Domestic and Family Laws in India
However, the Hindu Code Bill, the constitution, and other pieces of legislation from the 1940s and 1950s undoubtedly represented a major encroachment upon the right of Hindus to decide upon their own religious affairs, although Hindus remained an exceedingly heterogeneous community whose boundaries this legislation was unable to define and authorize. By not enforcing a similar legislation on Muslims, the practice of nonpreference of the secular state was violated. The question, however, is whether the real violation of secular principles in this connection was not the implicit assumption in this legislation that Hindus were the core citizens of India, the “state-community” whose religious doctrines and ritual practices legislators felt entitled to interpret and adapt to what they saw as the requirements of a modern state. This did not apply to the Muslim community.The Saffron Wave: Democracy and Hindu Nationalism in Modern India-Thomas Blom Hansen-1999
Introduction: Indian Domestic & Family law is concerned with the personal laws of multiple religious sects. It covers matters such as marriage, adoption, guardianship, divorce, maintenance, partition, succession, inheritance etc. Hindu laws are heavily codified and Muslims till relied on their Sharia dogmas. Such as according to Muslim Personal Law the husband’s liability to provide for the maintenance of his divorced wife is limited to the period of iddat. Article 44 in The Constitution Of India 1949 mandated Uniform civil code for the citizens but it has remained a dead letter. There is no evidence of any official activity for framing a common civil code for the country. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.
Again under Indian Constitution, all aspects of the personal law are in the concurrent list of seventh schedule (entry 5). Both Parliament and the state legislatures have the power to legislate in respect of them. Apart from Muslim wakfs and Hindu endowments, state legislatures have not exercised this power.
In India, family law does not differ from state to state. Every community is governed by one single system of law. Though its members may be settled, domiciled or residing in any part of the country, they will be governed by the same law. Such as Mitakshra and Dayabhag system in Hindus.
Under section 125(1)(a) of Criminal Procedure Code, a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the court to pay a monthly maintenance to her at a rate not exceeding Five Hundred rupees. By clause (b) of the Explanation to section 125(1), ‘wife’ includes a divorced woman who has not remarried. These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of these provisions. Section 125( Old Code 488) was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Sir James FitzJames Stephen who piloted the Code of Criminal Procedure, 1872 as a Legal Member of the Viceroy’s Council, described the precursor of Chapter IX of the Code in which section 125 occurs, as ‘a mode of preventing vagrancy or at least of preventing its consequences. It shows, unmistakably, that section 125 overrides the personal law, if is any there conflict between the two.
Dr Tahir Mahmood in his book ‘Muslim Personal Law’ (1977 Edition, pages 200-202), has made a powerful plea for framing a Uniform Civil Code for all citizens of India. He says: “In pursuance of the goal of secularism, the State must stop administering religion-based personal laws”. To further quote him , “Instead of wasting their energies in exerting theological and political pressure in order to secure an “immunity” for their traditional personal law from the state` legislative jurisdiction, the Muslim will do well to begin exploring and demonstrating how the true Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India.” He wanted the lead to come from the majority community but, we should have thought that lead or no lead, the State must act.
For Domestic violence Click here
Uniform Common Code
The Family Courts Act, 1984 [ A court for dealing with Domestic and personal matters]
1.The Special Marriage act 1954 [Marriage is a social institution, neither Contract nor Sacrament]
2. Protection of Women from Domestic Violence Act, 2005 [Civil consequences for domestic violence]
3.THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 [for universal adoption of children]
4. THE INDIAN SUCCESSION ACT, 1925 [ law applicable to intestate and testamentary succession.
Registration of Marriage made compulsory for all
- Maharastra act No 20 of 1999 ( for regulation of Marriage Bureau and compulsory registration of Marriage ]
- The Delhi Compulsory registration of marriage Order 2014
- MEGHALAYA COMPULSORY REGISTRATION OF MARRIAGE RULES
5. THE MENTAL HEALTH ACT, 1987 [ law relating to the treatment and care of mentally ill persons, to make better provision with respect to their properly and affairs and for matters connected therewith or incidental thereto]
6. The Prohibition of Child Marriage Act, 2006 [“child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age]
- Children Act, 1960
- Child Marriage Restraint Act, 1929
- Commissions for Protection of Child Rights Act, 2005
- Guardians and Wards Act, 1890
7.The Medical Termination Of Pregnancy Act, 1971 [ a pregnancy may be terminated by a registered medical practitioner,- (a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or (b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are]
- Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 [ Act to provide for the prohibition of sex selection, before or after conception, and for regulation of prenatal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide etc]
- Live in a relationship got judicial recognition
“While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence “(para 29)
- D.Velusamy vs D.Patchaiammal
Bench: Markandey Katju, T.S. Thakur – Criminal Appellate Jurisdiction – Criminal Appeal NOS. 2028-2029__OF 2010 – [Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010] – Date of Judgment: 21 October, 2010
In The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression `domestic relationship’ includes not only the relationship of marriage but also a relationship `in the nature of marriage’. The question, therefore, arises as to what is the meaning of the expression `a relationship in the nature of marriage’. Unfortunately, this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required[para 20]
- Tulsa and others. v Durghatiya and ors
Bench: Dr. Arijit Pasayat, P. Sathasivam – Case No.: Appeal (Civil) 648 of 2002 – Date of Judgment: 15/01/2008 ———–It is observed as below
“In first of them i.e. A. Dinohamy v. W.L. Blahamy [AIR 1927 P.C. 185] their Lordships of the Privy Council laid down the general proposition that:
Where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary be clearly proved that they were living together in consequence of a valid marriage, and not in a state of concubinage.
11. In Mohabhat Ali v. Md. Ibrahim Khan [AIR 1929 PC 135] their Lordships of the Privy Council once again laid down that:
The law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.
12. It was held that such a presumption could be drawn under Section 114 of the Evidence Act.
13. Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy. (See Badri Prasad v. Dy. Director of Consolidation and Ors. [AIR 1978 SC 1557].
14. This court in Gokal Chand v. Parvin Kumari [AIR 1952 SC 231] observed that continuous cohabitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long co-habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them”
9. Maintenance and Welfare of Parents and Senior Citizens Act, 2007
In 1955, the Hindu Marriage Act 1955 was enacted in India whereby the marriage system has totally been changed and plurality of wives was given a goodbye. Divorce and Judicial separation systems were introduced. Again in 1956, by the enactment of the Hindu Succession Act- 1956 for Hindus, Mitaksara or Dayabhaga was changed. Sons and daughters were given equal share on the demise of their father or mother while wife or husband was due for one-third share. The practice of two schools, Mitaksara or Dayabhaga, was changed and one law was enacted for all the Hindus of India overlooking the sectoral divisions.
- The Hindu Adoption and Maintenance Act- 1956
- The Hindu Disposition of Property Act-1916
- The Hindu Marriage Act -1955
- The Hindu Minority and Guardianship Act -1956
- The Hindu Succession Act- 1956
The Hindu Widow`s Remarriage Act-1856
Hindu Marriage Act, 2017. [ Pakistan] Read Bill
› Essentials of Valid Marriage
› Kinds of Marriage
› Valid Retirement
› Muta(Temporary Marriage)
› Restitution of Conjugal Rights
2 Dower / Mahar
› Specified and Proper Dower
› Wife’s Rights and Remedies on Non-Payment of Dower
› Divorce by Husband (Talak)
› Divorce by Wife (Tafweez)
› Divorce by Mutual Consent (Khula or Mubaraat)
› Divorce Under the Dissolution of Muslim Marriage Act, 1939
› Effect of Conversion to another religion
› Presumption of Legitimacy
› Acknowledgment of Paternity
› Adoption and Acknowledgement
5 Minority & Guardianship
› Guardianship of the Persons(Custody)
› Guardianship of the Property of Minor
› Guardianship in Marriage
› Maintenance of Children
› Maintenance of Poor Parents and Grand Parents
› Maintenance of Wife
› Maintenance of Poor Relations
› Essentials of Pre-emption
› Essentials of Hiba/Gift
› Capacity to make Gift
› Formalities of Gift
› Revocation of Gifts
› Capacity to make a will
› Formalities of a will
› The subject matter of will
› Construction of the wills
› Revocation of the will
› Essentials of a wakf
› Family wakf
› Capacity to make wakf
› Formalities of Wakf
› General Principles to inherit
› Sharers/Classification of heirs
› Miscellaneous rules
THE MUSLIM FAMILY LAWS ORDINANCE, 1961 (Bangladesh) (ORDINANCE NO. VIII OF 1961).
Sec-6 -No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered [ under the Muslim Marriages and Divorces (Registration) Act, 1974 (LII of 1974)].
Sec-7– 7. (1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for term which may extend to one year or with fine which may extend to ten thousand taka or with both.
(3) Save as provided in sub-section (5), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever be later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from re-marrying the same husband, without an intervening marriage with a third-person, unless such termination is for the third time so effective.
THE MUSLIM FAMILY LAWS ORDINANCE, 1961 (Pakistan)
Provisions are same as above
Private International Law in USA
The Office of the Assistant Legal Adviser for Private International Law (L/PIL) is responsible for the negotiation and conclusion of international conventions, model laws or rules, legislative guides, and other instruments governing private transactions that cross international borders. The Office is also responsible for providing advice on private international law matters, including when these matters arise in domestic litigation. Subject areas of private international law include matters relating to children and families; dispute resolution (including international arbitration); judicial cooperation (including the recognition and enforcement of foreign judgments); finance and banking; secured transactions; and wills, trusts, and estates
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