FAMILY LAW

Family Laws encompass the broad set of rules that are in practice regarding family matters, such as marriage, divorce, inheritance etc. There are some legally enforceable rights and duties that arise when one gives legal validation to the status of interpersonal relationships

THE HINDU MARRIAGE ACT, 1955

SCHOOLS OF HINDU MARRIAGE

a) Mitakshara

b) Dayabhaga

Difference between the Mitakshara and Dayabhaga school

NATURE OF HINDU MARRIAGE (sacrament)

SOURCES OF HINDU LAW

CHANGES BROUGHT ABOUT BY THE MARRIAGE LAWS (AMENDMENT) ACT, 1976:

a) insertion of section 13A and 13-B substituted 13(i) and section 13 (iii),

inserted meaning of desertion explanation to section 13,

c) substituted section 14,

d) inserted section 21-A

Provisions in brief:

Section 2: APPLICATION OF ACT

Who is Hindu and concept of domicile

This act applies to the following persons:

1. Hindu by religion

2. Buddhist by religion

3. Jain by religion

4. Sikh by religion

5. Any other person domiciled in the territories to which this extends who is not Muslim, Christian, Parsi or Jew

Section 3: IMPORTANT DEFINITIONS

Section 3 (c): full blood and half blood

Section 3 (d): uterine blood

Nature, conditions, ceremonies and registration

SECTION 5: CONDITIONS OF MARRIAGE

1. Bigamy

2. at the time of marriage, neither party

a) is incapable of giving valid consent due to unsoundness of mind

b) though capable of giving consent, has been suffering from mental disorder of such a kind or to such extent as to be unfit for marriage and the procreation of children.

c) Has been subject to recurrent attacks of insanity

2. legal age of the couple

3. Prohibited relationship

4. Sapindas

Section 7: ceremonies of marriage (Saptapadi)

Section 8: Registration of Hindu marriages (state may make rules)

Section 9: Restitution of conjugal rights

Section 10: Judicial separation

Types of marriage: Valid, void and voidable

SECTION 11: VOID MARRIAGES

Three conditions which makes the marriage void

1. BIGAMY

2. PROHIBITED DEGREES

3. SAPINDA

SECTION 12: VOIDABLE MARRAIGES (grounds)

a)impotence of the respondent

b) marriage in contravention of clause (ii) of section 5

c) Consent of the petitioner or guardian in the marriage of the petitioner was obtained by force

Divorce-Types, Grounds, Alternative relief

SECTION 13: PROVISIONS OF DIVORCE (grounds available to both the parties)

1. Adultery

2. Cruelty

3. Desertion

4. cease to be Hindu

5. of unsound mind, or has been suffering continuously or intermittently from mental disorder

6. has been suffering from venereal disease in a communicable disease

7. renounced the world

8. has not been heard of as being alive for a period of seven years or more

SECTION 13 (1A): grounds of divorce available to both the parties

(i): no resumption of cohabitation as between the parties to the marriage for a period of two year or more.

(ii): no restitution of conjugal rights as between the parties to the marriage for period of two year or more.

Section 13 (2): grounds of divorce available to wife only

SECTION 13A: Alternate relief in divorce proceedings

SECTION 13B: divorce by mutual consent

Section 14: limitation period for filling divorce

Section 15: Remarriage of a divorced person

Section 16: legitimacy of children of void and voidable marriages

Section 17 and 18: punishment for bigamy and contravention of certain other conditions for a Hindu marriage

Section 23: Bars to matrimonial relief

Maintenance: types, quantum

ALIMONY/MAINTENANCE

Maintenance during pendency of proceedings (Section 24)

Permanent Alimony and maintenance (Section 25)

Section 26: Custody of children

Section 27: Disposal of children

HINDU ADOPTION AND MAINTENANCE ACT, 1956

Section 2: APPLICATION OF THE ACT

The application of the Act is same of Hindu Marriage Act, 1955

Validity of adoption

Section 6: Requisites of Valid adoption

1. Capacity, and also the right, to take in adoption,

2. Capacity to giving in adoption

3. The person adopted is capable of being taken in adoption, and

4. other conditions as specified in the Act

How Adoption made: Relevant provisions

Section 7 and 8: capacity of a male Hindu and a female Hindu to take in adoption

Section 9: person capable of giving in adoption

Section 10: persons who may be adopted

Section 11: other conditions of a valid adoption

Section 12: effects of adoption

Section 15: valid adoption not to be cancelled

CHAPTER III

MAINTENANCE/CLAIMANT TO MAINTENNACE SHOULD BE HINDU (SECTION 24)

1) Maintenance of wife (section 18)

2) Maintenance of widowed daughter in-law section 19

3) Maintenance of children and aged parents section 20

Section 21: who all are Dependents?

Section 22: Maintenance of dependents

Section 23: Amount of Maintenance

Amount of maintenance may be altered on change of circumstances (section 25)

HINDU MINORITY AND GUARDIANSHIP ACT, 1956

Section 3: APPLICATION OF THE ACT

The application of the Act is same of Hindu Marriage Act, 1955

Section 4: Definitions

a. It Minor

b. Guardian

c. Natural guardian

Types of guardians and their powers and some other conditions: sections 8 to 11

a. Natural Guardian

b. Testamentary guardian

c. Defacto guardian

The application of the Act is same of Hindu Marriage Act, 1955Section 12: Guardian not to be appointed for minor’s undivided interest in joint family property

Section 13: welfare of the minor to be paramount consideration

THE HINDU SUCCESSION ACT, 1956

Section 2: APPLICATION OF THE ACT

The application of the Act is same of Hindu Marriage Act, 1955

Section 3: Definitions and interpretation

1. Agnate section 3 (a)

2. Cognate Section 3 (c)

Full blood, half blood and uterine blood Section 3 (e)

Essential features of Hindu succession act

Who are the legal heirs under Hindu Succession Act

How is property divided among legal heirs

What is the general rule of succession

Class 1 heirs and class 2 heirs

Some important provisions of the Act:

Section 5: Act not to apply to certain properties

Section 6: Devolution of interest in coparcenary property

Section 8: General rules of succession in the cases of males

Section 9: orders of succession among heirs in the schedule

Section 10: Distribution of property among heirs in class I of the schedule

Section 11: Distribution of property among heirs in class II of the schedule

Section 12: Order of succession among agnates and cognates

Section 13: Computation of the degrees

Section 14: Property of a female Hindu to be her absolute property

Section 15: General rules of succession in the case of female Hindus

Section 16: Order of succession and manner of distribution among heirs of a female Hindu

GENERAL PROVISIONS RELATING TO SUCCESSION

Section 18: Full blood preferred to half blood

Section 19: Mode of succession of two or more heirs

Section 20: Right of a child in womb

Section 30: Testamentary succession

MUSLIM LAW

SOURCES OF MUSLIM LAW-

1. Primary sources

a. Quran,

b. Sunnat

c. Ijma

d. Qiyas

2. Secondary sources

a. Urf or custom

b. Judicial decision

c. Legislation, equity,

d. justice and Good conscience

Schools of Muslim Law

Main schools of Sunnis-

1. Hanafi

2. Maliki

3. Shafei

4. Hanbali,

Major schools of Shias-

1. Ithna

2. Asharia school,

3. Ismailia school,

4. Zyadis school

MARRIAGE (NIKAH) UNDER MUSLIM LAW

The general essentials of a Muslim Nikah:

1. Parties must have capacity to marry.

2. Proposal (ijab) and acceptance (qubool).

3. Free consent of both the parties.

4. A consideration (mehr).

5. No legal Impediment.

6. Sufficient witnesses (different in shia and sunni).

CLASSFCATION OF MARRIAGE

1. Valid (Sahih)

2. Void (Batil)

3. Irregular (Fasid)

Concept of muta marriage

Marriage with Kitabia

DISOLUTION OF MARRIAGE

There are two categories of divorce under Muslim law:

1. Judicial

2. Extra Judicial

Extra-judicial mode of divorce:

1. By husband- talaaq, ila, and zihar

2. Talaq-i-sunnat

3. Talaq-i-sunnat

a. Talaq-e-ahsan

4. Talaq-i-biddat (Triple Talaq, Shayara Bano Judgment)

2. By wife- talaaq-i-tafweez, lian

3. By mutual agreement- khula and mubarat

DOWER (MEHR)

1. Specified dower

2. Prompt dower

GIFT (Hiba)

Essentials

1. Declaration of gift by the donor.

2. Acceptance of gift by the donee.

3. Transfer of possession by the donor and it’s acceptance by the done

Concept of Doctrine of Musha

1. Kinds of Gifts: Hiba-il-iwaz, Hiba ba Shart ul Iwaz

INHERITANCE UNDER SUNNI AND SHIA LAW

WILL (WASIYAT)

1. Testator and his competence

WAKF

1. Wakf under shia

2. Wakf under sunni

3. Who can create wakf

4. Doctrine of cypress

5. Legal incidents of wakf

6. Modes of creation of wakf

7. Kinds of wakf