CBSE Textbook: Institutional Framework - Marriage and Divorce | Legal Studies for Class 11 - Humanities/Arts PDF Download

 Page 1


UNIT I UNIT III UNIT IV
UNIT V
UNIT II
Institutional Framework -  
Marriage and Divorce
Contents
I. Nature of Family Laws in India
II. Human Rights and Gender Perspective
III. Institutional Framework – Family Courts
IV . Role of Women in the Creation of Family Courts
V . Role of Lawyers and Counselors in Family Courts
VI. Role of Counsellors and Gender Issues
VII. Marriage and Divorce
VIII. Exercises
Learning Outcomes
After the completion of this chapter, the students will be able to:
• Explain the evolution of family laws and establishment of Family Courts in India
• Analyse the role of counsellors and lawyers in Family Courts
• Critically evaluate the existing gender bias in Personal Laws in India 
• Compare types of marriage and conditions of a valid marriage under various family laws 
• Evaluate the theories and grounds for divorce
I. Nature of Family Laws in India
Family Laws or Personal Laws consists of family or personal matters like marriage, dowry, dissolution 
of marriage, guardianship, adoption, maintenance, gifts, wills, inheritance, succession, and so on. 
In India, religion and personal laws are largely interlinked. So Hindus, Sikhs, Jains and Buddhists 
follow Hindu Family laws, (Sikhs have their own marriage law but are covered under Hindu Law for 
other family matters); Muslims, Christians, and Parsees have their own laws; and other traditional 
communities, like the tribal groups, follow their own customary practices or customary laws. The 
Hindu law, the Sikh marriage law, the Parsee Law, and the Christian law are codified or passed by the 
Indian Parliament as Acts or laws. The Muslim Law is uncodified and is based on the Sharia, which is 
the moral and religious law primarily grounded on the principles of the Islamic religious text, the holy 
Quran and examples laid down in the Sunnah by the Islamic Prophet Muhammad.
To this extent, India follows a peculiar conception of a secular state; although these varied 
communities are one nation, they co-exist as independent and distinct communities in the matters 
of family laws. As described herein, unlike other laws in force in India, such as criminal and civil 
CHAPTER
1
Page 2


UNIT I UNIT III UNIT IV
UNIT V
UNIT II
Institutional Framework -  
Marriage and Divorce
Contents
I. Nature of Family Laws in India
II. Human Rights and Gender Perspective
III. Institutional Framework – Family Courts
IV . Role of Women in the Creation of Family Courts
V . Role of Lawyers and Counselors in Family Courts
VI. Role of Counsellors and Gender Issues
VII. Marriage and Divorce
VIII. Exercises
Learning Outcomes
After the completion of this chapter, the students will be able to:
• Explain the evolution of family laws and establishment of Family Courts in India
• Analyse the role of counsellors and lawyers in Family Courts
• Critically evaluate the existing gender bias in Personal Laws in India 
• Compare types of marriage and conditions of a valid marriage under various family laws 
• Evaluate the theories and grounds for divorce
I. Nature of Family Laws in India
Family Laws or Personal Laws consists of family or personal matters like marriage, dowry, dissolution 
of marriage, guardianship, adoption, maintenance, gifts, wills, inheritance, succession, and so on. 
In India, religion and personal laws are largely interlinked. So Hindus, Sikhs, Jains and Buddhists 
follow Hindu Family laws, (Sikhs have their own marriage law but are covered under Hindu Law for 
other family matters); Muslims, Christians, and Parsees have their own laws; and other traditional 
communities, like the tribal groups, follow their own customary practices or customary laws. The 
Hindu law, the Sikh marriage law, the Parsee Law, and the Christian law are codified or passed by the 
Indian Parliament as Acts or laws. The Muslim Law is uncodified and is based on the Sharia, which is 
the moral and religious law primarily grounded on the principles of the Islamic religious text, the holy 
Quran and examples laid down in the Sunnah by the Islamic Prophet Muhammad.
To this extent, India follows a peculiar conception of a secular state; although these varied 
communities are one nation, they co-exist as independent and distinct communities in the matters 
of family laws. As described herein, unlike other laws in force in India, such as criminal and civil 
CHAPTER
1
UNIT I UNIT III UNIT IV
UNIT V
UNIT II
laws, family laws are not uniform. However, the Constitution of India, in Article 44, provides 
for a goal or aspiration for achieving a uniform civil code in family and personal matters. This 
provision is merely a directive or aspirational and is not enforceable by a court of law.
A. Ancient Period 
 The Laws in ancient India were based mainly on religious texts such as Dharmashastras and 
Dharmasutras. They are Sanskrit written texts on religious and legal duties.  They provided rules 
for the life of an ideal householder and contained the Hindu knowledge about religion, law, 
ethics and so on. 
B. Medieval Period
 The Hindu legal system in the medieval period was also based on the smriti literature and the 
Dharmashastra as well other later digests. Since the medieval period, starting from the 8th 
century, two major schools of personal laws have been followed; Mitakshara, followed in North 
and South India, and Dayabhaga, followed in the Bengal region. 
 The Muslims follow Shariat, which is uncodified law based on Quran. The Hindu Law and 
the Muslim Shariat covered all aspects of life and did not differentiate much between morals, 
customs, and laws. Even during the Mughal Empire in the Indian subcontinent, between the 16th 
and 18th centuries, Hindus and Muslims were ruled largely by their own sets of local customs 
and Personal Laws.
C. British-India
 The British came to the Indian subcontinent in the early 17th century. In the initial years, they 
were not concerned with the various regional and local laws practiced in the subcontinent. In 
1772, when the East India Company established themselves as the civil administrators, Warren 
Hastings, the first Governor-General of Bengal, introduced the uniform criminal law with the 
idea of equality before the law for both Hindus and Muslims. 
 However, in matters of Personal Law, he established that the laws of the holy Quran would be 
applicable to the Muslims, and the Shastras for the Hindus. As the British had no knowledge 
of the Personal Laws, they appointed the Hindu pandits and the Muslim jurists as consultants 
in their courts, and this led to the administration and development of the Anglo-Hindu and the 
Anglo-Islamic Personal Laws. 
 After 1864, the system of court Hindu pandits and Muslim jurists was abolished due to dissimilar 
interpretations and some suspicions of corruption, and the court judges interpreted the Personal 
Laws themselves. During the British rule, both the Anglo-Hindu personal law and the Anglo-
Islamic Personal Laws continued to develop through reforms, law commissions, and mainly 
through case laws.
D. Post-Independence
 After India’s independence in 1947, efforts were made to develop a uniform civil code for 
dealing with matters of Personal Law. It started with the uniform Hindu Code Bill, which 
attempted to combine the varied regional customs and usages. In 1951, it was shelved due to 
much opposition. Since the Constitution of India had adopted the word ‘secular’ as an important 
feature of the Indian republic, the uniform family law was seen as biased in favor of the Hindu 
majority community and unsecular. 
 In a similar manner, in 1955-56, the Parliament adopted and codified the four different major 
legislations governing the family and personal law matters of the Hindu community: Hindu 
Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act 
(1956), and Hindu Adoptions and Maintenance Act (1956). 
Page 3


UNIT I UNIT III UNIT IV
UNIT V
UNIT II
Institutional Framework -  
Marriage and Divorce
Contents
I. Nature of Family Laws in India
II. Human Rights and Gender Perspective
III. Institutional Framework – Family Courts
IV . Role of Women in the Creation of Family Courts
V . Role of Lawyers and Counselors in Family Courts
VI. Role of Counsellors and Gender Issues
VII. Marriage and Divorce
VIII. Exercises
Learning Outcomes
After the completion of this chapter, the students will be able to:
• Explain the evolution of family laws and establishment of Family Courts in India
• Analyse the role of counsellors and lawyers in Family Courts
• Critically evaluate the existing gender bias in Personal Laws in India 
• Compare types of marriage and conditions of a valid marriage under various family laws 
• Evaluate the theories and grounds for divorce
I. Nature of Family Laws in India
Family Laws or Personal Laws consists of family or personal matters like marriage, dowry, dissolution 
of marriage, guardianship, adoption, maintenance, gifts, wills, inheritance, succession, and so on. 
In India, religion and personal laws are largely interlinked. So Hindus, Sikhs, Jains and Buddhists 
follow Hindu Family laws, (Sikhs have their own marriage law but are covered under Hindu Law for 
other family matters); Muslims, Christians, and Parsees have their own laws; and other traditional 
communities, like the tribal groups, follow their own customary practices or customary laws. The 
Hindu law, the Sikh marriage law, the Parsee Law, and the Christian law are codified or passed by the 
Indian Parliament as Acts or laws. The Muslim Law is uncodified and is based on the Sharia, which is 
the moral and religious law primarily grounded on the principles of the Islamic religious text, the holy 
Quran and examples laid down in the Sunnah by the Islamic Prophet Muhammad.
To this extent, India follows a peculiar conception of a secular state; although these varied 
communities are one nation, they co-exist as independent and distinct communities in the matters 
of family laws. As described herein, unlike other laws in force in India, such as criminal and civil 
CHAPTER
1
UNIT I UNIT III UNIT IV
UNIT V
UNIT II
laws, family laws are not uniform. However, the Constitution of India, in Article 44, provides 
for a goal or aspiration for achieving a uniform civil code in family and personal matters. This 
provision is merely a directive or aspirational and is not enforceable by a court of law.
A. Ancient Period 
 The Laws in ancient India were based mainly on religious texts such as Dharmashastras and 
Dharmasutras. They are Sanskrit written texts on religious and legal duties.  They provided rules 
for the life of an ideal householder and contained the Hindu knowledge about religion, law, 
ethics and so on. 
B. Medieval Period
 The Hindu legal system in the medieval period was also based on the smriti literature and the 
Dharmashastra as well other later digests. Since the medieval period, starting from the 8th 
century, two major schools of personal laws have been followed; Mitakshara, followed in North 
and South India, and Dayabhaga, followed in the Bengal region. 
 The Muslims follow Shariat, which is uncodified law based on Quran. The Hindu Law and 
the Muslim Shariat covered all aspects of life and did not differentiate much between morals, 
customs, and laws. Even during the Mughal Empire in the Indian subcontinent, between the 16th 
and 18th centuries, Hindus and Muslims were ruled largely by their own sets of local customs 
and Personal Laws.
C. British-India
 The British came to the Indian subcontinent in the early 17th century. In the initial years, they 
were not concerned with the various regional and local laws practiced in the subcontinent. In 
1772, when the East India Company established themselves as the civil administrators, Warren 
Hastings, the first Governor-General of Bengal, introduced the uniform criminal law with the 
idea of equality before the law for both Hindus and Muslims. 
 However, in matters of Personal Law, he established that the laws of the holy Quran would be 
applicable to the Muslims, and the Shastras for the Hindus. As the British had no knowledge 
of the Personal Laws, they appointed the Hindu pandits and the Muslim jurists as consultants 
in their courts, and this led to the administration and development of the Anglo-Hindu and the 
Anglo-Islamic Personal Laws. 
 After 1864, the system of court Hindu pandits and Muslim jurists was abolished due to dissimilar 
interpretations and some suspicions of corruption, and the court judges interpreted the Personal 
Laws themselves. During the British rule, both the Anglo-Hindu personal law and the Anglo-
Islamic Personal Laws continued to develop through reforms, law commissions, and mainly 
through case laws.
D. Post-Independence
 After India’s independence in 1947, efforts were made to develop a uniform civil code for 
dealing with matters of Personal Law. It started with the uniform Hindu Code Bill, which 
attempted to combine the varied regional customs and usages. In 1951, it was shelved due to 
much opposition. Since the Constitution of India had adopted the word ‘secular’ as an important 
feature of the Indian republic, the uniform family law was seen as biased in favor of the Hindu 
majority community and unsecular. 
 In a similar manner, in 1955-56, the Parliament adopted and codified the four different major 
legislations governing the family and personal law matters of the Hindu community: Hindu 
Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act 
(1956), and Hindu Adoptions and Maintenance Act (1956). 
UNIT I UNIT III UNIT IV
UNIT V
UNIT II
135
 Accordingly, Christians, Parsees, and Sikhs have their own codified Marriage Acts; Muslims are 
governed by the Sharia; and the traditional communities continue to practice their uncodified 
customary laws. 
 As mentioned earlier, although the Constitution of India, in Article 44, provides for a goal or 
aspiration for achieving a uniform civil code, this has never been taken up seriously for the fear 
of widespread communal violence.
II. Human Rights and Gender Perspective
There are various provisions in the Constitution of India that are specified for gender equality. The 
preamble (or the introduction) to the Constitution of India resolves to secure justice, liberty, equality, 
and dignity of all. Furthermore, Article 14 provides equal treatment before the law for every person, 
and Article 15 prohibits discrimination based on religion, race, caste, sex or place of birth. Thus, the 
idea of equality is strongly emphasized in the Constitution. 
However, exceptions exist too, for example, Articles 25 and 26 of the Constitution provide for freedom 
of religion that includes freedom of conscience and free profession, practice and propagation of 
religion as well as freedom to manage religious affairs. The religious communities have used these 
provisions to argue that modifying their family laws would be interfering with their freedom of religion.
For those who promote the traditional religious values, the above gender equity provisions are contrary 
to their customary methods of law. For example, the traditional Hindu religious legal methods found 
in The Laws of Manu provide for unequal treatment of law and punishment based on gender as well 
as caste. Gender inequalities also exist within the Islamic legal traditions. Such competing gender 
inequalities of the two communities in particular, also prevented the adoption of a uniform civil code, 
which has continued to remain an unrealised aspirational provision in the Constitution.
The modern Hindu family laws were adopted by reconfiguring the traditional religious laws and further 
based on modern constitutional values. However, complete gender equity has not been achieved. 
The instances of gender inequality existing in the present day Hindu family law include: 1) the Hindu 
Marriage Act (Section 5.iii) prescribes marriageable age for girl as 18 and boy as 21. Recently the 
government has proposed the marriageable age of girls to be increased from 18 to 21 years. 2) The 
Hindu Succession Act provides different methods of intestate (without a will) succession of property 
for male and female intestates; 3) the Hindu Minority and Guardianship Act (Section 6) prohibits a 
mother to act as a child’s natural guardian unless the father is dead or otherwise disqualified; and 
4) the Hindu Adoptions and Maintenance Act (Section 6) prohibits a mother to give her child in 
adoption unless the father is dead or otherwise disqualified.
Some examples believed to promote gender inequities in the Islamic family laws include: 1) the 
practice of polygamy is permitted in Islamic law; 2) the common view that a husband can divorce his 
wife by the triple talaq, and 3) a Muslim husband is to pay maintenance to a divorced wife only during 
the iddat period of three months. 
There are other practical challenges in achieving gender equity in the realm of family laws, one of the 
foremost being lack of information about family laws that are applicable to respective communities. 
Most residents of rural India, know neither the minimum age of marriage nor that dowry is prohibited. 
Also, they are unaware of legal grounds of divorce and prohibition of the practice of bigamy or 
polygamy.
In Islamic law, there are three types of divorce:
Talaq-e-Ahsan: Talaq-e-Ahsan is the most ideal way of dissolving a marriage.
Talaq-e-Hasan: In Talaq-e-Hasan, talaq is pronounced once a month, over a period of three 
Page 4


UNIT I UNIT III UNIT IV
UNIT V
UNIT II
Institutional Framework -  
Marriage and Divorce
Contents
I. Nature of Family Laws in India
II. Human Rights and Gender Perspective
III. Institutional Framework – Family Courts
IV . Role of Women in the Creation of Family Courts
V . Role of Lawyers and Counselors in Family Courts
VI. Role of Counsellors and Gender Issues
VII. Marriage and Divorce
VIII. Exercises
Learning Outcomes
After the completion of this chapter, the students will be able to:
• Explain the evolution of family laws and establishment of Family Courts in India
• Analyse the role of counsellors and lawyers in Family Courts
• Critically evaluate the existing gender bias in Personal Laws in India 
• Compare types of marriage and conditions of a valid marriage under various family laws 
• Evaluate the theories and grounds for divorce
I. Nature of Family Laws in India
Family Laws or Personal Laws consists of family or personal matters like marriage, dowry, dissolution 
of marriage, guardianship, adoption, maintenance, gifts, wills, inheritance, succession, and so on. 
In India, religion and personal laws are largely interlinked. So Hindus, Sikhs, Jains and Buddhists 
follow Hindu Family laws, (Sikhs have their own marriage law but are covered under Hindu Law for 
other family matters); Muslims, Christians, and Parsees have their own laws; and other traditional 
communities, like the tribal groups, follow their own customary practices or customary laws. The 
Hindu law, the Sikh marriage law, the Parsee Law, and the Christian law are codified or passed by the 
Indian Parliament as Acts or laws. The Muslim Law is uncodified and is based on the Sharia, which is 
the moral and religious law primarily grounded on the principles of the Islamic religious text, the holy 
Quran and examples laid down in the Sunnah by the Islamic Prophet Muhammad.
To this extent, India follows a peculiar conception of a secular state; although these varied 
communities are one nation, they co-exist as independent and distinct communities in the matters 
of family laws. As described herein, unlike other laws in force in India, such as criminal and civil 
CHAPTER
1
UNIT I UNIT III UNIT IV
UNIT V
UNIT II
laws, family laws are not uniform. However, the Constitution of India, in Article 44, provides 
for a goal or aspiration for achieving a uniform civil code in family and personal matters. This 
provision is merely a directive or aspirational and is not enforceable by a court of law.
A. Ancient Period 
 The Laws in ancient India were based mainly on religious texts such as Dharmashastras and 
Dharmasutras. They are Sanskrit written texts on religious and legal duties.  They provided rules 
for the life of an ideal householder and contained the Hindu knowledge about religion, law, 
ethics and so on. 
B. Medieval Period
 The Hindu legal system in the medieval period was also based on the smriti literature and the 
Dharmashastra as well other later digests. Since the medieval period, starting from the 8th 
century, two major schools of personal laws have been followed; Mitakshara, followed in North 
and South India, and Dayabhaga, followed in the Bengal region. 
 The Muslims follow Shariat, which is uncodified law based on Quran. The Hindu Law and 
the Muslim Shariat covered all aspects of life and did not differentiate much between morals, 
customs, and laws. Even during the Mughal Empire in the Indian subcontinent, between the 16th 
and 18th centuries, Hindus and Muslims were ruled largely by their own sets of local customs 
and Personal Laws.
C. British-India
 The British came to the Indian subcontinent in the early 17th century. In the initial years, they 
were not concerned with the various regional and local laws practiced in the subcontinent. In 
1772, when the East India Company established themselves as the civil administrators, Warren 
Hastings, the first Governor-General of Bengal, introduced the uniform criminal law with the 
idea of equality before the law for both Hindus and Muslims. 
 However, in matters of Personal Law, he established that the laws of the holy Quran would be 
applicable to the Muslims, and the Shastras for the Hindus. As the British had no knowledge 
of the Personal Laws, they appointed the Hindu pandits and the Muslim jurists as consultants 
in their courts, and this led to the administration and development of the Anglo-Hindu and the 
Anglo-Islamic Personal Laws. 
 After 1864, the system of court Hindu pandits and Muslim jurists was abolished due to dissimilar 
interpretations and some suspicions of corruption, and the court judges interpreted the Personal 
Laws themselves. During the British rule, both the Anglo-Hindu personal law and the Anglo-
Islamic Personal Laws continued to develop through reforms, law commissions, and mainly 
through case laws.
D. Post-Independence
 After India’s independence in 1947, efforts were made to develop a uniform civil code for 
dealing with matters of Personal Law. It started with the uniform Hindu Code Bill, which 
attempted to combine the varied regional customs and usages. In 1951, it was shelved due to 
much opposition. Since the Constitution of India had adopted the word ‘secular’ as an important 
feature of the Indian republic, the uniform family law was seen as biased in favor of the Hindu 
majority community and unsecular. 
 In a similar manner, in 1955-56, the Parliament adopted and codified the four different major 
legislations governing the family and personal law matters of the Hindu community: Hindu 
Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act 
(1956), and Hindu Adoptions and Maintenance Act (1956). 
UNIT I UNIT III UNIT IV
UNIT V
UNIT II
135
 Accordingly, Christians, Parsees, and Sikhs have their own codified Marriage Acts; Muslims are 
governed by the Sharia; and the traditional communities continue to practice their uncodified 
customary laws. 
 As mentioned earlier, although the Constitution of India, in Article 44, provides for a goal or 
aspiration for achieving a uniform civil code, this has never been taken up seriously for the fear 
of widespread communal violence.
II. Human Rights and Gender Perspective
There are various provisions in the Constitution of India that are specified for gender equality. The 
preamble (or the introduction) to the Constitution of India resolves to secure justice, liberty, equality, 
and dignity of all. Furthermore, Article 14 provides equal treatment before the law for every person, 
and Article 15 prohibits discrimination based on religion, race, caste, sex or place of birth. Thus, the 
idea of equality is strongly emphasized in the Constitution. 
However, exceptions exist too, for example, Articles 25 and 26 of the Constitution provide for freedom 
of religion that includes freedom of conscience and free profession, practice and propagation of 
religion as well as freedom to manage religious affairs. The religious communities have used these 
provisions to argue that modifying their family laws would be interfering with their freedom of religion.
For those who promote the traditional religious values, the above gender equity provisions are contrary 
to their customary methods of law. For example, the traditional Hindu religious legal methods found 
in The Laws of Manu provide for unequal treatment of law and punishment based on gender as well 
as caste. Gender inequalities also exist within the Islamic legal traditions. Such competing gender 
inequalities of the two communities in particular, also prevented the adoption of a uniform civil code, 
which has continued to remain an unrealised aspirational provision in the Constitution.
The modern Hindu family laws were adopted by reconfiguring the traditional religious laws and further 
based on modern constitutional values. However, complete gender equity has not been achieved. 
The instances of gender inequality existing in the present day Hindu family law include: 1) the Hindu 
Marriage Act (Section 5.iii) prescribes marriageable age for girl as 18 and boy as 21. Recently the 
government has proposed the marriageable age of girls to be increased from 18 to 21 years. 2) The 
Hindu Succession Act provides different methods of intestate (without a will) succession of property 
for male and female intestates; 3) the Hindu Minority and Guardianship Act (Section 6) prohibits a 
mother to act as a child’s natural guardian unless the father is dead or otherwise disqualified; and 
4) the Hindu Adoptions and Maintenance Act (Section 6) prohibits a mother to give her child in 
adoption unless the father is dead or otherwise disqualified.
Some examples believed to promote gender inequities in the Islamic family laws include: 1) the 
practice of polygamy is permitted in Islamic law; 2) the common view that a husband can divorce his 
wife by the triple talaq, and 3) a Muslim husband is to pay maintenance to a divorced wife only during 
the iddat period of three months. 
There are other practical challenges in achieving gender equity in the realm of family laws, one of the 
foremost being lack of information about family laws that are applicable to respective communities. 
Most residents of rural India, know neither the minimum age of marriage nor that dowry is prohibited. 
Also, they are unaware of legal grounds of divorce and prohibition of the practice of bigamy or 
polygamy.
In Islamic law, there are three types of divorce:
Talaq-e-Ahsan: Talaq-e-Ahsan is the most ideal way of dissolving a marriage.
Talaq-e-Hasan: In Talaq-e-Hasan, talaq is pronounced once a month, over a period of three 
UNIT I UNIT III UNIT IV
UNIT V
UNIT II
136
months. If cohabitation is not resumed during this period, divorce gets formalised after the third 
utterance in the third month.
Talaq-e-Biddat or Instant Triple Talaq: Instant Talaq or ‘Triple Talaq’ or ‘Talaq-e-Biddat’ is an 
Islamic practice that allows men to divorce their wives immediately by uttering the word ‘talaq’ 
three times. The pronouncement to end the marriage can be oral or written, or by electronic means 
i.e., telephone, SMS, email or social media.
The practice of divorce by the consecutive utterance of talaq three times i.e.,Talaq-e-Biddat or 
Instant Triple Talaq has been deemed invalid. Under the new law, Talaq-e-Biddat or instant 
triple talaq in any form –spoken, written, or by electronic means such as email or SMS 
– is illegal and void, with up to three years in jail for the husband. The other two forms of talaq 
(divorce) – Talaq-e-Ahsan and Talaq-e-Hasan remain valid under the Muslim law.
III. Institutional Framework - Family Courts
In 1984, the Family Courts Act was enacted for creation and functioning of family courts with expertise 
to deal with matrimonial and family law matters. The Act is procedural and does not override the 
substantive family laws, and accordingly, the rights and obligations of parties to disputes are based on 
the family, personal or matrimonial laws. 
During the late 1980s and 1990s, many family courts were established in most major cities in India 
and the matrimonial and family law cases were shifted from the district, civil and criminal courts to 
the newly created special courts. 
Family courts were created with many distinct features and goals including: 1) Reduction in formality 
and intimidation in litigation process; 2) Speed in justice delivery; and 3) Facilitation in conciliation 
and settlements. 
The personal or family law subject matters that fall within the jurisdiction of family courts include: 
nullity of marriage (to declare a marriage as null and void); restitution of conjugal rights (if either of 
the spouse leaves the common matrimonial home without any reasonable excuse, then the aggrieved 
spouse can file a petition for restitution of conjugal rights whereby the courts asks the spouse to 
return back to the common matrimonial home); judicial separation (the marriage is not dissolved 
but suspends the marital rights and obligations); validity of marriage; matrimonial status; disputes 
regarding property of either of the parties or joint property; injunction arising out of marital relations; 
legitimacy of any person; maintenance; and guardianship, custody and access to any minor.
The relevant statutes that come within the purview of Family Courts Act include the following:
a. The Hindu Marriage Act, 1955: This Act codifies the marriage law of the Hindus and 
primarily deals with the validity and conditions for invalidity and applicability of marriage.
b. Special Marriage Act, 1954: The Act affords a special method of civil contractual marriage 
(and divorce) for all Indian nationals regardless of religion or faith followed by the parties. This 
act does not require the customary or religious rites or ceremonies of marriage to be observed.
c. Dissolution of Muslim Marriage Act, 1939: This Act explains the dissolution of marriage 
by women married under Muslim law and the effects of the renunciation of Islam by a married 
Muslim woman.
d. Foreign Marriages Act, 1969: This statute deals with marriages of citizens of India living 
outside India.
e. The Indian Divorce Act, 1869: The law relates to the divorce of persons professing the 
Christian religion.
Page 5


UNIT I UNIT III UNIT IV
UNIT V
UNIT II
Institutional Framework -  
Marriage and Divorce
Contents
I. Nature of Family Laws in India
II. Human Rights and Gender Perspective
III. Institutional Framework – Family Courts
IV . Role of Women in the Creation of Family Courts
V . Role of Lawyers and Counselors in Family Courts
VI. Role of Counsellors and Gender Issues
VII. Marriage and Divorce
VIII. Exercises
Learning Outcomes
After the completion of this chapter, the students will be able to:
• Explain the evolution of family laws and establishment of Family Courts in India
• Analyse the role of counsellors and lawyers in Family Courts
• Critically evaluate the existing gender bias in Personal Laws in India 
• Compare types of marriage and conditions of a valid marriage under various family laws 
• Evaluate the theories and grounds for divorce
I. Nature of Family Laws in India
Family Laws or Personal Laws consists of family or personal matters like marriage, dowry, dissolution 
of marriage, guardianship, adoption, maintenance, gifts, wills, inheritance, succession, and so on. 
In India, religion and personal laws are largely interlinked. So Hindus, Sikhs, Jains and Buddhists 
follow Hindu Family laws, (Sikhs have their own marriage law but are covered under Hindu Law for 
other family matters); Muslims, Christians, and Parsees have their own laws; and other traditional 
communities, like the tribal groups, follow their own customary practices or customary laws. The 
Hindu law, the Sikh marriage law, the Parsee Law, and the Christian law are codified or passed by the 
Indian Parliament as Acts or laws. The Muslim Law is uncodified and is based on the Sharia, which is 
the moral and religious law primarily grounded on the principles of the Islamic religious text, the holy 
Quran and examples laid down in the Sunnah by the Islamic Prophet Muhammad.
To this extent, India follows a peculiar conception of a secular state; although these varied 
communities are one nation, they co-exist as independent and distinct communities in the matters 
of family laws. As described herein, unlike other laws in force in India, such as criminal and civil 
CHAPTER
1
UNIT I UNIT III UNIT IV
UNIT V
UNIT II
laws, family laws are not uniform. However, the Constitution of India, in Article 44, provides 
for a goal or aspiration for achieving a uniform civil code in family and personal matters. This 
provision is merely a directive or aspirational and is not enforceable by a court of law.
A. Ancient Period 
 The Laws in ancient India were based mainly on religious texts such as Dharmashastras and 
Dharmasutras. They are Sanskrit written texts on religious and legal duties.  They provided rules 
for the life of an ideal householder and contained the Hindu knowledge about religion, law, 
ethics and so on. 
B. Medieval Period
 The Hindu legal system in the medieval period was also based on the smriti literature and the 
Dharmashastra as well other later digests. Since the medieval period, starting from the 8th 
century, two major schools of personal laws have been followed; Mitakshara, followed in North 
and South India, and Dayabhaga, followed in the Bengal region. 
 The Muslims follow Shariat, which is uncodified law based on Quran. The Hindu Law and 
the Muslim Shariat covered all aspects of life and did not differentiate much between morals, 
customs, and laws. Even during the Mughal Empire in the Indian subcontinent, between the 16th 
and 18th centuries, Hindus and Muslims were ruled largely by their own sets of local customs 
and Personal Laws.
C. British-India
 The British came to the Indian subcontinent in the early 17th century. In the initial years, they 
were not concerned with the various regional and local laws practiced in the subcontinent. In 
1772, when the East India Company established themselves as the civil administrators, Warren 
Hastings, the first Governor-General of Bengal, introduced the uniform criminal law with the 
idea of equality before the law for both Hindus and Muslims. 
 However, in matters of Personal Law, he established that the laws of the holy Quran would be 
applicable to the Muslims, and the Shastras for the Hindus. As the British had no knowledge 
of the Personal Laws, they appointed the Hindu pandits and the Muslim jurists as consultants 
in their courts, and this led to the administration and development of the Anglo-Hindu and the 
Anglo-Islamic Personal Laws. 
 After 1864, the system of court Hindu pandits and Muslim jurists was abolished due to dissimilar 
interpretations and some suspicions of corruption, and the court judges interpreted the Personal 
Laws themselves. During the British rule, both the Anglo-Hindu personal law and the Anglo-
Islamic Personal Laws continued to develop through reforms, law commissions, and mainly 
through case laws.
D. Post-Independence
 After India’s independence in 1947, efforts were made to develop a uniform civil code for 
dealing with matters of Personal Law. It started with the uniform Hindu Code Bill, which 
attempted to combine the varied regional customs and usages. In 1951, it was shelved due to 
much opposition. Since the Constitution of India had adopted the word ‘secular’ as an important 
feature of the Indian republic, the uniform family law was seen as biased in favor of the Hindu 
majority community and unsecular. 
 In a similar manner, in 1955-56, the Parliament adopted and codified the four different major 
legislations governing the family and personal law matters of the Hindu community: Hindu 
Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act 
(1956), and Hindu Adoptions and Maintenance Act (1956). 
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 Accordingly, Christians, Parsees, and Sikhs have their own codified Marriage Acts; Muslims are 
governed by the Sharia; and the traditional communities continue to practice their uncodified 
customary laws. 
 As mentioned earlier, although the Constitution of India, in Article 44, provides for a goal or 
aspiration for achieving a uniform civil code, this has never been taken up seriously for the fear 
of widespread communal violence.
II. Human Rights and Gender Perspective
There are various provisions in the Constitution of India that are specified for gender equality. The 
preamble (or the introduction) to the Constitution of India resolves to secure justice, liberty, equality, 
and dignity of all. Furthermore, Article 14 provides equal treatment before the law for every person, 
and Article 15 prohibits discrimination based on religion, race, caste, sex or place of birth. Thus, the 
idea of equality is strongly emphasized in the Constitution. 
However, exceptions exist too, for example, Articles 25 and 26 of the Constitution provide for freedom 
of religion that includes freedom of conscience and free profession, practice and propagation of 
religion as well as freedom to manage religious affairs. The religious communities have used these 
provisions to argue that modifying their family laws would be interfering with their freedom of religion.
For those who promote the traditional religious values, the above gender equity provisions are contrary 
to their customary methods of law. For example, the traditional Hindu religious legal methods found 
in The Laws of Manu provide for unequal treatment of law and punishment based on gender as well 
as caste. Gender inequalities also exist within the Islamic legal traditions. Such competing gender 
inequalities of the two communities in particular, also prevented the adoption of a uniform civil code, 
which has continued to remain an unrealised aspirational provision in the Constitution.
The modern Hindu family laws were adopted by reconfiguring the traditional religious laws and further 
based on modern constitutional values. However, complete gender equity has not been achieved. 
The instances of gender inequality existing in the present day Hindu family law include: 1) the Hindu 
Marriage Act (Section 5.iii) prescribes marriageable age for girl as 18 and boy as 21. Recently the 
government has proposed the marriageable age of girls to be increased from 18 to 21 years. 2) The 
Hindu Succession Act provides different methods of intestate (without a will) succession of property 
for male and female intestates; 3) the Hindu Minority and Guardianship Act (Section 6) prohibits a 
mother to act as a child’s natural guardian unless the father is dead or otherwise disqualified; and 
4) the Hindu Adoptions and Maintenance Act (Section 6) prohibits a mother to give her child in 
adoption unless the father is dead or otherwise disqualified.
Some examples believed to promote gender inequities in the Islamic family laws include: 1) the 
practice of polygamy is permitted in Islamic law; 2) the common view that a husband can divorce his 
wife by the triple talaq, and 3) a Muslim husband is to pay maintenance to a divorced wife only during 
the iddat period of three months. 
There are other practical challenges in achieving gender equity in the realm of family laws, one of the 
foremost being lack of information about family laws that are applicable to respective communities. 
Most residents of rural India, know neither the minimum age of marriage nor that dowry is prohibited. 
Also, they are unaware of legal grounds of divorce and prohibition of the practice of bigamy or 
polygamy.
In Islamic law, there are three types of divorce:
Talaq-e-Ahsan: Talaq-e-Ahsan is the most ideal way of dissolving a marriage.
Talaq-e-Hasan: In Talaq-e-Hasan, talaq is pronounced once a month, over a period of three 
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months. If cohabitation is not resumed during this period, divorce gets formalised after the third 
utterance in the third month.
Talaq-e-Biddat or Instant Triple Talaq: Instant Talaq or ‘Triple Talaq’ or ‘Talaq-e-Biddat’ is an 
Islamic practice that allows men to divorce their wives immediately by uttering the word ‘talaq’ 
three times. The pronouncement to end the marriage can be oral or written, or by electronic means 
i.e., telephone, SMS, email or social media.
The practice of divorce by the consecutive utterance of talaq three times i.e.,Talaq-e-Biddat or 
Instant Triple Talaq has been deemed invalid. Under the new law, Talaq-e-Biddat or instant 
triple talaq in any form –spoken, written, or by electronic means such as email or SMS 
– is illegal and void, with up to three years in jail for the husband. The other two forms of talaq 
(divorce) – Talaq-e-Ahsan and Talaq-e-Hasan remain valid under the Muslim law.
III. Institutional Framework - Family Courts
In 1984, the Family Courts Act was enacted for creation and functioning of family courts with expertise 
to deal with matrimonial and family law matters. The Act is procedural and does not override the 
substantive family laws, and accordingly, the rights and obligations of parties to disputes are based on 
the family, personal or matrimonial laws. 
During the late 1980s and 1990s, many family courts were established in most major cities in India 
and the matrimonial and family law cases were shifted from the district, civil and criminal courts to 
the newly created special courts. 
Family courts were created with many distinct features and goals including: 1) Reduction in formality 
and intimidation in litigation process; 2) Speed in justice delivery; and 3) Facilitation in conciliation 
and settlements. 
The personal or family law subject matters that fall within the jurisdiction of family courts include: 
nullity of marriage (to declare a marriage as null and void); restitution of conjugal rights (if either of 
the spouse leaves the common matrimonial home without any reasonable excuse, then the aggrieved 
spouse can file a petition for restitution of conjugal rights whereby the courts asks the spouse to 
return back to the common matrimonial home); judicial separation (the marriage is not dissolved 
but suspends the marital rights and obligations); validity of marriage; matrimonial status; disputes 
regarding property of either of the parties or joint property; injunction arising out of marital relations; 
legitimacy of any person; maintenance; and guardianship, custody and access to any minor.
The relevant statutes that come within the purview of Family Courts Act include the following:
a. The Hindu Marriage Act, 1955: This Act codifies the marriage law of the Hindus and 
primarily deals with the validity and conditions for invalidity and applicability of marriage.
b. Special Marriage Act, 1954: The Act affords a special method of civil contractual marriage 
(and divorce) for all Indian nationals regardless of religion or faith followed by the parties. This 
act does not require the customary or religious rites or ceremonies of marriage to be observed.
c. Dissolution of Muslim Marriage Act, 1939: This Act explains the dissolution of marriage 
by women married under Muslim law and the effects of the renunciation of Islam by a married 
Muslim woman.
d. Foreign Marriages Act, 1969: This statute deals with marriages of citizens of India living 
outside India.
e. The Indian Divorce Act, 1869: The law relates to the divorce of persons professing the 
Christian religion.
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f.  The Parsi Marriage and Divorce Act, 1936: This law deals with marriage and divorce 
among the Parsis.
g. Muslim Women (Protection of Rights on Divorce) Act, 1986: The Act deals with the 
matters of the divorced Muslim women and governs their right to maintenance from their 
former husband.
h. Muslim Personal Law/Application of Shariat Act, 1937: This Act requires the application 
of the Islamic Law Code of Shariat to Muslims in India in their family or personal matters.
i. Hindu Adoption and Maintenance Act, 1956: The law codifies the legal process of 
adopting children by a Hindu adult and the legal obligations to provide maintenance to the 
various family members.
j. The Indian Christian Marriage Act, 1872: This law regulates the formalization of marriages 
among Indian Christians.
k. Hindu Minority and Guardianship Act, 1956: The statute explains the guardianship   
relationships of Hindus involving the adults and minors as well as between people of all ages 
and their respective property.
l. Guardian and Wards Act, 1890: This is a non-religious and universally applicable law 
regarding the issues relating to guardianship of a child in India.
m. Chapter IX of the Criminal Procedure Code, 1973 (S-125 to 128) : This deals with 
the issues of maintenance of wives, children and parents.
n. Protection of Women from Domestic Violence Act, 2005: This statue provides 
safeguards to the wife or female live-in partner against domestic violence by husband or male 
live-in partner or his relatives. This law also provides protection to other women living in a 
household including sisters, widows, or mothers.
o. Muslim Women (Protection of Rights on Marriage) Act 2019: The Act made triple 
talaq a cognizable offence and punishable.
The Family Courts Act provides mandatory powers to the state governments to set up family courts in 
cities and towns with population over one million, and discretionary powers for areas with less than 
one million. However, some States have failed to create family courts; the reasons cited range from 
financial and space constraints to lawyers blocking any such move.
IV. Role of Women in the Creation of Family Courts
Women associations and organizations have played critical role in the creation of family courts. In 
the 1980s, the women’s rights movement groups were vocal about legislative reforms, such as the 
creation of special courts to deal with family matters to curb violence against women including wife 
murder. These issues of gender justice were an important motivating factor for the creation of family 
courts. 
Accordingly, family courts aimed at creating women-friendly court procedures that were less formal 
and more accessible to women, especially those from the marginalized section. For this the family 
courts intended to rely less on the traditional lawyers and to depend more on counselors to help 
the parties to the dispute to reach at mutually amicable solutions. The conciliators were to increase 
the power of negotiation of women in reconciliation and settlement in issues such as quantum of 
maintenance upon divorce, custody and access of children, protection against domestic violence, and 
right of residence in the matrimonial home.