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