Pocket Notes

Marriage under Family Law

Family laws cover a wide variety of principles that relate in nature to family affairs, such as marriage, divorce, succession, etc. There are certain legally enforceable rights that occur when the status of interpersonal relationships is recognized legally.

The reason for making rules that influence the most private facets of our lives is to guarantee the protection of individual rights and to maintain those norms that are fundamental to human dignity. Another explanation is that laws serve as agents of social reform and can boost the status of people in society.

India is a land of diversity where religion plays an important role in personal and social circumstances. The origin of family laws as applicable in India can be traced from the basic religious texts of respective religions for which they have been codified. In India, all personal laws fall within this domain. In simple words, family law is by and large the codification of relevant portions of basic religious texts in order to regulate the affairs such as marriage, divorce, adoption, guardianship, maintenance, etc.

In India, there are five large sets of family laws. They are:

  • Hindu law: this law governs all Hindus as well as Buddhists, Jains, and Sikhs
  • Muslim law: this law governs Muslims.
  • Christian law: this law governs Christians
  • Parsi law: this law governs Parsi’s
  • Secular law i.e. the Special Marriage Act.

While the Hindu personal law has undergone changes through a continuous process of codification, the Muslim personal law has been comparatively untouched by legislations.

In Goa, a uniform civil code is in place as per Article 44 of the Constitution of India, in which all religions have a common law regarding marriages, divorces, and adoption.

Basic Concept of the Hindu Law

As per Hindu law, marriage is a sacred (Sanskaras) ceremony. As a sacramental union implies that is a sacrosanct (divine) union. The object of Hindu marriage to have offsprings (children), to be able to perform religious rites and sacrifices which man can perform only along with his wife and to have highest conjugal happiness and heavenly bliss for the ancestor and oneself. The achievements of all these objectives are dependent upon the wife.

There are four major enactments of codified Hindu Law:

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

Statutory Conditions of Hindu Marriage

Conditions for legitimate Hindu marriage under the Hindu marriage act, 1955 are as follows:

A marriage can be celebrated between any two Hindus, if the following conditions are fulfilled, namely-

  1. Neither side has a partner that resides at the time of marriage;
  2. At the time of marriage neither party,
  3. Is unwilling to provide informed consent to it as a result of unsoundness of mind; or
  4. Though capable of providing rational 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
  5. Has been exposed to repeated acts of insanity
  6. At the time of marriage, the bridegroom and bride need to be of the age of 21 and 18, respectively.
  7. The parties are not beyond the boundaries of the forbidden relationship unless the tradition or usage governing each of them permits of a marriage between the two;
  8. The parties shall not be sapindas of each other unless the tradition or usage governing each of them permits of a marriage between the two.

The Sapinda relationship is based on the law of exogamy. The term ‘sapinda’ has been clarified by Vijaneshwara, who states that ‘pinda’ means ‘body’ and sapindas implies individuals who are particles of the same body. The Hindu marriage has adopted Vijaneshwara’s philosophy but has limited the scope of sapinda relationship to 5 degrees in the line of ascent through the father and 3 degrees in the line of ascent through the mother.

Example
Principle: One of the essential conditions for a marriage between any two persons to be solemnized under the Special Marriage Act, 1954 is that at the time of marriage the male should have attained the age of twenty-one years and the female should have attained the age of eighteen years. If the said condition is not met such a marriage is null and void.

Restitution of Conjugal Rights

If your partner has deserted you without providing any fair reasons, the Hindu Marriage Act, 1955 provides you remedy in the form of restitution of conjugal rights. The Hindu Marriage Act specifies that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply for restitution of conjugal rights.

What the aggrieved party needs to do is file a petition to the district/ family court and on being satisfied with the truth of the statements made in such petition that there is no legal ground why the application should not be granted, the judge may decree restitution of conjugal rights in his/her favour.

Essential Conditions for claiming a Restitution of Conjugal Rights

In the first case, one party must have withdrawn from the society of the other; in the second instance, the removal must be for some fair reason; and in the third position, the aggrieved party must petition for the restoration of conjugal privileges. After these requirements have been met, the district court may issue restitution of conjugal rights to cohabitation between the foreign parties.

If the aggrieved party is unwilling to convince the district court and concludes that the petitioner is guilty then the decree of restitution of conjugal rights is not issued. An added advantage from this is that if the parties are not following the decree for cohabitation after the passing of the decree, continuously for one year, it becomes a ground for divorce.

Void Marriage

A void marriage is no marriage. It is void ab initio i.e. does not exist from the beginning. It is known as a ‘marriage‘ since two people have gone through the services of marriage, however as they completely do not have the ability to wed they can’t become a couple. It can neither be appreciated nor can be it be ratified. The term ‘void‘ can as a rule speech be perceived to be an equivalent of the word ‘illegal‘. Therefore, something which is void will have one consequence for sure- that it would be illegal. A void marriage thus means an illegal marriage. Not the question is when would a marriage be called illegal?

A and B both major, enter into a matrimonial equation with each other with their own approval, and not without the consent of their parents. Is this marriage considered to be illegal? No, this marriage is not considered to be illegal simply because the parents of A and B have denied their consent. But what would be the position if both A and B are already married to say C and D respectively or either A or B is married to someone else? In such a case, the marriage between A and B would be illegal as it would not fulfil the conditions for a valid Hindu marriage as prescribed under clause 1 of section V of the Hindu Marriage Act, 1955

A marriage is void if based on these grounds

  1. Bigamy
  2. The parties are sapindas to each other
  3. Parties are within prohibited degrees of relationship
  4. Essential ceremonies of marriage are not performed.

Voidable Marriage

A voidable marriage is a perfectly valid marriage as long as it is not avoided. If one of the partners does not petition for annulment of marriage the marriage shall remain valid. If one of the parties dies before the marriage is annulled, no one can challenge the marriage. The parties to a voidable marriage cannot perform another marriage without first getting a decree declaring their first marriage as void; otherwise, they will be guilty of bigamy.

Once a voidable marriage is annulled the decree is given retrospective effect from the ‘date of marriage’.

A marriage is voidable if based on the following grounds

  1. Impotency
  2. Incapacity to consent and mental disorder
  3. Consent obtained by fraud and force
  4. Pre-marriage pregnancy

Divorce

Any marriage, whether formalized before or after the commencement of this act, can be dissolved by order on any of the following grounds on the basis of a petition filed by either husband or wife:

  1. Cruelty
  2. Adultery
  3. Desertion for a continuous period of not less than two years
  4. Ceased to be a Hindu by converting to another religion
  5. Incurably of unsound mind
  6. Suffering from a pernicious and incurable type of leprosy
  7. Suffering from venereal disease in a communicable form
  8. Renounced the world by entering any religious order
  9. Not been heard of as being alive for a period of 7 years or more by those who naturally would have heard of it, had that party been alive.

Wife’s Special Grounds of Divorce

  1. Bigamy, that is, marrying subsequently during the subsistence of a valid first marriage
  2. Husband proven guilty of rape, sodomy or bestiality
  3. Non-resumption of cohabitation after a decree/order of maintenance
  4. Repudiation of marriage (option of puberty)

Divorce by mutual consent

The Hindu marriage act says that a petition is required to be moved jointly by the parties to marriage on the ground that they have been living separately for a period of one year or more and they have not been able to live together and also that they agreed that the marriage should be dissolved.

Essentials of Divorce by mutual consent

  1. That both the parties have been living separately for a period of one year or more.
  2. That both the parties have not been able to live together
  3. That both the parties have unanimously accepted that their marriage should be dissolved.

Maintenance

Within the Code of Criminal Procedure, 1973, right of maintenance applies not only to the wife and dependent children but also to indigent parents and divorced wives. Allegation of the wife, etc., however, rests on the husband possessing sufficient means. Besides the code of criminal procedure, 1973, under Hindu Law, the wife has an absolute right to claim maintenance from her husband. Although if she deviates from the course of chastity, she loses her right. Her right to maintenance is enforced in the Hindu Adoption and maintenance act, 1956. In deciding the amount of compensation, the court takes into consideration different factors like status and liabilities of the husband. It also judges whether the wife is justified in living apart from her husband. The justifiable reasons are spelt out in the Act. Maintenance pendente lite (depending on the suit) and even the burden of a marriage suit would be paid by either the husband or the wife, either the partner having no separate benefit for his or her support.

Adoption under Hindu Law

Adoption in the Hindus is subject to the Hindu Adoptions Act and after the coming of this Act, all adoptions must be rendered in accordance with this Act.

As per the Hindu law, the requirements for a valid adoption are that no adoption is valid unless:

  1. The individual adopting is lawfully worthy of taking part in adoption.
  2. The individual giving in adoption is lawfully worthy of giving in adoption.
  3. The person adopted is legally worthy of being adopted at the time of adoption
  4. The adoption is completed by an actual giving and taking and the ceremony called data Homam (oblation to the fire) has been performed.

Who may adopt?       

Capacity of male

Any male Hindu, who is sound mind and is not a minor, had the capacity to take a son or daughter in adoption. Given that if he has a wife living, he shall not adopt except with the consent of his wife, unless his wife has fully and permanently renounced the world it has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. If a person had more than one wife living at the time of adoption the consent of all the wives is necessary unless the consent of one of them is unnecessary for any of the reasons specified in the preceding provision.

Capacity of female

Any female Hindu:

  1. who is of sound mind
  2. who is not a minor, and
  3. (a) who is not married, or who has been married, whose marriage has been broken, or whose husband is deceased, or has ultimately repudiated the world, or has ceased to be a Hindu, or has been found unsound by a competent court, has the capacity to adopt a son or a daughter.

Where the woman is married, it is the husband who has the privilege or right to take in adoption with the permission of his wife.

The person giving the child in adoption has the capacity/right to:

  1. No one, but the father or mother or guardian of the child shall have the capacity to give the child in adoption.
  2. The father alone, if he is alive, shall have the freedom to give in adoption, but such right shall not be exercised with only the consent of the mother Unless the mother has absolutely and fully repudiated the world, or has refused to be a Hindu, or has been found unsound by a court with competent jurisdiction.
  3. Children may be given in for adoption by the mother if the father is dead or has totally lastly disavowed the world or has stopped to be a Hindu, or the court of competent jurisdiction has declared to be of unsound mind.
  4. Where both the parents are either dead or have absolutely and permanently renounced the world, or have deserted the child, or have been deemed unsound by a court of competent jurisdiction, or where the parentage of the child is uncertain, the guardian of the child may, upon adoption, grant the child the prior consent of the court..

The person can be adopted

No individual can be adopted unless:

  1. The person is a Hindu;
  2. He or she has not been already adopted;
  3. He or she has not been married unless there is a tradition or procedure relevant to the parties which permit persons who are married being taken in adoption;
  4. He or she has not reached the age of fifteen years unless there is a tradition or norm applicable to the parties which permit the individual who has completed the age of fifteen years being taken in adoption.

Other conditions for a valid adoption are fulfilled

  1. If the child adopted is a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son of a son or son’s son’s son residing at the time of adoption;
  2. If the child being adopted is a girl, the adoptive father or mother by whom the adoption is rendered must not have a Hindu daughter or son’s daughter residing at the time of adoption;
  3. If the adoption is by a male and the individual to be received is a male, the assenting father is in any event 21 years more seasoned than the individual to be embraced;
  4. If the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;
  5. The same child should not be taken at the same time by two or more parents; the child to be adopted must be given and taken at the time of adoption with a view to moving the child from the family to the time of birth.

Basic Concept of Muslim Law

The term ‘Islam’ in Arabic refers to submission to the will of God. The religion is essentially monotheistic, similar to Jews and Christians. The originator of ‘modern theory of Islamic law’ is Ignaz Goldhizer. Muslim law or Islamic law is believed to have originated from the divine. The Divine communicated it to Prophet Muhammad who prescribed it in the Quran. In the latter days, the followers of Prophet Muhammad (or Muslim jurists) developed and expanded these principles. The provisions of the Quran are vast and dealt with almost all aspects of human life.

Sources of Muslim Law

Sources of law mean the actual components in which the contents of that law are to be discovered and made available to the general public. Sources of Muslim law can be categorized into two types:

Main (Shariah) Origins-Primary sources of Muslim law are those that the Prophet himself believed to be the origins of Muslim law. There are the following:

  • The Quran
  • Sunnah or Hadith (Traditions)
  • The Ijma and,
  • Qiyas.

All of the Muslim personal rules are based on these main sources. They are also known as the legitimate institutions of Muslim law. They are also sources that are of the highest quality and importance in their respective order of merit.

The Secondary (Extraneous) Sources – These are those sources which are developments on the foundations laid down by the primary sources. These are:

  1. Customs (Urf),
  2. Judicial precedents,
  3. Legislation and
  4. Justice, equity and good conscience.

These sources clarify and change the primary sources of Muslim personal law in accordance with the evolving needs of Islamic society.

Concept of Marriage in Muslim Law

Muslim marriage by some writers and jurists is treated as a mere civil contract and not a sacrament. This observation seems to be based on the fact that marriage under Muslim law has similar characteristics as a contact.

For example: –

  1. A marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the other so it is the contract. Furthermore, marriage cannot take place without free agreement and such an agreement cannot be gained through force, deceit or improper control.
  2.  Similar as in the case of contact, entered into by a guardian on attaining majority so can a marriage contract in Muslim law, be set aside by a minor on attaining the age of puberty.
  3. The parties to a Muslim marriage can enter into any pre-nuptial or post-nuptial arrangement that is enforceable by law, providing that it is fair and not contradictory to the doctrine of Islam. The same is valid in the case of a contract.
  4.  The terms of a marriage contract may also be alerted within legal limits to suit individual cases.
  5. While prohibited by both the Holy Quran and Hadith, as well as by every other law, allowance is also provided for violation of the marriage contract.
  6.  In the leading case of Abdul Qadir v/s Salima-1886, the contractual aspect and analogy of Muslim marriage contract with a contract of sale is emphasized.

Dower

Dower or more is the balance owed by the husband to the wife on the condition of marriage, either by arrangement between the parties or by statute. It may be either timely or postponed. As per Wilson, the dower is a consideration for the surrender of a citizen by a woman. It is a formal Anglo-Mohammedan term similar to ‘mehr‘ in Arabic.  According to Amir Ali, ‘the dower is a concern that belongs exclusively to the wife. To quote Mulla dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage.

Divorce

The husband will divorce his wife by denying the union without offering any excuse. Pronouncements of such words which signify his intention to disown the wife are sufficient. Generally, this is done by talaaq. But he may also divorce by lla, and zihar which differ from talaaq only in form, not substance. A wife cannot divorce her spouse on her own accord. She can divorce the husband only when the husband has given such a privilege to her or under an agreement. Under an arrangement, a woman can divorce her husband either from Khula or from Mubarat. Before 1939, a Muslim woman had no right to pursue divorce, except on the basis of false claims or adultery or foolishness or impotence of her husband.

The dissolution of the Muslim Marriage Act 1939 sets out a variety of other grounds on which a Muslim woman may have her divorce order enforced through a court order, namely:

  • That the position of the spouse has not been established for a span of four years;
  • That the husband has ignored or refused to pay for his upkeep over a duration of two years; that the husband has been sentenced to jail for a total of seven years;
  • That the husband has refused, without a fair excuse, to fulfil his marital duties for a period of three years;
  • That the husband was, and appears to be, impotent at the time of the marriage;
  • That the husband has been insane for a period of two years or is suffering from leprosy or a pernicious venereal disease;
  • That she, having been granted in marriage by her father or another guardian before she reached the age of fifteen years, repudiated the marriage before reaching the age of eighteen years.

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