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Indian Family Law – I

Laws can be categorized as ‘Personal Laws’ and ‘Territorial Laws’. Personal Laws are applicable to the people of a particular religion such as Hindus, Muslims, Christians, Jews, etc. Territorial Laws are applicable to the people of the whole country irrespective of their religion.

In India, the Hindu Marriage Act, 1955 is applicable to Hindus, the Dissolution of Muslim Marriage Act, 1939 is applicable to Muslims, and the Christian Marriage Act, 1872 is applicable to the Christians.

This topic “Family Law – I” deals with the personal law of Hindus, Muslims and Christians with respect to the personal relationships of husband and wife, parent and child, etc. The other subject relating to the property relations of husband and wife, parent and child, etc., is covered in the topic titled “Family Law – II”, which is presented separately.

Who is a Hindu?

The term “Hindu” is derived from the Greek word “Indoi’, which refers to the inhabitants of the Indus Valley region. The law which governs the Hindu is called the “Hindu Law”. The following are the various Hindu Laws in India, which govern the relationship between Hindus in terms of both personal relationships and property.

1. The Hindu Marriage Act, 1955
2. The Hindu Succession Act, 1956
3. The Hindu Adoption and Maintenance Act, 1956
4. The Hindu Minority and Guardianship Act, 1956

The following persons are regarded as Hindu as per the act.

1. Any person who is a Hindu, Sikh, Jain or Buddhist by religion is a Hindu by religion. It also includes converts and reconverts to Hinduism, Sikhism, Jainism, or Buddhism.
2. Any person who is born of Hindu, Sikh, Jain or Buddhist parents, is a Hindu by birth. If only one parent is a Hindu, then he/she must be brought up as a Hindu to be regarded as a Hindu. It is immaterial whether the child is legitimate or illegitimate. It is also not necessary that the child has a faith in the parents’ religion.
3. Any person who is not a Muslim, Christian, Parsi or Jew domiciled in India and to whom no other law is applicable.

Alternatively, the above can be simply put together as follows: A Hindu is a person who is:

1. A Hindu by Religion
2. A Hindu by Conversion; or
3. A Hindu by Birth

A Hindu by Religion:
A Hindu by religion is a person who professes and practices any of the forms of Hinduism. The following gives an idea about the concept of Hinduism.

“Acceptance of the Vedas with reverence, recognition of the fact that means and ways of salvation are diverse and realisation of the truth that number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion”.

Thus, any person who has faith in the above fundamental principles is regarded as Hindu by religion.

A Hindu by Conversion:
Religious conversion is a process by which a person gets converted from one religion to another, by performing certain rituals or formalities or ceremonies. After conversion, he/she is called a “convert”. A non-Hindu can become a Hindu by fulfilling certain prescribed formalities. Similarly, if a convert reconverts to another religion, he is called a “reconvert”. For example, a Hindu who ceases to be a Hindu by conversion to a non-Hindu religion can become a Hindu again by reconverting into any of the four religions of Hindus viz. Hinduism, Jainism, Sikhism and Buddhism.

A Hindu by Birth:
A person born of Hindu parents is a Hindu by birth. Whether he practices or professes Hinduism or not is immaterial. According to the modern Hindu law, a person is a Hindu by birth in the following two cases.

Any child born to Hindu parents; or Any child, whose one of the parents is a Hindu at the time of birth and is brought up as a Hindu.

The child can be legitimate or illegitimate and that factor is immaterial to decide whether he/she is a Hindu or not. Similarly, the parents could subsequently convert themselves into a non-Hindu religion but that does not change the criteria for deciding whether he/she is a Hindu.

Who is a Muslim?

A person who professes Muslim religion is a Muslim. A Muslim is one who believes in oneness of God.

One can become a Muslim in the following two ways.

1. Muslim by origin
2. Muslim by conversion
1. Converts by profession of Islam; and
2. Converts by formal ceremonies.

Muslim by Origin:
A Muslim by origin is a person who believes in the basic tenets of Islam, namely.

1. The principle of unity of God – God is one; and
2. Mohammed is the Prophet of God.

Islam means peace of submission to God’s will.

A person is regarded as Muslim by birth in the following two case.

1. If he is born to Muslim parents (both parents are Muslims).
2. If he is born to parents, one of whom is a Muslim and is brought up as a Muslim.

It is immaterial whether the child is legitimate or illegitimate.

Muslim by Conversion: Conversion is a process by which one person converts from one religion to another. The person who got converted is called as a “convert”. Conversion can happy in the following two forms.

1. Conversion by profession of Islam:

A non-Muslim can become a Muslim by professing Islam i.e. by acknowledging that there is only one God and Mohammed is the Prophet of God. Mere profession is enough; motive is immaterial. If the convert does not practice Islam, it will not disqualify him to be a Muslim.


2. Conversion by formal ceremonies:

A non-Muslim can become a Muslim by performing certain prescribed ceremonies. The following simple ceremonies are usually required to be followed.
1. The person is required to go to a Muslim mosque.
2. The Imam will ask him whether he voluntarily embraces Islam?
3. If the answer to the question is Yes, then he is given a Kalma to recite.
4. On the completion of the recitation of Kalma, the person becomes a Muslim.
5. The Imam confers a Muslim name on the convert and the same name is recorded in the register of names maintained with the mosque.

Who is a Christian?

A Christian is one who professes the religion of Jesus Christ. Generally, a person who is baptized is a Christian. However, he does not become a Christian just become he is baptized, if he is not able to tell the world what is his faith. Similarly, a person who professes the religion of Christianity is a Christian, even though he is never baptized.

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Sources of Hindu Law

Source means the basis from which the law has evolved. In other words, it is the material out of which the law is eventually fashioned out by the judges. Hindu law is more than 6,000 years old. It is not only considered divine, but also sacrosanct, inviolable and unchangeable. It cannot be questioned, challenged or violated.

The following are the sources of Hindu Law.

1. Ancient or Traditional Sources
1. Sruti
2. Smritis
3. Digests and Commentaries; and
4. Customs


2. Modern Sources
1. Equity, Justice and good conscience
2. Precedent; and
3. Legislation

Ancient or Traditional Sources

1. Sruti (Vedas):
It is the primary and important source of Hindu law. The word Sruti literally means “what was heard”. In other words, it denotes what is heard by Rishis (Sages) from God, or it is the voice of God”. The word “Veda” means knowledge or to know. There are four vedas namely.
1. Rig Veda
2. Yajur Vea
3. Sama Veda
4. Atharvana Veda


2. Smritis:
Next to Vedas, Smritis are the most important source of Hindu Law. The word Smriti literally means “what has been remembered”. Sruti represents the direct words of God as heard by the sages, while Smritis represent what was remembered from the words of the God by sages. The early smritis are called “Dharmasuthras” and the later smritis are called “Dharmashastras.”

Gauthama, Vasistha, Vishnu, etc., are the main Dharmasuthras. They deal with the duties of man and his various relations. Dharmashastras deal with the same subject matter in a systematic manner. Manu, Narada and Yagnavalkya are some of them. Manusmriti is of great importance and is considered as a “reservoir of law”. It has 12 chapters containing 2,694 slokas.


3. Digests and Commentaries:
The rules enshrined in the Smritis are not clear and hence various scholars wrote digests and commentaries to facilitate the proper understanding of them. The digests and commentaries cover a period of 1,000 years from 700 A.D to 1,700 A.D. The important commentaries are of Manubhashya, Mitakshara, Dayabhaga, etc.


4. Customs:
Custom means “Acharya or Usages’, which are traditionally practiced by the members of the society. These customs are very important and form a good source to interpret the Hindu law in the administration of justice. The Supreme Court has recognized that the “Customs” as the supreme authority in Hindu Law. Custom is a bona-fide practice which is followed by people in general form from generations to generations and the starting point is unknown. For a custom to be valid, it must be ancient, continuous, reasonable and not contrary to the statutory law in force.

Modern Sources

1. Equity, Justice and Good Conscience:
The principle of equity, justice and good conscience as a source of law owes its origin to the beginning of the British administration of justice in India. Various high courts in India have established that when the law is silent on a point, the case should be decided based on equity, justice and good conscience.


2. Precedence:
Precedence means ‘previous instance’. In relation to law, it refers to the previous decisions taken by courts. Precedents are judge made laws. While interpreting the provisions of Hindu Law, sometimes the courts lay down new principles of law. Such new principles are considered as law itself and are used in solving similar problems in future. The law declared by the Supreme Court is binding upon all other courts under it. Similarly, the decisions of the High Courts are binding on all courts under it.


3. Legislation:
Legislation refers to ‘law making power’. The law-making body is called as the legislative body. Many changes were made to the Hindu Law to remove disabilities. The following are some of the legislative laws passed in India regarding Hindu Law.
1. Caste Disabilities Removal Act, 1850
2. Hindu Widows Remarriage Act, 1856
3. Child Marriage Restraint Act, 1929
4. Hindu Women’s Right to Property Act, 1937, etc.

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Codification of Hindu Law

Earlier, the Hindu Law was governed by the old Hindu Law and traditional principles, which had quite a significant number of defects and evil practices. To remove these defects, new principles were laid down and codified through legislative laws. The following are the four enactments which brought about significant changes to the old Hindu Law. These new laws along with the old principles are together known as the ‘Modern Hindu Law’.

1. The Hindu Marriage Act, 1955
2. The Hindu Succession Act, 1956
3. The Hindu Adoptions and Maintenance Act, 1956; and
4. The Hindu Minority and Guardianship Act, 1956

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Schools of Hindu Law

The schools of Hindu Law emerged from the Digests and Commentaries. There are two main schools, namely:

1. Mitakshara School; and
2. Dayabhaga School

Vijnaneswara’s commentary on Yajnavalkya Smiti is called as Mitakshara, which means ‘measured in words’. The Dayabhaga School got its name from a leading smritis by name Dayabhaga, written by Jimoothavahana.

Mitakshara Schools prevails all over India except the State of Bengal and Assam, while Dayabhaga prevails in Bengal and Assam. Mitakshara deals with all titles of law, while Dayabhaga deals with partition and inheritance.

The Mitakshara school is further divided into the following sub-schools:

1. Dravida or Madras School
2. Maharastra or Bombay School
3. Benaras School
4. Mithila School

Distinction between Mitakshara and Dayabhaga Schools



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Sources of Muslim Law

The following are the souces of Muslim Law.

1. Ancient Sources
2. Customs; and
3. Modern Sources

Ancient Sources:
There are four ancient sources of Muslim Law, namely:

1. The Koran (The Quran)
2. The Sunna (Tradition)
3. The Ijma; and
4. The Kiyas (The Quiyas)

All the schools of Muslim Law accept the first two (i.e. the Koran and the Sunna) as the primary source of law. With regard to the Ijma and Kiyas, as the sources of Muslim Law, there is a conflict of opinion among the various schools of Muslim Law and the Jurists.

1. The Koran (Quran):
The fundamental and primary source of Muslim Law is the ‘Koran’. It is the holy book of Muslims. It talks about principles of law and laws relating to family, state and polity. The contents of Koran have spiritual value and hence Muslims proclaim that their law cannot be changed/modified by the Union Parliament or the State Legislature.


2. The Sunna:
The term ‘Sunna’ literally means a path, a procedure, and a way of action. It has come to mean the utterances, deeds and the practices of the prophet. The Koran is said to contain the very words of God, while the Sunna embodies the practices, the deeds, the actions and the approvals of the Islamic religion.


3. The Ijma:
The Koran and the Sunna look to the past, while the Ijma and the Kiyas deal with the future of the Islamic jurisprudence. Ijma is the consensus of the Jurists. It is a concurrence of opinion of the companions of Mohammed and his followers. It may be defined as the “agreement of the jurists among the followers in a particular age on a particular question”.


4. The Kiyas (Quiyas):
It means ‘measurement’ in Arabic. The Kiyas is a process of deduction by which the law of a text is applied to cases, which though not covered by the language, are governed by the reason of the text. Shias (one of the sects of Muslims) do not accept Kiyas as a source of law.

Customs

Generally, there are only four primary sources of Muslim Law, i.e. Koran, Sunna, Ijma and Kiyas. The customs are not accepted as a primary source of Muslim Law. However, when mass conversions took place in India, the converts were allowed to follow their pre-existing law, which included customs in matters relating to inheritance. So, Khojas, Sunni Bohras, etc., who embraced Islam were allowed to be governed by the Hindu law of succession on the basis of custom. Similarly, the Muslim Law relating to Iddat was not recognized in Punjab according to customary law. Though, the customs or the customary law played an important role as a source of law, it was superseded with the passing of the Shariat Act, 1937.

Shariat means ‘the divine law or path to be followed’, as is found in the four primary sources of Muslim law. The Shariat Act, 1937, lays down the rules and regulations regarding succession, marriage, divorce, maintenance, dower, guardianship, gifts, trusts, and wakfs, etc.

In matters of adoption, wills and special property of woman, the courts will apply Muslim law if the parties make a declaration to that effect. If no such declaration is made, the courts may apply either Muslim law or Customary law or any other law.

Modern Sources:

During the British rule, the Muslim law has undergone many modifications. The following or modern sources have been applied to the Muslim Law.

1. Equity, Justice and Good Conscience:
The doctrine of equity, justice and good conscience is no exception to Muslim Law. Whenever the Muslim Law is silent, this doctrine is applied by the courts.


2. Precedent:
During British rule, the common law doctrine of precedent became a part of Muslim Law. Hence, precedents are part of the modern Muslim Law.


3. Legislation:
During British period, the rules proclaimed the policy of non-interfering with the personal law of the Indians. As a result, Muslim law suffered a lot. To rectify the defects, a few legislations were passed. The following are some of the main legislations.
1. The Shariat Act, 1937
2. The Mussalman Wakf Validating Act, 1913
3. The Mussalman Wakf Act, 1923
4. The Child Marriage Restraint Act, 1929
5. The Dissolution of Muslim Marriage Act, 1939, etc.

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Schools of Muslim Law

During the lifetime of Prophet Mohammed, there were no schools of Muslim Law and the Principles of Muslim law were uniform. After the death of the Prophet Mohammed, the question of succession to prophet arose. There were two conflicting views/opinions among the Arabs. One group supported election method/principle, while the other group supported the principle of inheritance. According to the first view (i.e. election method), the successor to Prophet Mohammed should be elected by the Muslim community. The other view (i.e. the principle of inheritance) the legal heir of the Prophet Mohammed should succeed. The members of the first group, who supported the election principle came to be known as ‘Sunnis”. While the other group, who supported the inheritance principle, came to be known as “Shias”. Thus, there are two main schools of Muslim law, namely.

1. Sunni Schools; and
2. Shia School

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The Hindu Marriage Act, 1955

Marriage: Its Objectives
Marriage is the nucleus of the family. It is a process by which the physical union of a man and woman is legalized and thereby regulates social life. In other words, the very foundation of the family and society is marriage. Hindus consider marriage as a necessary samskar and sacramental union which is permanent, indissoluble and eternal.

According to Mitakshara school of law, marriage has three objects, namely:

1. Dharma Sampatti: As per Vedas, the highest act of dharma lies in the performance of Yagnas and Sacrifices. Shastras do not allow a wife-less man to perform Yagnas or sacrifices or anniversaries of the ancestors. There must be a wife for honouring the guests, which is an act of Dharma. In those days, honouring the guests was regarded as act of Godliness.


2. Praja Sampatti: As per Vedas, marriage is one of the essential samskaras to have a son. The son by performing the religious ceremonies fulfills the object of Praja Sampatti. He can avoid the torturing of the soul of the parted ancestors by performing the funeral rights and other functions.


3. Rati Shukham: The third object is Rati Sukham the pleasure of sexual enjoyment. It is a biological necessity.

Conditions of Marriage:
As per the Hindu Marriage Act, the following conditions are essential for a valid marriage.

1. Monogamy:
   Neither party has a spouse living at the time of marriage.


2. Capacity and Free Consent:
   At the time of the marriage, neither party:
   
   1. Is incapable of giving a valid consent, to it in consequence of unsoundness of mind; or
   2. Though capable of giving a valid consent, has been suffering from mental disorder or such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
   3. Has been subject to recurring attacks of insanity or epilepsy.


3. Age Limit:
   The bridegroom has completed the age of 21 years and the bride, the age of 18 years at the time of marriage.


4. Degrees of Prohibited Relationship:
The parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits such a marriage, between the two.


5. Sapinda Relationship: The parties are not sapinda (legal heirs) of each other, unless the custom or usage governing each of them permits of a marriage between the two.

Marriage Ceremonies

There are three types of marriage ceremonies that are recognized – Sastric, Customary and Statutory. In all the three types, no marriage can be validly performed without certain formalities or ceremonies. Marriage ceremonies bring or confer sanctity and solemnity to the institution of marriage.

According to Section 7 of the Act, the marriage must have been solemnized in accordance with customary rites and ceremonies of at least one of the parties to the marriage. The act did not prescribe any form of ceremonies and left it to the choice of the parties concerned. The following two types of ceremonies are widely accepted as valid marriage ceremonies.

1. Kanyadan; and
2. Saptapadi

1. Kanyadan: It is a gift of the bride given by her father to the bridegroom. The act of Kanyadan puts an end to the dominion of the genitive family over the girl.


2. Saptapadi:
The word ‘Sapta’ means ‘Seven’ and ‘Padi’ means ‘Walking Steps’. Saptapada means walking or taking seven steps by the bridegroom and the bride jointly around the sacred fire pronouncing certain mantas and pledging mutual fidelity with the Agni or sacred fire as witness.


3. Customary Ceremonies:
The parties can also perform customary ceremonies which difer from caste to caste, etc.

For Example:

Example - 1
In the case, the marriage between a widow Reddy girl and a widower, was solemnized under the auspices of an Anti Purohit Association, by exchanging the garlands and rings. They read a declaration to share joys and sorrows of each other. The customary rites and ceremonies of either spouse were not performed. A few years after the marriage, the wife filed a petition compliant against her husband for the offence of bigamy. The husband challenged the validity of the marriage on the ground that no ceremonies of marriage were performed. The Madras High Court held that a marriage solemnized without religious rites and ceremonies is not valid.

Example – 2:
In this case, the complainant got married to a physician. She alleged that she married him thrice. Firstly, before moon, secondly in Kali Temple by exchanging garlands after taking seven steps and thirdly as an imitation of Sikh marriage before Guru Granth Sahib. Later, she lodged a compliant against her husband for the offence of bigamy. It was held that such mock ceremonies would not constitute a valid marriage.

Example – 3:
The Supreme Court held that ‘Homas and Sptapadi” are essential and non-performance of these rites would not constitute a valid marriage under the Hindu Marriage Act.

Registration of Marriage:
Section 8 of the Act empowers the State Government to make rules for registration of a marriage between two Hindus. Registration enables the parties to prove the marriage in the event of disputes.

Salient Features of the Hindu Marriage Act, 1955:

The following are the salient features.

1. It lays down uniform and comprehensive rules of marriage applicable to Hindus.
2. Marriage between persons belonging to Hindus, Jain, Sikh and Buddhists are allowed and valid.
3. Age Limit: The minimum age for marriage for boys is 21 years and for girls is 18 years.
4. Monogamy: Under the act, monogamy is made mandatory for the validity of the marriage. Monogamy means having only one spouse. The parties seeking marriage should not have a spouse living at the time of the marriage.
5. Widow Marriages: The Act permits widow marriages.
6. Degrees of prohibited relationship: There are certain prohibited relations which are recognized. Parties to a marriage should not be within those prohibited relations.
7. Forms of Marriage: Under the act, the different kinds of marriage ceased to exist. The parties can adopt any form of marriage prevailing in his/her community.
8. Marriage Ceremonies: The act does not prescribe any ceremonies. However, two ceremonies viz., Kanyadan and Saptapadi are essential for the validity of the marriage.
9. Registration: The act made provision for the registration of the marriage.
10. Restitution of Conjugal Rights: The act made provisions for the Restitution of Conjugal Rights. If one spouse leaves the other, the deserted spouse may file a petition in the District Court for the Restitution of Conjugal Rights under Section 9 of the Act.
11. Judicial Separation: The act made a provision for Judicial Separation, which means suspension of conjural rights for some period (i.e. one year)
12. Nullity and Annulment of Marriage: Termination of marriage is made possible under Section 11 and 12 of the act.
13. Divorce: Provision for dissolution of marriage is made through Divorce.
14. Legitimation: Provision for legitimacy of the illegitimate children is provided.
15. Maintenance of minor children: The act empowers the court to pass appropriate orders for the custody and maintenance of minors.
16. Divorce by mutual consent: Divorce my mutual consent has been recognized by the amendment act of 1976.

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Matrimonial Remedies

The very purpose of the marriage is to unite legally a man and woman live together peacefully throughout the life. However, in some cases, matrimonial disputes take place due to misunderstanding or indifferent attitudes between the husband and wife. In such cases, to provide relief to the aggrieved spouse, certain matrimonial remedies are provided in the Hindu Marriage Act, 1955. The following are the matrimonial remedies provided in the act.

1. Restitution of Conjugal Rights
2. Judicial Separation
3. Void and Voidable Marriage
4. Divorce
5. Divorce by mutual consent

1. Restitution of Conjugal Rights:
Marriage imposes an obligation on the wedded couple to live peacefully throughout the life. In case one spouse leaves the other from the matrimonial society without any reasonable cause, the other (deserted) spouse can file a petition in the District Court for the restitution of conjugal rights. The court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground as to why the application should not be dismissed, may provide a decree for restitution of conjugal rights.

For Example:
The respondent (wife) with the consent of her husband had undergone tailoring course and joined employment elsewhere. After sometime, she was asked to resign the job (by her husband). As she refused to do so, the husband filed a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. The court granted decree on the ground that “Wife’s first duty is to submit herself obediently to the authority of her husband to remain under the roof and protection.

An agreement to live separately is not valid. If the parties to marriage have entered into any such agreement then such agreement is void ab initio.

For Example:
In this case, the wife left her husband since two of his relations, suffering from T.B. (Tuberculosis) were staying with them. In an action against the wife under Section 9 of the act, it was held that there was a reasonable cause on the part of the wife to leave the matrimonial home.

Similarly, cruelty on part of the spouse can also be a valid reason to withdraw from marriage.

If the wife has a reasonable cause to withdraw herself from her husband’s society, she is entitled to maintenance and separate residence under Section 18 of the Hindu Adoptions and Maintenance Act, 1956.

2. Judicial Separation:
It refers to suspension of conjugal rights for some time, usually for one year. A decree of judicial separation does not dissolve the marriage. The parties would still be husband and wife but they need not live together during the period of judicial separation.

There are, generally, six grounds under which judicial separation is granted. The following are those.

1. Desertion
2. Cruelty
3. Leprosy
4. Venereal Disease
5. Insanity
6. Adultery

3. Void and Voidable Marriage:
A void marriage is one which does not fulfill any of the conditions mentioned for a valid marriage under the act. A voidable marriage (Annulment of Marriage) is one, which can be made valid at the option of one of the parties to the marriage. Usually, voidable marriages are marriages where one or more of the required conditions under the act have not been observed or fulfilled. The following are some of the grounds.

1. Impotency
2. Unsoundness of Mind
3. Use of force or fraud to obtain consent; and
4. Pregnancy by some other at the time of the marriage.

4. Divorce:
It is a process by which the marriage is dissolved. After dissolution of the marriage, the parties revert back to their unmarried status and are free to marry again. Either of the parties to the marriage can file a petition in the District Court praying dissolution of the marriage. The court, if satisfied with the grounds of the petition, may grant the decree of divorce. However, no petition for divorce can be filed within one year of the marriage.

The petition for divorce can be filed under any one of the following grounds.

1. Adultery
2. Cruelty
3. Desertion
4. Conversion to other religion
5. Insanity
6. Leprosy
7. Venereal Disease
8. Renunciation of world
9. Unheard for 7 years
10. After decree of judicial separation
11. After decree for restitution of conjugal rights

There are some grounds for divorce which are available to wife along. They are as follows.

1. Bigamy
2. Sexual Offences
3. Decree of order awarding maintenance
4. Repudiation of marriage

5. Divorce by mutual consent:
If both the parties to a marriage agree to dissolve their marriage, they can approach the courts by filing a petition together (jointly). However, the following conditions need to be satisfied before such petition can be filed.

1. Both the parties should file the petition for divorce jointly.
2. The parties should have been living separately for more than one year preceding the date of filing the petition.
3. They have not been able to live together; and
4. They mutually agree to dissolve the marriage.

After filing the petition, the parties may withdraw the petition. If not withdrawn, the courts may after six (6) months and before eighteen (18) months pass the decree for divorce, after hearing the parties.

If a divorce by mutual consent is sought and a petition for the same has been filed by both the parties jointly, then only one party cannot withdraw the petition on his own. The consent of the other party is required. That means, either both can file the petition jointly or both can withdraw the petition jointly.

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The Hindu Adoptions and Maintenance Act, 1956

The act was passed in the year 1956 and extends to the whole of India except the State of Jammu and Kashmir. It is applicable to Hindus only. It deals with Adoption and Maintenance.

Adoption

Introduction: Right from the Vedic age to the present day society, the strong desire among Hindus is to have a ‘varasa”, i.e. a naturally born legitimate son. The desire to have a son received supreme recognition since the son is regarded as a means of salvation. One of the main objects of the marriage is “Praja Sampatti”, which is made possible only by a son. However, if due to any reasons, a married couple are not able to have a son then they are permitted to adopt one. Earlier, under the old law, a boy (male child) could only be adopted. Now, under the new law, both a boy and girl child can be adopted.

There are some requisites for adoption. The following are those.

1. The person adopting must have the capacity to do so and shall also have a right to take in adoption.
2. The person giving in adoption must have the capacity and right to do so.
3. The person adopted is capable of being taken in adoption; and
4. The adoption is made in compliance with the conditions mentioned in the Hindu Adoptions and Maintenance Act, 1956.

Who may adopt?
Both males and females can adopt provided they satisfy the respective criteria for adoption.

Capacity of Males for adoption:
Any Hindu male, whether he is a bachelor, married or widower may adopt a boy or girl child provided the following conditions are met.

1. He must be of sound mind
2. He is not a minor
3. If he has a wife living then he must take the consent of her. The consent is not necessary if the wife has renounced the world or is of unsound mind.
4. If a male Hindu adopts a female child, the difference of age should be at least 21 years.

Capacity of Females for adoption:
Any Hindu female may adopt a boy or girl child provided the following conditions are met.

1. She is of sound mind
2. She is not a minor
3. She is not married. If she is married, then the marriage had been dissolved, or her husband is dead or has renounced the world or ceased to be a Hindu or has been declared to be of unsound mind by a court of competent authority.
4. If she adopts a male child, the age difference should be at least 21 years.

Who can give a child in Adoption?
According to the act, the father, mother or guardian can give a child in adoption, subject to certain restrictions.

The conditions to be fulfilled by a father for giving a child in adoption are similar to the conditions of the father taking a child in adoption.

A woman can give her son or daughter in adoption if her husband is not alive or or he has renounced the world or ceased to be a Hindu or has been declared to be of unsound mind by a court of law.

A guardian can give a child in adoption if the child’s parents are dead, or have renounced the world or have been declared to be of unsound mind by a competent court. The guardian must obtain a permission from the court before giving the child in adoption.

Persons who may be adopted:
A child (boy or girl) can be adopted provided the following conditions are satisfied.

1. He or she is a Hindu
2. He or she has not already been adopted
3. He or she has not been married unless the customs or usage permits
4. He or she has not completed the age of 15 years, unless the customs or usage permits and prevails in both the families giving and taking in adoption.

Apart from the above conditions, there are some other conditions that are required to be fulfilled. They are as follows.

1. The person taking a boy in adoption must not have a Hindu son, son’s son, or son’s son’s son, whether legitimate or illegitimate, living at the time of adoption.
2. The person taking a girl in adoption must not have a Hindu daughter or son’s daughter, whether legitimate or illegitimate, living at the time of adoption.
3. If a male takes a girl in adoption, he must be at least 21 years older than the girl.
4. If a female takes a boy in adoption, she must be at least 21 years older than the boy.
5. The same child (boy or girl) should not be adopted simultaneously by two or more persons; and
6. Actual giving and taking of the child should take place.

Effects / Consequences of Adoption: After adoption, the adopted child becomes the child of the adoptive parents and gets disqualified to perform Sradhas, Pinda Karma of his natural parents. The following are some of the consequences of adoption.

1. An adopted child is deemed to be the natural born child of his adopted parents.
2. All the ties of the adopted child with the original family stand extinguished from the date of adoption. That means, Kinship disappears in the original family and is born in the adoptive family. This rule is subject to the following exceptions.
1. The child cannot marry any person, whom he/she could not have married prior to the adoption.
2. The property vested in the child prior to the adoption shall continue to vest, subject to the obligations.
3. The adopted child shall not divest any person in the adoptive family of any estate, which is vested by him/her before the adoption
3. Payment of consideration for adoption is prohibited.
4. An adoption once made cannot be concealed since it is a matter of status, not a contract.
5. The adoption does not deprive the adoptive parents to dispose of their property unless there is an agreement to that effect.

Registration of Adoption:
The adoption can be registered through a written instrument signed by both the parties with the Registrar of Documents.

The Doctrine of Factum Valet:
After adoption, the child becomes the child of the adoptive parents and he/she gets disqualified to perform Shradha Karma, Pinda Karma and other rituals for the natural parents. However, in case there is no other person to perform the rituals for the natural parents then the child given in adoption can perform these rituals even though it is prohibited. This exception or doctrine is known as Factum Valet. This doctrine was recognized by both the Mitakshara and Dayabhaga schools of Hindu law.

Ante-Adoption Agreement:
It refers to an agreement before adoption. It is entered into between the natural parents and the adoptive parents before the adoption with regard to the rights of the adoptive child in the property of the adoptive parents. It is meant to protects the interest of the child.

Before adoption, the adoptive father is the sole surviving coparcener of his property and hence he can alienate the property as per his wish or will. If the property is self acquired by the adoptive father, then the adopted child after adoption does not have any rights to question about the alienation of the property by the adoptive father. However, if the property is inherited by the adoptive father, the adopted child becomes a coparcener in the property after adoption and hence there might arise some property disputes later on between the adoptive father and the adopted child, particularly if the adoptive father wishes to alienate the property to some other person other than the adoptive child. To avoid such disputes, the adoptive father (or parents) may resort to enter into an ante-adoption agreement with the natural parents of the adoptive child designed to protect the interest of the adoptive parents with regard to the alienation of the property. These ante-adoptive agreements are recognized by law and hence are valid.

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Maintenance

A Hindu has a personal obligation to maintain his wife, children and aged parents. If he does not maintain them properly then they may claim maintenance under the Hindu Adoptions and Maintenance Act, 1956.

Maintenance implies an obligation to provide certain basic needs such as food, clothing, shelter, etc., without which a person cannot survive.
As per the act, it includes the following.

1. Food
2. Clothing
3. Residence
4. Education
5. Medical attendance and treatment
6. In case of an unmarried daughter, reasonable expenses for her marriage.

Maintenance of Wife: A Hindu married woman who has been separated from her husband on reasonable cause, is entitled to claim maintenance under the following provisions.

1. Section 18 of the Hindu Adoptions and Maintenance Act, 1956
2. Section 24 and 25 of the Hindu Marriage Act, 1955
3. Section 125 of the Code of Criminal Procedure (Cr. P.C.)

The relief under Section 24 and 25 of the Hindu Marriage Act, 1955 is available to a married woman, who is unable to live on her own. That means she does not have a source of livelihood.

The relief under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 is available to a Hindu wife, even though she is able to live on her own.

Relief under Hindu Adoptions and Maintenance Act:
The relief is available to a married woman to claim maintenance from her husband throughout her life time, under the following circumstances.

1. If her husband is guilty of desertion without reasonable cause or without her consent or against her will or is willfully neglecting her.
2. If he is guilty of cruelty causing reasonable apprehension to her mind and that it will be harmful or injurious to live with him.
3. If he is suffering from a virulent form of leprosy
4. If he has an other wife living (bigamy)
5. If he keeps a concubine and resides with her elsewhere
6. If he has ceased to be a Hindu by conversion to any other religion; and
7. Any other reason justifying her to live separately.

However, according to this act, an unchaste wife is not entitled to claim maintenance.

Amount of Maintenance: The act empowers the court to determine the amount of maintenance, taking into consideration the following factors.

1. The position and status of the parties
2. Reasonable wants of the claimant
3. Justification of separate living by the claimant
4. Claimant’s earnings, value of her property and income from such property; and
5. The number of persons entitled to maintenance under the act.

Relief under Hindu Marriage Act:
A husband or wife can approach the courts under this section to claim maintenance, provided they are unable to live on their own. If a petition is pending before the court for restitution of conjugal rights or judicial separation or nullity or annulment of marriage or divorce, then the aggrieved party can claim for an interim maintenance. The quantum of maintenance under this act is generally 1/5th of the net income of the respondent, depending upon the circumstances of the case.

Permanent Alimony and Maintenance under Hindu Marriage Act: If one of the party is seeking permanent alimony under the act then he/she can claim maintenance. The relief under this act is available to both husband and wife. The relief is not available if the wife or husband has remarried or if the wife is not remained chaste or has had sexual intercourse with any other woman.

Maintenance of wife under Section 125 Cr. P.C. Right to claim maintenance under Section 125 Cr. P.C. is a special provision that is available to all including Hindus. The benefits of this section extends to wife, children and parents. When a husband neglects or refuses to maintain his wife without any lawful excuse, the wife may sue him under Section 125 Cr. P.C. for maintenance. The court may order the husband to pay a monthly allowance not exceeding Rs. 500/-.
In order to claim relief under this section, the wife.

1. Must not refuse to live with the husband without reasonable cause
2. Must now live in adultery
3. Must not live separately by mutual consent

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The Hindu Minority and Guardianship Act, 1956

It was passed in 1956 and applies to the whole of India, except the State of Jammu and Kashmir.

Minor: As per the act, the minor means a person who has not completed the age of eighteen (18) years.

Guardian: It means a person having the care of a minor or of his property or both and includes.

1. Natural Guardian
2. Testamentary Guardian
3. Guardian appointed or declared by a court; and
4. A person empowered to act as such by or under any enactment relating to any court of wards.

1. Natural Guardian:

1. In case of a minor boy or an unmarried girl, the father is the natural guardian. If the child is below the age of 5 years, the mother is the natural guardian.
2. In case of an illegitimate boy or girl, the mother is the natural guardian and after her, the father is the natural guardian.
3. In case of a minor married girl, the husband is the natural guardian.
4. In case of an adopted child, the adoptive father is the natural guardian. In the absence of adoptive father, the adoptive mother is the natural guardian.

Restrictions:
There are certain restrictions to the above, the following are those.

1. If he/she has ceased to be an Hindu; or
2. If he/she has completely and finally renounced the world by becoming a hermit or sage.

Powers of Natural Guardian: The guardian can do all acts that are legal and all such acts are deemed to have been done by the minor himself. However, there are a few restrictions to the powers of the natural guardian. The following are those.

1. The guardian cannot bind the minor by a personal covenant
2. The guardian shall obtain permission of the Court in case of Mortgage, Transfer by sale of gift, Lease for a term exceeding 5 years or for one year or more beyond the date of attaining the majority.

If there is any violation in the above restrictions, then such transactions become voidable.

2. Testamentary Guardian:
If a natural guardian, by executing will, appoints a person to act as the guardian of the minor, such person is called as “Testamentary Guardian”. The father or mother of a minor can appoint a testamentary guardian. In case of an illegitimate child, mother alone can appoint a testamentary guardian.

The testamentary guardian can exercise all rights just like a natural guardian, subject to the will of the natural guardian. A minor cannot act as a guardian of another minor.

3. De-facto Guardian:
It refers to the manager of a minor’s property. When a minor has no legal guardian, usually his near relations would look after that person and his property. Such relation of the minor may apply under the Guardians and Wards Act, 1890 for appointment as a guardian by the court. If he does not apply for the appointment as a guardian and straight away takes possession and manages the property of the minor, he is called the “de-factor manager” or “de-factor guardian”.

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Muslim Personal Law

Personal law is applicable to a particular religion. The Muslim Personal Law is applicable to Muslims only. The very foundations of the Muslim law is the Koran (Quran).

Marriage under Muslim Personal law: Unlike a Hindu marriage, which is treated as both sacrosanct and a civil contract, the Muslim marriage is only a civil contract. Nikah is the Arabic name which is usually used to refer to marriage, which literally means ‘the union of two sexes’.

As per some definitions, a Nikah is “a contract, which has for its object, the procreation and legalization of children”.

Essentials of a valid Nikah (marriage): The following are the essential conditions for a valid marriage.

1. Civil contract
2. Capacity of parties
3. Free consent
4. Prohibited degree of relationship

1. Civil Contract: A Muslim marriage is purely a civil contract. As in a contract, there are two parties. One party makes a proposal of marriage to the other and the other accepts the same. According to Shias, witnesses are not necessary. But according to Sunnis, two male witnesses or one male and two female witnesses, who are usually sane and adults should be present. Absence of witnesses renders the marriage irregular, but not void.

2. Capacity of Parties: The parties to the marriage must be competent to marry. As per Muslim law, a person, who is sane (of sound mind) and has attained puberty is competent to marry. The person, who has not attained puberty is a minor. The age of puberty for both a boy and girl is 15 years.

If a boy or girl, without attaining puberty is given in marriage, the boy or girl can repudiate the marriage after attaining the age of puberty or majority. This right shall be exercised within a reasonable time. In case of a boy, it should be exercised before the ratification of the marriage by payment of Dower or Mahr. Mahr is the amount of cash or property paid by the bridegroom to the parents of the bride at the time of marriage or later, in consideration for the marriage or for cohabitation.

All the restrictions with regard to the option of puberty have been abolished by the Dissolution of Muslim Marriage Act, 1939. According to Section 2 of the Act, a Muslim wife is entitled to the dissolution of her marriage if she proves that the marriage has not been consummated or the marriage took place before she attained the age of 15 years or she has repudiated the marriage before attaining the age of 18 years. Mere repudiation does not render dissolution of the marriage. The dissolution must be confirmed by a competent court.

3. Free Consent: For the marriage to be valid, the parties must be freely consented to. If the consent is obtained by force or fraud, it is no consent and the marriage is not valid.

4. Prohibited degree of relationship: The parties to the marriage should not be within prohibited degrees of relationship. The prohibition may be:

1. Absolute Prohibition; and
2. Relative Prohibition

The absolute prohibition renders the marriage void. While the relative prohibition renders the marriage irregular.

Absolute Prohibition:
It is further sub-divided into:

1. Prohibited degree of relationship
1. Consanguinity: It means blood relationship. A marriage between the following relations is prohibited and void.
1. Mother and Son
2. Grandmother (however high so ever) and grandson (however low so ever)
3. Brother and Sister
4. Uncle and Niece (how low so ever); and
5. Nephew and Aunt (how high so ever)
2. Affinity: It means relationship by marriage. A man should not marry his:
1. Wife’s mother or grandmother, how high so ever
2. Wife’s daughter or grand daughter, how low so ever
3. Wife of father or paternal ancestor
4. Wife of son or son’s son or daughter’s son, how low so ever.
3. Fosterage: It means foster relationship. If a woman suckles the child of another, foster relationship is created. Thus, a marriage between two person having foster relationship is prohibited.


2. Polyandry: If a woman has two husbands, it is called “bigamy”. If she has several husbands, it is called “Polyandry”. A Muslim man can have four wives at a time. But a Muslim woman cannot have more than one husband. If so, the marriage is void.

Relative Prohibition: It refers to irregularities such as absence of witnesses, polygamy (man having several wives), marriage during Iddat period, etc. The relative prohibition renders the marriage irregular but not void.


Iddat Period:
When a Muslim marriage is dissolved by death or divorce, the woman is required to remain in seclusion for a specific period. During this period, she is prohibited to remarry. This period is called “Idda” or “Iddat”. Muslim Law lays down that one should not marry a woman, who is undergoing idda. During this period of Idda, her husband also cannot remarry. After the completion of idda, the woman can lawfully remarry. This prohibition is imposed with a view to ascertain the pregnancy of the woman so as to avoid confusion of paternity.

When a marriage is dissolved by divorce, the woman must perform idda of three menstruation courses or three lunar months. If it is found that she is pregnant, then, the period of idda continues, till she delivers the child. If the marriage has not been consummated, she need not observe idda and is free to remarry immediately.

When the marriage is dissolved by death of the husband, the wife is to observe idda, irrespective of whether the marriage is consummated or not, for a period of four lunar months and 10 days. If the woman is found pregnant at the time of the death of the husband, then the period of idda is four lunar months and ten days or until she delivers the child, whichever period is longer.

A marriage performed during the period of idda is not void, but irregular. But, under the Shia law, it is void. During idda, the woman is entitled to maintenance.


Muta Marriage:
It means a temporary marriage for a fixed period i.e. for a day, a few days, a few weeks or years. Muta marriage is recognized under Shia law. A Shia male can contract a marriage with a woman, who is a fire worshipper. But, a Shia woman cannot contract a muta marriage with a Muslim man. The period of marriage is fixed by entering into an agreement between the parties on payment of some consideration.


Dower (Mahr):
In a Muslim marriage, the bridegroom promises to pay the bride, a certain sum of money or property in consideration for marriage. This amount is called as Dower or Mahr. The dower is paid to the parents of the bride and is regarded as a mark of respect to the bride.

The main object of dower or mahr is to provide a livelihood to the wife and children in the event of divorce. In other words, it protects the wife, against her husband in exercising the right of divorce. It also supplements the widow’s share in her husband’s estate after his death. The amount of dower can be fixed either before or at the time of marriage. It can also be increased after the marriage.

The dower is confirmed by consummation of the marriage or by a valid retirement or by the death of either the husband or the wife. A wife has every right to realise the dower.

The wife can remit a part or whole of the dower in favour of her husband or his heirs. The remission must be made in free consent.

If the dower is not paid, the wife can enforce it by filing a suit against her husband. If she dies, her legal heirs can sue. The period of limitation for filing the suit is 3 years.

Dissolution of Marriage:
Dissolution of marriage means putting an end to the marriage. It is a process by which the marital relationship between the husband and wife is extinguished. In Muslim law, marriage is not a sacrament and is purely a civil contract. A Muslim marriage may be dissolved under the following circumstances.

1. At the instance of husband (Talak).
2. By mutual consent.
3. By court against a petition for divorce by either of the spouses (Judicial Divorce).

1. At the instance of husband (Talak): Any Muslim, who is of sound mind and has attained puberty can divorce his wife, whenever he desires by pronouncing talak. Talak can be effected either orally or by written document called as “Talak Nama”. It can be pronounced even in the absence of the wife to either a Kazi or the wife’s father or other witnesses.

Modes of Talak:
The following are the different modes by which talak can be effected.

1. Talak Ahsan: It consists of a single pronouncement during the period of purity – i.e. between two constructive menstruations.
2. Talak Hasan: It consists of three pronouncements in three successive periods of purity – i.e. between four constructive menstruations.
3. Talak-ul-biddat or talak-i-badai: It consists of three pronouncements in a single or separate sentences. This kind of divorce becomes irrevocable immediately at the option of the husband.
4. Contingent divorce: A divorce may be pronounced so as to take effect on the happening of a event in future.
5. Delegated divorce: The husband can delegate his power to the wife or to a third person. The delegation of power is generally irrevocable.

2. Divorce by mutual consent: Since a marriage under the Muslim law is a civil contract, it can be dissolved by mutual consent of both the parties. There are two types of such consent, namely.

1. Khula: It is a divorce which takes place at the instance of wife. But, it is effected with the mutual consent of the husband. She offers consideration to the husband for releasing her from matrimonial tie. She also discharges the husband from dower debt, if any. When the offer from the wife is accepted, it is irrevocable.
2. Mubaraat: In this case, both the parties desire to have a separation. Offer may proceed from either of the parties. When the ofer is accepted by the other party, the divorce is valid.

3. Judicial Divorce (under the Dissolution of Muslim Marriage Act, 1939)
Section 2 of the Dissolution of Muslim Marriage Act, 1939 provides for various grounds for the dissolution of marriage by a woman. They are as follows.

1. Absence of husband
2. Failure to provide maintenance
3. Imprisonment of husband
4. Failure to perform mutual obligations
5. Impotency of the husband
6. Insanity of the husband
7. Repudiation of marriage
8. Cruelty of the husband
9. Any other ground, recognized by the Muslim law.

1. Absence of husband:
If the husband’s whereabouts are unknown for four (4) years or more, the wife can go for divorce. The decree comes into force after 6 months. During this period, if the husband appears and prepares to join the matrimonial home, the court may set aside the decree.

2. Failure to provide maintenance:
If the husband fails to provide maintenance to his wife for two (2) years or more, the wife can go for divorce. Such failure to maintain may be willful or due to poverty or any other reason.

3. Imprisonment of husband:
If the husband has been sentenced to imprisonment for 7 years or more, it is a ground for divorce by wife.

4. Failure to perform mutual obligations:
If the husband fails to perform mutual obligations for a period of three (3) years without reasonable cause, it is a ground for divorce.

5. Impotency of husband:
Impotency means inability to have sexual intercourse. It is a ground for divorce. The decree is not operative if the husband satisfies within one year that he is potent.

6. Insanity of the husband:
Insanity of husband for a period of two (2) years is a good ground for divorce by wife. If the husband suffers from leprosy or venereal disease, it is also a ground for divorce.

7. Repudiation of marriage:
It means to avoid marriage. The wife is entitled to divorce by repudiation of marriage under the following circumstances.

1. If the marriage has not been consummated.
2. If the marriage took place before she attained the age of 15 years.
3. If the marriage is repudiated before she attained the age of 18 years.
4. If the marriage of a minor girl is contracted by any guardian other than the father or father’s father.

8. Cruelty of the husband:
It includes both physical and mental ill-treatment by husband.

9. Any other ground:
In addition to the above, any other ground recognized by the Muslim law.

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Christian Law

Special Marriage Act, 1954:
The Special Marriage Act was passed in the year 1954. It applies to the whole of India except to the State of Jammu and Kashmir.

Under this act, any two persons (of opposite sex) irrespective of their religion can get married. In other words, the Act provides the validity of marriage between men and women irrespective of caste and religious restrictions.

Conditions for a valid marriage under the act:
A marriage to be valid should satisfy the following conditions.

1. Monogamy: Neither party should have a spouse living at the time of marriage.
2. Must not be of unsound mind: Both the parties must be of sound mind.
3. Age limit: The boy should have completed 21 years of age and the girl should have completed 18 years of age.
4. Prohibited relationship: The parties to the marriage are not within the degree of prohibited relationship.

Procedure for solemnization of marriage:

1. Notice: The parties to the marriage shall give a notice in writing to the Marriage Officer of the District. At least one of the party should have resided for a period of not less than 30 days immediately preceding the date of such notice.
2. Publication of notice: A true copy of the notice shall be filed in the “Marriage Notice Book”.
3. Objection to marriage: When the notice is published, any person can raise an objection to the proposed marriage. Then, the marriage officer has to make necessary enquiry and can pass the appropriate orders. The parties can file an appeal before the District Court against the order within 30 days.
4. Declaration: The declaration of marriage has to be signed by the parties to the marriage in front of three witnesses and the same is countersigned by the marriage officer.
5. Place and form: The marriage may be solemnized at the office of the marriage officer or within the reasonable distance from the office. If the marriage is to take place outside the office, the parties must be ready to pay the additional fees.

After the marriage is solemnized, a certificate is issued to the parties.

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The Christian Marriage Act, 1872

According to the Christian law, marriage is a permanent union of one man and woman to the exclusion of all others. The Indian Christian Marriage Act was passed to regulate marriage among Christians. Under the act, marriage can be solemnized/performed between Indian Christians and non-Christians.

A marriage to be valid under the act, the following conditions are to be satisfied.

1. At least one of the party to the marriage must be a Christian.
2. Neither of the spouse has a spouse living at the time of the marriage.
3. The marriage must be performed by a licensed person/persons authorized to conduct marriage under the act.
4. The boy should not be less than 21 years of age and the girl should not be less than 18 years of age.

End of Notes

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