The Family Law in India, including laws on Marriage, Judicial Separation, Cruelty by Men/Women, Divorce, Maintenance, Alimony, Custody of Child, Restitution of Conjugal Rights and other connected issues, are governed by the personal laws of the parties depending on their religion.
Hindus are governed by ‘Hindu Marriage Act 1955’ , Muslims are governed by ‘Muslim law’, Christians are governed by ‘Indian Christian Marriage Act 1872 and the Divorce Act 1869 and Parsis are governed by Parsis Marriage and Divorce Act 1936.
However, ‘THE SPECIAL MARRIAGE ACT 1954’ is a Civil Legislation and this is applicable to all persons of all religions, any adult eligible citizens irrespective of Religion, Caste, Creed and Community have option to marry under this law. Whosoever, are married under this law will be governed by the Special Marriage Act 1954.
The aspect of Dowry Harassment, Mental and Physical Cruelty, Domestic Violence etc., are dealt under 498 A(Cruelty), 304- B(Dowry Death) of Indian Penal Code, 113-B of Indian Evidence Act, Dowry Prohibition Act, Protection of Women against Domestic violence. Crimes against women some of which under IPC are, Kidnapping (Sec.359,360,366),Rape(Sec 376,376A,376B,376C,376D), Sexual Harassment (Sec 354A), outrage the modesty of women (Sec 354,354B)
The connected Acts are ‘The Guardian and Wards Act 1890’, ‘The Protection of Women from Domestic Violence Act 2005’ ‘Indian Contract Act 1872.
Other than the above, United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to which India is a signatory, has viewed that discrimination against women which violates the principles of equality of rights and respect for human dignity. Further, the Commission on Human Rights, at its fifty-first session, in its Resolution No. 1995/85 of 8-3-1995 titled "The elimination of violence against women", recommended that marital rape should be criminalized.
More importantly its notable that prime constitutional guarantee arising out of Article 21of the Indian Constitution, incorporates ‘right to live with human dignity’ which is impressive amongst the fundamental components of the ‘right to life’ which ensures the independence of a person irrespective of gender.
Welfare of Children
Personal laws governing marriage contain provisions to ensure the welfare of children born in wedlock. The Guardian and Wards Act 1890, applies to all communities as a general law and protects minor child and his property.
Irrespective of caste and creed, this law applies to all minor children, However, while approving and declaring a person as a minor's guardian, the court will/may also consider the minor's personal law.
Both Hindu Marriage Act 1955 and the Special Marriage Act 1954 have same Jurisdiction. The Petition can be presented to the district court within the local limits of original civil jurisdiction where the Marriage was solemnised, Parties to the marriage last resided together, Wife’s residence as on the date of presentation of the petition in case if she is the petitioner or resides outside the territories to which the acts extend or has not been heard of as being alive for a period of seven years or more by wife or husband as the case may be, who would otherwise naturally have heard of him/her if he/she were alive.
Property
A wife can claim "right to reside" in her matrimonial home under the Protection of Women from Domestic Violence Act 2005. Cases under this Act can be filed in the court of the place where the aggrieved woman resides.
Children
As regards child’s custody, the interests and welfare of the child occupies primary importance. The issues regarding child’s custody are adjudicated by the courts in whose jurisdiction the child is taking safe shelter the said place may be of Father/Mother/Guardian, whosever is closest with the said child.
Divorce, Nullity and Judicial Separation
Divorce can be obtained either by serious fault/ illegal act/ criminal intent of any one of the party against other and/or by mutual consent as the case may be. Section 13 of the Hindu Marriage Act 1955 recognises the following grounds for divorce. Any marriage solemnised, whether before or after the commencement of the Hindu Marriage 1955, can, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party:
- • Is living in adultery.
- • Has ceased to be a Hindu by conversion to another religion.
- • Has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition.
- • Has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy.
- • Had, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form.
- • Has renounced the world by entering any religious order.
- • Has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of them, had that party been alive.
- • Has not resumed cohabitation for a period of two years or more after the passing of a decree for judicial separation against that party.
- • Has failed to comply with a decree for restitution of conjugal rights for a period of two years or more after the passing of the decree.
Mutual Consent
Under the Indian personal laws, divorce by mutual consent is recognised under the Hindu Marriage Act 1955, the Special Marriage Act 1954, the Parsi Marriage and Divorce Act 1939, the Dissolution of Muslim Marriage Act 1939, and under the Divorce Act 1869.
The only requirement for divorce by mutual consent is that the parties should have been living separately for a period of one year or more, which can be legally established.
Section 13B of the Hindu Marriage Act 1955 provides for divorce by mutual consent where the parties have been separated for a period of one year. Thereafter, the first motion for mutual divorce must be filed and presented. After a period of between six months and 18 months, the parties must present the second motion. The court will record the parties' statements to ensure that the divorce is being obtained of free will and only then will it grant the decree of divorce.
Special Marriage AST 1954
A husband or wife can file for judicial separation on any of the grounds specified in section 27 (other than the grounds specified in clause (I) and (j) of section 27 on which a petition for divorce might have been presented or on the ground of failure to comply with a decree for restitution of conjugal rights)
Divorce ACT 1869
The grounds on which a judicial separation decree can be obtained are adultery, cruelty and two years desertion.
Maintanance
A wife or the husband is entitled to be awarded maintenance, permanent or interim. The quantum of award of such maintenance will differ from case to case based on the situation of facts and figures. This is determined by the spouse's income/Property etc., Maintenance is awarded not as a punishment but as an aid for the petitioner to live in a standard of lifestyle that he or she enjoyed in the matrimonial home. The estimation of the spouse's income the court may take into consideration the following factors amongst others:
- • Lifestyle of the spouse.
- • The amount spent at the time of marriage and the manner in which marriage was performed.
- • Destination of the honeymoon.
- • Ownership of motor vehicles.
- • Household facilities.
- • Facility of driver, cook and other help.
- • Loans/ Debts etc.
- • Bank balances/FD’s/ shares/Insurance etc.
- • Ownership of fixed assets/properties.
- • Income Tax paid/ average returns.
- • Rental income.
- • Amount of rent paid.
- • Standard average expenses on tour and travel
- • Area/class/standard of residence.
- • Qualification of spouse.
- • Standard/Fees/Expenses of Educational Institution/ School/Residential where the child is perusing education.
- • Capacity to repay loan.
It can be thus said that the husband must provide maintenance to the wife in accordance with the same status that the wife enjoyed during the marriage. Maintenance is considered as a statutory right and independent relief, both under civil and criminal laws. Maintenance in general is awarded in favour of the wife or the husband as the case may be on marital breakdown.
Child's Mantanance
There is legal obligation on both father and mother to maintain their child outside the marriage just as in the case of obligation to maintain the child born within the marriage. The parent/guardian with custody of the child can file for maintenance on behalf of the child in the capacity as legal guardian. It’s notable that the law does not differentiate between a legitimate and an illegitimate child.
When parent is having means but neglects and / or refuses to maintain or partially maintain his/her legitimate and/or illegitimate minor child or neglects or refuses to maintain his/her legitimate or illegitimate child or children as the case may be who though has attained majority but by reason of any physical or mental abnormality or injury unable to maintain himself or herself, in these circumstance the Hon’ble court can order for monthly maintenance allowance or one time lump sum maintenance of his/her child or children. Hindu father and/or Hindu mother are under a statutory obligation to provide maintenance to their children.
A minor child in his/her individual capacity can make a claim against his/her parents to the court through a legal guardian. If the said child is major then can make a claim directly against his/her parents.
Child's Custody/Parental Responsibility
Though there is no standard rule of child’s custody it is generally seen that the mother has a preferential right to the custody of infants, children below the age of five years and female children. However, If courts are convinced that the mother is incapable to secure the best interest and welfare of the child then the father will be entrusted of the responsibility.