Why do we have Family Laws?
Family Laws encompass the broad set of rules that are in practice regarding family matters, such as marriage, divorce, inheritance etc. There are some legally enforceable rights and duties that arise when one gives legal validation to the status of interpersonal relationships.
The justification for having laws that affect the most private aspects of our life is to ensure protection of individual rights and to uphold certain norms that are essential to human dignity. Another reason is that laws act as agents of social change and may succeed in improving the status of individuals in society.
Where are the legal principles embodied in these laws derived from?
There are five broad sets of family laws in India – Hindu law, which governs all Hindus as also Buddhists, Jains and Sikhs; Muslim law for the Muslims; Christian law for the Christians; Parsi law for the Parsi’s and a secular law i.e. the Special Marriage Act. The religion-based laws are derived from religious texts. These laws have also been amended from time to time by parliamentary legislation.
Hindu law has been substantially altered on account of extensive legislation enacted post-independence. Christian and Parsee laws have been changed more recently in the last few decades through legislation. Muslim law has been the least modified and hence retains most of the text and interpretation of the times when its religious texts were written.
Hindu Law
A Hindu marriage is treated as a sacrament and not a contract. For a Hindu marriage to have legal validity, it must mandatorily be registered under the Hindu Marriage Act. There are some other conditions that must be fulfilled for a Hindu marriage for being legally valid. If a marriage is not legally valid, or contravenes certain grave aspects of the law which are specified in the Act, the marriage is automatically null and void and annulment can be granted to it. There are also some marriages that are voidable at the option of either party to the marriage.
The bridegroom must be at least 21 years of age, and the bride must have attained the age of 18 years. However, if the couple or either the boy or girl have not attained the minimum required age for marriage and yet get married, it is not void. The marriage is voidable at the option of either party.
Another aspect of a valid marriage is that close family relations in the ‘uterine’ or consanguine lineage are said to be within degrees of prohibited relationship and the match should not fall within the prohibited degrees.
Under Hindu law, the ‘degrees of prohibited relationship’ refers to the proximity of the two individuals through their lineal ascendants and the law states that a match may not be made within those degrees.
Point of interest!
This provision has a scientific basis as it is known that the offspring’s physical and mental health may be affected by the proximity of the relationship. However, if the custom or usage of either party permits the relationship, it will not be treated as an invalid marriage.
–> Example: Akash and Mira are consenting adults who decide to get married. They have a simple ceremony and get registered at the Marriage Registrar’s office. However, it is found that through a long-lost relative, Mira and Akash were previously related as 4th cousins. (They shared a set of great-great-great grandparents) Their marriage will not be valid under the Hindu Marriage Act.
It is important that neither party has a spouse living at the time of marriage, as bigamy and polygamy are prohibited and are treated as offences under Indian criminal law.
Also, it is necessary that both parties be of sound mind and capable of giving consent, and they should not be unfit for marriage and procreation of children. The law adds that neither party should be subject to recurrent attacks of insanity and epilepsy.
The law provides that any marriage that violates these conditions is voidable and may be nullified at the desire of the affected party.
–> Example: Kishore and Neha were married in the summer of 1994. While they cohabited, Kishore observed that Neha displayed symptoms of mental illness, as sometime she spouted random words and also acquired a glazed look in her eyes. He realized that her insanity resulted in a voidable marriage and took another wife.
He has not committed bigamy. An annulment is a retroactive provision. A nullified marriage is considered never to have existed at all. It, unlike divorce, declares the marriage void ab initio.
There are two events that confirm the completion of the marriage, one is the solemnization of the marriage that takes place during the customary rites and ceremonies practiced by the parties and the other is the registration of the marriage.
Till recently it was not mandatory to register marriages, but the plight of deserted women seeking maintenance and custody of their children, without proof of a valid marriage, prompted the Supreme Court to direct the Centre and states to amend the legislations accordingly. Prevention of child marriage, bigamy and ease of litigation are other positive outcomes from the registration of marriage.
Where rituals include the Saptapadi (seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage is said to be solemnized once the seventh step is taken.
Laws Governing Matrimonial Disputes
The disputes that take place between the married couple, relating to issues that arise out of the practices and customs of marriage, are known as matrimonial disputes. These issues include withdrawal from the other’s society without reasonable cause, mental illness at the time of marriage, desertion of the spouse for a continuous period of 2 years etc., which result in different remedies, such as restitution of conjugal rights, annulment or divorce.
There are many types of reliefs available to couples suffering from matrimonial problems, which include restitution of conjugal rights, judicial separation etc.
Restitution of Conjugal Rights
If either spouse has, without reasonable cause, withdrawn from the society of the other, the aggrieved spouse can approach the court for restitution of conjugal rights. This enforces the rights that derive from the wedded state of the couple. The court would expect the explanation of the defence of ‘reasonable cause’ from the defendant.
Annulment
When either spouse makes an application to nullify the marriage, certain grounds have to exist. It is a procedure by which a marriage is nullified in that it is declared to have never existed at all. It is usually difficult to prove and not many cases have granted annulment as a remedy. However, it covers a range of situations, such as:
Either party was already married to someone at the time of marriage
The parties are not Sapindas of each other
The parties are not within the degrees of prohibited relationship
Dissolution
Before the codification of Hindu marriage laws, the position on dissolution of marriages was very rigid and did not allow dissolution except under certain specified grounds. However, after independence, the law provided for a few grounds on which a marriage could be legally dissolved. The procedure for doing so is known as a divorce.
A case for Judicial Separation would look into grounds of a similar nature to that of a case for divorce. But legal separation only entails physical separation for some time and does not change the married status of the parties. This is not the case with a divorce, where if a couple gets divorced, and intend to get back together, they must remarry.
Divorce:
Divorce is the procedure for dissolution of the marriage. If a couple or one of the parties feels that their marriage is over for reasons of desertion, adultery, bigamy or others as specified in the Act, they may approach the court to grant them a divorce.
A divorce is a momentous proceeding and it results in many upheavals in the married life of the parties. Consequent to a divorce, there are other issues such as custody of the children and maintenance to the dependents, such as the wife and children.
Maintenance in Hindu Law
Maintenance is an ancillary relief – in that it does not arise independently, but will be granted along with and as a consequence of relief such as divorce, custody, redressal of domestic violence.
Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she loses her right if she deviates from the path of chastity. Her right to maintenance is provided for in the Hindu Adoption and Maintenance Act, 1956.
In assessing the amount of maintenance, the court takes into account various factors like position and liabilities of the husband. It also judges whether the wife is justified in living apart from husband. What is ‘justifiable’ is determined by reasons spelt out in the Act.
Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit will be borne by either, husband or wife, if the other spouse has no independent income for his or her support. The same principle will govern payment of permanent maintenance.
The Parsi Marriage and Divorce Act, 1936 recognizes the right of the wife to maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband’s net income. In fixing the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to pay, own assets of wife and conduct of the parties. The order will remain in force as long as wife remains chaste and unmarried.
The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law and the same considerations are applied in granting maintenance, both alimony pendente lite and permanent maintenance.
Laws of Inheritance
The laws of inheritance are diverse and complicated. The rules of distribution of property in case a person dies without making a will are defined by every Law of succession. These rules provide for a class of persons and percentage of property that will be inherited by such persons. It must be remembered that it is preferable that one should make a will to ensure that one’s actual intension is manifested.
The Indian Succession Act, 1925, defines a Will as follows:
“A Will is the legal declaration of the intention of the testator, with respect to his property which he desires to be carried into effect after his death.”
Important postulates of a will are as follows:
The documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it and it must be signed and attested, as required by law.
The declaration should relate to disposition of the property of the person making the Will.
A will becomes enforceable only after the death of the testator. It gives absolutely no rights to the legatee (the person who inherits) until the death of the testator. It has no effect during the lifetime of the testator.
The testator can change his will, at any time prior to his death, in any manner he deems fit. The essence of every Will is that it is revocable during the lifetime of the testator.
Codicil
A Codicil is an instrument made in relation to a Will, which explains or alters or adds to the declarations made in the Will. For all legal and practical purposes, it is to be deemed a part of the Will.
It is generally used to make certain modifications to the Will while leaving the other parts intact. Such as, if the testator wishes to change the name of the Executor or wishes to include a few more beneficiaries without altering anything else, he may make a codicil. The Codicil must be reduced to writing and the written document must be signed by the Testator and attested by two Witnesses.
Will
A will or testament is a legal declaration expressing the wishes of a person, containing the names of one or more persons who are to manage his estate and provide for the transfer of his property after his death. The person who prepares such a will is known as the testator.
A Will is a very important legal document as it denotes the wishes of a person who cannot be consulted again. If there is no will, or the will is found not to be valid, the property will be divided and transferred as per the rules of intestate succession. The Will contains a nomination of a person as the ‘executor’ of the Will. This executor will have to follow the instructions given in the Will and distribute the property in it accordingly. When a Will is being written, correct procedure requires the presence of witnesses.
The person who carries out the wishes of the testator after his demise is known as the executor.
Is it possible for the executor also to receive property or will it be a conflict of interest?
The Executor may be named as a beneficiary in the Will, but it is not allowed for a beneficiary to also be a Witness to the Will.
Probate: A probate means a copy of the Will, certified under the seal of a competent Court. This seal of the Court gives power to the person who is named as the executor in the Will, to carry out the instructions written in the Will and distribute the property within. It is the official evidence of an executor’s authority.
Does every Will need a Probate?
After the death of the person concerned, a proceeding may be initiated in court to determine the validity of the will that the testator may have created, known as a probate proceeding, which will satisfy the legal requirements. In most cases, during probate, at least one witness is called upon to testify or sign a “proof of witness” affidavit. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted.
Provisions for a valid Will:
For executing the Will the person must be fully competent, as much as he should not be a minor and should not person of unsound mind.
The Will has to be in writing and has to state that the person executing the same is making it out of his own free will and in a sound disposing state of mind.
It has to be signed by the executor of the Will and has to be attested by two witnesses at least.
However under the provisions of law the Will is not requiring in writing no required to be signed or attesting.
The Will under law is not required to be compulsory registered.
What is the effect of grant of a probate?
A probate granted by a competent court is proof of the validity of the will, and the right of the executor named in the Will to represent the estate of the deceased.
However, it only establishes the legal character of the Will and the executor and in no way decides upon the manner of distribution of the property, and does not even determine whether the property referred to is in existence.
–> Example: Ramlalji created a Will in which he gave all his property to his wife. This Will was challenged by his brother in the Court, and he demanded a probate. The Probate was granted and the Will was declared valid. However, of the property he had willed, one of them did not belong to him. When this was again challenged by his brother, Ramlalji’s widow countered that the Will had been declared valid by the court, and the suit was barred by Res Judicata.
The suit is not barred by Res Judicata because the Probate only grants validity to the form of the Will, not the substance.
Hindu Law of Succession
The Law of succession determines the manner of distribution of a deceased person’s property, in the event that there is no Will or equivalent document that declares the intent of the owner of the said property.
The Hindu Succession Act, 1956 is law that was passed by the parliament of India in 1956 to amend and codify the law relating to intestate or unwilled succession, among Hindus. It is hailed for its consolidation of Hindu laws on succession into one Act. The Hindu woman’s limited estate is abolished by the Act. Any property, possessed by a Hindu female, is to be held by her absolute property and she is given full power to deal with it and dispose it of by will as she likes. The Act was amended in 2005 by Hindu Succession (Amendment) Act, 2005.
Who does it apply to?
The Hindu Succession Act applies to all those who practice the Hindu religion as well as those who fall under the term Hindu within the Indian Legal system, including Buddhists, Jains, and Sikhs. This law of succession provides for the method of distribution of property (known as devolution) in case the deceased passes away without leaving behind a Will.
Dying without leaving behind a will is known as dying intestate.
Chapter Two: Islamic Law
Islamic Law
Iddat or idda is a period during which a woman is forbidden from remarrying. It amounts to a period of 3 menstrual cycles of the woman after divorce or dissolution of the marriage. After the death of the husband, it is a period of 4 cycles and ten days. The rationale behind this concept is to avoid confusion regarding paternity of any offspring the woman may have.
If the woman is found to be pregnant at the time of dissolution of the marriage or during her husband’s death, the period of iddat continues until she gives birth to the child.
Marriage
Nikah is an Arabic term which means ‘contract’ and is used to refer to marriage. So, for the marriage to be valid, both parties must be competent to enter into this contract and there must be an offer by one party, and an acceptance by the other, in the same sitting. The presence of witnesses is also required to make the marriage valid, and it may constitute two male witnesses, or one male and two female witnesses.
Similar to the Hindu codified concept of valid and void marriages, there are Sahih (valid), Batil (void) marriages. However, the concept of Fasid or irregular marriage in Muslim law is not like the concept of voidable marriage in Hindu law.
A marriage performed between two consenting adults who have fulfilled all the legal requirements with all the necessary formalities is a valid marriage.
Sahih: Once a valid marriage is conducted, certain legal consequences in the form of rights and duties flow from the relationship, such as, the legality of sexual intercourse, legitimacy of the children, and mutual rights of inheritance for both parties. The marriage also subjects the wife to the husband’s power of restraint of movement and public appearance.
Batil: When a marriage is performed without any regard to the rules laid down for a valid marriage, and is in violation of all the legal requirements, it is a void marriage. A void marriage is no marriage and no legal consequences such as rights or duties flow from it. Void marriages include those between people within prohibited degrees of relationship, or the second marriage of a married Muslim woman.
–> Example: Aisha married her second cousin, who is within the prohibited degrees of relationship, for the purpose of getting an American visa. A year later she married Jamal. This is not a void marriage as the first marriage was never validated. Her marriage to her second cousin was void ab initio and therefore did not render her marriage to Jamal void.
Fasid: A voidable marriage under Hindu law is valid until it is annulled, and no third person can take a stand regarding the matter. However, an irregular marriage under Muslim law is ineffective until the time of consummation.
The marriage may be terminated at any time, either before or even after consummation, by either party expressing the intention to do so.
But if it is terminated after consummation, the wife is entitled to dower and will be required to observe iddat.
Dower or Mehr: Mehr is conceptually understood as consideration for marriage. It is generally a sum of money or any other property that the bride or the bride’s guardian receives as consideration for the marriage.
Dower is an integral part of the marriage, and is not the same as dowry. In fact, the Dowry Prohibition Act explicitly prohibits mehr from the definition of dowry.
Dissolution of Muslim Marriages:
A Muslim husband may divorce his wife by ending the marriage without giving any reason. He can pronounce the words ’talaaq’ three times which signify his intention to disown his wife. But he may also divorce by Ila, and Zihar which differ from talaaq only in form, not in substance.
Before 1939, a wife could not divorce her husband of her own accord. She could divorce him only if the husband had agreed to give her the right or on the grounds of false charges of adultery, insanity or impotency of the husband. But the Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the basis of which a Muslim wife may get her divorce decree passed by the order of the court.
There are two categories of divorce under the Muslim law:
1) Extra judicial divorce, and
2) Judicial divorce
Point of Interest!
There is a unique feature to the dissolution of Muslim marriages. Despite the legislations that have been passed that have modified and reformed Islamic law, the arbitrary extra-judicial power of the husband to divorce his wife by pronouncing talaq three times still remains.
The pronouncement of talaaq gives a definitive end to the marriage and the couple is essentially divorced. But there also exist forms of repudiation of the marriage that amount to ‘constructive divorce’. A constructive divorce is one where the fact of repudiation is not specifically stated, but the husband takes an oath not to cohabit with his wife and does not do so for a period of 4 months, the marriage is understood to be dissolved. This practice is known as Ila. However, after the 4 months, if the couple cohabits, then the marriage is not considered dissolved.
There is another form of ‘constructive divorce’ known as Zihar, where the husband expresses his dissatisfaction with his wife by comparing her with anyone within the prohibited degrees of relationship, such as his mother or his sister. This comparison must be made in the light of the relationship they share.
The wife acquires a right to refuse cohabitation with her husband in such a case, and if the husband does not undertake a penance to reconcile with her, she can seek judicial divorce on those grounds.
–> Example: Javed was helping his wife Ada in the kitchen one day, and he remarked that she ought to learn how to make firni from his sister, as she had a very good recipe for it. Ada immediately took offence as she considered it to be Zihar and refused to cohabit with him. However, this does not amount to Zihar as he did not make the remark in the context of forbidding his wife to himself.
–> Example: Abbas learnt that his wife had stopped wearing the traditional headdress in public and had begun to dress provocatively. To teach her a lesson, he compared her to his mother and said she was as forbidden to him as his mother was. This is adequate to construe Zihar.
Before 1939, a wife could not divorce her husband of her own accord. She could divorce him only if the husband had agreed to give her the right or on the grounds of false charges of adultery, insanity or impotency of the husband. But the Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the basis of which a Muslim wife may get her divorce decree passed by the order of the court.
Polygamy: Another unique feature of Islamic personal law is that a Muslim man is allowed to take up to 4 lawful wives and cohabit with them on condition that the previous wife / wives does not have an objection and can continue to live in the same house.
With regard to maintenance, a woman who refuses to cohabit with her husband for reasons of bigamy or polygamy is not entitled to maintenance.
If the divorce is initiated by husband he has to pay the woman any Mehr that remains unpaid. If the divorce is initiated by the wife, and the husband is found to be at fault by the arbiters she does not lose her Mehr. But if she cannot prove his fault, she has to return to her husband whatever Mehr amount she has already received. If the wife initiates the divorce without any grounds, this is called ‘khula’ and she must return whatever the husband has given her in consideration for the marriage.
There is no concept of ancestral property or rights by birth in Islamic law.
Muslim law recognises that persons may leave behind a will, but a will (unless ratified by all the heirs of the person leaving behind the will) is valid only to the extent of one-third of the deceased’s property. Insofar as it is valid, it is governed by the regular laws applicable to wills in India.
A Muslim wife cannot be dispossessed, even though she has to share with other wives if there is more than one wife. The widow gets a definite share. The male heirs, the sons, get twice the share of the daughters.
Residuaries: The residuaries are the final group of people who are entitled to the estate, if any, left after the sharers have received their respective shares. Of course, this is only a broad rule and there are several just and equitable exceptions to this rule.
Failing any Sharers or Residuaries, the next level of relations who would succeed to the estate of a deceased Muslim male or female, are a class of persons known as Distant Kindred.
Special Marriage Act
Although marriage is seen as a deeply religious and ceremonious affair by many, some prefer to get married in a way that is not governed by the religion-based laws. This is especially the case with inter-caste or inter-religious marriages as it is more convenient to retain one’s religion and marry legally than convert for the sake of a legally valid marriage under the religion-based acts. Under the Special Marriage Act, marriage is treated as a civil contract.
The main reason behind passing the Special Marriage Act, 1954 was to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party.
Also, it does not entail any religious ceremonies or rituals but requires the registration of marriages and lays down the grounds for divorce.
Who can marry under this Act?
The principle aspect of marriage under this Act is that it is performed irrespective of caste or religion and provides for inter-caste marriages and extends to prospective NRI spouses as well.
What are the requirements for a valid marriage under the Special Marriage Act, 1954?
The boy and the girl need to give a written notice in a specific form that is available with the Marriage Registrar.
A notice is also to be sent to the district of residence of either of the parties by the marriage officer. The marriage performed under the Special Marriage Act, 1954 is a civil contract and accordingly, there are no rites or ceremonial requirements.
The solemnization may take place at the Marriage Office. The marriage is not binding on the parties unless each party states “I, (A), take thee (B), to be my lawful wife (or husband),” in the presence of the Marriage Officer and three witnesses.
What are the conditions for marriage under the Special Marriage Act, 1954?
Each party involved should have no other subsisting valid marriage. In other words, each party should be monogamous.
The bride groom must be 21 years of age; the bride must be 18 years of age.
The parties should be competent in regards to their mental capacity to the extent that they are able to give valid consent for the marriage.
The parties should not fall within the degree of prohibited relationship
Uniform Civil Code
Uniform civil code of India is a term referring to the concept of an overarching Civil Law Code in India. A uniform civil code administers the same set of secular civil laws to govern all people irrespective of their religion, caste and tribe. This supersedes the right of citizens to be governed under different personal laws based on their religion or caste or tribe. Such codes are in place in most modern nations.
The common areas covered by a civil code include laws related to acquisition and administration of property, marriage, divorce and adoption.
This term is used in India where the Constitution of India attempts to set out a uniform civil code for its citizens as a Directive Principle, or a goal to be achieved.
There has been a long-drawn debate in India over formulating and applying a Uniform Civil Code irrespective of religious leanings. But presently in India, issues under personal law such as adoption, maintenance, divorce etc. are governed by codes drawn from interpretations of religious texts.
Family Courts Act: For speedy disposal of disputes concerning family matters, the Parliament enacted the Family Court Act, 1984. The object of the act is to establish special family courts by state governments in every city or town with a population exceeding 1 million. One of the important aspect of the act is that it is a social and beneficent legislation. It was enacted with a view to amicably settle family disputes, with stress on conciliation and peaceful settlement of disputes.
Chapter Two: Other Family Laws
Dowry Prohibition Law
Dowry is a social malaise plaguing Indian society. In 2001 alone, there were seven thousand deaths of young women that were linked to their husbands or to members of his family. Experts on domestic violence have claimed that the actual number may even be higher. Such homicides have been tied to resentment over a dowry that is considered too stingy. In other cases, the husband’s family demands more goods after the wedding.
The demand of Dowry has been a highly prevalent practice in India, especially among the Hindus in North India. Dowry is a kind of valuable property that is given by the bride’s father to the groom upon marriage. With the Dowry Prohibition law in place, the number of dowry related incidents have decreased, but still occur in some parts of India.
The law criminalises anyone who gives or takes or abets the dowry transaction and prescribes a stringent punishment to those indulging in the practice.
Since the passage of this law, women have become more empowered and are encouraged to report any demand that the groom or his relatives may make for dowry.
Section 304B of the Indian Penal Code inserted a definition for ‘dowry death’ describing it as: the death of a woman caused by any burns or bodily injury or which does not occur under normal circumstances within seven years of her marriage.
For a woman’s death to be a dowry death, it must also be shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. If this is proved, the woman’s husband or relative is presumed to have caused her death.
Whoever commits dowry death is required to be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
–> Example: Nonita was being harassed by her husband and in-laws for a high-end car and some appliances as dowry payment. She routinely suffered verbal abuse and beatings, but she did not reveal anything to anyone about the harassment. One day, a year after the marriage, she succumbed mysteriously to burns. It will be difficult to prove that she was subjected to harassment and died a dowry death.
–> Example: In 2003, Nisha Sharma cancelled her own wedding just before it was set to take place to Munish Dalal. His family allegedly demanded $25,000 at the wedding, and her father said he did not have that kind of money. The Dalals began to hurl abuses and quarrel with the Sharmas. Nisha called the police, and her father filed a complaint against the groom and his parents for demanding a dowry.
Domestic Violence Law
Countless women face abuse and cruelty at home at the hands of their spouses, physically, mentally and economically. Till the year 2005, remedies available to a victim of domestic violence in the civil courts (divorce) and criminal courts (in case of adultery) were limited. There were many shortcomings with the remedies that then existed:
(a) There was no emergency relief available to the victim;
(b) The remedies that were available were linked to matrimonial proceedings;
(c) The court proceedings were usually protracted, during which period the victim was invariably at the mercy of the abuser.
A law was passed in 2005 which sought to protect women from the violence they faced in their own homes. It was the first significant attempt in India to recognise domestic abuse as a punishable offence, to extend its provisions to those in live-in relationships, and to provide for emergency relief for the victims, in addition to legal recourse.
The law provides that if an abused woman requires, she has to be provided alternate accommodation and in such situations, the accommodation and her maintenance has to be paid for by her husband or partner.
The law, significantly, recognises the need of the abused woman for emergency relief, which will have to be provided by the husband. A woman cannot be stopped from making a complaint/application alleging domestic violence.
A woman who is the victim of domestic violence will have the right to the services of the police, shelter homes and medical establishments.
An injunction is a relief given by the Court to either party which is not the final relief and it does not bring the case to a conclusion. It includes relief such as custody and maintenance while the suit is pending.
She also has the right to simultaneously file her own complaint under Section 498A of the Indian Penal Code.
Section 498A of the Indian Penal Code says discusses cruelty being inflicted on a woman by her husband, and prescribes a punishment for the same.
In practice, cruelty is taken to include the demanding of a dowry. This section is non-bailable, non-compoundable (i.e. it cannot be privately resolved between the parties concerned) and cognizable (i.e. the police can arrest the accused without investigation or warrants) on a report from a woman or close relative.
–> Example: Ayesha Siddiqui is an educated housewife who got married a year ago. Her husband accused her of having an affair and the verbal anger turned into beatings. She filed a case under the Domestic Violence Act and got custody of her daughter and maintenance for herself and her daughter.
Point to be noted, milord!
This Act is solely intended for the protection of women from harassment and domestic violence. It automatically means that it is a powerful instrument to wield against a man, whether he is guilty or not. Any such complaint registered by a woman will be presumed to be genuine and it will be up to the man to prove that he has not harassed her. This may itself be a kind of malicious mental harassment for the man.
Adoption and Guardianship
When a couple or a parent adopts a child, they are undertaking to provide for it as they would their biological child. In a practical sense, this includes feeding and educating them, being responsible for them and being their legal guardian. Thus, there are laws that attempt to ensure that the child is secure, and is in good hands.
Even the laws concerning adoption of children are governed by the religion of the adopting parents. The Hindus – including the Sikhs, Jains etc. – need to comply with the provisions of the Adoption and Maintenance Act. This law prescribes the rules regarding adoption of children, such as who can adopt, the gender of the child etc.
The main feature of this Act is that any Hindu (who has attained majority, male or female, and is of sound mind) can adopt a child provided that the following conditions are met:
– If the person already has a biological or adopted child, the second (adopted) child cannot be of the same sex.
–> Example: Balu and Shalini lost their 6 year old biological daughter in a motor accident. They are free to adopt a child of either sex.
– The age difference between parent and adopted child (specifically, between adoptive father and adopted daughter, and adoptive mother and adoptive son) must be minimum 21 years. This is to prevent sexual abuse of the child by the adoptive parent(s).
Till recently, Muslims, Christians and Parsis had no adoption laws and had to approach the court only under the Guardians and Wards Act, 1890. The people professing those religions could take a child under the said Act only under foster care. Once a child under foster care becomes a major, he is free to break away all his connections. Besides, such a child does not have legal right of inheritance.
However, since 2000, the Juvenile Justice Act has provided for a means to process adoption petitions by non-Hindus.
Majority and Minority
Until a person has completed 18 years of age, he is a minor.
A ‘Major’ is a person having the care of the person of a minor or of his property or of both his person and property, and includes –
A natural guardian,
A guardian appointed by the will of the minor’s father or mother,
(iii) A guardian appointed or declared by a court, and
(iv) A person empowered to act as such by or under any enactment relating to any court of wards
–> Example: A person may be appointed by the court as a special guardian, having limited powers over the interests of the ward. A special guardian may, for example, be given the legal right to determine the disposition of the ward’s property without being given any authority over the ward’s person.
–> Example: Angad’s father passed away and appointed his younger brother as Angad’s guardian in his Will. The first person responsible for Angad’s care will be his mother, after which it shall be Angad’s father’s brother, as appointed by the Will.
Natural Guardians
A “Natural guardian” forms one of the categories which make up the definition of a major. The natural guardians of a child are his father and mother. However, there are a few nuances to this as well.
Until a person has reached 18 years of age he is a minor, the law provides for legal guardians who will look after his legal responsibilities and rights. Guardianship is a responsibility and this is an important consideration during numerous official procedures. Under the Hindu Minority and Guardianship Act (HMGA) different categories of people are responsible for minors essaying different roles in life.
For a son and an unmarried daughter, the father is the first Natural Guardian, after which it is the mother – provided that the custody of the child for the first five years of the child’s life will be with the mother. Conversely, for an illegitimate son or an unmarried illegitimate daughter, the mother is the first Natural Guardian, after which it is the father.
As to the exception evident from both the cases, in case of a married girl, her husband is her Natural Guardian.
Maintenance Under Muslim Laws
Islamic law did not have a provision that ensured the care and assistance of divorced Muslim women beyond the ‘idda’ period, calculated as 3 menstrual cycles.
Shah Bano, a divorced Muslim woman who had no means to support herself and her children, approached the courts for securing maintenance from her husband. Muslim Personal law did not contain the provisions to help her get maintenance. When the case reached the Supreme Court of India, seven years had elapsed.
The Supreme Court invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion.
Section 125 of the Criminal Procedure Code
The Supreme Court ruled that Shah Bano be given maintenance money, similar to alimony.
In 1986, the Parliament passed The Muslim Women (Protection of Rights on Divorce), Act 1986 that nullified the Supreme Court’s judgment in the Shah Bano case and instead, upheld the Muslim Personal Law although the law was gender-biased and regressive.
Point of Interest!
The political strife that was caused in India as a result of this judgement was evident in the speed with which the Government played vote bank politics. It forced the Parliament to amend the law to accommodate the interests of the Muslims who wanted to retain the strict, gender-biased rules on maintenance.
How did the Act nullify the Supreme Court’s judgment?
The Act basically mandated that every application for maintenance by a divorced woman under the Code of Criminal Procedure, which applies the maintenance law in a secular fashion, be disposed of in accordance with the provisions listed out.
According to the stated objects of the Act, where a Muslim divorced woman is unable to maintain herself after the period of idda, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law.
Where a divorced woman has no relatives or such relatives, and does not have enough means to pay the maintenance the magistrate would order the State Waqf Board to pay the maintenance. The ‘liability’ of husband to pay the maintenance was thus restricted to the period of the iddat only.
The Act says that divorced woman is entitled to have a reasonable and fair provision and maintenance from her former husband, and the husband must do so within the period of iddat and his obligation is not confined to the period of iddat.
The Act further provides that a woman, if not granted maintenance can approach the Wakf board for grant that if she fails to get maintenance from her husband, she can claim it from relatives failing which, she can claim it from the Waqf Board.
All obligations of maintenance however end with her remarriage and no claims for maintenance can be entertained afterwards. The Act thus secures to a divorced Muslim woman sufficient means of livelihood so that she is not out on the streets without a roof over her head and without any means of sustaining herself.
–> Example: Salima is divorced from her husband Rizwan and has a 1 year old son; she remarries to Majid after the iddat period. However, the marriage is annulled due to irregularities. Even so, Salima cannot go back to receiving maintenance from Rizwan as the period of iddat is over, and she can receive maintenance only during that period.
–> Example: Mehrunissa applied to the Court for maintenance from her husband, and claimed a lump sum that she would need over a few years. She stated that the husband was obligated to pay during the period of idda, but that the maintenance amount could be claimed to cover any duration as long as it was fair and reasonable.
Protection to Divorced Women
Sub-section (1) of Section 3 lays down that a divorced Muslim woman is entitled to:
(a) A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
–> Example: Shazeen is divorced from Mustafa, with a 7 year old son who has speech and hearing difficulties. She claims that she needs enough maintenance to take care of her son until he turns 25, as he needs that much time to be self-sufficient. This may be deemed a fair and reasonable request justification for maintenance.
(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 children;
(c) An amount equal to the sum of mehr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to the Muslim Law 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.
In addition, the Act also provides that where a divorced Muslim woman is unable to maintain herself after the period of iddat the magistrate can direct her prospective heirs according to Muslim Law, to pay her a reasonable and fair maintenance, on the basis of her needs, her standard of living and how much her prospective heirs are likely to inherit from her.
If she has children, the Magistrate may direct them to maintain her. If they are unable to pay such maintenance, the magistrate can order her parents to pay maintenance to her.
In the absence of all these avenues, the magistrate may direct State Wakf Board functioning in the area in which the woman resides, to pay such maintenance as determined by him.
Point of Interest!
The Supreme Court ruled in the recent Danial Latifi v. Union of India case that the provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband”. The Court held this provision means that maintenance is not limited for the iddat period but must be paid within that period.
Exercises
Legal Reasoning:
Principle: A divorced woman or a widow cannot remarry during the period of idda/iddat that amounts to 3 months after divorce and 4 months and 10 days after the death of her husband. This is done to ascertain paternity of any child the woman may be carrying.
A Muslim woman was pregnant with a child when her husband passed away in an accident. She remarried during the period of iddat, and it was largely condemned as a void marriage. However, her child was miscarried, doing away with the need to ascertain paternity. Is the marriage valid?
(a) No, the validity of the marriage does not get affected by the status of the woman’s pregnancy.
(b) Yes, the logic behind which the concept has been propounded is no longer called for. Thus the marriage is valid.
(c) The marriage is not valid as she was pregnant when her first husband died.
(d) None of the above.
Ans: (a)
The Muslim Sharia law says that the woman should not remarry during the period of iddat, whether the reason behind the concept applies or not. Therefore, any marriage that has taken place during that period will be void.
Principle: In certain unusual situations, the wife has the means to dissolve the marriage unilaterally. One of them is called the “option of puberty”. This is where the girl is married before puberty. When she reaches puberty, she has the right to accept or reject the marriage.
Hussein and Aaliya were both 13 when they were married, and neither of them had hit puberty. Aaliya reached puberty before Hussein and wanted to continue with the marriage. However, when Hussein reached puberty, he wanted to change his decision. Is it possible for him to do so?
(a) Yes, it is possible for him to do so, since the ‘option of puberty’ exists for those who have not yet reached puberty.
(b) No, it is not possible for him to do so, since the right is available only to women.
(c) No, it is not possible and he has to wait until he reaches the age of 21 before he can exercise his right of divorce.
(d) Yes, it is possible for him because Aaliya did not want to exercise that option but he did.
Ans: (b)
As the principle states, this is a right that is available to women unilaterally. Thus, the ‘option of puberty’ can be exercised only by women.
Principle: A Will has to be signed by at least 2 witnesses. The beneficiary to the Will cannot be a witness.
Dhanpat Lal was on his deathbed and wanted to give his wealth and property to his family. He wrote out a Will, and it was signed by 2 witnesses. However, one of the witnesses was also a beneficiary to the Will. Is this a valid Will?
(a) The validity of the Will is not affected as one witness who is not a beneficiary has signed the Will.
(b) The Will will be brought before the Court for scrutiny into whether it can be given validity.
(c) Since a Will needs at least 2 (proper) Witnesses, it will result in invalidity of the Will itself.
(d) The Will is an instrument dictating a person’s desires, and so the technicalities will be overlooked.
Ans: (c)
It may be possible to take the Will to court and try to get a probate on it. However, on the face of it, the understanding is that the Will cannot be considered valid.
Principle: The Dowry Prohibition Act 1961 does not bar traditional giving of presents at or about the time of wedding, in the form of Stridhan. Thus such presents or dowry given by the parents is therefore not at all within the definition of the statute.
Anusha was getting married to Uday, and her father was showering her with presents and gifts. She did not want him to spend so much, so she began to refuse the numerous, opulent gifts she was receiving. Her mother-in-law persuaded her to accept saying that it would not be good to refuse. Is this Stridhan or Dowry?
(a) The Dowry Prohibition Act prohibits the giving, taking or abetment of dowry. Therefore, all 3 people are guilty.
(b) The gifts received from her father only amounted to a few expensive gifts. Thus, it was not Stridhan or Dowry.
(c) The gifts were given to the bride by her father as the separate property. Therefore it was not property.
(d) None of the above.
Ans: (c)
Thus, a woman’s property which she receives as a gift from her father and which is not an extension of gifts from the bride’s father to the groom’s father or the groom is called Stridhan and is not dowry.
Principle: Under Hindu law of succession, if it is found that the Will is invalid or that the beneficiaries no longer exist, then the deceased’s property can be devolved according to intestate succession.
Once, the testator to a Will and all the beneficiaries passed away in a freak accident. One of the remaining family members suggested that they look for the Will of the beneficiaries to get a clue as to the devolution of property. Advice.
(a) The property is counted as residuary property and it goes to the State.
(b) The status of the property may be deduced by going through the Wills of the beneficiaries.
(c) The property devolves according to the law of intestate succession.
(d) None of the above.
Ans: (c)
On a simple application of the given principle, the answer may be arrived at. The premise of the laws of intestate succession is that it governs the situations where there is no Will or the Will is invalid or the beneficiaries to the Will no longer exist.
Logical Reasoning
On what grounds may Muslim women be refused maintenance under Islamic law?
(a) For refusing to cohabit with her husband after he marries again.
(b) If the wife initiates the divorce or dissolution of marriage
(c) If she cannot prove that she has been a victim of cruelty.
Ans: (a)
If she can prove that she was not treated well after his subsequent marriage, she can still obtain maintenance.
Which of the following does a victim of domestic violence have a right to under the Act?
(a) Right to free legal aid
(b) Maintenance for herself (and for her children)
(c) Separate accommodation away from her husband
(d) Security services on hire from the State
Ans: (b) and (c) are the rights that a woman suffering from domestic violence may get under the Act.
Assertion and Reasoning:
Assertion: In most marriage laws, people cannot marry if they are within the prohibited degrees of relationship.
Reasoning: The scientific reason behind this is that inter-breeding within the gene pool will affect the offspring.
(a)
Ans:
The law has been put in place following a scientific analysis conducted by the scientists of yore. It is therefore, a clear nexus between the prohibition of marriage between closely related degrees and the law.
Follow the progression:
The Hindu Marriage Act is applicable to Hindus, Sikhs, Buddhists and Jains.
The Muslim marriages follow the Sharia law.
Therefore,
(a) It must be that only marriages where the 2 parties are from different religions marry under the Special Marriage Act.
(b) It can be that any marriage regardless of the religions of the parties may be conducted under the Special Marriage Act.
Ans: (b)
The Special Marriage Act is an Act that does not require that the parties be of different religions who cannot marry under ecclesiastical law. The marriage can also be of two individuals who do not want to involve their religion in their marriage.
A codicil is part of a Will.
A probate is issued by the Court upon a Will.
Thus, can a probate be issued on a Codicil?
Ans: Yes. Since the Codicil is a part of the Will but is separate from the Will, it may require its own validation. In which case, a probate may be granted on it.
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