health may be affected by the proximity of the relationship. However, if the custom or usage of either party permits the relationship, it will not be treated as an invalid marriage.
–> Example: Akash and Mira are consenting adults who decide to get married. They have a simple ceremony and get registered at the Marriage Registrar’s office. However, it is found that through a long-lost relative, Mira and Akash were previously related as 4th cousins. (They shared a set of great-great-great grandparents) Their marriage will not be valid under the Hindu Marriage Act.
The law provides that any marriage that violates these conditions is voidable and may be nullified at the desire of the affected party.
Example: Kishore and Neha were married in the summer of 1994. While they cohabited, Kishore observed that Neha displayed symptoms of mental illness, as sometime she spouted random words and also acquired a glazed look in her eyes. He realized that her insanity resulted in a voidable marriage and took another wife.
He has not committed bigamy. An annulment is a retroactive provision. A nullified marriage is considered never to have existed at all. It, unlike divorce, declares the marriage void ab initio.
There are two events that confirm the completion of the marriage, one is the solemnization of the marriage that takes place during the customary rites and ceremonies practiced by the parties and the other is the registration of the marriage.
Till recently it was not mandatory to register marriages, but the plight of deserted women seeking maintenance and custody of their children, without proof of a valid marriage, prompted the Supreme Court to direct the Centre and states to amend the legislations accordingly. Prevention of child marriage, bigamy and ease of litigation are other positive outcomes from the registration of marriage.
Where rituals include the Saptapadi (seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage is said to be solemnized once the seventh step is taken.
The disputes that take place between the married couple, relating to issues that arise out of the practices and customs of marriage, are known as matrimonial disputes. These issues include withdrawal from the other’s society without reasonable cause, mental illness at the time of marriage, desertion of the spouse for a continuous period of 2 years etc., which result in different remedies, such as restitution of conjugal rights, annulment or divorce.
There are many types of reliefs available to couples suffering from matrimonial problems, which include restitution of conjugal rights, judicial separation etc.
If either spouse has, without reasonable cause, withdrawn from the society of the other, the aggrieved spouse can approach the court for restitution of conjugal rights. This enforces the rights that derive from the wedded state of the couple. The court would expect the explanation of the defence of ‘reasonable cause’ from the defendant.
When either spouse makes an application to nullify the marriage, certain grounds have to exist. It is a procedure by which a marriage is nullified in that it is declared to have never existed at all. It is usually difficult to prove and not many cases have granted annulment as a remedy. However, it covers a range of situations, such as:
Before the codification of Hindu marriage laws, the position on dissolution of marriages was very rigid and did not allow dissolution except under certain specified grounds. However, after independence, the law provided for a few grounds on which a marriage could be legally dissolved. The procedure for doing so is known as a divorce.
A case for Judicial Separation would look into grounds of a similar nature to that of a case for divorce. But legal separation only entails physical separation for some time and does not change the married status of the parties. This is not the case with a divorce, where if a couple gets divorced, and intend to get back together, they must remarry.
Divorce is the procedure for dissolution of the marriage. If a couple or one of the parties feels that their marriage is over for reasons of desertion, adultery, bigamy or others as specified in the Act, they may approach the court to grant them a divorce.
A divorce is a momentous proceeding and it results in many upheavals in the married life of the parties. Consequent to a divorce, there are other issues such as custody of the children and maintenance to the dependents, such as the wife and children.
Maintenance is an ancillary relief – in that it does not arise independently, but will be granted along with and as a consequence of relief such as divorce, custody, redressal of domestic violence.
In assessing the amount of maintenance, the court takes into account various factors like position and liabilities of the husband. It also judges whether the wife is justified in living apart from husband. What is ‘justifiable’ is determined by reasons spelt out in the Act.
Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit will be borne by either, husband or wife, if the other spouse has no independent income for his or her support. The same principle will govern payment of permanent maintenance.
The Parsi Marriage and Divorce Act, 1936 recognizes the right of the wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband’s net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to pay, own assets of wife and conduct of the parties. The order will remain in force as long as wife remains chaste and unmarried.
The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance.
The laws of inheritance are diverse and complicated. The rules of distribution of property in case a person dies without making a will are defined by every Law of succession. These rules provide for a class of persons and percentage of property that will be inherited by such persons. It must be remembered that it is preferable that one should make a will to ensure that one’s actual intension is manifested.
The Indian Succession Act, 1925, defines a Will as follows: “A Will is the legal declaration of the intention of the testator, with respect to his property which he desires to be carried into effect after his death.” Important postulates of a will are as follows:
The documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it and it must be signed and attested, as required by law.
A Codicil is an instrument made in relation to a Will, which explains or alters or adds to the declarations made in the Will. For all legal and practical purposes, it is to be deemed a part of the Will.
It is generally used to make certain modifications to the Will while leaving the other parts intact. Such as, if the testator wishes to change the name of the Executor or wishes to include a few more beneficiaries without altering anything else, he may make a codicil. The Codicil must be reduced to writing and the written document must be signed by the Testator and attested by two Witnesses.
A will or testament is a legal declaration expressing the wishes of a person, containing the names of one or more persons who are to manage his estate and provide for the transfer of his property after his death. The person who prepares such a will is known as the testator.
A Will is a very important legal document as it denotes the wishes of a person who cannot be consulted again. If there is no will, or the will is found not to be valid, the property will be divided and transferred as per the rules of intestate succession. The Will contains a nomination of a person as the ‘executor’ of the Will. This executor will have to follow the instructions given in the Will and distribute the property in it accordingly. When a Will is being written, correct procedure requires the presence of witnesses.
The person who carries out the wishes of the testator after his demise is known as the executor.
Is it possible for the executor also to receive property or will it be a conflict of interest?
The Executor may be named as a beneficiary in the Will, but it is not allowed for a beneficiary to also be a Witness to the Will. Probate: A probate means a copy of the Will, certified under the seal of a competent Court. This seal of the Court gives power to the person who is named as the executor in the Will, to carry out the instructions written in the Will and distribute the property within. It is the official evidence of an executor’s authority.
After the death of the person concerned, a proceeding may be initiated in court to determine the validity of the will that the testator may have created, known as a probate proceeding, which will satisfy the legal requirements. In most cases, during probate, at least one witness is called upon to testify or sign a “proof of witness” affidavit. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted.
Provisions for a valid Will:
A probate granted by a competent court is proof of the validity of the will, and the right of the executor named in the Will to represent the estate of the deceased. However, it only establishes the legal character of the Will and the executor and in no way decides upon the manner of distribution of the property, and does not even determine whether the property referred to is in existence.
–> Example: Ramlalji created a Will in which he gave all his property to his wife. This Will was challenged by his brother in the Court, and he demanded a probate. The Probate was granted and the Will was declared valid. However, of the property he had willed, one of them did not belong to him. When this was again challenged by his brother, Ramlalji’s widow countered that the Will had been declared valid by the court, and the suit was barred by Res Judicata.
The suit is not barred by Res Judicata because the Probate only grants validity to the form of the Will, not the substance.
The Law of succession determines the manner of distribution of a deceased person’s property, in the event that there is no Will or equivalent document that declares the intent of the owner of the said property.
The Hindu Succession Act, 1956 is law that was passed by the parliament of India in 1956 to amend and codify the law relating to intestate or unwilled succession, among Hindus. It is hailed for its consolidation of Hindu laws on succession into one Act. The Hindu woman’s limited estate is abolished by the Act. Any property, possessed by a Hindu female, is to be held by her absolute property and she is given full power to deal with it and dispose it of by will as she likes. The Act was amended in 2005 by Hindu Succession (Amendment) Act, 2005.
The Hindu Succession Act applies to all those who practice the Hindu religion as well as those who fall under the term Hindu within the Indian Legal system, including Buddhists, Jains, and Sikhs. This law of succession provides for the method of distribution of property (known as devolution) in case the deceased passes away without leaving behind a Will.
Dowry is a social malaise plaguing Indian society. In 2001 alone, there were seven thousand deaths of young women that were linked to their husbands or to members of his family. Experts on domestic violence have claimed that the actual number may even be higher. Such homicides have been tied to resentment over a dowry that is considered too stingy. In other cases, the husband’s family demands more goods after the wedding.
The demand of Dowry has been a highly prevalent practice in India, especially among the Hindus in North India. Dowry is a kind of valuable property that is given by the bride’s father to the groom upon marriage. With the Dowry Prohibition law in place, the number of dowry related incidents have decreased, but still occur in some parts of India.
The law criminalises anyone who gives or takes or abets the dowry transaction and prescribes a stringent punishment to those indulging in the practice.
Since the passage of this law, women have become more empowered and are encouraged to report any demand that the groom or his relatives may make for dowry.
Section 304B of the Indian Penal Code inserted a definition for ‘dowry death’ describing it as: the death of a woman caused by any burns or bodily injury or which does not occur under normal circumstances within seven years of her marriage.
For a woman’s death to be a dowry death, it must also be shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. If this is proved, the woman’s husband or relative is presumed to have caused her death.
Whoever commits dowry death is required to be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. –> Example: Nonita was being harassed by her husband and in-laws for a high-end car and some appliances as dowry payment. She routinely suffered verbal abuse and beatings, but she did not reveal anything to anyone about the harassment. One day, a year after the marriage, she succumbed mysteriously to burns. It will be difficult to prove that she was subjected to harassment and died a dowry death.
–> Example: In 2003, Nisha Sharma cancelled her own wedding just before it was set to take place to Munish Dalal. His family allegedly demanded $25,000 at the wedding, and her father said he did not have that kind of money. The Dalals began to hurl abuses and quarrel with the Sharmas. Nisha called the police, and her father filed a complaint against the groom and his parents for demanding a dowry.
Countless women face abuse and cruelty at home at the hands of their spouses, physically, mentally and economically. Till the year 2005, remedies available to a victim of domestic violence in the civil courts (divorce) and criminal courts (in case of adultery) were limited. There were many shortcomings with the remedies that then existed:
A law was passed in 2005 which sought to protect women from the violence they faced in their own homes. It was the first significant attempt in India to recognise domestic abuse as a punishable offence, to extend its provisions to those in live-in relationships, and to provide for emergency relief for the victims, in addition to legal recourse.
The law provides that if an abused woman requires, she has to be provided alternate accommodation and in such situations, the accommodation and her maintenance has to be paid for by her husband or partner.
The law, significantly, recognises the need of the abused woman for emergency relief, which will have to be provided by the husband. A woman cannot be stopped from making a complaint/application alleging domestic violence.
A woman who is the victim of domestic violence will have the right to the services of the police, shelter homes and medical establishments.
An injunction is a relief given by the Court to either party which is not the final relief and it does not bring the case to a conclusion. It includes relief such as custody and maintenance while the suit is pending.
She also has the right to simultaneously file her own complaint under Section 498A of the Indian Penal Code.
Section 498A of the Indian Penal Code says discusses cruelty being inflicted on a woman by her husband, and prescribes a punishment for the same.
In practice, cruelty is taken to include the demanding of a dowry. This section is non-bailable, non-compoundable (i.e. it cannot be privately resolved between the parties concerned) and cognizable (i.e. the police can arrest the accused without investigation or warrants) on a report from a woman or close relative.
–> Example: Ayesha Siddiqui is an educated housewife who got married a year ago. Her husband accused her of having an affair and the verbal anger turned into beatings. She filed a case under the Domestic Violence Act and got custody of her daughter and maintenance for herself and her daughter.
This Act is solely intended for the protection of women from harassment and domestic violence. It automatically means that it is a powerful instrument to wield against a man, whether he is guilty or not. Any such complaint registered by a woman will be presumed to be genuine and it will be up to the man to prove that he has not harassed her. This may itself be a kind of malicious mental harassment for the man.
When a couple or a parent adopts a child, they are undertaking to provide for it as they would their biological child. In a practical sense, this includes feeding and educating them, being responsible for them and being their legal guardian. Thus, there are laws that attempt to ensure that the child is secure, and is in good hands.
Even the laws concerning adoption of children are governed by the religion of the adopting parents. The Hindus – including the Sikhs, Jains etc. – need to comply with the provisions of the Adoption and Maintenance Act. This law prescribes the rules regarding adoption of children, such as who can adopt, the gender of the child etc.
The main feature of this Act is that any Hindu (who has attained majority, male or female, and is of sound mind) can adopt a child provided that the following conditions are met: – If the person already has a biological or adopted child, the second (adopted) child cannot be of the same sex.
–> Example: Balu and Shalini lost their 6 year old biological daughter in a motor accident. They are free to adopt a child of either sex.
– The age difference between parent and adopted child (specifically, between adoptive father and adopted daughter, and adoptive mother and adoptive son) must be minimum 21 years. This is to prevent sexual abuse of the child by the adoptive parent(s).
Till recently, Muslims, Christians and Parsis had no adoption laws and had to approach the court only under the Guardians and Wards Act, 1890. The people professing those religions could take a child under the said Act only under foster care. Once a child under foster care becomes a major, he is free to break away all his connections. Besides, such a child does not have legal right of inheritance.
However, since 2000, the Juvenile Justice Act has provided for a means to process adoption petitions by non-Hindus.
Until a person has completed 18 years of age, he is a minor. A ‘Major’ is a person having the care of the person of a minor or of his property or of both his person and property, and includes –
–> Example: A person may be appointed by the court as a special guardian, having limited powers over the interests of the ward. A special guardian may, for example, be given the legal right to determine the disposition of the ward’s property without being given any authority over the ward’s person.
–> Example: Angad’s father passed away and appointed his younger brother as Angad’s guardian in his Will. The first person responsible for Angad’s care will be his mother, after which it shall be Angad’s father’s brother, as appointed by the Will.
A “Natural guardian” forms one of the categories which make up the definition of a major. The natural guardians of a child are his father and mother. However, there are a few nuances to this as well.
Until a person has reached 18 years of age he is a minor, the law provides for legal guardians who will look after his legal responsibilities and rights. Guardianship is a responsibility and this is an important consideration during numerous official procedures. Under the Hindu Minority and Guardianship Act (HMGA) different categories of people are responsible for minors essaying different roles in life.
For a son and an unmarried daughter, the father is the first Natural Guardian, after which it is the mother – provided that the custody of the child for the first five years of the child’s life will be with the mother. Conversely, for an illegitimate son or an unmarried illegitimate daughter, the mother is the first Natural Guardian, after which it is the father.
As to the exception evident from both the cases, in case of a married girl, her husband is her Natural Guardian.
In 1986, the Parliament passed The Muslim Women (Protection of Rights on Divorce), Act 1986 that nullified the Supreme Court’s judgment in the Shah Bano case and instead, upheld the Muslim Personal Law although the law was gender-biased and regressive.
The political strife that was caused in India as a result of this judgement was evident in the speed with which the Government played vote bank politics. It forced the Parliament to amend the law to accommodate the interests of the Muslims who wanted to retain the strict, gender-biased rules on maintenance.
How did the Act nullify the Supreme Court’s judgment?
The Act basically mandated that every application for maintenance by a divorced woman under the Code of Criminal Procedure, which applies the maintenance law in a secular fashion, be disposed of in accordance with the provisions listed out.
According to the stated objects of the Act, where a Muslim divorced woman is unable to maintain herself after the period of idda, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law.
Where a divorced woman has no relatives or such relatives, and does not have enough means to pay the maintenance the magistrate would order the State Waqf Board to pay the maintenance. The ‘liability’ of husband to pay the maintenance was thus restricted to the period of the iddat only.
The Act says that divorced woman is entitled to have a reasonable and fair provision and maintenance from her former husband, and the husband must do so within the period of iddat and his obligation is not confined to the period of iddat. The Act further provides that a woman, if not granted maintenance can approach the Wakf board for grant that if she fails to get maintenance from her husband, she can claim it from relatives failing which, she can claim it from the Waqf Board.
All obligations of maintenance however end with her remarriage and no claims for maintenance can be entertained afterwards. The Act thus secures to a divorced Muslim woman sufficient means of livelihood so that she is not out on the streets without a roof over her head and without any means of sustaining herself.
–> Example: Salima is divorced from her husband Rizwan and has a 1 year old son; she remarries to Majid after the iddat period. However, the marriage is annulled due to irregularities. Even so, Salima cannot go back to receiving maintenance from Rizwan as the period of iddat is over, and she can receive maintenance only during that period.
–> Example: Mehrunissa applied to the Court for maintenance from her husband, and claimed a lump sum that she would need over a few years. She stated that the husband was obligated to pay during the period of idda, but that the maintenance amount could be claimed to cover any duration as long as it was fair and reasonable.
Sub-section (1) of Section 3 lays down that a divorced Muslim woman is entitled to:
–> Example: Shazeen is divorced from Mustafa, with a 7 year old son who has speech and hearing difficulties. She claims that she needs enough maintenance to take care of her son until he turns 25, as he needs that much time to be self-sufficient. This may be deemed a fair and reasonable request justification for maintenance.
In addition, the Act also provides that where a divorced Muslim woman is unable to maintain herself after the period of iddat the magistrate can direct her prospective heirs according to Muslim Law, to pay her a reasonable and fair maintenance, on the basis of her needs, her standard of living and how much her prospective heirs are likely to inherit from her.
If she has children, the Magistrate may direct them to maintain her. If they are unable to pay such maintenance, the magistrate can order her parents to pay maintenance to her.
In the absence of all these avenues, the magistrate may direct State Wakf Board functioning in the area in which the woman resides, to pay such maintenance as determined by him.
The Supreme Court ruled in the recent Danial Latifi v. Union of India case that the provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband”. The Court held this provision means that maintenance is not limited for the iddat period but must be paid within that period.