Family Law | Aug. 10, 2024

Understanding the Basics of Family Law in India

This Blog has been written by Yashpriha Rai 3rd Semester (2^nd Year), New Law College

INTRODUCTION

Family law in India is a vital aspect of the legal system, addressing various issues related to personal and familial relationships. The diversity of India’s population is reflected in its family law, which is shaped by religious beliefs, statutory regulations, and personal statutes. This article provides an in-depth overview of the basic components of family law in India, focusing on marriage, divorce, child custody, and maintenance.

Family Law consists of five types of Law in India

Hindu Marriage Law
Muslim Marriage Law
Parsi Marriage Law
Christian Marriage Law
Special Marriage Law

We will go through each of them separately in this article and dive into the specifications such as the maintenance, divorce, child custody etc.

HINDU MARRIAGE

Sikhs, Jains, Buddhists, and Hindus are all covered by the Hindu Marriage Act of 1955. The legal requirements for marriage are outlined in this Act and include registration and meeting specific requirements. According to the Act, a person must be of sound mind, not be in a relationship that is forbidden, and be at least the legal marriage age, which is 21 years old for men and 18 years old for women.

The Section 8 of the Hindu Marriage Act 1955, talks about the registration of the Hindu Marriage. It says that:

Hindus can use the provision as evidence from the state government to get married legally and according to the rules.
As soon as they are prepared, all rules created under this Section must be submitted to the state legislature.
After receiving payment, the Hindu marriage registrar is granted the authority and sufficient time to examine the paperwork, gather supporting documentation, and certify them.

Section 11 and 12 of the Hindu Marriage Act 1955 talks about the void and voidable marriage. Specifically, Section 11 defines a marriage as void if it contravenes certain prohibitions, such as bigamy or marriage within prohibited degrees of relationship. Section 12, on the other hand, outlines the grounds on which a marriage can be declared voidable, including cases of non-consummation of marriage, impotence, or fraud.

Under Section 13 of Hindu Marriage Act 1955 a Hindu can seek for divorce under following conditions such as Adultery, Cruelty, Desertion, Conversion to another religion, Unsound Mind etc. Furthermore, a wife may seek divorce under section 13(2) under the conditions such as rape, sodomy or bestiality.

One of the most important provisions of the Hindu Marriage Act, 1955 is maintenance, which is meant to provide financial support to people who are unable to maintain themselves following a divorce or separation. The Act permits maintenance to be awarded to a spouse who is unable to support themselves because of a variety of circumstances, including separation, divorce, or marital strife. The wife, any minor children, and, in some situations, the husband if he requires assistance, may all receive maintenance. There are two types of maintenance an interim and a permanent.

Under the Hindu Marriage Act, 1955, child custody is primarily governed by the principles of the child's welfare and best interests. When a marriage is dissolved or when there are disputes regarding child custody, the Act mandates that the court's primary concern should be the overall well-being and development of the child.

MUSLIM LAW

Muslim law has been derived from various codified and uncodified sources like – Quran, Ijma, Qiyas, Customs and various legislations. In India Hanif school of Islamic law is dominant.

The marriage contract, or Nikah, is seen as the harmonisation in the Islamic context, primarily serving to further the interests of the persons involved. A written document is not necessary to prove the existence of a marriage contract under Sharia law.

There are some essentials that is needed during an Islamic wedding such as the parties should be competent, meaning sound mind, should be a major and a Muslim. Secondly, there should be offer and acceptance. Thirdly, there must be a witness present during the Islamic Wedding.

Registration of the Muslim Marriage is necessary and has to be done under the Section 3 of the Muslim Marriage Registration Act,1981. It says that “Every marriage performed between Muslims after the beginning of this Act, shall be documented, within thirty days from the completion of the Nikah Ceremony,

The divorce under Muslim Law is governed under Dissolution of Muslim Marriage Act, 1939 and the Talaq proceedings are held under the Muslim Personal Law.

In accordance with Section 3 of the Women Protection Act,2019, it is not permissible or legal for the husband to give his wife the triple talaq in any form be it online, verbally, or in writing.

According to Section 4 of the Women Protection Act 2019, a person faces a three-year prison sentence and a fine if they offer their wife talaq in the way specified in Section 3 of the Act.

Divorce under the Muslim Law is Classified into two ways. First, by the death of the parties and secondly, by Mutual Consent.

Under Muslim law, divorce is governed primarily by Sharia principles, which outline several forms of divorce, including "Talaq," "Talaq-e-Talaq," and "Talaq-e-Hasan." The fundamental provision for divorce is found in the Quran and Hadith, which allows a husband to unilaterally pronounce divorce by repeating the word "Talaq" three times, provided certain conditions are met, such as the observance of a waiting period ("Iddat"). This process is codified under the Dissolution of Muslim Marriages Act, 1939, which provides additional legal recourse for women seeking divorce, including cases of non-maintenance, desertion, or cruelty.

Section 2 of the Muslim Marriage Act allows Muslim women to seek dissolution of marriage through the courts under specified conditions, ensuring a formal judicial process for addressing grievances and securing rights. The waiting period ("Iddat") serves to ensure that any potential reconciliation is explored and to ascertain if the woman is pregnant, thus establishing clear legal and social parameters for the dissolution of marriage.

Under Muslim law, maintenance is primarily governed by Sharia principles, which require that a husband provide financial support to his wife during the marriage and for a period after divorce. The core principle is that the husband must fulfil his financial obligations to ensure the well-being of his wife and children. This is codified in various sections of the Dissolution of Muslim Marriages Act, 1939, which provides legal recourse for women seeking maintenance. Specifically, Section 3 of the Muslim Marriage Act stipulates that a divorced woman is entitled to maintenance during the 'Iddat' period, which is a waiting period intended for reconciliation and to determine if the woman is pregnant.

Child custody under Muslim law, known as "Hizanat," is primarily focused on the welfare of the child, considering factors such as age, gender, and the child's best interests. According to Hanafi jurisprudence, the mother generally has the right to custody of her male child until the age of seven and her female child until the age of puberty. Courts have the authority to step in and decide cases based on the best interests of the child, in accordance with the larger Islamic legal principles of justice and welfare, if there are disagreements or worries about the mother's capacity to care for the kid.

PARSI MARRIAGE LAW

The legal framework for Parsis in India regarding marriage, divorce, child custody, and maintenance is governed by the Parsi Marriage and Divorce Act, 1936. This act specifically addresses the unique customs and practices of the Parsi community.

According to Section 3 of the Parsi Marriage and Divorce Act, 1936, a Parsi marriage is considered valid if it is solemnized according to the Parsi religious ceremony called "Ashirvad" and is conducted in the presence of a Parsi priest and two witnesses. According to the Act, two Parsis may only get married if they are both of sound mind and have attained the age of 21, for men, and 18 for women.

A child cannot be punished although one of their parents is not their legal parent, according to Parsi law. The offspring of a null marriage are therefore regarded as legitimate children. Even if the marriage was null and void due to violations of the requirements specified in section 3(1) of the Act, the child born into an invalid marriage is just as legitimate as if he had been the offspring of a valid marriage.

Under the act, several grounds for divorce are detailed in Sections 32 and 32B of the Parsi Marriage and Divorce Act, 1936. These include adultery, cruelty, desertion for a continuous period of at least two years, and other circumstances such as mental disorder and communicable diseases. The act allows for both judicial separation and divorce by mutual consent. Section 32B, introduced through an amendment, permits divorce by mutual consent, provided the couple has lived separately for at least one year and mutually agree to dissolve the marriage.

The act's Sections 39 and 40 of the Parsi Marriage and Divorce Act, 1936 address maintenance provisions. Section 39 permits a husband to provide maintenance for his wife both during and after their marriage. Taking into account both his financial means and his wife's requirements, the court has the authority to order the husband to provide alimony or maintenance. While the divorce is pending, the woman may request interim maintenance under Section 40.

Section 49 of the Parsi Marriage and Divorce Act, 1936 deals with child custody in the Parsi community. The welfare of the child is the main factor taken into account while determining custody. The child's best interests are put first when deciding custody arrangements, which is within the court's discretion. The child's age, gender, and general wellbeing are among the elements that the court may consider when deciding which parent should be granted custody. Both parents are entitled to request custody.

CHRISTIAN MARRIAGE LAW

In India, the legal framework governing Christian marriage, divorce, child custody, and maintenance is primarily outlined in the Indian Christian Marriage Act, 1872, and the Divorce Act, 1869.

Under the Section 4 of the Indian Christian Marriage Act, 1872, marriages among Christians are solemnized by a Minister of Religion, Marriage Registrar, or a licensed person. The Act under section 60 mandates the parties to be of sound mind and not related within prohibited degrees of consanguinity. Both parties must provide their consent voluntarily, and the bride must be at least 18 years old while the groom must be at least 21 years old.

Christian divorce is governed under the Indian Divorce Act of 1869. The Act's Section 10 permits the dissolution of a marriage for a variety of reasons, including adultery, conversion to another religion, insanity, cruelty, abandonment for a minimum of two years, and a deliberate failure to carry out the marriage.

Maintenance provisions are included under Section 37 of the Indian Divorce Act, 1869. The Act allows the wife to seek maintenance from her husband post-divorce or judicial separation, based on the husband's financial capacity and the wife's needs. The court considers various factors, including the duration of the marriage, the wife's age, health, and conduct, and the husband’s ability to pay, to determine the amount of maintenance.

Under Christian personal law, the Indian Divorce Act of 1869 also addresses child custody. Sections 41 and 42 allow the court to include provisions for minor children's custody, maintenance, and education in addition to awarding a decree of divorce, judicial separation, or nullity. Making sure the child's best interests are met is the main priority when it comes to welfare.

Special Marriage Law

The Special Marriage Act of 1954 is a law in India that provides a special form of marriage for individuals, irrespective of their religion or faith. It aims to facilitate the registration of marriages and ensure the rights of those who choose to marry under this act. The act covers various aspects, including marriage, divorce, child custody, and maintenance.

The Special Marriage Act of 1954 is a progressive law that ensures the legal recognition and protection of marriages, while also safeguarding the rights of individuals in matters of divorce, child custody, and maintenance.

Notifying the Marriage Officer of one's intention to marry is the first step towards formalizing a marriage under the Special Marriage Act. For thirty days, the notification is made available to the public, giving time for any complaints. The marriage is recorded and a certificate is given if no objections are voiced. This law guarantees that religious differences will not prevent two people from being legally united and allows interfaith marriages.

A variety of reasons, including adultery, desertion, cruelty, mental illness, venereal disease, and mutual consent, may be used to file for divorce under the Special Marriage Act. Divorce may be requested in district court by any party. In addition, the statute allows for judicial separation, which keeps the marriage intact but permits the spouses to live apart.

The term "maintenance" describes the monetary assistance one spouse may be expected to give the other both during and following a divorce. According to the Special Marriage Act, maintenance can be paid by either the husband or the wife, based on the demands and financial situation of the spouse who is requesting it. When deciding on the amount and duration of maintenance, the court takes into account various variables, including income, property, and the behaviour of both parties.

Child custody issues under the Special Marriage Act are dealt with primarily in the best interests of the child. The court considers the welfare of the child, including factors like the child's age, health, and emotional ties with the parents. Custody can be granted to either parent or jointly, and the non-custodial parent is typically granted visitation rights.

CONCLUSION

In summary, family law in India covers a wide range of topics, including child custody, maintenance, divorce, and marriage, with the goal of defending the rights and obligations of everyone involved in familial interactions. People can secure justice and fairness in family-related concerns and manage personal matters with clarity by being aware of these legal laws.