Family law also called matrimonial law or the law of domestic relations, is an area
of law that deals with family matters and domestic relations.
family law includes;
Marriage, Civil unions, And Domestic partnerships:
• Entry into legally recognized spousal and domestic relationships
• The termination of legally recognized family relationships and ancillary matters,
including divorce, annulment, property settlements, alimony, child custody and
visitation, rights child support and alimony awards
Adoption:
Proceedings to adopt a child. The taking care of Wards and children.
Surrogacy:
The law and process of giving birth as a surrogate mother.
Child protective proceedings:
Court proceedings that may result from state intervention in cases of child abuse
and child neglect
Juvenile law:
Matters relating to minors including status offenses, delinquency, emancipation and
juvenile adjudication
Paternity:
proceedings to establish and disestablish paternity, and the administration of
paternity testing
This list is not exhaustive
Marriage Law is a personal law. An individual carries his personal law with him
Marriage is an institution that binds two people together for eternity. India is a
free country where people have a constitutional right to follow any religion as per
their desire. There are different religious personal laws that lay down marriage
laws in India. Let us take a look at the respective religious laws pertaining to
marriage and marriage registration in India:
• The persons shall be unmarried Hindus
• The legal age for a woman is 18 years (this is under revision ) and for a man it
is 21 years
• The sanity of mind is necessary for both the parties and they must be capable to
give their consent to the marriage freely
• The persons getting married must be mentally fit for the marriage i.e. they must
not be suffering from any mental illness
• Both the bride and groom should not be ‘sapindas’ ( Gotras) of each other except
when allowed under their respective religious laws
The Special Marriage Act, 1954
The special marriage act is applicable to citizens of India irrespective of their
religion, caste or culture. Under provisions of the Act, people from a different
religion, caste or community are allowed to get married, provided certain conditions
are met:
• Marriage registration in India is compulsory to solemnize a marriage under this
Act. A family lawyer can be hired to complete marriage registration in India
• The age of the bride and groom must be 18 and 21 years respectively
• Both of them must be of sound mind
• Both the bride and groom cannot share common ancestors or be blood relatives. In
accordance to the Act, there are 37 relations forbidden, in which no wedding can be
performed between them
The Special Marriage Act, 1954
The special marriage act is applicable to citizens of India irrespective of their
religion, caste or culture. Under provisions of the Act, people from a different
religion, caste or community are allowed to get married, provided certain conditions
are met:
• Marriage registration in India is compulsory to solemnize a marriage under this
Act. A family lawyer can be hired to complete marriage registration in India
• The age of the bride and groom must be 18 and 21 years respectively
• Both of them must be of sound mind
• Both the bride and groom cannot share common ancestors or be blood relatives. In
accordance to the Act, there are 37 relations forbidden, in which no wedding can be
performed between them
The Indian Christian Marriage Act, 1872
As per the Act, the solemnization of the wedding takes place in the presence of
priests, clergymen or ministers in a church and as per the defined regulations of
the Indian Christians community. The conditions needed to be fulfilled for a valid
marriage under Christian marriage laws are:
• The age of bridegroom and bride should be 21 years and 18 years respectively
• Both bride and groom must give their consent voluntarily and under no compulsion
from anyone
• Both the parties to the marriage should not have an existing partner from any
former marriage at the time of marriage
• Both parties to the marriage must be sane
• The marriage is required to be performed before the presence of at least 2 trusted
witnesses and before a registrar of marriage, who has the license and authority to
register a marriage and issue a marriage certificate in India
Divorce is the legal dissolution of marriage. A divorce is among the most traumatic
misfortunes for any couple. The entire process of divorce that starts from not able
to cope with emotional ups and downs , to the long wait for the divorce decree for
several months is arduous. Before opting for a divorce one need to be aware that a
divorce proceedings in India extends for over an year and in some special cases of
disputes the procedure may continue for years.
India is a land of varied religious communities having their own marriage laws, the
divorce procedure too varies, according to the community of the couple seeking
divorce. All Hindus as well as Buddhists, Sikhs and Jains can seek divorce under the
Hindu Marriage Act
The Muslim, Christian and Parsi communities, on the other hand, have their own laws
governing marriage and divorce. Spouses belonging to different communities and
castes can seek divorce under the Special Marriage Act, 1956. There is also the
Foreign Marriage Act 1969, governing divorce laws in marriages where at least one
partner is/was an indian national.
With the advancement of time and social awareness, several acts have been passed by
the government which states the divorce rules in India to make the present day
divorce procedure more progressive with respect to gender affairs and related
sensitive issues.
In India same sex marriages are invalid except under the foreign marriage act 1969
provided that the marriage is permitted by law in the country where they were
married.
Divorce laws in India are broadly categorized into ‘Divorce by Mutual Consent’,
‘Contested Divorce’, ‘Void Marriages’, here is a detailed overview about each of
them.
So, according to the divorce laws in India under Section 13-B of the Hindu Marriage
Act, 1955, the parties can seek divorce by mutual consent by filing a petition
before the court through a divorce lawyer. Mutual consent means that both the
parties agree for peaceful separation. Mutual Consent Divorce is a simple way of
coming out of the marriage and dissolving it legally. Important requirement is the
mutual informed consent of the husband & wife. There are two aspects on which
Husband & Wife need to reach a consensus. One is the alimony and the other custody
of children including maintenance issues. In law there is no minimum or maximum
limit for Alimony and for maintenance. Next important consideration is the Child
Custody. This can also be worked out effectively between the parties. Child Custody
in Mutual Consent Divorce can be shared or joint or exclusive depending upon the
understanding of the spouses.
Child custody is based on the interests and welfare of the child and not on any
other factor which are peripheral.
In case of a contested divorce, law provided specific grounds on which divorce can
be sought by either of the parties. A few of the grounds for divorce are as follows,
though some are not applicable to all religions.
Cruelty
Cruelty may be physical or mental. In Hindu Divorce Laws in India, either of the
spouse having a reasonable apprehension in the mind that the other spouse’s conduct
is likely to be injurious or harmful, then sufficient ground exists for obtaining
divorce due to cruelty.
Adultery
In India after the recent Supreme Court verdict adultery (i.e. has consensual sexual
intercourse outside of marriage) is no longer a criminal offence. The spouse may, of
course, file for divorce as a civil remedy. Bigamy is a valid ground except under
the Mohammedan Law
Desertion
One spouse deserting the other without reasonable cause (cruelty, for example) is
ground for divorce. However, the spouse who abandons the other should intend to
desert and there should be proof of it. As per Hindu laws, the desertion should have
lasted at least two continuous years. Christian women however, will not be able to
file a divorce petition solely on the ground of Adultery.
Conversion to another religion
Divorce can be sought by a spouse on the ground that the spouse has voluntarily got
converted to another religion. This reason does not require any time to have passed
before divorce can be filed.
Mental Disorder
If the spouse is incapable of performing the normal duties required in a marriage on
account of mental illness, divorce can be sought provided that the mental illness
was not caused after marriage.
Communicable Disease
If the spouse suffers from an incurable communicable disease, such as HIV/AIDS,
syphilis, gonorrhea or a virulent and incurable form of leprosy, the Hindu Divorce
Laws provide for the other party to seek a divorce.
Renunciation of the World
The spouse renouncing his/her married life and opting for sanyaas/ religious order
is a valid ground for the aggrieved spouse to seek a divorce.
Presumption of Death
If the spouse has not been heard of as being alive for a period of at least seven
years, by such individuals who would have heard about such spouse, if he or she were
alive, then the spouse who is alive can obtain a judicial decree of divorce.
A void marriage in Hindu marriage act is one that requires no formality to
terminate, as it was invalid from the very beginning/ inception as it did not adhere
to the conditions of valid marriage as prescribed in the act
Following are the grounds that shall render a marriage void or the court shall deem
it to be illegal are:
Bigamy
None of the parties to the marriage shall have a spouse living at the time of their
marriage. If either of them has a spouse alive from an earlier marriage, their
subsequent marriage is no marriage in the eyes of law. It is void ab initio and non
est.
Persons falling within degrees of prohibited relationships
Lineal ascendants are to be seen from both sides, i.e. from the father’s side as
well as from the mother’s side. So both the father and mother are lineal ascendants
fall in degrees of prohibited relationships.
Sapinda relations
Sapinda relations can be illustrated as under:
A is the intended groom.He is considered as one generation, male relatives falling
in four more generations upwards from him from the side of his father shall be his
Sapinda relations. Therefore, A’s father, A’s grand-father, A’s great grand-father
and the father of A’s great grand-father shall all be A’s Sapindarelations. But on
the mother’s side, this chain extends to only three generations including A.
Therefore, A’s mother and A’s maternal grand-mother only shall be A’s Sapinda
relations from the mother’ side, A himself being one generation. Marriages made up
of such relationships are void.
Restitution of Conjugal Rights
Restitution of Conjugal Rights: After solemnization of marriage if one of the
spouses keeps away without valid cause or abandons the other, the aggrieved party
has a legal right to seek restoration Conjugal Rights Restitution of Conjugal
Rights: Harvinder Kaur v. Harmander Singh 1983 - It was held that sec 9 was not
violative of Articles 14 and 21 of the Constitution, since the
leading idea behind Sec 9 was to preserve the marriage. The remedy of restitution
was aimed at cohabitation and consortium and not merely at sexual
intercourse.
This is a very progressive enactment protecting women ( not necessarily in a
marriage relation) from domestic violence. It came into force by on 26 October 2006.
The Vienna International convention accord in 1994 and Beijing declaration and
platform action 1995 declared domestic violence is undoubtedly a human rights
violation. United Nations recommended to eliminate all forms of discrimination
against women urging all member states the to protect women against violence of any
kind especially violence within the living consumes.
Domestic violence was prevailing but was not visible as very few women would
complain for lack of support. Most of the violators were women themselves especially
the mother/sister in law. No civil law comprehensive for quick and instant remedies/
reliefs to the women subjected to violence within the family. Section 498A IPC was a
penal provision in India to punish the offenders who committed domestic violence
against woman, no civil remedy was available. No means of subsistence and/or
protection against men were available . The Act enacted in 2005 and brought into
force on 26.10.2006. provides for the first time in Indian law a legal definition of
what is "domestic violence", with this definition being broad and including not only
physical violence, but also other forms of violence such as emotional/verbal,
sexual, and economic abuse is a boon to indian women.
An Act to prohibit the giving or taking of dowry. Under the Dowry Prohibition Act,
dowry includes property, goods, or money given by either party to the marriage, by
the parents of either party, or by anyone else on behalf of one of the parties to
the other in connection with the marriage. The Dowry Prohibition Act applies to
persons of all religions in India.
The original text of the Dowry Prohibition Act was not suited to the masses
especially with diverse social customs of mirth, gifts and entertainment during
marriage occasions. Became ineffective in curbing the practice of dowry. Moreover,
specific forms of violence against women continued to be linked to the failure and
non fulfilment of the demand or meet dowry demands. As a result, the legislation
needed and underwent subsequent amendment. In 1984, the term Dowry was redefined to
exclude the gifts exchanged customarily in the marriage. The law required, a list be
maintained describing each gift, its value, the identity of the person giving it,
and the person’s relation to either party to the marriage. The act and relevant
sections of the Indian Penal Code were further amended to protect female victims of
dowry-related violence. Another layer of legal protection became available to
distressed women in 2005 under the Protection of Women from Domestic Violence Act.
Women living under a common roof in a relationship with a male are eligible to seek
relief under this Act.
Amendments to the original Dowry Prohibition Act also established minimum and
maximum penalties for offering and receiving dowry and provided for penalty for
demanding dowry or advertising offers of money or property in connection with a
marriage. The Indian Penal Code was also modified in 1983 to establish specific
crimes of dowry-related cruelty, dowry death, and abetment of suicide. These
enactments punished violence against women by their husbands or their relatives when
proof of dowry demands or dowry harassment could be shown.
Despite the above advancements , the practice of dowry and dowry-related violence
continues unabated shamelessly and brazenly in varying degrees within several
communities and socioeconomic groups of India.
However PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT 2005 Is a game changer in the
field.