Family Law: Basics

As the title indicates, this supplement is intended to capture important concepts

(marriage, divorce, succession and the like) that govern (and by corollary, affect) a
family.
Although we come across such terms almost daily across various forms of media, these
concepts have a precise (and very often, different from common understanding) meaning
e.g. a couple eloping and getting married in a temple would sound familiar to anyone
who has watched a typical 70s or 80s Hindi movie. However, such a marriage would not
qualify as a marriage under Hindu Marriage Act, 1955! This is one simple illustration of
the difference between common understanding and legal (for the lack of a better word)
understanding 1 Marriage, divorce and other related matters are a part of the Concurrent
List in the Constitution of India 2 and hence the Union as well as State Governments may
legislate on these matters. However, the Union Government has enacted important Acts
(pertaining to Family Law) and conferred the power to take care of specific issues such as
appointment of authorities and procedure, on State Governments.
Being aware of these concepts will help you in General Knowledge as well as Legal
Aptitude (Legal Knowledge as well as Legal Aptitude) sections. In this document, only
salient concepts have been discussed.

Marriage
To start with, you should be aware of different forms of marriage at this stage it is
pertinent to introduce various ways in which a marriage may be (legally) solemnized.
For a couple belonging to the same religion the options available are: (i) court marriage
(discusses below) and (ii) traditional marriage marriage in every religion is governed by
an Act for Hindus (the term Hindu used in the Act includes Buddhists, Jains and Sikhs)
the relevant Act is The Hindu Marriage Act, 1955 (HMA), for Christians it is The
Indian Christian Marriage Act, 1872 (CMA), for Parsis it is The Parsi Marriage and
Divorce Act, 1936 (PMDA). Muslims marry 3 in accordance with Muslim Personal
(Religious- as prescribed in religious text) Law The Muslim Personal Law (Shariat)
Application Act, 1937 (as the name indicates) provides for application of Muslim
Personal Law (Shariat) to Indian Muslims. Although the Constitution of India (Directive
Principles of State Policy Article 44) provides that the State shall secure a uniform civil
1

Its the legal definition or understanding of a concept that matters for obvious reasons.

Entry 5, List III, Schedule VII of the Constitution of India.

3

In all family law matters (marriage, divorce etc.), Indian Muslims follow the Muslim Personal Law
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code, this has not translated into reality. The only exception is Goa where a common
Civil Code 4 is in force this is a legacy of the Portuguese rule in Goa 5.
For a couple belonging to different religions the options available are the same as above.
However, in order to solemnize a legally binding traditional marriage, one of them has to
convert to his/ her partners religion. Court marriage does not require the couple to be of
same religion.
Degree of prohibited relationship is a common feature of marriage laws. This phrase is
used to describe certain categories of persons who cannot marry each other e.g. brother
and sister. If you have followed the recent controversy about Khap panchayats 6 dictating
terms and conditions of marriages, you might be aware that these Khap panchayats have
demanded that gotra 7 be added as a category within the meaning of prohibited
relationship under the HMA.

Divorce
Since the introduction of the Family Courts Act, 1984, a suit or proceeding between the
parties to a marriage for an order or injunction in circumstances arising out of a marital
relationship is heard by Family Courts. No one is entitled to be represented by a lawyer in
a Family Court.
For divorce to come into effect, a Family Court should have awarded a decree of divorce.
The relevant laws are HMA, PMDA, SMA, Indian Divorce Act, 1869 (IDA) (for
Christians) and The Dissolution of Muslim Marriages Act, 1939 (DMMA) (for Muslim
women). Divorce leads to dissolution of marriage.

Goa Civil Code

The Goa Civil Code is based on Codigo Civil Portuegese, 1867.

6

Put simply, a group of elders hearing matters assumed to be affecting the society. Contrary to public
perception (based on inaccurate information) these Panchayats are restricted to few districts in Haryana,
few districts in Western Uttar Pradesh and few districts in Rajasthan our media (most of it) loves to
generalize and of late the entire North India and Northwest India has been portrayed to be in the grip of
these Panchayats. A piece of general gyan never generalize, there are intra-religion, intra- region, intraethnicity differences that you must always keep in mind calling a person hailing from Karnataka, Kerala,
A.P. or Tamilnadu, a Madrasi, calling everyone who speaks Hindi a North Indian and calling all Indian
Muslims bigots are examples of stupid generalizations.
7

A gotra is the lineage or clan assigned to a Hindu at birth. In most cases, the system is patrilineal and
the gotra assigned is that of the person's father, however in some communities such as the Nairs of Kerala,
the gotra is passed through the mother.
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These Acts allow such a decree only on specific grounds as provided in these acts viz.
cruelty, adultery, desertion, impotency, venereal disease, not heard of being alive for a
period of seven years.8
Restitution of Conjugal Rights
When two people are married, they owe obligations to each other and include
cohabitation. When either of them fails to fulfill such obligations or refuse to cohabit, the
other person has a right to seek restitution of conjugal rights in a Family Court. To
illustrate, if the wife starts staying away from her husband (without a decree of divorce)
the husband may seek restitution of conjugal rights in a Family Court and such a court
may direct his wife to stay with him.
Judicial Separation
As the term indicates, judicial separation is an order from Family Court allowing the
petitioner 9 not to cohabit with the respondent for a period of one year.10 The grounds for
judicial separation are the same as divorce. If the parties (to an application for judicial
separation are unable to sort out differences), the Family Court may award a decree of
divorce.
Maintenance
You might already be aware that this term is used to describe the payment made by a
husband to his wife for her upkeep. While basic understanding of this term as a payment
by someone who earns to someone who is dependent on the former is correct, it is
important to develop a holistic understanding of this term as used in the context of
various laws.
Code of Criminal Procedure, 1973 (Section 125):

As per S. 108 of the Indian Evidence Act, 1872 when the question is whether a man is alive or dead, and it
is proved that he has not been heard of for seven years by those who would naturally have heard of him if
he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. In other
words, in such a case, the Court assumes that the person is dead.
9

The party presenting a petition to a court

10

The party other than the petitioner - in a matrimonial case, if wife presents a petition, she will be the
petitioner and her husband will be the respondent
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If a man 11 with sufficient means neglects or refuses to maintain his wife (who is unable
to maintain herself) or; his legitimate or illegitimate minor child (unable to maintain
himself or herself) or; his legitimate or illegitimate child (other than a married daughter)
who has attained majority, but (by reason of any physical or mental abnormality or
injury) is unable to maintain itself; or his father or mother, unable to maintain himself or
herself, a Magistrate (Judicial Magistrate First Class) can order him to make a monthly
allowance for the maintenance of his wife or child or father or mother as the case might
be.
The Hindu Adoptions and Maintenance Act, 1956 (HAMA):
Under Section 18, wife can claim maintenance (provided she has not re-married or
converted to another religion) can claim maintenance from her husband if he abandons
her without reasonable cause and without her consent or against her wish; or has treated
her with such cruelty as to cause a reasonable apprehension in her mind that it will be
harmful or injuries to live with her husband; or if he is suffering from a virulent form of
leprosy; or if he has any other wife living; or if he keeps a concubine in the same house
in which his wife is living or habitually resides with a concubine elsewhere; or if he has
ceased to be a Hindu by conversion to another religion; or if there is any other cause
justifying living separately.
Under Section 19, a widowed woman shall be entitled to be maintained after the death of
her husband by her father-in-law (until re-marriage) unless the father-in-law does not
have the means to do so from any coparcenary 12 property in his possession.
Under Section 20, a legitimate or illegitimate child (including an unmarried daughter)
may claim maintenance from his or her father or mother and an aged or infirm parent
(unable to maintain himself or herself) may claim maintenance from his / her son or
daughter.

11

Following any religion

Coparcenary is a narrower body of persons within a joint family consisting of father and his three male
lineal descendants, and consists of father, son, son's son, and son's son's son.
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12

The Muslim Women (Protection of Rights on Divorce) Act, 1986:

This Act provides that a divorced Muslim woman shall be entitled to (a) reasonable and
fair provision and maintenance to be made and paid to her within the iddat 13 period
by her former husband; (b) where she herself maintains children born to her before
or after her divorce, a reasonable and fair provision and maintenance to be made
and paid by her former husband for a period of two years from the respective dates
of birth of such children; (c) an amount equal to the sum of mahr;14 and (d) all
property given to her before or at the time of marriage or after her marriage by her
relatives or friends or by husband or any relatives of the husband or his friends.
IDA:
Same as PMDA discussed below.
PMDA:
PMDA recognizes the right of wife to maintenance. The maximum amount that can e
decreed by court as maintenance while matrimonial suit is pending in Family
Court, is one-fifth of the husbands net income.

Domestic Violence (The Protection of Women from Domestic Violence Act,

2005(PWDVA)):
PWDVA was enacted to protect the rights of women who are victims of physical abuse,
sexual abuse, verbal and emotional abuse and economic abuse (hereafter collectively
referred as abuse) occurring within the family. This Act recognizes live-in relationships
inasmuch as woman (who is a victim of abuse) in such a relationship may avail of all
such remedies (under PWDVA) as are available to a woman legally married to a man.
Remedies available under this Act include residence orders (restraining the person who is
guilty of abuse (respondent) from dispossessing the victim, directing the respondent to
move out of the house etc.), monetary relief (for loss of earnings among others on
account of the abuse and lump sum or monthly payments of maintenance), custody order
(granting temporary custody of any child or children to the aggrieved person) and
compensation orders (compensation and damages for the injuries, including mental
torture and emotional distress).
13

Iddah or Iddat (period of waiting) is the period a woman must observe after the death of her spouse or
after a divorce, during which she may not marry another man. The period is three months after a divorce
and four months and ten days after the death of a spouse.
14

Mahr is a gift, mandatory in Islam, which is given by the groom to the bride upon marriage. It is
considered to be a form of appreciation, as well as providing certain guarantees for the woman.
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Dowry Death:
Section 304 B of the Indian Penal Code, 1860 lays down that where the death of a
woman is caused by any burns or bodily injury or occurs otherwise than under normal
circumstances within seven years of her marriage and it is shown that soon before her
death she was subjected to cruelty or harassment by her husband or any relative of her
husband for, or in connection with, any demand for dowry, such death shall be called
dowry death and such husband or relative shall be deemed to have caused her death.
It is pertinent to note that the provision mentioned above is an exception to the principle
(in criminal law) of presumption of innocence viz. the accused is innocent unless
proven guilty. This principle stems from the Latin phrase Ei incumbit probatio qui dicit,
non qui negat. 15

Adoption:
Hindu law (HAMA), Muslim Law and the Guardianship and Wards Act, 1890
(GAWA) are three distinct legal systems pertaining to adoption and guardianship.
Theres a difference between adoption and guardianship. A person who has been adopted
assumes the rights of a child (including inheritance) in the family into which he / she is
adopted and loses such rights in the family he / she was born in. On the other hand, a
person under foster care or guardianship (called ward) does have a legal right of
inheritance. This legal guardianship exists only until the child completes 21 years of age.
Adoption is recognized in Hindu law but not recognized in Muslim, Christian and Parsi
law and as a result, Muslims, Christians and Parsis have to approach the Family Courts
under GAWA for guardianship of a person.
Who may adopt under HAMA?
Any male Hindu who is of sound mind and is not a minor (with the consent of his wife)
and a female Hindu who is of sound mind, is not a minor and is not married or if married,
whose marriage has been dissolved or whose husband is dead or haas completely and
finally renounced the world or has ceased to be a Hindu, or has been declared by a court
of competent jurisdiction to be of unsound mind, has the capacity to take a son or a
daughter in adoption.
Who may be adopted under HAMA?

15

Check the meaning of this phrase in the Supplement on Important Phrases.

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A person can be adopted if he or she has not been married and he or she has not
completed the age of fifteen years. If the adoption is of a son, the adoptive 16 father or
mother must not have a son, sons son or sons sons son living at the time of adoption.
Similarly, if the adoption is of a daughter, the adoptive father or mother must not have a
daugher or sons daugher living at the time of adoption. Also, there must be a difference
of at least twenty-one years between the age of the adoptive parent and the adopted child.

16

One who adopts.

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