Legal

________________________________________________________________________________

This Blog is written by Reva Gupta from Symbiosis Law School, Noida. Edited by Oshin Suryawanshi.

________________________________________________________________________________

INTRODUCTION

“Marriage, dowry, guardianship, adoption, maintenance, gifts, wills” and so on are all elements of family or personal law. Religion and personal law are intricately linked in India. “Hindus”, “Sikhs”, “Jains”, and “Buddhists” follow “Hindu family law” whereas “Muslims”, “Christians”, and “Parsees” have their “own laws”; and other ethnic groups, such as tribal groups, follow their own traditions or customs. The Indian Parliament formalises or enacts acts or laws that control “Hindu law”, “Sikh marriage law”, “Parsee law”, and “Christian law”. “Muslim law” is “uncodified” and based on “Sharia”, which is “moral” and “religious law” based primarily on the principles of the “Islamic sacred scripture”, the holy “Quran”, and examples provided by the “Islamic prophet Muhammad” in the “Sunnah”. In this way, India corresponds to a particular notion of a “secular state”; despite the fact that these various communities are one nation, they coexist as “independent” and “distinct units” in legal matters. As previously stated, unlike “criminal and civil laws” in India, family laws are not widespread. In contrast, “Article 44 of the Indian Constitution” states a goal or objective for the establishment of a “standard civil code” in family and personal concerns. This clause is merely advisory or aspirational, and it will not be enforced by legal action.

What exactly is the function of Family Law?

Family law refers to the broad body of norms that govern family matters such as marriage, alimony, and succession, among others. When the situation of interpersonal relationships is legally validated, some legal binding rights and duties emerge.

The cornerstone for laws affecting the most sensitive aspects of our lives is the “preservation of individual rights” and the “promotion of certain human dignity” criteria. Another rationale is that laws are enforced as part of the reform process and may be beneficial in increasing people’s social standing.

 Where do the key ideas entrenched in these statutes originate?

In India, there are “five major” sets of “family laws”: “Hindu law”, which regulates “all Hindus” as well as “Buddhists, Jains, and Sikhs, Muslim law” which governs “Muslims; Christian law, which governs Christians; Parsi law”, which governs “Parsis”; and the “Special Marriage Act”, which governs “non-Hindus”. Religious texts are utilised to develop religion-based legislation. “Parliamentary legislation” has also been utilised to periodically amend certain statutes.

HISTORY

“Medieval Period”

As mentioned in the “preceding chapter”, the “Hindu legal system” was founded on “smriti literature” and “Dharma shastra,” as well as various later digests. Two important schools of “personal law” have been followed since the “early mediaeval period”, beginning in the “seventh century.” First, in both “south and north India”, the eleventh-century compilation “Mitakshara by Vijnaneshvara”, a family law authority, was widely embraced. It was divided into four sub-schools: “Dravida (in southern India)”, “Mithila, Bombay, and Banaras”. Second, “Dayabhaga personal law” was used in the “Bengal region”.

The personal law was “Dayabhaga”, which was included in “Jimutavahana’s” “thirteenth or fourteenth-century” compendium “Dharmaratna”. Muslims generally followed “Sunni” (sectarian group) and “Hanafi” forms of legislation. The “Hanafi laws” were inspired by the inventor and “Persian scholar Abu B. Medieval Period 197 198 Hanafi”. Sectarian divisions (such as “Sunni” and “Shias” among Muslims), regional distinctions, and local customs and practises all contributed to disparities in Hindu and Muslim legal systems. “Hindu law” and “Muslim Shariat” applied to all aspects of life, with no distinction between moral, custom, and law.

“BRITISH PERIOD”

In the “early 17th century”, the “British” arrived in the “Indian subcontinent.” They were initially “unconcerned” about the countless regional and municipal constraints that existed across the region. When the “East India Company” established themselves as “civil rulers” in 1772, the first “Governor-General of Bengal,” “Warren Hastings,” instituted “uniform criminal law” with the intention of “equality before the law” for both “Hindus and Muslims.” In terms of “personal law,” he determined that the “laws of the sacred Quran” would bind to “Muslims,” while the “Shastras” would apply to “Hindus.” “After 1864”, the system of “court Hindu pandits” and “Muslim jurists” was dropped due to different understandings and certain charges of “corruption”, and the “personal laws” were handled by the court judges themselves.  The “Dayabhaga” digest was largely utilised in “Bengal”, although the “Mitakshara” digest, with its “four subcategories”, was used all over India, along with other traditions and customs.

The “British courts” adopted sectarian “Sunni” and “Shia” interpretations of “Shariat,” as well as “other sectarian traditions” and some “local customs” and usages, for “Anglo-Islamic personal law.” Throughout “British rule”, both “Anglo-Hindu” and “Anglo-Islamic personal law” evolved through reforms, law commissioners, and, most critically, case laws.

“Post-Independence”

Following “independence” in “1947”, initiatives have been undertaken to create a “single civil code” to handle “personal law” difficulties. It all started with the “Universal Hindu Code Bill,” which aimed to bring together “different regional cultures” and usages. It was cancelled in “1951” due to “significant resistance”.  Since the “Indian Constitution” made the word “secular” a defining component of the “Indian republic,” uniform” family law” has been considered as “discriminatory” and “unethical” in favour of the “Hindu majority population”. Similarly, the “parliament” passed  “Hindu Marriage Act (1955)”,  “Hindu Succession Act (1956),” “Hindu Minority and Guardianship Act (1956),” and “Hindu Adoptions and Maintenance Act (1956)” in 1955-56. (1956).   As a response, “Christians, Parsis, and Sikhs” have their own legislated “Marriage Acts,” while Muslims follow “Sharia,” and traditional communities continue to follow their “uncodified customary rules.”

IMPACT

 Many provisions in the “Indian Constitution” address “gender equality”. The Indian Constitution’s “preamble” (or preface) pledges to ensure “justice”, “liberty”, “equality”, and “dignity” for all. Furthermore, “Article 14” guarantees “equal legal treatment for all,” and “Article 15” forbids “discrimination” based on “religion, ethnicity, caste, gender, or place of birth.” As a result, the “concept of equality” is strongly featured throughout the Law. There are, however, constraints. For example, “Articles 25 and 26 of the Constitution” provide for “religious freedom”, which includes “freedom of conscience”, “freedom of profession”, “practise”, and “spread of religion”, as well as freedom to “govern religious affairs”. Religious communities have been using these boundaries to claim that changing their family rules would violate their “religious liberty”.

The aforementioned “gender equity” policy contradicts their customary legal strategies for those who adhere to “traditional religious principles.” For example, the “Laws of Manu” detail historic “Hindu religious legal practises” that provide for unequal treatment of law and punishment based on “person” and “caste”. “Gender inequality” is also prominent in “Islamic legal systems”. Such disparities in gender, in particular, hampered the establishment of an” unified civil code”, which has stayed an “unfulfilled aspirational clause” in the Constitution. To construct present “Hindu family legislation”, “traditional religious rules” were reorganised and liberal democratic notions were used. True gender equality, on the other hand, is still yet to be realised. Examples of gender disparity in modern Hindu family law include:

1) The “Hindu Marriage Act (section 5.iii)” specifies the “marriageable age” for a “girl” as “eighteen” and for a “boy” as “twenty-one”;

2) “The Hindu Inheritance Act” stipulates multiple ways of “intestate” (without a will) “property succession” for “male” and “female” intestates; and

3) “Section 6” of the “Hindu Minority and Guardianship Act” restricts a “mother” from acting as a “child’s natural guardian” until the father is deceased.

4) “Section 6” of the “Hindu Adoptions and Maintenance Act” bans a mother from giving her kid up for “adoption” unless the “father” is “deceased” or “otherwise unsuitable”.

Other ethical issues exist in achieving “gender parity” in “family law”, the most serious of which is a “lack of understanding” about “family laws” that are relevant to local communities. The proportion of poor Indians are unsure whether “dowry” or “minimum marriage age” are permitted. They are also unaware of the “legitimate grounds” for “divorce” as well as the “ban on bigamy” or “polygamy.”

The key statutes that fall under the purview of the “Family Courts Act” are as follows:

“The Hindu Marriage Act, 1955”:

This act codifies “Hindu marriage law”, focusing on the “validity”, “conditions” for “invalidity”, and “applicability of marriage”.

 “Specific Marriage Statute of 1954”:

The act establishes a special method of “civil contractual marriage (and divorce)” for all “Indian nationals”, regardless of “religion” or “faith” practised by the “spouses”. The “customary or religious rites or ceremonies” of marriage are not required to be observed under this act.

“Dissolution of Muslim Marriage Legislation, 1939”:

This act outlines the “dissolution of marriage” by “women” married under “Muslim law”, as well as the consequences of a “married Muslim woman” renunciating “Islam”.

“Foreign Weddings Act, 1969”:

This act governs “marriages” between “Indian citizens” living “outside” of India.

“The Indian Divorce Act of 1869”:

This law governs the “divorce” of persons of “Christian faith”.

 “The Parsi Marriage and Divorce Act of 1936”:

This law governs “marriage” and “divorce” among “Parsis”.

“Muslim Women (Protection of Rights and Divorce) Act, 1986”:

This act addresses the issues of “divorced Muslim women” and limits their claim to “maintenance” from their “former husband”.

“Muslim Personal Law/Application of Shariat Act, 1937”:

This act mandates “Muslims” in India to use the “Islamic Law Code” of “Shariat” in family or personal problems.

“Hindu Adoption and Maintenance Act (Hindu Adoption and Maintenance Act) of 1956”:

The law codifies the legal process of a “Hindu adult” adopting “children” as well as the “legal responsibility” to give “maintenance” to diverse family members.

“The 1872 Indian Christian Marriage Act”:

This law governs the “legalisation” of “marriages” between “Indian Christians”.

“Hindu Minority and Guardianship Act, 1956”:

The statute explains the “guardianship” relationships of “Hindus” involving the “adults” and “minors” as well as between people of “all ages” and their respective “property”.

 “Guardian and Wards Act, 1890”:

This is a “non-religious” and “universally” applicable law in India that governs matters with “child guardianship”.

“Criminal Procedure Code, 1973, Chapter IX”:

This section addresses the “maintenance” of “spouses”, “children”, and “parents”.

“Protection of Women from Domestic Violence Act, 2005”:

Under this statute, the “wife or female live-in partner” is protected from “family abuse” performed by the “husband or male live-in partner or his relatives”.  This rule also protects other “women” residing in the same house, such as “sisters, widows, or mothers.”

The “Family Courts Act” gives “state governments legislative authority” to establish “family courts” in “cities” and “towns” with a population of one million or more, and “discretionary authority” in cities and towns with a population of less than one million. Several governments, however, have failed to establish family courts for a number of reasons, ranging from financial and space constraints to lawyers who are opposed to any such initiative.

“HINDU LAW”

A “Hindu wedding” is considered a “ceremony rather than a contract.” A Hindu marriage must be “registered” under the “Hindu Marriage Act” in order to be highly “valid”. A few further requirements must be completed before a “Hindu marriage” can be defined by law. If a marriage is not formally protected or violates any of the Act’s significant “legal provisions”, it is intrinsically null and void, and annulment may be granted”. Some marriages can also be “cancelled” at the request of either party.

1. The “bridegroom” and “bride” must both be at least “21 years old.” If the “couple”, or either the “boy” or “girl”, has not reached the “maximum marriage age” and marries anyhow, the marriage is “not null and void.” The marriage can be “ended” at the “request of either side”.

2. “Close familial links” in the “uterine” or “consanguine lineage” are considered “within degrees” of the “banned relationship”, and the match should “not fall within the restricted degrees”.

“MUSLIM LAW”

“Nikah” is an “Arabic term” that means “contract” and is used to describe marriage. To be real, both members must be competent to enter into this contract, and both parties must make an “offer and accept” the other in the same sitting. ” Witnesses” are also necessary for the “marriage to be valid”, and they might be either “two males” or “one male and two females”.”

“Weddings” are classed as “Sahih (valid)” or “Batil (void),” corresponding to the “Hindu concept” of justifiable and “void weddings”. However, in “Muslim law,” the idea of “Fasid”, or “irregular marriage,” differs from the “concept of voidable marriage in Hindu law.” A “lawful marriage” is one performed between two consenting adults” who have met all of the “legal criteria” and “formalities”.

“Sahih”: When a “lawful marriage” is performed, the “relationship” has “legal consequences” in the form of rights and obligations for “both spouses”, such as the validity of “sexual intercourse,” the “validity of children”, and “shared inheritance rights”.   The woman is likewise subject to the “husband’s power of restraint” of mobility and “public appearance” as a result of the “marriage.”

“Batil”: A “void marriage” is one in which a marriage is formed without regard for the principles governing a recognized marriage and in which all stipulated requirements are broken. A “void marriage” is not a marriage and does not have any consequences, such as “rights or duties.”

“Special Marriage Act”

Although “many people” regard “marriage” as a “very religious” and “ceremonial occasion,” others opt to marry in a fashion that is not mandated by “religious authority”. This is especially true in “inter-caste” or “inter-religious marriages,” when it is easier to maintain “one’s religion” and marry officially rather than convert in order to have an “enforceable marriage” under “religion-based acts”. “Marriage” is deemed a “civil contract” under the “Special Marriage Act”. The “Special Marriage Act of 1954” was enacted with the intention of providing a “special form of marriage” for the “people of India” and all “Indian nationals” living “abroad”, regardless of “religion” or “faith” practised by either partner. It also does not require any “religious rites” or rituals, but it does mandate “marriage registration” and outlines the “grounds for divorce”.

 “Uniform Civil Code”

In India, the “idea of an overarching Civil Law Code” is known as the “uniform civil code of India.” A “unified civil code” applies the same set of “secular civil laws” to everyone, regardless of “religion”, “caste”, or “tribe.” This “supersedes” citizens’ rights to be governed by various “personal norms” depending on their “religion, caste, or tribe”.  Such rules exist in the development of developed countries. A “civil code” would frequently include statutes controlling “property, marriage, divorce, and adoption”. This word is used in “India,” where the “Indian Constitution” seeks to build a “universal civil code” for its people as a “Directive Principle,” or a “goal” to be attained.

In India, there has been a long-running controversies surrounding establishing a “Uniform Civil Code” due to a lack of personal perspectives. “Personal law matters” such as “adoption,” “maintenance,” “divorce,” and so on, on the other hand, are governed in India by standards derived from “religious scriptures conceptions”.

CASE LAWS

 Mohd. Ahmed Khan vs Shah Bano Begum And Ors 1985

It was referred to as a “contentious maintenance claim”.  Despite personal regulations, the Supreme Court granted maintenance to a “divorced Muslim woman” in this case. The Supreme Court found that “Section 125” of the “Criminal Procedure Code” also applies to “Muslims.” The Supreme Court concluded that the “C.r.P.C” is a “secular law” and that there is no conflict between the provisions of “Section 125” and those of the “Muslim Personal Law” regarding the “Muslim husband’s” need to provide support for a divorced wife who is unable to govern herself.  A “Muslim lady” is entitled to “maintenance” even after the term of “iddat”.

Shayara Bano v. Union of India and others

The Supreme Court ruled in “2017”that “Triple Talaq” was illegal in a momentous and landmark decision. The Supreme Court stated, “Given the fact that triple talaq is quick and permanent, it lacks the scope of arbitration that is essential to save matrimonial connections.” As a result, it is apparent that this kind of Talaq is plainly arbitrary in the sense that a Muslim man can break the marital tie capriciously and whimsically without even any attempt at reconciliation to save it. “Section 2” of the “Shariat Application Act of 1937” was declared unconstitutional inasmuch as it mandates “triple talaq.”

Harvinder Kaur v. Harmander Singh Choudhary

In this case, the court “rejected” the plea that personal law was “discriminatory” towards “Gender inequality” in India. It also observed that introduction of “Constitutional law” into the home (referring to “personal laws”) was most inappropriate

Sarla Mudgal vs. Union of India

The Court held that if a “Hindu” converts to “Muslim” and then have a “second marriage”, he cannot do so, irrespective of the fact that “polygamy” is allowed in “Islamic Law”

Chanmuniya  v. Virendra Kumar Singh Kushwaha

A “marriage” performed in the absence of “customary rituals and ceremonies” of either partner is “invalid”, according to “Section 7” of the “Hindu Marriage Act of 1955.” And merely intending to live together as “husband” and “wife” isn’t enough. Furthermore, there is no method for adding a woman who is not legally married within “Section 125” of the Code’s definition of “wife”, which should be construed to mean only an “officially wedded wife”.

Saroj Rani v Sudarshan Kumar

The legality of Section 9 of the Hindu Marriage Act” was attacked in this case. The wife petitioned for “restitution of conjugal rights” under “Section 9” of the “Hindu Marriage Act of 1955”. Her husband agreed to the passage of a decree granting the same.

 After a “one-year period”, the husband filed a “divorce petition” against the appellant under “Section 13” of the “Hindu Marriage Act, 1955,” on the presumption that, despite the fact that “one year” had passed since the “decree for restitution of conjugal rights,” no “actual cohabitation” had occurred between the party candidates. The Supreme Court affirmed the legitimacy of “Section 9” by stating that it serves a “social purpose” by assisting in the avoidance of relationship breakdown.

Balveer Singh v. Harjeet Kaur (Uttarakhand High Court)

The High Court referred to the challenged clauses and made a clear major observations in the case in deciding this issue:

1. On a cursory reading of “Section 9” of the “Hindu Marriage Act of 1955”, it appears to serve a distinctly new intention. The goal of “Section 9” of the “Hindu Marriage Act of 1955” is to cover a possible situation.

2. “Section 9” of the “Hindu Marriage Act, 1955” and “Section 13-A” of the “Hindu Marriage Act, 1955” are each designed to address a distinct sequence of events.

3. If “Section 9” of the “Hindu Marriage Act, 1955” is either “decreed” or “dismissed”, it will not take away a right of a party to file “Section 13-A” of “Hindu Marriage Act, 1955” for “dissolution of marriage” at any subsequent stage.

Githa Hariharan v. Reserve Bank of India

It is worth noting that “Section 4 (c)” defines a “natural guardian” as a guardian stated in “Section 6”. This definition section, while certainly in accordance with the “rule of statute interpretation”, should be checked subject to “Section 6” being one of the core provisions of the Act, and it is this “Section 6” that records that the “natural guardian” of a “Hindu minor”, in the case of a “boy” or an “unmarried girl”, is the “father”, followed by the “mother”.

CONCLUSION

“Family law” is “global” since it affects “everyone”. It is “alive” in the sense that it changes to “reflect” and “shape” the culture in which it exists. It is significant because it covers many other provisions of the law in ways that many other courses do not. And it’s “troublesome” because how a society and a justice process treat “families” reveals a lot about the “culture” and the “law’s character”. “Family law” is a “common vehicle” for dealing with important, relevant, and necessary issues in our lives. I hope that we, as lawyers, are able to assist in the struggle in a way that is thoughtful, wise, and humane. A careful look at family law-past, present, and future-is one way to do that.

REFERENCES

(1) “Report of the Special Rapporteur. Report of the Special Rapporteur. N.p., n.d. Web. 05 May 2013”.

(2) “Text of the Convention on the Elimination of All Forms of Discrimination against Women. UN News Centre. UN, n.d. Web. 05 May 2013”.

(3) “Alfred McCLUNG LEE, Editor, 1969, Principles of Sociology, Barnes & Noble Book Division of Harper & Row Publishers New York, Evaston, San Francisco, London”

(4) “Arnold W. Green, 1972, Sociology An analysis of life in modern society, McGRAW HILL Book Company”,

(5) “B. N. Mishra, 1991, Juvenile Delinquency and Justice System, Ashish Publishing House”

(6) “Ernest Havemann Marlene Lehtinen, 1986, Marriage & Families New Problems, New Opportunities, Prentice Hall, Englewood cliffs, New Jersey”

(7) “Ethel Klein, Jacquelyn Campbell, Estasoler Marrisa Ghez, 1997, Ending Domestic Violence Changing Public Perceptions/Halting the epidemic, Sage Publications viii. Flavia. Family Law. Vol. 2. New Delhi: Oxford UP, 2011. Print”.