Critical Analysis: Major Changes in Family Law over the Years in India

Prachiti Suresh Shinde, is a student at TYBLS from Thakur Ramnarayan College of Law. She believes that every aspect of life could be made creative just with your art of writing.

INTRODUCTION

The scope of this subject refers to the family relationship. Indian culture has the highest regard for the family and its norms. India inherited a system of family law which is defined as the “set of rules that are in practice regarding family matters like marriage, inheritance, divorce, etc. They are some legally enforceable rights and responsibilities that arise when one gives legal validation to the status of interpersonal relationships.”[i] India being a secularist nation has diverse communities of religion that have their own customs and regulations which are governed by common state courts.

There are mainly 5 sets of laws governing the spectrum of family matters:

a) Hindu Law: Governing all Hindus, Buddhists, Jains, and Sikhs.

b) Muslim law

c) Christian Law

d) Parsi Law

e) Secular law: Governing relation arising out of The Special Marriage Act

The laws which are derived from customs are taken from religious texts. These laws have also been updated by Parliament due to changing social dynamics.

DEVELOPMENT IN FAMILY LAW:

The personal laws concerning Hindus have been changed through codification. The changing dynamics has set up a need to change the laws in accordance to societal needs. It has brought light upon how dynamics are changing as well as what ways the laws can benefit maximum people. Whereas the Muslim laws have not undergone major legislative changes.

LAW RELATED TO MARRIAGE:

Marriage is defined as, “legal status, condition, or relation of one man and one woman united in law for life, or until divorced, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.”[ii] The ideal meaning of this definition has completely changed.

The trends in the Indian System have shown development in components like the minimum age of marriage, divorce, succession rights, etc. There are positive as well as negative reasons why these changes have been incorporated. Rate of exploitation, child marriages, awareness of rights among women, better education facilities etc. are some of the reasons.

HINDU MARRIAGES:

Since the primitive stages, marriage has always been viewed as a sacrament under Hindu Law. It is believed that it is a kind of institution which involves various religious rituals which increases the bond between the family. It acts as a bedrock of civilization.

Child marriages have been one of the oldest concerns in India. The factors that contribute to this illegal activity are social norms, lack of education, questions on the status quo of women, seeing women as just a financial strain, and so on.

The British Government passes a legislation concerning child marriages, The Child Marriage Restraint Act,1929 also known as Sarda Act. This Act passed raised the minimum age of marriage, to 14 for females and 18 for males. Though this act was passed it wasn’t implemented and followed. In Sushila Gothala V. State of Rajasthan[iii], this act was amended and increased the minimum age limit of marriage for girls from 16 to 18 years. Decades later the Act was again amended in 2006 known as the Prohibition of Child Marriage Act, which sanctioned the parents as well as priests involved in such practice.

A PIL was filed in Delhi High Court in 2019 where the petitioner’s contention was that this law violates Article 14(8) and Article 21 of the Indian Constitution. Therefore, recently the legislation was passed that the age of females to get married in 21 years.

The enactment of the Hindu Marriage Act 1955 has invalidated polygamy and brought strict monogamy to all Hindus. This Act does not have a provision stating that marriage without the consent of parties is void but the marriage is voidable if the consent is obtained by the means of fraud or coercion. The same goes for the situation if one of the parties is of unsound mind.

If sections 5,11 and 12 are read together it depicts that consent is not an essential component of Hindu Marriage. It is believed that the Hindu marriage is a sacrament which is indissoluble and an eternal bond. Widows are allowed to remarry. The sacramental ceremony is necessary. Thus, Hindu marriage can be seen as a mixture of both a contract as well as sacramental union

MUSLIM MARRIAGES:

Unlike Hindus, Muslim marriages are always being considered as a contract. It has been viewed as a civil contract with the motive of legalizing sexual intercourse and the procreation of children. It does not have any prescribed religious service which is mandatory for its solemnization. It is evident that the marriage is a civil contract from the nature of the marriage as well as the way it is carried out.

The sole requirement of the marriage is an offer made by one party to another and which is accepted in the same meeting held in presence of two witnesses. The Muslim marriages are of polygamous nature which is limited up to 4 wives. The exception is of Sunni male, if he marries 5 wives then the fifth would not be void but that marriage would be considered as irregular. As far prohibition is concerned there is no prohibition on intersecting or interschool marriages but inter-religion marriages are restricted under Muslim personal law.

A Sunni male is allowed to marry a non-Muslim Kitabia[iv]but not a fire-worshiper or idol-worshiper. Whereas under Shia law, the marriage of a Muslim male or female with a non-Muslim is void.

Other grounds of Prohibition

a) Consanguinity:

1. his mother or grandmother, ascendants of any degree,
2. his daughter or granddaughter, descendants of any degree,
3. his sister, full, consanguine, or uterine,
4. his aunt (both on father's and mother's side), ascendants of any degree.

b) Affinity

a Muslim male cannot marry

1. his wife's mother or grandmother, ascendants of any degree,
2. his father's wife or father's father's wife, ascendants of any degree,
3. foster-mother's son's wife.

A female child cannot marry

1. her foster-mother's husband
2. Foster-mother's son,
3. Foster-mother's daughter's husband.

c) Unlawful Conjugation

A male is prohibited to have 2 wives at the same moment who are associated with each other by the relation of consanguinity, affinity, or fosterage.

d) Marriage with a Woman Undergoing Iddah

If Sunni male marries a woman during the Iddah period, the marriage is considered as irregular whereas in case of Shias it is considered as void.

PARSI, JEW AND CHRISTIAN MARRIAGES:

The Parsi marriage is also treated as a civil contract but there is a ceremony known as Ashirwad which is mandatory for its solemnization. It is solemnized by a Parsi priest in the presence of 2 witnesses. On the other hand, the Jew marriage is also considered a contract and the contract is known as Katuba. A religious ceremony is mandatory for validation.

Christian marriage is also a contract and is solemnized by a Minister of Religion licensed under the Christian Marriage Act, 1872 and by the Marriage Registrar. Marriage is a civil contract under the Special Marriage Act, 1954.

DIVORCE:

Following are some of the grounds of divorce given to both husband and wife under Hindu Marriage Act, Parsi Marriage and Divorce Act and Indian Divorce Act:

a) adultery

b) cruelty

c) desertion

d) conversion,

e) unsound mind

f) presumption of death and

g) failure to comply with decree of restitution of conjugal rights

Whereas, in Muslim law, a unilateral divorce is documented to man without allocating any reason to wife. However, the wife can seek divorce under the Dissolution of Muslim marriage Act but she has to prove the grounds for divorce.

Beside from the grounds already mentioned, a Hindu wife can seek divorce based on the special grounds under the marriage laws (Amendment)Act, 1976 such as:

a) remarriage by husband,

b) husband being guilty of rape, sodomy, or bestiality

c) non-resumption of cohabitation by the spouses despite a decree for maintenance of wife and option of puberty.

Triple Talaq:

Islam was the sole religion to recognize divorce to dissolve a marriage. It is known as Talaq which in Arabic means Release. The most controversial topic in recent times was the abolition of Triple Talaq alias Talaaq-e-biddat. It is defined as “liberty from the relationship of marriage, eventually or immediately, where the man, by simply uttering the word ‘talaq’ three times, ends his marriage.”[v] This custom was legalized under the Act.[vi]

But due to the eminent judgment under Shayara Bano v. UOI & ors[vii]., triple talaq was considered as unconstitutional and it led to introduction of the Muslim Women (Protection of Rights on Marriage) Bill,2019.[viii] The objective of this bill was to protect Muslim women from instant divorce by uttering those mere words. The violation of which is punishable with up to 3 years of imprisonment. The Bill also has provisions related to the maintenance and custody of children.

Adultery as a ground of divorce:

Adultery is a French origin word which means “to corrupt.”[ix] Adultery has been considered a crime in the last 158 years but in 2018 removed section 497 of IPC decriminalized Adultery[x]. But still, it could be a factor for divorce or judicial separation and not a criminal offense defined under Section 13(1) and Section 10 of the Hindu Marriage Act,1955.

MAINTENANCE:

Under Hindu Marriage Act, Section 24 governs provisions related to grant of maintenance and expenses of proceedings to either spouse while Section 25 governs provision having similar contention i.e., Payment of permanent alimony and maintenance. Same provisions are implemented in Parsi and Christian Law. Whereas a Muslim women have choice between Muslim Women Act 1986 and Section 125 C.R.P.C, if she chooses to follow in accordance with personal laws then she is entitled to receive the maintenance till Iddat period or delivery of child whichever is early from her spouse and for the rest of the period by parents, relatives, or wakf board if he is unable to maintain herself.

Section 125-128 of the Code of Criminal Procedure, 1973 has provisions related to the maintenance of wife, children, and aged parents. The objective of this section is social justice and falls within ambit of the Article 15(3). The apex court has explained the raison d’etre behind s.125, CrPC which governs maintenance paid to a divorced Muslim wife and to avoid destitution on part of her.[xi]

INHERITANCE:

The Hindu Succession Act enacted in 1956 was considered as the first step towards uniformity of inheritance among all Hindus and to pontificate the concern related to gender inequality in terms of inheritance. Section 14 of the Act expunged the disability of a female to obtain and hold property as a sole owner and convert limited estate into absolute ownership. In V. Tulasamma & Ors. v. V. Sesha Reddi, the Apex court established the scope and spectrum of sections 14(1) and (2) of the Act where a clear distinction was made by the court acknowledging women’s right to property and all her previous rights were to be maintained as it is.[xii]

Under Hindu Succession (Amendment) Act,2005, the ideology of Mitakshara school of thought has completely changed because the daughter must be treated as a son under this amended act. She was empowered to share a coparcenary by birth.

CONCLUSION:

Indian Society is still trying to get rid of all prejudices and adjust to modern trends. With changing dynamics, the traditional norms are changing due to which legal provisions which relate to the family have also changed. The prime objective behind this is to promote equality and remove prejudice by providing equal rights to both genders. Though new provisions are added they are not sufficient to the rising concerns.

They're still people in society who treats women as their slaves and the women are not aware of their fundamental rights because of a lack of education. The legislation should enact such provision which could completely eradicate the problem of discrimination.

Despite various remedies and legislative provisions for gender justice the social attitude and institutions are still rigid. This signifies those laws made are not sufficient and need drastic changes to make an impact on the minds of people. No doubt that the judiciary has progressed and tried to restrict discrimination and uphold the value of Indian women in society. The gaps can be filled by spreading awareness, educating people, providing legal aid and organizing camps at grass root level.

REFERENCE

[i] Sylvine in General, The Must-know Family Law Summary (2016)

[ii] Black’s Law Dictionary ( 9th ed.2009) available at Westlaw BLACKS

[iii] Sushila Gothala V. State of Rajasthan AIR 1995 Raj 90

[iv] Kitabia-whose faith is based on same holy book containing revelations such as Christians and Jews, but not Sikhs

[v] What is Triple Talaq Law, Business Standard. https://wap-business–standard-com.cdn.ampproject.org/v/s/wap.business-standard.com/amp/about/what-is-triple-talaq-law?amp_js_v=a6&amp_gsa=1&usqp=mq331AQHKAFQArABIA%3D%3D#aoh=16104313488665&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fwww.business-standard.com%2Fabout%2Fwhat-is-triple-talaq-law

[vi] The Muslim Personal Law (Shariat) Application Act of 1937

[vii] Shayara Bano V. Union of India (2017) 9 SCC 1

[viii] Muslim Women (Protection of Rights on Marriage) Bill, 2019, Bill no. 20 of 2019 (31st July 2019)

[ix] https://www.scconline.com/blog/post/2019/02/2s-497-ipc-and-s-1982-crpc

[x] Joseph Shine V. Union of India, 2018 SC 1676

[xi] Mohd. Ahmed Khan v. Shah Bano Begum, 1985 (3) SCR 844

[xii] V. Tulasamma & Ors vs V. Sesha Reddi (Dead) 1977 AIR 1944

DISCLAIMER: This article is an original submission of the author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our terms of use or write it down to us in case of any concern.