Family Law: Basics As the the titl titlee indi indica cate tes, s, this this supp supple leme ment nt is inte intend nded ed to captu capture re impo import rtan antt conce concept ptss (marri (marriage age,, divorc divorce, e, succes successio sion n and the like) like) that that govern govern (and (and by coroll corollary ary,, affect affect)) a family. Although we come across such terms almost daily across various forms of media, these concepts have a precise (and very often, different from common understanding) common understanding) meaning e.g. a couple eloping and getting married in a temple would sound familiar to anyone who has watched a typical 70s 70s or 80s indi movie. owever, such a marriage would not !ualify !ualify as a marriage under marriage under indu "arriage Act, #$%%& 'his is one simple illustration of the difference between common understanding and legal legal (for (for the lack of a better word) # understanding "arriage, divorce and other related matters are a part of the *oncurrent +ist in the *onstitution of ndia - and hence the nion as well as /tate overnments may legislate legislate on these matters. matters. owever, owever, the nion overnment overnment has enacted enacted important important Acts (pertaining to 1amily +aw) and conferred the power to take care of specific issues such as appointment of authorities and procedure, on /tate overnments. 2eing aware of these concepts will help you in eneral 3nowledge as well as +egal Aptitude Aptitude (+egal 3nowledge as well as +egal Aptitude) Aptitude) sections. n this document, document, only salient concepts have been discussed.
Marriage
'o start with, you should be aware of different forms of marriage 4 at this stage it is pertinent to introduce various ways in which a marriage may be (legally) solemni5ed. 1or a couple belonging belonging to the same religion religion the options available available are6 (i) court marriage (discusses below) and (ii) traditional marriage 4 marriage in every religion is g overned by an Act 4 for indus (the term indu used in the Act includes 2uddhists, ains and /ikhs) the relevan relevantt Act is The Hindu Marriage Act, 1955 ("A), ("A), for *hristi *hristians ans it is The Indian Christian Marriage Marriage Act, 1!" (*"A), for arsis it is The #arsi Marriage and ("9A).. "usli "uslims ms marry marry : in accordance with "uslim ersonal $i%&r $i%&rce ce Act, 19'( ("9A) (;eligious< as prescribed in religious te=t) +aw 4 The Muslim #ers&nal Law )*hariat+ Alicat Alicati&n i&n Act, 19'! (as the name name indica indicates tes)) provid provides es for applicat application ion of "uslim "uslim ersonal +aw (/hariat) to ndian "uslims. Although the *onstitution of ndia (9irective rinciples of /tate olicy 4 Article >>) provides that the /tate shall secure a uniform civil #
ts the legal definition or understanding of a concept that matters 4 for obvious reasons.
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?ntry %, +ist , /chedule @ of the *onstitution of ndia. :
n all family law matters (marriage, divorce etc.), ndian "uslims follow the "uslim ersonal +aw � +/' -0#0 ;eplication or other unauthorised use of this material is prohibited by the copyright laws of ndia.
code, this has not translated into reality. 'he only e=ception is oa where a common *ivil *ode > is in force 4 this is a legacy of the ortuguese rule in oa %. 1or a couple belonging to different religions the options available are the same as above. owever, in order to solemni5e a legally binding traditional marriage, one of them has to convert to his her partners religion. *ourt marriage does not re!uire the couple to be of same religion. $egree &- r&hi.ited relati&nshi is a common feature of marriage laws. 'his phrase is used to describe certain categories of persons who cannot marry each other e.g. brother and sister. f you have followed the recent controversy about Khap panchayats B dictating terms and conditions of marriages, you might be aware that these Khap panchayats have demanded that gotra 7 be added as a category within the meaning of prohibited relationship under the "A.
$i%&rce
/ince the introduction of the Family C&urts Act, 19/ , a suit or proceeding between the parties to a marriage for an order or inCunction in circumstances arising out of a marital relationship is heard by 1amily *ourts. Do one is entitled to be represented by a lawyer in a 1amily *ourt. 1or divorce to come into effect, a 1amily *ourt should have awarded a decree of divorce. 'he relevant laws are "A, "9A, /"A, Indian $i%&rce Act, 1(9 (9A) (for *hristians) and The $iss&luti&n &- Muslim Marriages Act, 19'9 (9""A) (for "uslim women). 9ivorce leads to dissolution of marriage.
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oa *ivil *ode
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'he oa *ivil *ode is based on Codigo Civil Portuegese, #8B7. B
ut simply, a group of elders hearing matters assumed to be affecting the society. *ontrary to public perception (based on inaccurate information) these anchayats are restricted to few districts in aryana, few districts in Eestern ttar radesh and few districts in ;aCasthan 4 our media (most of it) loves to generali5e and of late the entire Dorth ndia and Dorthwest ndia has been portrayed to be in the grip of these anchayats. A piece of general gyan 4 never generali5e, there are intra
A gotra is the lineage or clan assigned to a indu at birth. n most cases, the system is patrilineal and the gotra assigned is that of the personFs father, however in some communities such as the Dairs of 3erala, the gotra is passed through the mother. � +/' -0#0 ;eplication or other unauthorised use of this material is prohibited by the copyright laws of ndia.
'hese Acts allow such a decree only on specific grounds as provided in these acts vi5. cruelty, adultery, desertion, impotency, venereal disease, not heard of being alive for a period of seven years.8
estituti&n &- C&n2ugal ights
Ehen two people are married, they owe obligations to each other and include cohabitation. Ehen either of them fails to fulfill such obligations or refuse to cohabit, the other person has a right to seek restitution of conCugal rights in a 1amily *ourt. 'o illustrate, if the wife starts staying away from her husband (without a decree of divorce) the husband may seek restitution of conCugal rights in a 1amily *ourt and such a court may direct his wife to stay with him.
3udicial *earati&n
As the term indicates, Cudicial separation is an order from 1amily *ourt allowing the petitioner $ not to cohabit with the respondent for a period of one year.#0 'he grounds for Cudicial separation are the same as divorce. f the parties (to an application for Cudicial separation are unable to sort out differences), the 1amily *ourt may award a decree of divorce. Maintenance
Gou might already be aware that this term is used to describe the payment made by a husband to his wife for her upkeep. Ehile basic understanding of this term as a payment by someone who earns to someone who is dependent on the former is correct, it is important to develop a holistic understanding of this term as used in the conte=t of various laws. C&de &- Criminal #r&cedure, 19!' )*ecti&n 1"5+ 6
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As per /. #08 of the ndian ?vidence Act, #87- when the !uestion is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. n other words, in such a case, the *ourt assumes that the person is dead. $
'he party presenting a petition to a court #0
'he party other than the petitioner < in a matrimonial case, if wife presents a petition, she will be the petitioner and her husband will be the respondent � +/' -0#0 ;eplication or other unauthorised use of this material is prohibited by the copyright laws of ndia.
f a man ## with sufficient means neglects or refuses to maintain his wife (who is unable to maintain herself) orH his legitimate or illegitimate minor child (unable to maintain himself or herself) orH his legitimate or illegitimate child (other than a married daughter) who has attained maCority, but (by reason of any physical or mental abnormality or inCury) is unable to maintain itselfH or his father or mother, unable to maintain himself or herself, a "agistrate (udicial "agistrate 1irst *lass) can order him to make a monthly allowance for the maintenance of his wife or child or father or mother as the case might be. The Hindu Ad&ti&ns and Maintenance Act, 195( (A"A)6
nder *ecti&n 1, wife can claim maintenance (provided she has not re
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1ollowing any religion # *oparcenary is a narrower body of persons within a Coint family consisting of father and his three male lineal descendants, and consists of father, son, sonFs son, and sonFs sonFs son. � +/' -0#0 ;eplication or other unauthorised use of this material is prohibited by the copyright laws of ndia.
The Muslim &men )#r&tecti&n &- ights &n $i%&rce+ Act, 19( 6
'his Act provides that a divorced "uslim woman shall be entitled to (a) reasonable and fair provision and maintenance to be made and paid to her within the iddat 1' period by her former husbandH (b) where she herself maintains children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such childrenH (c) an amount e!ual to the sum of mahr H1/ and (d) all property given to her before or at the time of marriage or after her marriage by her relatives or friends or by husband or any relatives of the husband or his friends. I$A6
/ame as "9A 4 discussed below. #M$A6
"9A recogni5es the right of wife to maintenance. 'he ma=imum amount that can e decreed by court as maintenance while matrimonial suit is pending in 1amily *ourt, is one
$&mestic 6i&lence ('he rotection of Eomen from 9omestic @iolence Act, -00%(E9@A)):
E9@A was enacted to protect the rights of women who are victims of physical abuse, se=ual abuse, verbal and emotional abuse and economic abuse (hereafter collectively referred as abuse) occurring within the family. 'his Act recogni5es live
Iddah or Iddat (period of waiting) is the period a woman must observe after the death of her spouse or after a divorce, during which she may not marry another man. 'he period is three months after a divorce and four months and ten days after the death of a spouse. #>
Mahr is a gift, mandatory in slam, which is given by the groom to the bride upon marriage. t is considered to be a form of appreciation, as well as providing certain guarantees for the woman. � +/' -0#0 ;eplication or other unauthorised use of this material is prohibited by the copyright laws of ndia.
$&wry $eath 6 *ecti&n '4/ B of the Indian #enal C&de, 1(4 lays down that where the death of a woman is caused by any burns or bodily inCury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subCected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called Id&wry deathJ and such husband or relative shall be deemed to have caused her death.
t is pertinent to note that the provision mentioned above is an e=ception to the principle (in criminal law) of resumti&n &- inn&cence vi5. the accused is innocent unless proven guilty. 'his principle stems from the +atin phrase Ei incumbit probatio qui dicit, non qui negat . #%
Ad&ti&n 6
indu law (A"A), "uslim +aw and the 7uardianshi and ards Act, 194 (AEA) are three distinct legal systems pertaining to adoption and guardianship. 'heres a difference between adoption and guardianship. A person who has been adopted assumes the rights of a child (including inheritance) in the family into which he she is adopted and loses such rights in the family he she was born in. Kn the other hand, a person under foster care or guardianship (called ward) does have a legal right of inheritance. 'his legal guardianship e=ists only until the child completes -# years of age. Adoption is recogni5ed in indu law but not recogni5ed in "uslim, *hristian and arsi law and as a result, "uslims, *hristians and arsis have to approach the 1amily *ourts under AEA for guardianship of a person. h& may ad&t under HAMA8
Any male indu who is of sound mind and is not a minor (with the consent of his wife) and a female indu who is of sound mind, is not a minor and is not married or if married, whose marriage has been dissolved or whose husband is dead or haas completely and finally renounced the world or has ceased to be a indu, or has been declared by a court of competent Curisdiction to be of unsound mind, has the capacity to take a son or a daughter in adoption. h& may .e ad&ted under HAMA8
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*heck the meaning of this phrase in the /upplement on mportant hrases. � +/' -0#0 ;eplication or other unauthorised use of this material is prohibited by the copyright laws of ndia.
A person can be adopted if he or she has not been married and he or she has not completed the age of fifteen years. f the adoption is of a son, the adoptive #B father or mother must not have a son, sons son or sons sons son living at the time of adoption. /imilarly, if the adoption is of a daughter, the adoptive father or mother must not have a daugher or sons daugher living at the time of adoption. Also, there must be a difference of at least twenty
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Kne who adopts. � +/' -0#0 ;eplication or other unauthorised use of this material is prohibited by the copyright laws of ndia.
