The people of India are of different religious and faithless. They are governed by different sets of personal laws in respect of matters relating of family affairs, i.e., marriage, divorce, succession, etc.
Marriage:
Law relating to marriage and / or divorce has been codified in different enactment applicable to people of different religious. These are:
ADVERTISEMENTS:
1. The Converts’ Marriage Dissolution Act, 1866;
2. The Indian Divorce Act, 1869;
3. The Indian Christian Marriage Act, 1872;
4. The Kazis Act, 1880;
ADVERTISEMENTS:
5. The Anand Marriage Act, 1909;
6. The Child Marriage Restraint Act, 1929;
7. The Parsi Marriage and Divorce Act, 1936;
8. The Dissolution of Muslim Marriage Act, 1939;
ADVERTISEMENTS:
9. The Special Marriage Act, 1954;
10. The Hindu Marriage Act, 1955;
11. The Foreign Marriage Act, 1969; and
12. The Muslim Women (Protection of Rights on Divorce) Act, 1986;
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The Special Marriage Act, 1954 extends to the whole of India, except the State of Jammu and Kashmir and also applies to the citizens of India domiciled in territories to which the Act extends but who are in Jammu and Kashmir.
Persons governed by this Act can specially register marriage under the said Act even though they are of different religious faiths.
The Act also provides that the marriage celebrated under any other form can also be registered under the Special Marriage Act, if it satisfies the requirements of the Act.
An attempt has been made to codify Customary Law which is prevalent among Hindus by enacting the Hindu Marriage Act, 1955.
The Hindu Marriage Act, 1955, which extends to the whole of India, except the State of Jammu and Kashmir, applies also to Hindus domiciled in territories to which the Act extends and who are outside the said territories.
It applies to Hindus (in any of its forms or developments) and also to Buddhists, Sikhs, Jains and also those who are not Muslims, Christians, Parsis or Jews by religion.
However, the Act does not apply to members of any Scheduled Tribes unless the Central Government by notification in the official Gazette otherwise directs.
Provisions in regard to divorce are contained in Section 13 of the Hindu Marriage Act and Section 27 of the Special Marriage Act, common ground on which divorce can be sought by a husband or a wife under these Acts fall under broad heads: adultery, desertion, cruelty, unsoundness of mind, venereal disease, leprosy, mutual consent and being not heard of as alive for seven years.
As regards the Christian community, provisions relating to marriage and divorce are contained in the Indian Christian Marriage Act, 1872 and the Indian Divorce Act, 1869 respectively.
Provisions in regard to divorce applicable to the Christian community are contained in Section 10 of the Indian Divorce Act.
Under that Section, the husband can seek divorce on grounds of adultery on the part of his wife and the wife can seek divorce on the ground that the husband has become converting to another religion and has gone through marriage with another woman or has been guilty of:
(a) incestuous adultery, (b) bigamy with adultery, (c) marriage with another woman with adultery, (d) rape, sodomy or bestiality, (e) adultery coupled with such cruelty as without adultery would have entitled her to a divorce, (a system of divorce created by the Roman Church equivalent to judicial separation on grounds of adultery, perverse practices, cruelty, heresy and apostasy and (f) adultery coupled with desertion without reasonable excuse for two years or more.
As regards Muslims, marriages are governed by the Mohammedan Law prevalent in the Country. As regards divorce, i.e., Talaqna Muslim wife has much restricted right to dissolve her marriage. Unwritten and traditional law tried to ameliorate her position by permitting her to seek dissolution under the following forms.
(a) Talaqi-Tafwid: This is a form of delegated divorce. According to this, the husband delegates his right to divorce in a marriage contract which may stipulate that, inter, on his taking another wife, the first wife has a right on divorce him,
(b) Khula: This is dissolution of agreement between the parties to marriage on wife’s giving some consideration to husband for her release from marriage ties. Terms are a matter of bargain and usually take the form of the wife giving up her mehr or a portion of it, and
(c) Mubarat: this is divorce by mutual consent.
Further, by the Dissolution of Muslim Marriage Act, 1939, a Muslim wife has been giving right to dissolve marriage on these grounds:
(i) Whereabouts of the husband have not been known for a period of four years;
(ii) Husband is not maintaining her for a period of two years;
(iii) Imprisonment of husband for a period of seven years or more;
(iv) Failure on the part of husband to perform his material obligations, without a reasonable cause, for a period of three years;
(v) Impotency of husband;
(vi) Insanity for a period of two years;
(vii) Suffering from leprosy or virulent venereal disease;
(viii) Marriage took place before she attained the age of 15 years and not consummated; and
(ix) Cruelty.
The Parsi Marriage and Divorce Act, 1936 governs the matrimonial relations of Parsis. The word ‘Parsi’ is defined in the Act as a Parsi Zoroastrian. A Zoroastrian is a person who professes the Zoroastrian religion.
It has a racial significance. Every marriage as well as divorce under this Act is required to be registered in accordance with the procedure prescribed in the Act.
However, failure to fulfil requirements on that behalf does not make marriage invalid. The Act provides only for monogamy.
By the Parsi Marriage and Divorce (Amendment) Act, 1988 (5 of 1988), scope of certain provisions of the Parsi Marriage and Divorce Act, 1936 have been enlarged so as bring them in line with the Hindu Marriage Act, 1955.
As for the matrimonial laws of Jews, there are no codified laws in India. Even today, they are governed by their religious laws. Jews do not regard marriage as a Civil Contract, but as a relation between two persons involving very sacred duties.
Marriage can be dissolved through courts on grounds of adultery or cruelty. Marriages are monogamous.
Child Marriage:
The Child Marriage Restraint Act, 1929, as amended in 1978, now provides that marriage age for male will be 21 years and for female 18 years. This amendment has been brought into force from 1 October 1978.
Adoption:
Although there is no general law of adoption, yet it is permitted by a statute amongst Hindus and by custom amongst a few numerically insignificant categories of persons.
Science adoption is legal affiliation of a child; it informs the subject matter of personal law. Muslim, Christian and Parsis have no adoption laws and have to approach court under the Guardians and ward Act, 1980.
Muslim, Christian and Parsis can take a child under the said Act only under foster care becomes major, he is free away all his connection. Besides, such a child does not have legal right of inheritance.
Foreigners, who want to adopt India children, have to approach the court under the aforesaid Act.
In case the court has given permission for the child to take out of the country, adoption according to a foreign a law applicable to Guardian takes place outside the country.
Hindu laws relating to adoption has been amended and codified into the Hindu Adoption and Maintenance Act, 1956 (78 of 1956), under which a male or female Hindu having legal capacity, can take a son or daughter in adoption.
In dealing with the question of guardianship of a minor child, as in other spheres of family law, there is no uniform law. Hindu law, Muslim law and the Guardians and wards Act, 1890 are the distinct legal system which is prevalent.
A guardian may be a natural guardian, testamentary guardian or a guardian appointed by the court. In deciding the question of guardianship, two distinct things have to be taken into account person of the minor and his property. Often the same person is not entrusted with both.
The Hindu Minority and Guardianship Act, 1956 (32 of 1956) has codified laws of Hindus relating to minority and guardianship. As in the cause of unmodified law, it has upheld the superior right of father.
It lays down that a child is a minor till the age of 18 years. Natural guardian for both boys and unmarried girls is first the father and then the mother. Prior right of mother is recognised only for the custody of children below five.
In case of illegitimate children, the mother has a better claim than the putative father. The act makes no distinction between the person of the minor and his property and, therefore guardianship implies control over both.
The Act guardianship implies control over both. The Act directs that in deciding the question of guardianship, courts must take the welfare of child as paramount consideration.
Under the Muslim law, the father enjoys a dominant position. It also makes a distinction between guardianship and custody.
For guardianship, which has usually reference to guardianship of property, according to Sunnis, the father is preferred and in his absence his executor.
If no executor has been appointed by the father, the guardianship passes on to the paternal grandfather.
Among Shias, the difference is that the father is regarded as the sole guardian but after his death, it is the right of the grand father to take over responsibility and not that of the executor.
Both schools, however, agree that father while alive is the sole guardian. Mother is not recognised as a natural guardian even after the death of the father.
As regards rights of a natural guardian, there is no doubt that father’s right extends both to property and person. Even when mother has the custody of minor child, father’s general right of supervision and control remains.
Father can, however, appoint mother as a testamentary guardian. Thus, though mother may not be recognised as natural guardian, there is no objection to her being appointed under the father’s will.
Muslim law recognises that mother’s right to custody of minor children (Hizanat) is an absolute right. Even the father cannot deprive her of it. Misconduct is the only condition which can deprive the mother of this right.
As regards the age at which the right of mother to custody terminates, the Shia school holds that mother’s right to the Hizanat is only during the period if rearing which ends when the child completes the age of two, whereas Hanafi School extends the period till the minor son has reached the age of seven.
In case of girls, Shia laws uphold mother’s right till the girls reaches the age of seven and Hanafi School till she attains puberty.
The general law relating to guardians and wards 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.
This Act also provides that the court must take into consideration the welfare of the child while appointing a guardian under the Act.
Maintenance:
Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to maintenance forms a part of the personal law.
Under the Code of criminal Procedure, 1973 (2 of 1974), right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives.
Claim of the wife, etc. however, depends on the husband having sufficient menas. Claim of maintenance for all dependent persons is limited to Rs. 500 per month. Inclusion of the right of maintenance under the Code of Criminal Procedure has the great advantage of making the remedy both speedy and cheap.
However, divorced wives who have received money payable under the customary personal law are not entitled to maintenance claims under the Code of Criminal Procedure.
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 codified in the Hindu adoptions and Maintenance Act 1956 (78 of 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. Justifiable reasons are spelt out in the Act. Maintenance pendent likes (pending the suit) and even expenses of a matrimonial suit will be borne by either, husband or wife.
If the either spouse has no independent income for his or her support. The same principle will govern payment or permanent maintenance.
Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce) Act, 1986 protects rights of Muslim women who have been divorced by or have obtained divorce from their husbands and provides for matters connected therewith or incidental thereto.
This Act inter alia provides that a divorced Muslim woman shall be entitled to
(a) Reasonable and fair provision and maintenance to be maid and paid to her within the idat period by her former husband;
(b) Where she her self 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 friend.
In addition, the act also provides that where a divorced Muslim woman is unable to maintain herself after the period of iddat.
The magistrate shall order directing such of her relatives as would be entitled to inherit her property on her death according to the Muslim Law, and to pay such reasonable and fair maintenance to her as he may determine fit and proper.
Having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of such relatives, and such maintenance shall be payable by such relatives in proportion to the size of their inheritance of her property and at such periods as he may specify in his order.
Where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the events of any such children being unable to pay such maintenance, the magistrate shall order parents of such divorced woman to pay maintenance to her.
In the absence of such relatives or where such relatives are not in a position to maintain her, the magistrate may direct State Wakf Board established under Section 13 of the Wakf Act, 1995 functioning in the area in which the woman resides, to pay such maintenance as determined by him.
The Parsi Marriage and Divorce Act, 1936 recognises the right of wife to maintenance both alimony pendent life 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, wife’s own assets 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 governs maintenance rights of a Christian wife. The provisions are the same as those under the Parsie law and the same considerations applied in granting maintenance, both alimony pendent like and permanent maintenance.
Succession:
The Indian Succession Act was enacted in 1925. The object of the Act was to consolidate the large number of laws which were in existence at that time.
Laws governing succession to Muslim and Hindus were excluded from the purview of the Act.
While consolidating the laws in respect of succession, two schemes, one relating to succession to property of persons like Indian Christians, Jews and persons married under the Special Marriage Act, 1954 and the other relating to succession rights of Parsis, were adopted.
In the first scheme, applying to those other than Parsis, in the case of a person dying intestate leaving behind a widow and lineal descendants, the window would be entitled to a fixed share of one-third of property and lineal descendants shall be entitled to the remaining two-third.
This law was amended subsequently with the object of improving rights of window and it was provided that where the intestate dies leaving behind his widow and no lineal descendant and the net value of the estate does exceed Rs. 5, 000.
The widow would be entitled to the whole of his property. Where the net value of the estate exceeds Rs. 5,000 she is entitled to charge for the sum of Rs. 5,000 with interest at four per cent payment and in the residue, she is entitled to her share. The Act imposes no restriction on the power of a person to will away his property.
Under the second scheme, the Act provides for Parsi intestate succession. By the Indian Succession (Amendment) Act, 1991 (51 of 1991), the Act has been amended to provide equal shares for both sons and daughters in their parental properties, irrespective of the fact that it was that of the father or that of the mother.
It also enables the Parsis to bequeath their property to religious or charitable purpose, etc., without any restrictions.
In effect the amended law provides that where a Parsi dies intestate leaving behind a widow or widower as the case may be, and children, the property shall be divided so that the widow or widower and each child receives equal shares.
Further, where a Parsi dies leaving behind one or both parents in addition to children, or widow or widower and children, the property shall be so divided that the parent or each of the parents shall receive a share equal of half the share of each child.
The law relating to intestate succession among Hindus is codified in the Hindus Succession Act, 1956 (30 of 1956). It extends to the whole of India except the State of Jammu and Kashmir.
The remarkable features of the Act are the recognition of the right of women to inherit property of an intestate equally with men and abolition of the life estate of female heirs.
A vast majority of Muslims in India follow Hanafi doctrines of Sunni law. Courts presume that Muslims are governed by Hanafi law unless it is established to the contrary.
Though there are many features in common between Shia and Sunni schools, yet there are differences in some respects. Sunni law regards Koranic verses of inheritance as an addendum to pre-Islamic customary law and preserves the superior position of male agents.
Unlike Hindu and Christian law, Muslim law restricts a person’s right of gestation. A Muslim can bequeath only one-third of his estate.
A bequest to a stranger is valid without the conquest of heirs if it does not exceed a third of the estate, but a bequest to an heir without the consent of other heirs is invalid.
Consent of heirs to a bequest must be secured after the succession has opened and any consent given to a bequest during the lifetime of the tester can be retracted after his death. Shia law allows Muslims the freedom of bequest within the disposable third.