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Women and Family Law

Marriage

  • Marriage is an important part of Family life.
  • India being a cosmopolitan country (each community has its own tradition and custom) as a result each citizen of India is entitled to be governed by his own personal laws in the matter of marriage and divorce. However, any person irrespective of his or her religion can get his/her marriage solemnized under the Special Marriage Act 1956.
  • According to the Indian divorce laws, there are mainly two ways to obtain divorce; mutual divorce and contested divorce. In case of a mutual divorce, you can have a talk with your estranged spouse to come to settlement and get a “no-fault divorce”. If you are seeking a contested divorce, you can file your divorce on the grounds that are specified under the particular Indian marriage Act that you are entitled to.
  • There are separate marriage and divorce laws for Hindus, Christians, Parsis and Muslims. Sikhs, Jains and Buddhists are governed by the Hindu Marriage Act, 1955 for filing divorce in India whereas Christians, Parsis and Muslims have their own laws for filing divorce and Inter-caste marriages/ divorces are governed by the Special Marriage Act, 1956.
  • The following steps have to be followed:

    • Hire a lawyer and provide him with all the relevant details.
    • Lawyer files a petition in court.
    • The court will send a copy of the petition to your spouse.
    • The spouse will contest or agree to the divorce. If he contests it then the length of the process would depend on the facts of the case.
    • In case of mutual consent the spouses need to prove that they have been staying apart for more than a year.

Hindu Law on Marriage

  • Hindus are governed by a law called the The Hindu Marriage Act, 1995, it is a law enacted by the Indian Parliament in 1955 as part of the Hindu Code Bills.
  • Three other important Acts were also enacted during this time, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956. All of these Acts were meant to modernize the Hindu legal tradition.

People who can get married under the Hindu Marriage Act

  • Hindu of any caste or sect or form or development.
  • Buddhist.
  • Jains.
  • Sikhs
  • Anyone converted to any of the above mentioned religions.

A Hindu Marriage must be solemnized according to the custom of the Hindus

  • The Hindu marriage is required to be solemnized either as per the Shastric Ceremonies or by performing other Ceremonies recognized by custom applicable to either party to the marriage.
  • Saptpadi (taking seven steps around the sacred fire) is one of common custom of the Hindus for marriage. But Saptapadi is not required if the custom applicable to the party does not require it to be performed.
  • If two people do not want to get married according to Hindu Law and custom, they can get married under the Law Special Marriage Act 1954.
  • Marriage under the Special Marriage Act is performed before the marriage registrar and are legal and valid Marriage as per the Marriage Registration Certificate.

Conditions for a valid Hindu Marriage

  • Both the parties to the Marriage (bride and bridegroom) must be Hindus.
  • Neither party has a spouse living at the time of the marriage.
  • At the time of the marriage, neither party:
    • Is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
    • Though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
    • Has been subject to recurrent attacks of insanity.
  • The bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage.
  • The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two.
  • The parties are not sapindas of each other (must not be in close relation to each other such as cousins), unless the custom or usage governing each of them permits of a marriage between the two.
  • Marriage of a person who is already married or of persons falling within prohibited relationships or are Sapindas to each other is void under the Act and these Marriages are Punishable also. A Hindu is not permitted to marry again even after his conversion to Islam if his earlier Hindu Marriage is subsisting (Sarla Mudgal v. Union of India, decided by the Supreme Court in 1995). The consent of the wife to the marriage must not be obtained by force or fraud.
  • Under the Hindu Marriage Act a Child Marriage is not invalid. It is only punishable. However, the prohibition of Child Marriages Act 2006 which is applicable to all irrespective of religion provide that Child Marriage (girl below 18 and boy below 21) is voidable and can be annulled on a petition being filed by the child party to the Marriage.
  • Section 9 of the Hindu Marriage Act gives right to the Hindu wife to get a decree of restitution of Conjugal rights, if the husband without reasonable cause withdraw from the society of wife.

Registration of Marriage

  • Section 8 of Hindu Marriage Act states that the state government may make rules for the registration of Hindu marriage and the parties to any of such marriages may have particulars relating to their marriages entered in such a manner and subject to such conditions as may be prescribed in the Hindu Marriage Register.
  • This registration is for the purpose of facilitating the proof of Hindu marriage. The Hindu Marriage Register should be open for inspection at all reasonable times and should be admissible as evidence of the statements contained therein.
  • In 2006 the Supreme Court directed the state to make registration of all marriages compulsory. (Seema v. Ashwin, SC 2006). Dowry Prohibition Act 1961 makes demanding, taking, giving or advertising of Dowry as offences.

NRI Marriage: Precautions to be taken

  • Counsel the women check the NRI groom’s personal information particulars, Financial status, family background, Visa, passport. Voter or alien registration card, Social security number.
  • Registered marriage along with the religious marriage to be solemnized in India with adequate proof like photographs etc.
  • NRI brides has the right to separate domicile, own property either independently or jointly, travel abroad, Right to enforce proper decree of foreign court. All the rights provided under the personal laws.
  • In case a groom is shortlisted through a matrimonial website, utmost care is to be taken to check the credentials of the groom and his family.

Hindu Law on Divorce

  • As per the ancient Hindu laws there was no place for divorce and it was with the codification of Hindu law that the grounds dissolution of marriage by a decree of the court laws were laid down. Divorce between two persons married under the Hindu Marriage Act is also governed by the same Act.
  • Both men and women can get a divorce on various grounds given in the law. Women also have some additional grounds of divorce.
  • The grounds of divorce under Hindu Law are as follows: Grounds for Divorce: (Section 13) of the Hindu Marriage Act, 1995
    • Extra marital relations [Section 13(1) (i)]: If the husband cohabits with another women after marriage has taken place, then the wife can ask for divorce. Even if he says he married that woman before having sex with her, it will be adultery, because the second marriage is no marriage at all.
    • Cruelty [Section 13(1)(i)(a)]: If a husband treats his wife with physical or mental cruelty, then she can ask for a divorce.
    • Desertion [Section 13(1)(ib)]: If the husband leaves his wife for no fault of hers, she can get a divorce. Leaving the spouse without any good or sufficient cause is called desertion. Desertion must be for at least 2 years before she can ask for the divorce. Desertion are of three types:
      • Actual desertion
      • Constructive desertion
      • Willful neglect
    • Conversion [Section 13(1)(i)]: If the husband converts to any other religion, wife can ask for divorce.
    • Insanity [Section 13(1)(iii)]:If the husband has been incurably of unsound mind or has been suffering from mental disorder , wife can ask for Divorce.
    • Venereal Disease [Section 13(1)(v)]: If the husband is suffering from Venereal Disease in communicable form wife can ask for divorce.
    • Renunciation from the world [Section 13(1)(vi)]: Like conversion Renunciation is also a ground for divorce. If the husband renounces the world for religion wife can ask for divorce.
    • Presumption of Death [Section 13(1)(vii)]: If the husband is unheard for seven years it will be a presumption of death. In such a case wife can get the divorce from the court.
    • Wife’s Special Ground for Divorce[Section 13(2)]:
      • Pre-Act Polygamous marriage of the husband [Section 13(2)(i)]
      • Acts of Rape, Sodomy or Bestiality by the husband [Section 13(2)(ii)]
      • Non-Resumption of Cohabitation after a Decree/Order of Maintenance [Section 13(2)(iii)]
      • Wife was married before she was 15 years old and decide to repudiate the marriage after attaining the age of 15 years but before attaining the age of 18 years.

Procedure for Filing a Divorce Petition

Every petition for divorce should be filed in the District Court within the jurisdiction of which:

  • The Marriage was performed as per their respective religion.
  • Both parties to the marriage dwelled.
  • The other party at the presentation of the petition resides; or
  • Where the petitioner is residing at the time of presentation of the petition in case the other party is residing outside the territories to which the Act extends or has not been heard of as being alive for a period of seven years or more. Now the petition for divorce is to be filed in the Family Courts.

Sec 13 B: Divorce by Mutual Consent

It is the fastest way or procedure of getting divorce. All marriage which have been solemnized before or after the Marriage Law (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce under mutual consent, it is necessary for the husband and wife to have lived separately for at least a year.

Divorce by mutual consent is fastest because parties can get divorce in six months only which can be further shortened if the parties are living separately since long time span. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under the Act.

Guardianship Under the Hindu Law

  • Guardianship of person of minors.
  • Natural Guardian.
  • Mother is a natural guardian of a Child under the Hindu Minority and Guardianship Act 1956.
  • Right of Guardian of person (minor).
  • Right to custody- Mother has a right to the custody of her minor child, especially when the child is below five years of age.
    • Right to education,
    • Right to control movement, and
    • Right to reasonable chastisement
    • Right to manage property of the minor
  • Testamentary Guardian.
  • Guardian Appointed by the Court.
  • Powers of Certificated Guardian.
  • Guardianship by affinity.
  • De-Facto Guardian.

Adoption Under Hindu Law

The object of adoption is:

  • To secure one’s performance of one’s funeral rites and
  • To preserve the continuance of one’s lineage.

The Hindu Adoption and Maintenance Act, 1956 deals with the Requirement for a valid adoption.

Who can take in Adoption

  • Any Hindu man or women who is of 18 years of age and of sound mind can adopt a child.
  • If he or she is married, the consent of the spouse is necessary before Adoption.
  • In case the other spouse is insane or has renounced the world or is not a Hindu then he/she can adopt even without other’s consent.
  • A widow, divorces or unmarried or married Hindu women can also adopt a child.
  • A Person having a child cannot adopt the child of the same sex.
  • The adoption is completed by an actual giving and taking and the ceremony called data human (oblation to the fire) has been performed. However, this may not be essential in all cases as to the validity of adoption.

Who can give a Child in Adoption

  • Both the father and mother of the child can give in adoption only with the consent of the other.
  • Consent of the other Parent for giving the Child in adoption is not required if he or she is insane or has renounced the world or has ceased to be a Hindu.
  • If neither parent is alive or capable to give child in adoption the guardians can do so with the prior permission of the court.
  • The Central Adoption Resource Agency (CARA) is an appropriate Agency from where children can be adopted.

Who can be Adopted

  • Both boys and girls can be adopted.
  • The child should be a Hindu.
  • The child should not have been already adopted.
  • He/she should not exceed 15 years of age.
  • Child should not be married
  • If the child of opposite sex is adopted the age gap between the child and the adopting parents must be of at least 21 years.
  • The adopted child will have the same property rights in the adopted family as he has in the born family.

Procedure for Adoption of a Child

  • Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt a child. The adoption is under the Hindu Adoption and Maintenance Act of 1956.
  • Under the act, a single parent or married couples are not permitted to adopt more than one child of the same sex.
  • Foreign citizens, NRIs, and those Indian nationals who are Muslims, Parsis, Christians or Jews are subject to the Guardian and Wards Act of 1890.
  • Under this Act, the adoptive parent is only the guardian of the child until she reaches 18 years of age.
  • The Juvenile Justice (Protection and Care of Children) Act 2000 and also of 2015 now permits adoption of an abandoned, surrendered or orphaned child who is declared free for adoption by the child welfare committee to be adopted by person of any religion and of any sex irrespective of whether he or she is having his or her own children or not. Any number of children can be adopted under this Act by the same person.
  • The authorities/agencies involved in In-country adoption- Competent Court, Central Adoption Resource Authority (CARA), State Adoption Resource Agency (SARA), Recognised Indian placement Agency (RIPA), Specialised Adoption (SAA).
  • There are seven stages involved for the purpose of adoption- Stage I : Registration, Stage II : Pre-adoption Counselling and Preparation of the PAPs, Stage III : Home Study and Other Requirements, Stage IV : Referral and Acceptance, Stage V : Pre-adoption Foster Care, Stage VI : Legal Procedure, Stage VII : Follow up visits and Post-adoption Services.

Maintenance under Hindu Law

  • Maintenance varies according to the position and status of the persons concerned.
  • The wife can get as much maintenance as required for her to live according to her status in life. The limit depends upon the husband’s earning capacity.
  • The amount is given on a monthly or lump sum basis.
  • The wife will not be entitled to get maintenance once she remarries, or does not remain chaste.
  • If the husband refused to pay the maintenance amount settled by the court. He will be imprisoned.
  • Under the Hindu Marriage Act, 1955
    • Section 24: Maintenance Pendenteliteand expenses of the proceedings.
    • Section 25: Permanent alimony and maintenance.
  • Under the Hindu Adoption and Maintenance Act, 1956
    • Section 3(b)- “Maintenance” includes-
    • (i) In all cases, provision for food, clothing, residence, education and medical attendance and treatment;
    • (ii) In the case of an unmarried daughter, also the reasonable expenses of and incidents to marriage

Section 18 - Maintenance of Wife

A Hindu wife is entitled to be maintained by her husband during her life time. She has the right also to live separately from the husband and claim maintenance from the husband if he is guilty of desertion or cruelty or has any other wife living or resides with a concubine or converted to another religion.

How and Where to go for Maintenance

  • An application for maintenance must be given in a Civil Court. Besides this or along with it, an application can also be made to the criminal court Section 125 of the Criminal procedure code.
  • If any women is unable to support herself, she can file an application for maintenance in the Criminal Court Section 125 of the Criminal Procedure code. The proceeding in the Criminal Courts is faster than civil proceedings. This application should be filed in the court of a first class Magistrate. Now these applications are filed in the Family Courts.

Hindu Women's Right to Property

  • The literal meaning assigned to stridhan is woman’s property.
  • According to Manu seven kinds of gifts may be considered as stridhan:
  • Gifts before the nuptial fire (adhyagni),
  • Gifts during bridal procession to her husband’s house (adhyavahanika),
  • Gift of love from father-in-law and mother-in-law (pritidatta) and gifts made at the time of obeisance at the feet of elders (padavandanika),
  • Gifts made by her father, mother and brother,
  • The Hindu Succession Act 1956 provides equal right of Mother, widow, Son and Daughter to share a person’s property on his death. Both Son and Daughter inherit the property of Mother on her death.
  • The Hindu Succession Act, 1956 was gender discriminatory. To remove the said gender discriminatory provisions The Hindu Succession (Amendment) Act, 2005 was passed and the said Act came into force on 9th September, 2005 and it gives the following rights to daughters.
  • In a joint Hindu family the daughter of a coparcener shall, (a) By birth become coparcener in her own right in the same manner as the son; (b) Have the same rights in the coparcener property as she would have had if she had been a son; (c) Be subject to the same liabilities in respect of the said coparcenaries property as that of a son, and any reference to a Hindu coparcener shall be deemed to include a reference to a daughter of a coparcener:
  • Thus, a daughter has a similar right like son to claim partition of coparcener property. She would have to go to civil court of competent jurisdiction seeking partition.

Muslim Law on Marriage

  • Muslim marriages are governed by the Islamic law i.e. Shariah
  • There are two schools of Islamic law: Sunni Law and Shia Law. Majority of Sunni Muslims in India are governed by the Hanafi School and Shias by the IthnaAsharia School.
  • The essential of a valid muslim marriage are as follows:
    • There should be a proposal made by or on behalf of one of the parties to the marriage. There should be an acceptance of the proposal by or on behalf of the other party. This is called Nikah.
    • The written document of Marriage contract is NikahNama, which is not necessary
    • A Muslim marriage requires proposal ‘Ijab’ from one party and acceptance/ ‘Qubul’ from the other side. This must be done in one sitting.
    • The proposal and acceptance must both be expressed at one meeting orally.
    • The parties must be competent i.e. they must be sane and adult, if the parties or one of them is either a minor or insane, the consent has to be given by the guardian. The consent will be deemed free when it is made at will and given voluntarily and not under any coercion or fraud. The consent will be deemed free when it is made at will and given voluntarily and not under any coercion or fraud. For the purpose of marriage a Child becomes major on attaining Puberty. If parties to a Muslim Marriage are major, their own consent to marry is essential.
  • There must be two witnesses, who must be sane and adult (Not needed in Shia Law)
  • Neither writing nor any religious ceremony is needed.
  • There can be stipulations in the Nikah.

Kinds of Marriage

  • Valid Marriage: When a marriage is performed between the parties with all essential ceremonies and in compliance with all the requirements of Shariat it is a valid marriage recognized by law and religion. It confers the status of husband and wife on the parties.
  • Void Marriage: if a marriage is performed in violation of some essential conditions of the marriage e.g. parties are related to each other within the degrees of prohibited relationships then it is a void marriage. This means it is no marriage at all. The second marriage of a Muslim Wife is also void.
  • Irregular Marriage: It is recognized in Sunni Law only. It is a marriage performed in violation of some requirements of a valid marriage. But they are temporary or remedial in nature. For example if a Sunni male marries an isolator, the marriage is irregular but on his wife’s conversion to Islam, the marriage becomes valid. Marriage during the Iddat period , fifth marriage during the subsistence of earlier four, unlawful conjunctions, in the absence of witnesses are also irregular.

Marriage with a Non-Muslim

  • A Sunni Muslim male can marry a Kitabi e.g., Christian or a Jew female.
  • A Muslim female cannot marry a Kitabi except by way of Marriage in Muta form (Temporary marriage permitted by Shai Law only).
  • A Sunni and Shia Muslim female cannot marry a non-Muslim male.
  • A muslim male is allowed to marry four wives at a time in certain situations.

Obligations of the Husband and Wife

  • Mahr/Mehr/ Dower is a sum of money which the Muslim male proposed to pay to the female in consideration of marriage.
  • Portion of the Mahr can be paid at the time of marriage.
  • Witnesses- two Muslim male witnesses are required under Sunni Law.

Circumstances under which Marriage is not permitted

  • Absolute Prohibitions/Incapacity:
    • Consanguinity (qurabat) is relationship by Blood.
    • Affinity (mushaarat) refers to relation by marriage.
    • Fosterage.
  • Relative Prohibitions/ Incapacity:
    • Unlawful conjunctions
    • Marriage with the fifth wife
    • Marriage without witnesses is irregular as per Sunni law.
    • Marriage during Iddatis irregular as per the Sunni law and void as per the Shia law.
    • Marrying pregnant women, and
    • Marrying own divorced wife.

Muslim Law on Divorce

According to the Indian divorce laws, there may be certain situations where the spouse may find it really difficult to live with each other. In such a case the law provides certain remedies. One such remedy is divorce. A Muslim man can divorce his wife without going to the court by the following ways:

Type of Divorce under Muslim Marriage

  • Extra Judicial Divorce by husband:
    • Talaaq: It is of two types:
    • Talaq-ul-Sunnat: Talak-ul-Sunnat is further divided into:
    • Talaq-e-Ahsan and 2) Talaq-e-Hasan.
    • Talaq-ul-biddat: Talak-ul-biddat is further divided into: 1) Triple Divorce, and
    • One irrevocable Talaq
    • Ila
    • Zihar and Lian
  • Extra Judicial Divorce by Wife:
    • Talaq-i- Tafweez
    • Khula
    • A Muslim women can divorce her husband under the Dissolution of Muslim Marriage Act, 1939. A Muslim women can get a divorce In ShayaraBano v. Union of India, the Supreme Court decided that pronouncement of three TAlaqs (Triple Talaq) at the same time which results in instant dissolution of Marriage without having no chance of revoking the talaq is Unconstitutional. The Government of India has not enacted Muslim women (Protection of Rights on Marriage) Act 2019 which declares triple talaq as void. Husband who has pronounced triple talaq to the wife is liable to punishment also.
  • Extra Judicial Divorce by Mutual Consent: called Mubarat.

Judicial Divorce

The Right for divorce by a Court’s decree is exclusively available to Muslim wife by the dissolution of Muslim Marriages Act 1939 in cases of:

  • Cruelty:
    • It includes both physical and mental cruelty. Physical cruelty is beating and physical torture. Mental cruelty means constantly troubling or torturing her. It includes:
    • Husband lead an infamous life;
    • Husband selling away his wife`s property or preventing her from exercising her legal rights over it;
    • Husband not giving equal treatment to all his wives, where he has more than one wife; - Husband forcing her to lead an immoral life.
  • Husband unheard for at least four years:If the whereabouts of the husband are not known for a period of four years, a Muslim wife can ask for a divorce.
  • Failure to provide maintenance to the wife for a period of two years or more: If the husband failed to provide maintenance to his wife for a period of two or more, she can ask for a divorce.
  • Husband sentenced to a term of Imprisonment for a period of seven years or more:If the husband has been sentenced to a term of imprisonment for a period of seven years or more, the wife can ask for a divorce. The decree of divorce can be passed only if the sentence has become final.
  • Failure to perform matrimonial Obligation:On the failure to perform marital obligation without any cause for a period of 3 years or more the wife is entitled to obtain a decree for the dissolution of the marriage.
  • Insanity of the Husband:If the Husband has gone mad and has been mad for over 2 years the wife can get divorce from the court.
  • Impotency of the husband:If the Husband was impotent at the time of marriage and continued to be till the filing of the divorce then the wife can get a divorce.
  • Leprosy:If the husband is suffering from leprosy of any type the wife can ask for a divorce.
  • Venereal Disease: If the husband is suffering from venereal disease the wife can ask for a divorce. The disease need not be communicable but it should be in virulent form.
  • Option of Puberty:If the girl was married before attaining the age of fifteen years by her guardian then she can ask for a divorce from the court if: the marriage has not been consummated or the marriage has been repudiated by her before attaining the age of 18 years.

Adoption Under Muslim Law

  • Islam does not recognize adoption.
  • Acknowledgement of paternity under Muslim Law is the nearest approach to adoption.
  • However a Muslim can take the Guardianship of a Child by obtaining permission from the court under the Guardians and Wards Act, 1890
  • Under section 41 of Juvenile Justice (Care and Protection of Children) Act, 2000 adoption of such children as are orphaned, abandoned, or surrendered through institutional and non institutional methods can be done by anyone. The Juvenile Justice (Care and Protection of Children) Act 2015 also permits every person to adopt a child as per the provisions of the Act.

Maintenance Under Muslim Law

As per the Muslim Personal Law (Shariat) a Divorced Woman has a right to get the following things from her Husband:

  • A sum equal to dower (Mahr) settled at the time of marriage.
  • All the gifts given to her by anyone at the time of marriage.
  • Maintenance during the period of Iddat.
  • Maintenance for herself till their child attains the age of two years.
  • Claim of Maintenance during Subsistance of Marriage: A Muslim wife is entitled to be maintained by her husband during the subsistence of marriage.
  • Maintenance under Cr.P.C
    • Section 125 Order for maintenance of Wives, Children and Parents.
    • Section 126- Procedure
    • Section 127- Alteration in allowance
    • Section 128- Enforcement of order of maintenance
  • How much maintenance is a woman entitled to: She is entitles to as much money as maintenance as is necessary for her needs.
  • Payment of maintenance to a divorced woman: The Muslim Women (Protection of Rights on Divorce) Act 1986.
    • A Muslim husband is liable to make all reasonable and fair provisions for the maintenance of the divorced wife, which includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the Iddat period.
    • Liability for a Muslim husband to his divorced wife to pay maintenance is not confined to the Iddat period. (Danial Latifi v. union of India, decided by Supreme Court).
    • A divorced woman who has not remarried and who is not able to maintain herself after the Iddat period can proceed against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents.
    • If any of the relative being unable to pay maintenance, the magistrate may direct the state Wakf Board to pay the maintenance.

Maintenance under Section 125 of Code of Criminal Procedure

  • A Muslim woman can get maintenance from her husband even after the period of Iddat by filing a petition under section 125 of Criminal Procedure Code.
  • But this can be done only if the Husband and the wife file an affidavit or a declaration in the Court, opting to be governed by this law.
  • This declaration can be included in the Nikahnama at the time of marriage. If this declaration is filed in the court, then the magistrate will order that the husband should pay maintenance to the wife every month.

Custody of Children

  • Parents live for their children. Most of the time woman bears all the torture and pain for their children`s wellbeing. But what about the children after the divorce when husband and wife live separately.
  • The problem arises to the children. With whom will they live? Who will pay for their maintenance and till when?

The custody of children is decided by the courts

  • Under some schools of Muslim law the mother is entitled to the custody of the children until they are 7 years old. Under others, she is entitled to custody of the children up to the time they attain puberty.
  • In all cases, the court sees the welfare of the child i.e, who can look after the maternal and paternal needs of the child better.
  • Court can refuse to give custody of the child to the wife if the court finds her of bad character (only saying that the woman is of a bad character is not enough. Even if she is seen in male company, it does not mean she is of bad character), if she has some mental illness (which will have bad effect on the child) or the case the child wishes to live with his/her father.

Muslim Law on Right to Property

There are two broad schools of Muslim in India as follows: i. Sunni ii. Shia. The main point of differences between the two is that Sunni rules only count those relatives as heirs whose relation to the deceased person is through a male- son’s son and father’s mother. Shias include even those persons as heirs who are related to the deceased through a female e.g. daughter’s son, daughter’s daughter. A woman has certain rights to property in inheritance, maintenance and Mahr. She is entitled to inherit property as a daughter, Widow, Grandmother, Mother and Son’s daughter.

  • Islamic Principles of succession were propounded by the Prophet:
    • The husband and the wife, being equal, are entitled to inherit to each other.
    • Some near females and cognates are also recognized and enumerated as heirs.
    • The parents and certain other ascendants are made heirs even where there are descendants.
    • The newly created heirs (those who were not entitled to inherit under customary law) are given specific shares. They are called sharer.
    • The newly created heirs inherit the specified shares along with customary heirs, and not to their exclusion. Share of a daughter is half of the Son’s share.
  • Dower or Mahr:
    • It is the sum of money or other property which the wife is entitled to get from the husband on marriage. It is an integral part of marriage.
    • It can be fixed before or at the time of marriage.
    • There are two kinds of Mahr i.e., Prompt and Deferred.
    • Prompt Mahr is payable to the Wife Immediately on Marriage.
    • Deferred mahr is to be given to the wife when the specific event happens or when her marriage has ended- either by death of her husband or by divorce.
    • A wife can even go to the Court if her Mahr is not paid by the husband. She can also refuse Conjugal Rights.
    • If the wife is staying separately from her husband on account of nonpayment of Prompt Mahr, he is bound to maintain her.
    • In case of husband’s death the wife will get her Mahr out of her husband’s property. This is called the right of retention.
  • Will or wasiyat: A Muslim can bequeath 1/3rd of total property but in case a woman has no blood relation and her husband would be the only heir, then she can bequest 1/2of the property
  • Gift or Hiba:
    • When one person gives certain property or thing or money to another who accepts it and the giver gets nothing in return is called Gift or Hiba.
    • Any person who is major, sound mind may make gift. But the gift must be without any force or fraud.
    • Any person who is major, sound mind may make gift. But the gift must be without any force or fraud or coercion or under influence
    • For a valid gift there shall be a declaration to make the gift, acceptance of gift and delivery of possession of the gifted property to done and delivery of possession of the gifted property to done.
    • The mother cannot accept the gift on her minor child’s behalf but if there is no father, then by the legal guardian of the Child.

Christian Law on Marriage and Divorce

  • All Christians are governed by The Christian Marriage Act, 1872 and the Divorce Act 1869 as amended in 2001 by the Indian Divorce (amendment) Act 2001.
  • All persons practicing the Christian religion such as Roman catholic or Protestants can get married under this law.
  • An Indian Christian is an Indian converted to Christianity and includes his or her descendants
  • Men and Women of different religion cannot get married under this law.
  • Under Christian law marriage may be solemnized appointed by the church to solemnize the marriage according to the customs of Christians or by a marriage registrar.
  • A marriage registrar is appointed by the State Government
  • A notice in writing is given to the Registrar by one of the persons getting married.
  • The marriage is to be solemnized in the presence of two witnesses and one of the parties has to take an oath that there is no lawful objection to the marriage.

Conditions for a Valid Marriage

  • Neither the husband nor the wife have a living spouse at the time of marriage.
  • The age of the girl should be at least 18 years of age up to (21 years father’s consent is necessary)
  • The age of the boy should be at lest 21 years of age.
  • Both must be of sound mind at the time of marriage.
    • Indian Divorce (amendment) Act, 2001:Grounds of divorce after the amendment of section 10 of the Divorce Act 1869.
    • Conversion to another religion
    • Adultery
    • Cruelty
    • Desertion for at least two years.
    • Incurable Insanity for more than two years.
    • Incurable and virulent form of leprosy for more than two years.
    • Willful refusal to consummate the marriage.
    • Not being heard for seven years.
    • Venereal disease in communicable form for two years.
    • Failure to obey the order for restitution of conjugal rights.
  • Wife’s additional grounds if the husband is guilty of:
    • Rape
    • Sodomy
    • Bestiality
  • Section 10-A deals with dissolution of marriage by mutual consent
  • Section 11 deals with adulterer to be co-respondent
  • Section 18 deals with petition for decree of nullity
  • Grounds of decree- section 19.
    • That the respondent was impotent at the time of the marriage and at the time of the institution of the suit.
    • That the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity.
    • That either party was a lunatic or idiot at the time of the marriage.
    • That the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
    • Nothing in this section shall affect the jurisdiction of the high court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.

Procedure for filing Divorce Petition

The Indian Divorce Act deals with divorce among Christians. The reasons are almost similar to the ones under the Hindu Marriage Act. Roman Catholics do not come under the purview of any divorce proceedings since the Roman Catholic Church has not recognized divorce. Maintenance: During the period when the divorce case is in the court, the husband has to give one fifth of his salary for the maintenance of his wife. Later, maintenance can be given either yearly or once for all as total settlement.Custody: Custody of the child is decided by the court after going into the details of individual case. After filing a petition of divorce under the Christian Divorce Act, the petitioner can seek the following remedies-

  • The Courts have powers to:
    • Order adulterer to pay damages and costs
    • Order alimony, pendante-lite (pending decision of the court) or permanent
    • Order settlement of property
    • Make order as to custody of children in a suit or separation
  • Once the separation is awarded, from the date of the sentence, the separated wife would be deemed spinster, with respect to property, which she may acquire or which may devolve on her. This status would apply for the purposes of contract, wrongs and injuries and suing and being sued in civil proceedings.

Guardianship Under Christian Law

  • The Guardians and Wards Act, 1890 which resides in the secular realm also, may be resorted to.
  • Guardians not to be appointed by the court in certain cases
  • Duties of Guardian of the person:
    • Custody of the wards and
    • Support of health and
    • Support of education

Adoption Under Christian Law

  • Christians have no personal law of adoption
  • An adoption can take place from an orphanage by obtaining permission from the court under the Guardians and Wards Act, 1890
  • Besides, such a child does not have legal right of inheritance. The general law relating to Guardian and Ward is contained in the Guardians and Wards Act, 1890. It clearly lays down that father’s right is primary and no other person can be appointed unless the father is found unfit.
  • The court must take into consideration the welfare of the child while appointing a guardian under the act.
  • Under section 41 of Juvenile Justice (Care and Protection of Children) Act, 2000 adoption of such children as are orphaned, abandoned or surrendered through institutional and non-institutional methods can be done by anyone.
  • Now the new law Juvenile Justice (Care and protection of Children) Act 2015 has a separate chapter dealing with adoption. Any person has the Right to adopt as per this Act.

Maintenance Under Christian Law

  • Under section 37 of the Indian Divorced Act 1869, the wife can seek permanent alimony after dissolution of Marriage or decree of Judicial Separation.
  • Under section 125 of CrPC a Christian woman can also claim maintenance from her husband as explained earlier too.

Right to Property Under Christian Law

  • As far as the Christian women are concerned the community and the church with its strong patriarchal tradition compels women to remain subjugate.
  • As per the repealed Travan core Christian Succession act 1916, women were given Stridhan and the practice is still being continued till today.
  • However women started claiming a share of the father’s property under section 37 of The Indian Succession Act 1925.
  • A Christian widow is entitled to 1/3rd of her husband’s property.
  • All children whether son or daughter gets the equal share in the remaining property.
  • Even a married woman has equal right in the property.
  • In case a daughter or a son is dead his/her children would get their parents share in the property.
  • The child in the womb also gets the equal share in the property.
  • Mother and Father are not entitled to inherit the property of a Son or a Daughter if the Son or Daughter is survived by his/ her own children or grandchildren.

The Parsi Marriage and Divorce Act, 1936

  • Parsi wedding has to be solemnized as per the “Ashirvad” tradition in the presence of a Parsi Priest or Prsi Dastur or Mobed under the Parsi Marriage and Divorce Act, 1936.
  • 2 Witnesses should be present at the time of the marriage.
  • The Parsi Priest/Dastur / Mobed who conducts the wedding should issue a wedding certificate signed by the priest, the couple and two witnesses.
  • All Parsi/Irani/Zoroastrian weddings have to be registered with the marriage registrar.
  • Only Parsi men over the age of 21 and Parsi women over the age of 18 can marry.
  • Marriage is not allowed between blood relatives
  • Bigamy and Polygamy are not allowed
  • The Act also states dos and don’ts for the Parsi Priest/dastur/mobed, couple and the witnesses.
  • The Act also covers Divorce between Parsi couples.

Grounds for Divorce

  • That the marriage has not been consummated within one year after its solemnization owing to the willful refusal of the defendant.
  • Insanity
  • That the defendant was at the time of marriage pregnant by some other person other than the plaintiff.
  • Adultery
  • Cruelty
  • That the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or, where the defendant is the husband, has compelled the wife to herself to prostitution.
  • Imprisonment for seven years or more.
  • Desertion for at least two years
  • Separation for one year
  • Conversion to another religion
  • Nullity of marriage (section 11) and Void ability of Marriage (section 12)
  • Any marriage can be voidable and can be annulled on the following grounds:
    • The marriage has not been consummated due to impotency,
    • Contravention of the valid consent
    • Mental illness
    • Respondent at the time of the marriage was pregnant by someone other than the petitioner.
    • The spouse could contest or agree to the divorce. If he contests it then the length of the process would depend on the facts of the case.
    • In case of mutual consent the spouses need to prove that they have been staying apart for more than a one year.
    • Once the proceedings are over the court gives a period of six months to reconsider the decision to divorce.

Parsi Law on Right to Property

  • Parsi’s are governed by the Indian Succession Act, 1925.
  • The property rights of the Parsis are quite gender just.
  • Basically, a Parsi widow and all her children get equal shares in property of the intestate while each parent, both father and mother get half of the share of each child.

The Special Marriage Act, 1954

  • Sometimes people following same or different religions don’t want to get married under their personal laws
  • In such cases they can get married under The special Marriage Act, 1954
  • Under this law marriage is performed by the special officer appointed under the Act.
  • Any two persons who wants to get married under this law have to fulfill the following conditions:
    • Neither the man nor the woman must be already married.
    • They should be mentally sound so that they can give a valid consent.
    • The girl should be at least of 18 years of age.
    • The boy should be at least of 21 years of age.
    • They should not be closely related to each other (in the prohibited degree).

Steps for the Solemnization of Marriage under the Special Marriage Act, 1954

  • A notice informing about the intention to get married in a prescribed form to be given to the marriage officer generally located in the District Court.
  • The notice must be signed by both the parties.
  • The marriage can be registered only after the expiry of 30 days from the date of notice. (so that any objection can be raised about the illegality of the marriage).
  • The applicant should get their marriage solemnized within two months of the application otherwise they will have to proceed again as a fresh.
  • Even if marriage is performed under custom or religion it can be registered under The Special marriages Act, 1954.
  • Once registered it will be considered to be performed according to The Special Marriages Act, 1954.

Divorce

  • Either of the party to marriage may file a petition for divorce when the respondent:
    • Makes a voluntary sexual intercourse with any person other than the spouse.
    • Deserts the petitioner for a period not less than two years.
    • Undergoes an imprisonment of seven years or more.
    • Been treating the petitioner with cruelty.
    • Is of unsound mind or suffering from continuous mental disorder.
    • Suffering from venereal disease, leprosy etc.
    • Is not heard of being alive for seven years or more.
  • Wife’s additional grounds if the husband is guilty of:
    • Rape
    • Sodomy
    • Bestiality
  • Divorce by mutual consent

Procedure

The petition for divorce may be presented only after one year from the date of entering the certificate of the marriage in the Marriage Certificate Book. However, the relaxation may be provided in cases where exceptional depravity on the part of the respondent. The petition seeking divorce could be presented to a District Court, within whose jurisdiction, either,

  • The marriage was solemnized,
  • The respondent resides, or in case the wife is petitioner, where she is residing,
  • The parties to the marriage last resided together, or
  • The petitioner resides, in cases where the respondent is residing outside the territories to which the Act extends.

Under section. 28 of the Act, which primarily deals with the provisions relating to obtaining a divorce by mutual consent in respect of marriage solemnized and/or registered under the Act, a petition for divorce by mutual consent may be presented to the district court. A few key points to be considered while seeking a divorce by mutual consent are as follows:

  • A petition for divorce must be presented to the district Court by both the parties together.
  • The petition must be on the grounds,
    • That they have been living separately for a period of one year or more,
    • That they have not been able to live together, and
    • That they have mutually agreed that the marriage should be dissolved.
  • Between 6 months after, and within 18 months of, the date of presentation of the petition seeking divorce by mutual consent, both parties must make a motion together seeking grant of a decree of divorce.
  • Before passing a decree of divorce, the District Court considers the following, among other aspects:
    • That the petition has not been withdrawn yet,.
    • That the marriage has not been solemnized under the Act,
    • That the averments in the petition are true,
    • That consent for divorce has not been obtained by force, fraud or undue influence
    • That there has not been any unnecessary or improper delay in instituting the proceedings.

Thus the provisions and the procedure for obtaining divorce by mutual consent under the Special Marriage act are fairly simple and straight forward.

  • Parties desirous of obtaining a divorce by mutual consent must however keep in mind that the Act also contains provisions dealing with grant of Alimony and maintenance, both permanent and during the pendency of the proceedings.
  • In the cases of divorce by mutual consent, the parties may agree upon the terms relating to payment of alimony or maintenance and the same may be incorporated in the pleadings before the court.
  • However care has to be taken that suitable provisions are incorporated in the pleadings to avoid future misunderstandings or litigation. It is therefore advisable that, while discussing the various issues connected with seeking a divorce by mutual consent with their advocates, the parties must specifically discuss their arrangement and agreement on alimony and maintenance, and take suitable steps to ensure that their interest is safeguarded.

Source : National Commission for Women



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