Family Law – I / Personal Laws
1. Nature and Sources of Hindu Law
Hindu law is one of the most ancient personal laws derived from religion, customs, traditions and usage. Originally it governed marriage, succession, adoption, maintenance and family relations. Ancient sources include Shruti (Vedas), Smriti such as Manusmriti, Commentaries like Mitakshara and Dayabhaga, and customs. Modern sources include judicial precedents and legislation such as the Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu Adoptions and Maintenance Act, 1956 and Hindu Minority and Guardianship Act, 1956.
2. Essential Conditions of Valid Marriage under Hindu Marriage Act, 1955
Section 5 provides essential conditions: monogamy, soundness of mind, minimum age (21 for male and 18 for female), parties not within prohibited relationship and not sapinda relationship. Marriage must be solemnized according to customary rites. In Bhaurao Shankar Lokhande v. State of Maharashtra, the Supreme Court held that proper ceremonies are compulsory.
3. Adoption under Hindu Adoptions and Maintenance Act, 1956
The Act lays down the capacity of adopter, capacity of the person giving the child, and eligibility of the child. The child must be Hindu and below 15 years. After adoption, the child gets the same rights as a natural-born child. In Sawan Ram v. Kalawanti, the Supreme Court explained the legal status of an adopted child.
4. Solemnization of Marriage under Christian Marriage Act, 1872
Marriage must be performed by a licensed priest or Marriage Registrar after notice. Two witnesses must be present. A marriage certificate is issued and registration is essential for validity.
5. Dissolution of Marriage under Muslim Law
Marriage may be dissolved by Talaq by husband, Khula and Mubarat by mutual consent, Talaq-e-Tafweez by delegation, or judicial divorce under the Dissolution of Muslim Marriages Act, 1939. In Shayara Bano v. Union of India, triple talaq was declared unconstitutional.
6. Marriage under Special Marriage Act, 1954
This Act provides civil marriage irrespective of religion. Notice is given to the Marriage Officer, published for 30 days, and after no objection the marriage is registered. Legal consequences include succession under civil law.
7. Restitution of Conjugal Rights – Constitutional Validity
Restitution of conjugal rights allows a spouse to seek court order for cohabitation. In T. Sareetha v. T. Venkata Subbaiah it was declared unconstitutional, but in Saroj Rani v. Sudarshan Kumar Chadha the Supreme Court upheld its validity.
8. Family Courts – Constitution, Powers and Jurisdiction
Under the Family Courts Act, 1984, Family Courts aim to promote conciliation and speedy settlement of disputes relating to marriage, maintenance, custody and family matters. The procedure is less formal and focuses on settlement.
9. Parsi Matrimonial Courts
Under the Parsi Marriage and Divorce Act, 1936, special matrimonial courts are established. They consist of a judge and delegates and have jurisdiction over divorce, nullity and maintenance matters.
10. Sources and Schools of Muslim Law
Sources include Quran, Hadith, Ijma and Qiyas. The main schools are Hanafi, Shafi, Maliki, Hanbali and Shia.
11. Grounds for Divorce under Hindu Marriage Act, 1955
Grounds include adultery, cruelty, desertion, conversion, mental disorder, venereal disease, renunciation and presumption of death. Important cases include Dastane v. Dastane (cruelty) and Bipinchandra v. Prabhavati (desertion).
