FAMILY LAW

Hindu Marriage Act, 1955

 Applicable to only Hindus

 Personal Laws

Sources - Ancient

 Shruti or Vedas
Shruti is to hear (passed orally over generations)

 Smritis or Dharamashtras
Smritis is that is remembered (collection of ancient writings on Hindu Law)

Note: Commentary - Work done to explain a particular Smriti

Sources - Modern

 Precedent - Article 141

 Article 141 - Law declared by Supreme Court is binding on all courts
 Legislation - Laws made by parliament on Hindu Marriage

eg. Hindu Marriage Act, 1955

eg. Hindu Succession Act, 1956

Hindu Marriage Act, 1955

 Hindu, Jain, Sikh, Buddhist - Applicable

 Muslim, Christian, Jew, Parsi - Not Applicable

Note: Hindu Marriage Act, 1955 - Not Applicable to Scheduled Tribes

Bigamy - Offence of having more than one spouse

 Punishable under Indian Penal Code

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 Bigamy is of 2 types:

 Polygamy - Male having more than 1 wife

 Polyandry - Female have more than 1 husband

Note: Polygamy - Not allowed for Hindu male

Note: Polygamy - Allowed for Muslim male

Polygamy - Muslim man can marry 4 different women

If - Hindu is married to a woman and converts to Islam and marries another woman

Then - Hindu man shall be punished for bigamy because he married again while still married to
a Hindu woman

Conditions for valid Marriage:

 Both parties - Sound mind, Free constant

 Age - Male 21 years, Female 18 years

Note: If minor - Marriage is valid but punishable upto 2 years or fine of Rs.1 Lakh

Note: Marriage of minor girl child - Ground for divorce

Prohibhition of Child Mariage Act, 2006

 Minor Girl Child - Marriage is invalid

Valid Marriage - Proper ceremony must take place

 Conjugal Rights - Rights of both husband/wife on each other after marriage

 Restitution of Conjugal Rights - Petition to restore the conjugal rights
 Annulment of Marriage - Petition cannot be filed for annulment of marriage in a valid
marriage

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 Note: Annulment in valid marriage - Not allowed

 Valid Marriage - Annulment is not possible

 Valid Marriage - Divorce is possible

Void Marriage - Invalid from the beginning

 Bigamy
 Prohibited Degree of Relationship
 Sapinda Relationship
 Non-Ceremonial Marriage
 Minor Marriage i.e. unlawful, forceful, sold, trafficked (void)

Voidable Marriage - Valid until declared by court

 Impotency
 Mental Disorder
 Insanity
 Force or Fraud
 Pregnant by someone else other than husband
 Child Marriage (can be annulled at age upto 18 years)

Dissolution of Marriage - Divorce

1. Mutual

 Living separately for more than 1 years

 Mutually agree to take divorce

2. Disease of either spouse

 Incurable, Communicable
 Unsound of Mind

3. Fault Grounds

 Adultery - Sex with someone else other than husband

 Cruelty – Extreme in nature
 Desertion - Not less than 2 years after date of application
 Conversion - Convert to other religion
 Renunciation - Cut off from the world

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 4. Constructive divorce

 Person has not heard about the spouse for 7 years or more of being alive

5. Grounds for wife only to file divorce

 Bigamy by husband
 Rape by husband
 No cohabitation for 1 year
 Marriage of a Girl before 15 years and she has filed divorce before attaining 18 years

Grounds for Divorce

 No cohabitation
 No conjugal rights
 Irretrievable breakdown of marriage
 Living separately for 1 year after judicial separation order

Note: In judicial separation it is not obligatory to cohabit together

Hindu Succession Act, 1956

 Ascendants - Ancestors of person (father, grandfather)

 Descendants - Off Springs of person (son, grandson)

 Collaterals - Maternal uncle and aunt, paternal uncle and aunt, cousins, brothers, sisters

 Agnate - Male relationship

 Cognate - Female relationship

 Intestate - Person who dies without making a will

 Half Blood - Same father but different mothers

 Uterine blood - Same mother but different fathers

 Escheat - Rule if no heir then property goes to government

 Coparcerner - Rightful people who have joint property of common ancestor

 Karta - Senior member of joint family who manages the property (male or female)

 Matriarchy - Women have power on property

 Patriarchy - Men have power on property

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 Hindu Marriage Act, 1955

 For - Marriage and Divorce

Hindu Succession Act, 1956

 For - Succession of property

Hindu Adoption and Maintenance Act, 1956

 For - Adoption and Maintenance

Muslim Law:

 Dissolution of Marriage Act, 1939

Provide ground under which muslim women can obtain a decree for dissolution of
marriage

 The Muslim Women (protection of rights on divorce) Act, 1986

Provides grounds for maintenance/dower after divorce (during iddat period)

Special Marriage Act, 1954

 Inter-Religion marriages
 Do not require any rituals and ceremonies
eg. Hindu and Muslim marriage

Note: Hindu Succession Act, 1956 - Not applicable on Special Marriage Act, 1954

Note: Hindu Succession Act, 1956 - Only applicable on Hindu Marriage Act, 1955

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Hindu Adoptions and Maintenance Act, 1956

If - Male or Female want to adopt son or daughter

1. Male or Female should be of sound mind

2. If married then consent of spouse needed for adoption

Note: Father, Mother, Guardian - Can only give child for adoption

Requirement of child who is to be adopted:

 He/She should be Hindu only

 He/She is not already adopted
 Not married
 Age - Less than 15 years
 Adoption of son - Adoptive father or mother doesn’t have Hindu son already
 Adoption of daughter - Adoptive father or mother doesn’t have Hindu daughter already
 Difference of age between adoptive father and to be adopted daughter - 21 years
 Difference of age between adoptive mother and to be adopted son - 21 years
 Same child cannot be adopted by more than one person

MUSLIM LAW

 Shias - Believe in succession of Prophet’s family

 Sunni - Believe in elections out of votes

Primary sources of Muslim law:

 Quran i.e. Reading

 Traditions of Prophet - Hadith

 Ijma - Decisions made by Jurists (like - common law system)

 Qiyas - Decisions made upon written text (like - civil law system)

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 Waqf - Property dedicated to charitable purposes in Muslim Law

Mutawalli - Manager of Waqf

Essentials for Muslim marriage:

 Puberty is attained (before puberty - muslim marriage is not allowed)

 Sound mind - Both parties
 Shia - Man can’t marry non-muslim woman
 Sunni - Man can marry non-muslim woman but only - Kitabia i.e. Christians, Jews
 Proposal (Ijab) and Acceptance (Qubul) is must
 Proposal and Acceptance - In single meeting only
 Mulla - Present in marriage to recite verses

Iddat - Waiting period

i.e. Mourning period for women after death or divorce with husband

 Woman is prohibited from marrying during Iddat period

 Iddat period - 3 months
 If pregnant then till delivery or abortion
 If no sex between husband and wife - Then no Iddat period after divorce
 Iddat after death of husband - 4 months 10 days (or until delivery - which is longer)

Sahih - Regular marriage

Fasid - Irregular marriage

 Marriage with woman undergoing Iddat

 Marriage with 5th women
 Difference in religion of husband and wife

Batil - Void marriage

 Void Marriage - Not recognized by law at all

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Note: Irregular marriage (Sunni) = Void marriage (Shia)

i.e. Irregular marriage in Sunni Law is completely void in Shia Law

Talaq - Divorce

1. Talaq ul Sunnat - Approved form of talaq

 Ahsan - No sex during Iddat (woman is pure)

i.e. This is best form of talaq

Note: Tuhr - State of purity

 Hasan - 3 times said Talaq during Tuhr period (pure period)

2. Talaq ul Biddat - Disapproved form of Talaq

 3 times said Talaq - Immediate divorce

i.e. Triple Talaq - Unconstitutional (declared by - Allahabad High Court)

Case - Triple Talaq

Petition by - Shayara Bano

- Bhartiya Muslim Mahila Andolan

3. Ila - Husband swears not to cohabit with wife during Iddat period

 Zihar - When husband compares his wife with his mother unlawfully

Note: Wife can refuse to husband to cohabit

 Khula - Wife can ask for divorce from husband

If husband accepts i.e. Khula (divorce at request of wife)

 Mubarat - Divorce by mutual agreement of wife and husband

 Lian - When husband accuses his wife with false charge of adultery

Note: Wife can sue husband and get divorce

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  Fasakh - Cancellation of marriage by Oazi

Note: Applicable before Muslim Marriage Dissolution Act

Used to be done by muslim woman to get divorce

Dissolution of Muslim Marriage Act, 1939

Grounds for divorce for wife - Applicable for both Shia and Sunni

1. Absence of husband - for 4 years

Probation period - 6 months (court gives probation period)

i.e. if husband returns within 6 months - divorce is cancelled

2. Husband fails to maintain wife - for 2 years

3. Husband is in jail - for 7 or more than 7 years

4. Husband is impotent

5. Husband is cruel to wife - wife can file divorce

6. Husband suffering from non-curable disease

7. Wife married before 15 years of age - can file for divorce before becoming 18

Dower - Sum of money for compensation for wife after divorce

Note: Dower (Mehr) - To mark as a respect of wife from husband

1. Specified Dower - Specified in marriage contract

 Prompt Dower - Payable to wife immediately after marriage

 Deferred Dower - Payable to wife after divorce or death of husband

2. Proper Dower - Not specified in marriage contract

 Given according to customs

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Mohammad Ahmed Khan v. Shah Bano Begum

 Supreme Court - Reasonable maintenance to wife after divorce

 Result - Muslim Women (protection of rights on divorce) Act, 1986

Daniel Latifi v. Union of India

 Supreme Court - Muslim Women (protection of rights on divorce) Act, 1986

 Maintenance of wife after iddat period also which is reasonable and fair

Shariat Act, 1931

 Applicable on all muslins

Note: Khoja Muslims - Originally Hindu but following Islam

Jamait-ul-i-Hind - Greatest muslim religious body and muslim organization

Note: Hadith Muhammad Ali - Manual of Hadith

Things to remember in Hindu Law:

Full Blood - Two children having same father and mother

Half Blood - Two children having same father but different mothers

Uterine Blood - Two children having same mother but different fathers

Step Relation - Two children having different fathers and mothers

Note: No adoption is allowed when a person already have a son and a daughter (Hindu Law)

Marriage in Hindus not allowed:

 Within prohibited degree of relationship

 Sapinda relationship (blood relation)
 Within same gotra (endogamy)
 Inter-Caste marriages

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