Institutional Framework - Marriage and Divorce Chapter Notes | Legal Studies for Class 11 - Humanities/Arts PDF Download

Nature of Family Laws in India

Family Laws or Personal Laws cover family matters like marriage, dowry, dissolution of marriage, guardianship, adoption, maintenance, gifts, wills, inheritance, and succession.

• In India, family laws are closely linked to religion. Hindus, Sikhs, Jains, and Buddhists follow Hindu Family laws. Muslims, Christians, and Parsees have their own laws. Tribal groups follow customary practices.
• The Hindu law, Sikh marriage law, Parsee Law, and Christian law are codified by the Indian Parliament. Muslim Law is based on Sharia.
• India is a secular state where different communities have independent family laws. The Constitution aims for a uniform civil code, although not legally enforceable.

A. Ancient Period

Ancient Indian laws were based on texts like Dharmashastras and Dharmasutras, providing rules for ideal householders.

B. Medieval Period

In the medieval period, Hindus followed Mitakshara or Dayabhaga schools, while Muslims followed Shariat based on the Quran.

C. British-India

British rule in India saw the development of Anglo-Hindu and Anglo-Islamic Personal Laws through interactions with Hindu pandits and Muslim jurists.

D. Post-Independence

• Efforts post-independence aimed at a uniform civil code. The Hindu community saw the adoption of various legislations in the 1950s.
• Other communities have their own marriage acts or follow traditional laws. The idea of a uniform civil code remains aspirational.

Human Rights and Gender Perspective

• Various provisions in the Constitution of India emphasize gender equality.
• The preamble of the Constitution aims to ensure justice, liberty, equality, and dignity for all.
• Article 14 guarantees equal treatment under the law, while Article 15 prohibits discrimination based on various factors.
• Religious freedom is protected under Articles 25 and 26, allowing communities to manage their religious affairs.
• Traditional religious values sometimes conflict with gender equity laws, hindering the implementation of a uniform civil code.

Gender Inequality in Hindu Family Laws

• Modern Hindu family laws are based on traditional laws but still exhibit gender inequalities.
• Examples of gender inequality in Hindu family laws include differences in marriageable ages, property succession laws, guardianship rights, and adoption regulations.

Gender Inequality in Islamic Family Laws

• Islamic law allows practices such as polygamy, instant divorce through triple talaq, and limited spousal maintenance.

Challenges in Achieving Gender Equity

• Lack of awareness about family laws in rural areas poses a significant challenge.
• In Islamic law, there are three types of divorces: Talaq-e-Ahsan, Talaq-e-Hasan, and Talaq-e-Biddat (Instant Triple Talaq).
• The practice of Instant Triple Talaq has been deemed illegal, with severe consequences for the husband.

Institutional Framework - Family Courts

• In 1984, the Family Courts Act was passed to establish specialized family courts dealing with matrimonial and family law matters.
• The Act focuses on procedural aspects and does not supersede substantive family laws, ensuring that rights and obligations are based on relevant family, personal, or matrimonial laws.
• During the late 1980s and 1990s, numerous family courts were set up in major Indian cities, transferring matrimonial and family law cases from district, civil, and criminal courts to these new specialized courts.
• Family courts were designed with specific objectives, including:
  • Reducing formality and intimidation in legal proceedings.
  • Ensuring prompt justice delivery.
  • Facilitating conciliation and settlements.
• Family courts have jurisdiction over various personal or family law matters, such as: Nullity of marriage, Restitution of conjugal rights, Judicial separation, Validity of marriage, Matrimonial status, Property disputes, Injunctions related to marital relationships, Legitimacy issues, Maintenance, Guardianship, custody, and access to minors.

The Family Courts Act encompasses several statutes, including:

• The Hindu Marriage Act, 1955
• The Special Marriage Act, 1954
• The Dissolution of Muslim Marriage Act, 1939
• The Foreign Marriages Act, 1969
• The Indian Divorce Act, 1869
• The Parsi Marriage and Divorce Act, 1936
• The Muslim Women (Protection of Rights on Divorce) Act, 1986
• The Muslim Personal Law/Application of Shariat Act, 1937
• The Hindu Adoption and Maintenance Act, 1956
• The Indian Christian Marriage Act, 1872
• The Hindu Minority and Guardianship Act, 1956
• The Guardian and Wards Act, 1890
• Chapter IX of the Criminal Procedure Code, 1973 (S-125 to 128)
• The Protection of Women from Domestic Violence Act, 2005
• The Muslim Women (Protection of Rights on Marriage) Act, 2019
• The Family Courts Act mandates state governments to establish family courts in cities and towns with populations exceeding one million and provides discretionary powers for areas with fewer than one million inhabitants.
• Some states have not established family courts due to reasons like financial constraints, lack of space, and opposition from legal professionals.

Role of Women in the Creation of Family Courts

• Women's associations and organizations have been crucial in establishing family courts.
• In the 1980s, women's rights movement groups advocated for legislative changes, including the formation of specialized courts to handle family issues, aiming to tackle violence against women like wife murder.
• Gender justice concerns served as a significant driving force behind the establishment of family courts.
• Family courts aimed to develop court procedures that were more accommodating to women, particularly those from marginalized communities.
• These courts intended to reduce reliance on conventional lawyers and instead emphasize the role of counselors in assisting disputing parties to reach mutually agreeable resolutions.
• Conciliators were tasked with enhancing women's negotiation power in resolving issues such as post-divorce maintenance amounts, child custody and visitation rights, protection from domestic abuse, and rights to the matrimonial residence.

Role of Lawyers and Counselors in Family Courts

• The Family Courts Act restricts the role of lawyers and increases the role of counselors in dispute resolution to encourage mutually amicable settlements.
• In the adversarial system of adjudication, judges act as neutral arbiters, deciding based on arguments presented by lawyers. However, the Family Courts Act limits lawyers' roles to legal experts or consultants for the court.
• The Act aims to reduce litigation costs, corruption, and prolonged court battles by minimizing lawyers' involvement.
• Critics argue that lawyers are essential for complex cases where counselors may lack expertise. Family courts often allow lawyers to represent clients despite the Act's provisions.
• Although the Act prioritizes counselors to promote settlements, in reality, their role is often superficial.
• Many states fail to integrate counselors effectively, limiting their involvement to preliminary dispute assessment rather than active trial participation.
• There is inconsistency among states regarding counselor selection, qualifications, roles, and techniques used. Some states employ NGOs or volunteers, while others use trained professionals or lawyers.

Role of Counselors and Gender Issues

• Counselors in some states like Maharashtra have a significant role in encouraging negotiations and settlements.
• It is suggested by women's groups that counselors should be trained with gender sensitivity. Neutral counselors can sometimes unintentionally take stances that are against women due to deep-seated biases.
• Women's groups are advocating for clear guidelines for gender justice in family court practices, especially concerning the roles of counselors. This is to prevent gender biases and ensure the speedy and fair resolution of family disputes.
• There have been instances where counselors have pressured women into reconciling with their spouses, disregarding their dignity, safety, and economic rights. This is sometimes seen as a legal tactic to weaken women's claims to maintenance.
• Section 125 of the Code of Criminal Procedure mandates maintenance for neglected women and children, aiming to protect their rights.
• Gender sensitivity is crucial for counselors in family disputes as it helps them understand and address the power imbalances between men and women during reconciliation processes.
• Women's groups criticize the Family Courts Act for prioritizing family preservation over gender justice. They argue that preserving the family should not come at the cost of women's rights or gender equality.

Marriage and Divorce

A. Marriage

• Marriage is the coming together of a man and a woman in a social and legal union creating kinship.
• Kinship involves social organization among people related by blood, marriage, or adoption.
• In marriage, both partners have mutual rights like companionship, joint property, and sexual relations.
• One can seek court intervention if a partner unjustly withdraws from emotional companionship, known as restitution of conjugal rights.
• Marriage confers legal status, legitimacy to children, and rights to maintenance and inheritance.

Types of Marriages

• Most marriages are monogamous, involving one man and one woman.
• Some societies allow polygamous marriages due to specific social needs like population growth or gender imbalances.

Marriage Rules

• Endogamy involves marrying within one's social group based on caste, class, ethnicity, or religion.
• Exogamy requires marrying outside one's tribe, family, clan, or social unit, often related to descent groups.

Legal Aspects

• Each religion has specific laws governing marriage like the Hindu Marriage Act, Parsi Marriage and Divorce Act, and Christian Marriage Act.
• Conditions for a valid marriage vary across religions, including rules on monogamy, ceremonies, age, prohibited relations, and mental capacity.

B. Concept of Void and Voidable Marriage

Valid Marriage: When conditions of Personal laws are met without legal barriers, the marriage is valid.

Voidable Marriage: Initially valid but can be annulled by court if conditions are violated; annulment petition by aggrieved party.

Void Marriage: Essentially not a marriage.

Hindu Marriage Act, 1955:

Void Marriage Grounds:

• Marriage within sapinda relationship is void (e.g., marrying close blood relatives).
• Prohibited relationship marriage is void (e.g., uncle-niece).
• Re-marriage during spouse's lifetime is void.

Voidable Marriage Grounds:

• Impotency of a spouse.
• Consent obtained by force or fraud.
• Pre-marriage pregnancy of wife unknown to husband.
• Unsoundness of mind.

Muslim Law:

• Void Marriage termed as 'Batil', non-existent from the start.
• Irregular marriages can be cured to become valid.
• Void marriage grounds include polyandry, consanguinity, affinity, and fosterage.

Christian Law: Indian Divorce Act, 1869, allows nullity on grounds of impotency, prohibited relationships, former spouse existence, and unsound mind.

Parsi Law: Parsis do not differentiate between void and voidable marriages; nullity declared if marriage consummation is impossible due to natural causes.

C. Divorce

Divorce Theories

• Marriage is a social institution with a focus on protection and preservation. However, divorce arises when continuing the marriage is no longer feasible.
• Guilty or Offence Theory: This theory suggests that divorce can only happen if one party commits a recognizable matrimonial offense post-marriage.
• Fault Theory: Originally the Guilt Theory, it evolved to encompass instances where a fault, whether conscious or providential, exists in a party justifying divorce.
• Mutual Consent Theory: Introduced due to flaws in the fault theory, this theory allows for divorce when both partners agree mutually without attributing fault.
• Irretrievable Breakdown Theory: This theory states that if a marriage irreversibly breaks down, divorce should be granted without assigning blame to either party.

Grounds for Divorce

• Different religious groups have specific laws governing divorce:
  • Hindus: Governed by the Hindu Marriage Act, 1955, allowing divorce on grounds like adultery, cruelty, desertion, and unsoundness of mind.
  • Parsis: Governed by the Parsi Marriage and Divorce Act, 1936, recognizing similar grounds for divorce.
  • Christians: Governed by the Indian Divorce Act, 1869, enabling divorce based on grounds like adultery, cruelty, desertion, and unsoundness of mind.
  • Muslims: Governed by religious texts, where husbands have the privilege to divorce without reason, while the Dissolution of Muslim Marriage Act, 1939, grants wives the right to seek divorce.

Legal Procedures: Decrees from courts are essential for divorce except in Muslim law where husbands can divorce at will.

D. Matrimonial Rights and Obligations

Marriage brings certain rights and responsibilities for both spouses:

Conjugal Rights

• These are the privileges that spouses have in a marriage, such as companionship, aid, and sexual relations.
• The basis of these rights is 'consortium,' which means the legal right to companionship and support.
• It also includes the right to live together, known as 'cohabitation,' which signifies a close emotional and physical relationship.

Right of Maintenance

• Upon marriage, a husband commits to supporting his wife financially, based on his earnings and standard of living.
• Under Hindu Law, a wife has the right to claim maintenance, with the amount determined by the husband's financial situation.
• In case of a dispute, either spouse can claim maintenance during legal proceedings and even after the case's conclusion.

Right of Inheritance

• When a person dies without a will, their property is distributed according to laws of succession.
• Married individuals inherit from each other, with different rules for different religions.
• For instance, under the Hindu Succession Act, both spouses can inherit equally.

Matrimonial Property

• Property and gifts acquired around the time of marriage are jointly owned by the husband and wife.
• Some properties, like 'stridhan' in Hindu law and 'dower' in Muslim law, belong exclusively to one spouse.
• Dower, for example, is the money or property a wife receives from her husband as part of the marriage contract.

E. The Prohibition of Child Marriage Act, 2006

Minor: a person under 18 years of age according to the Indian Majority Act, 1875.

Age of Marriage:

• For girls: 18 years (Hindu Marriage Act, 1955; Parsi Marriage and Divorce Act, 1936; Christian Marriage Act, 1872).
• For boys: 21 years (Hindu Marriage Act, 1955).

Previous Scenario:

• Child marriages were common in India, legally recognized with minor penalties like a 15-day simple imprisonment or a fine up to 1000 rupees.
• Hindu Marriage Act, 1955 did not render child marriages invalid.

The Prohibition of Child Marriage Act, 2006 Changes:

• Makes child marriages voidable, punishable by up to 2 years of rigorous imprisonment or a fine up to one lakh rupees.
• Despite the Act, child marriages remain valid.

The Prohibition of Child Marriage (Amendment) Bill, 2021:

• Proposes raising the marriageable age of girls from 18 to 21 years for gender parity.
• States that this Act supersedes any other law, custom, usage, or practice concerning marriage parties.