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FAMILY / MATRIMONIAL LAW

Family Law is that branch of Law that deals with interpersonal relations that an individual bind himself in a society in a manner and form he so desires, with agreement and intention to perform such duties and respect rights that law sets upon him.

Generally, family or matrimonial laws deal with a person’s individual based rights such as that of marriage, divorce, inheritance, succession, guardianship, adoption and other related aspects.

Family Law deals with aspects of personal laws. By the word Personal Law, it is meant that the laws and legislations under Indian Constitution are designed and made personally for different segments of society. This segmentation is based upon the religion one practices. Meaning different law for different religion; as every religion have different cultural practices and customs which is part of their ancient inheritance.

Choice of governance under Family (Personal) Law 

A person when born, is deemed to follow the religion his family practices and will accordingly be governed by the said religious law (family law). For example, a son born in a Hindu family will deem to be a Hindu and shall be governed by laws specifically designed for Hindus; like that of marriage, divorce, succession and others.

A person has the constitutional right to choose to be governed by any personal law he so desires. An individual who once attains majority (completes 18 years of age), in free will and desire can choose to practice a different religion from one he was born in; by converting into the other religion. The said conversion from one religion to other has to be done will free will without any persuasion, coercion, undue influence and other illegal means. For example, a Hindu born girl, can choose upon attaining majority, in free desire and will, to convert herself to faith of Christianity. Subsequently, from the date of conversion the girl will be governed by Christian family laws.

A person who is an atheist and follows no religion or faith also has governance of personal laws. Any person who does not fall under the category of recognized religious laws in India has general application of Personal Law, which is common for all citizens of India, unless and until they choose to govern themselves under a specified family law.   

Illustration:

Ajit, a Hindu male desire to marry Zubaida, a Muslim female. Under Hindu Personal Law, both partners marrying have to be Hindu. Under Muslim Personal Law, both partners marrying have to be Muslim. Hence, Ajit and Zubaida cannot marry under their respective personal laws. Therefore, their marriage is recognized under Special Marriage Act, 1954 which requires both marrying partners to be a citizen of India; irrespective of their faith and religion they follow. Hence, all citizens of India can choose to be governed by a personal law or may choose to be governed by general national family law.  

Uniform Civil Code (Article 44 of the Constitution of India)    

Uniform Civil Code is a constitutional provision that demands a uniform application of personal family law on all citizens of the country, leaving no distinguishing factor between religion. One law for all citizens and not specific personal law based and divided on faith and religion.

Uniform civil code is the ongoing point of debate within India mandate to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen.

Article 44 of the Directive Principles sets its implementation as duty of the State. Apart from being an important issue regarding secularism in India and fundamental right to practice religion contained in Article 25, it became one of the most controversial topics in contemporary politics during the Shah Bano case in 1985.

Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens. The British feared opposition from community leaders and refrained from further interfering within this domestic sphere.

Legal Knowledge:- Goa, is the only Indian state which has a common family law; being part of legacy of Portuguese rule in India. The citizens of the state of Goa are commonly governed by one family law, thus being the only Indian state to have a uniform civil code.

Article 44 of the Constitution of India

Article 44. Uniform civil code for the citizens- The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

InIndia, family is largely bifurcated into 5 segments:-

[1] Hindu Law

[2] Muslim Law

[3] Christian Law

[4] Parsi Law

[5] Secular Laws- General Indian Legislation (Governing aspects of marriage, divorce, adoption, maintenance, guardianship, domestic violence, succession, inheritance and related family regulation laws)

Customary Laws

Personal family laws are different for different faith as they are based on religious practices. These practices which are customary, meaning is continuously being followed since time immemorial. Indian Jurisprudence (Science of Law) recognizes customary laws i.e. making laws based on customs and practices which have been continuously followed since ancient times and are practiced till date. For example, marriage in Hindus is a solemnization (union of two souls), whereas marriage in Muslims is a contract (arises out of a contractual relationship). Because these are customary practices they have been included as it is in respective personal laws also.

Certain customary/religious practices which are customary but are against the public policy as entailed in our constitution, have been discontinued also. For example, practice of Sati has been abolished.

A recent example of such deviation is abolition of the practice of Tripal Talaq which has been held by the Supreme Court to be Constitutionally invalid.

Thus, personal laws evolve from customary practices and are recognized under Indian legislations. The deviation only comes in when such practices violate public policy of India and is violative on humanitarian grounds.     

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Understanding Terminologies

[1] Marriage-

The legal status, condition, or relationship that results from a contract (Muslim) or by explicit will of parties by which one man and one woman, who have the capacity to enter into such an agreement, mutually promise to live together in the relationship of Husband and Wife in law for life, or until the legal termination of the relationship.

The parties agree to perform ‘Conjugal rights’, which forms an essential part to matrimony. Conjugal rights declare as of right for the parties to live and stay together performing duties which one should undertake to fulfil in marriage. On failure to fulfill conjugal rights, any partner can approach the court for its fulfillment. They arethe rights, especially to sexual relations, regarded as exercisable in law by each partner in a marriage. 

[2] Divorce-

Divorce (or the dissolution of marriage) is the termination of a marital union, the canceling and/or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law.

The legal separation of man and wife, effected, for cause, by the judgment of a court or so expressly declared under law, and either totally dissolving the marriage relation, or suspending its effects so far as concerns the cohabitation of the parties.

It leads to extinction of conjugal rights.

[3] Judicial Separation-

Legal separation is a legal process by which a married couple may formalize a de facto (in factual circumstance) separation while remaining legally married in de jure (legally still married). A legal separation is granted in the form of a court order.

Furthermore, in cases where children are involved, a court order of legal separation often makes temporary arrangements for the care, custody, and financial support of the children ("for the time being"). Thus, part of the court order determines child custody.

Legal separation does not automatically lead to divorce, it is a mode of interim measure giving an opportunity to the couple to re-think their marriage and safeguard themselves from a hasty divorce. The couple might reconcile, in which case they do not have to do anything in order to continue their marriage. If the partners fail to reconcile, judicial separation can lead to a divorce.

[4] Alimony/Maintenance-

During the pendency of divorce proceedings or thereafter when it is granted; if the wife or the husband is unable to maintain herself then a legal protection may be available-

Alimony: An allowance for support made under court order to a divorced person by the former spouse, usually the chief provider during the marriage. Alimony may also be granted without a divorce, as between legally separated persons. It is generally a one-time payment.

Maintenance: It is a financial arrangement between the divorced couples vide a court order. It is an arrangement by which a partner provides regular financial support to the other partner till the time the other partner is able to support himself or herself.

Such financial support is important as;

(a)   The wife or the husband during the course of their married life were dependent on the other for their livelihood.

(b)   If both partners are working, in such cases no alimony or maintenance is required to be given by court, as they individual partner can sustain his or her livelihood.

(c)   Such financial support is to give an opportunity to either partner in meantime to prepare and start generating some income to sustain himself or herself, after which no maintenance is to be paid.

(d)   It can be ordered by the court for any partner, meaning a man may have to support his divorced-wife after divorce till the time she is able to support herself individually, and a wife may be directed to support her divorced-husband till he becomes able to support himself. 

[5] Adoption/Guardianship-

Adoption is a process whereby a person assumes the parenting of another, usually a child, from that person's biological or legal parent or parents, and, in so doing, permanently transfers all rights and responsibilities, along with filiation, from the biological parent or parents.

Unlike guardianship or other systems designed for the care of the young, adoption is intended to effect a permanent change in status and as such requires societal recognition, either through legal or religious sanction.

Guardianship is temporary, generally till the time that ward attains majority and able to make decisions himself. Guardians can be court appointed or be voluntary persons like natural guardians i.e. grand-mother to her grand-son, paternal uncle to his brother’s son are examples of natural guardian.   

[6] Inheritance-

Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It takes place as of ‘right’, where the person who is deemed to inherit is recognized and qualified in law.

For example, A dies leaving his property behind. Z is A’s only son, has inherited the property of A, which he can claim as of right and no other person has any claim onto that property.

[7] Succession-

It is a similar concept as of inheritance. Succession law is based on the transfer of title to property under the law of Descent and Distribution; which is the transfer of legal/official powers from an individual who formerly held them to another who undertakes current responsibilities to execute those powers.

Here the right is transferred as of will and not as of right to inherit.

Inheritance

Succession

It devolves a ‘right’ onto an individual; which only he can claim, unquestionably.

 

Whatever be the condition, the person under inheritance has absolute right over the particulars of inheritance, a right which cannot be taken away.

It is based on a right which has certain terms and conditions to it.

A, dies leaving his estate worth 5 Crores. A had only one son, D. D has inherited his father’s estate and he has full right to claim it (no one else can make a claim, only A can).

A was a government servant. A, dies leaving his son, S. The post that was held by A can be compassionately given to S only if S is a major and holds a BSc. Degree from a government college.

 

In this case, the post held by A is transferrable to S, but subject to certain terms and conditions. S’s right to the post is not absolute.  

 

[8] Domestic Violence

Domestic violence is defined as a pattern of coercive and controlling behaviors and tactics used by one person over another to gain power and control. This may include verbal abuse, financial abuse, emotional abuse, sexual abuse and physical abuse.

Protection against Domestic Violence is provided under Section 125 of the Code of Criminal Procedure, 1973. It deals with maintenance of wife, parents and children (as of right that can be claimed under Law).

Section 125 of the Code of Criminal Procedure, 1973

Section 125. Order for maintenance of wives, children and parents.-

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Explanation.- For the purposes of this Chapter,-

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875; is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such

Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

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[1] HINDU PERSONAL LAWS

(a) Marriage and Divorce-

Both, marriage and divorce under Hindu Law are governed by The Hindu Marriage Act, 1955.

Marriage:

For a marriage to be a valid marriage under Hindu customs and laws the following essentials must be fulfilled as under Section 5 of the Hindu Marriage Act, 1955;

1.    Both partners must be Hindu for them to marry under Hindu personal law; and subsequently been declared as husband and wife.

2.    No partner shall have a living spouse at the time of marriage.

3.    No partner to be of unsound mind; not being able to give a valid consent to marriage.

4.    The bridegroom to have completed atleast 21 years of age and the bride should be atleast 18 years of age at the time of marriage.

5.    Under Hindu law marriage is a ‘Solemnization’, union of two souls, and the marriage subsists for eternity (forever).

6.    The process of solemnization included customary practices like that of Kanyadaan, Saptapadi (seven steps/circles) amongst others; after which the marriage shall become binding on the parties to marriage.

7.    A marriage must be compulsorily registered (Section 8 of the Hindi Marriage Act, 1955).

8.    The partners must not be within Prohibited Degree of Relationship and are not Sapindas of each other, unless customs permit so.      

Prohibited Degree of Relationship/Sapindas

Under Hindu customs a prohibition under marriage is observed i.e. marrying real or cousin brothers and sisters is not accepted. Such prohibition is to be observed which deciding partners to marriage. They may differ from one custom follower to the other.

Two persons are said to be Sapindas of each other when if one is a lineal ascendant of the other marrying partner within the limit of relationship, or if they have a common lineal ascendant with reference to each of them.

Section 3 (f) and (g) of the Hindu Marriage Act, 1955

Section 3 (f)- Sapinda relationship

(i)"Sapinda relationship" with reference to any person extends as far as the third generation(inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation;

(ii) two persons are said to be "sapinda" of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;

Section (g)- degrees of prohibited relationship-

two persons are said to be within the "degrees of prohibited relationship"-

(I) if one is a lineal ascendant of the other; or

(ii) if one was the wife or husband of a lineal ascendant or descendant of the other;

or

(iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother or the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters.

Explanation.- for the purposes of clauses (f) and (g) relationship includes-

(I)            relationship by half or uterine blood as well as by full blood;

(ii) illegitimate blood relationship as well as legitimate;

(iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly.

Divorce:

Governed under Section 13 of the Hindu Marriage Act, 1955 which states that no Hindu marriage can be dissolved unless and until a decree from court of law is obtained.

 As discusses earlier, Hindi marriages are a solemnization and are for eternity, hence only the courts can declare it to be dissolved.

There are two kinds of divorce proceedings;

(i)             Contested Divorce- where one party wants a divorce and the other party does not want a divorce. Such divorce takes a long time to be granted.

(ii)            Mutual Divorce- where both parties mutually agree for a divorce. Usually granted after an effort to reconcile between the parties.  

Grounds of Divorce-

(i)            Exercised cruelty with married partner.

(ii)           Has after the solemnization of marriage, voluntary sexual intercourse with any person other than his or her spouse.

(iii)          Has deserted his/her partner for more than 2 years

(iv)          Has been incurably of unsound mind.

(v)           Suffering from venereal disease in communicable form.

(vi)          Suffering from incurable leprosy.

(vii)         Has renounced the world by religious order.

(viii)       One partner hasn’t been heard of being alive for a period of 7 years.

(Note:- in case of the marriage being without consent, the marriage can be declared to be null and void altogether by competent court of law, no divorce is required)

(b) Adoption & Maintenance-

Adoption is governed under Hindu Adoptions and Maintenance Act, 1956;

Adoption:

For a valid adoption under Hindu law the following essentials are required to be fulfilled;

1.    Both legitimate and illegitimate children can be adopted.

2.    A Hindu male of sound mind and not being a minor can adopt, with the consent of his wife, if married.

3.    An unmarried Hindu female can adopt if of sound mind and not a minor.

4.    A child below the age of 15 years can be adopted.

5.    The age gap between the adoptive parent(s) and the child must be atleast of 21 years.

6.    A son can be adopted, if, the adoptive parent(s) has no living son, or son’s son, or son’s son’s son (up till 2 further generations).

7.    A daughter can be adopted, if the adoptive parent(s) has no living daughter, or daughter’s daughter, or daughter’s daughter’s daughter (up till 2 further generations).

This is the requirement under Hindu Laws for adoption, but it lays no bar on any person to adopt under Indian Adoption Act; where a person can even adopt a son even if he has one son or a daughter when he has a daughter.

Maintenance:

Maintenance generally is the responsibility of the earning member of the family. The following person(s) are a responsibility of a Hindu;

1.    Unmarried children (including illegitimate) up till the age of 18 to be maintained by their parents.

2.    A Hindu must maintain his wife during her lifetime.

3.    A widowed daughter-in-law must be maintained by her father-in-law who is a Hindu.

4.    A Hindu is under the obligation to maintain his aged parents during his lifetime.

5.    A Hindu to maintain his dependents i.e. father, mother, widow (as long as unmarried), unmarried daughter, estate of father, daughter-in-law, father-in-law, sons and daughters from own son or daughter and similar. 

(c) Succession & Inheritance-

Succession under Hindu law is governed by Hindu Succession Act, 1956. There are the following 2 kinds of succession laws;

(i)            Intestate- Intestate succession is made when a person dies without executing a will.

The property under Intestate succession shall be divided amongst the heirs of the Hindu deceased. It is a class based distribution. First to Class I heirs, if no one is alive in Class I then to Class II. If the person has no one, then the property shall devolve in the government.

 

Illustration only-

Class I heirs: son, daughter, widow, mother, son’s son, son’s daughter etc.

Class II heirs: father, son’s daughter’s son, son’s daughter’s daughter, brother, sister etc.

 

Hence, if A dies, then his estate will devolve accordingly. First to his son; if no son, them onto daughter; if no daughter, then onto widow; if no widow, then onto mother; so on and so forth. 

 

(ii)           Testamentary- Testamentary succession is where the person so dead has executed a will, and his property shall devolve according to the particulars of the will.

Will is a legal document by which, the person executing it, testator, expresses their wishes as to how their property is to be distributed at their death.

[Legal Knowledge:- Codicil: it is an addition or supplement that explains, modifies, or revokes a will or part of one]

[Note;

Question Illustration: Arraham and Meetak wish to marry under Hindu Personal Law. They approach a pandit and get married in a temple. Is their marriage valid?

a) Valid under Hindu Marriage Act, 1955

b) In-valid under Hindu Marriage Act, 1955

c) Voidable under Hindu Marriage Act, 1955

d) Cannot be determined

the answer shall be (d) cannot be determined; as we are unaware what religious faith Arraham and Meetak belong to. Hence, it is important to consider a person having his name as Ram can be a Muslim and a person having his name as Rashid can be a Hindu. Thus, until and unless the faith of each individual is not known, no answer can be determined.]

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[2] MUSLIM PERSONAL LAWS

The segment of Indian Society that preach, follow, propagate and practice the religion of Islam are governed by Muslim personal law.

(a) Marriage and Divorce:

Marriage:

Muslim marriages are recognized under The Muslim Personal Law (Shariat) Application Act, 1937. A Muslim marriage is a contract, where the parties offer to stay together and perform ‘conjugal rights’ for a consideration which is called ‘Meher’. The meher becomes payable on marriage, which becomes the absolute property of the bride (advance consideration). The following are the essential characteristic to a Muslim marriage;

1.    Both contracting parties to marriage should be Muslim.

2.    A Muslim marriage is a contract.

3.    Consideration for such contract is a meher amount i.e. if the man leaves his wife then in such condition he has already performed his part of the contract in form of meher, which is a sum of money or any security (such as property) which was paid at the time of marriage.

4.    A Muslim male can keep up to 4 wives, with the consent of existing wife or wives at and till the time of the fourth marriage.  

Divorce:

Muslim divorce is governed by The Dissolution of Muslim Marriages Act, 1939.

Unlike, Hindu law, dissolution of Muslim marriages does not require a divorce decree from court of law. The reason is that under Hindu law a marriage is for eternity and no provision of divorce is given under Hindu customary law and practices. Whereas, under Muslim customs and practices, divorce is a recognized feature of their personal law. Hence, they can seek divorce without approaching the court of law.     

Modes & Grounds of Divorce-

[1] Triple Talaq: a Muslim male can pronounce talaq three times in 3 lunar months, while abstaining from any conjugal relationship from his wife, shall upon the third pronouncement (over 3 month period) deem to have divorced his wife.

Divorce by Muslim Women:

As women in Muslim personal laws have no right to give divorce, it is in Indian legislation that such right to women has been given where they can obtain a decree of divorce from a court of law. In some cases a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely;

(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from leprosy or virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years:

Provided that the marriage has not been consummated;

(viii) that the husband treats her with cruelty, that is to say,—

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;

(ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim personal law.

(x) by conversion to other religion and then subsequently claiming for a divorce.

(b) Adoption & Maintenance:

Adoption-

The concept of adoption is not popular within the scope of Muslim personal law nor any such customary is recognized. For adoption by a Muslim male or female, they can avail the provisions of general personal laws for adoption like the Guardians and Wards Act of 1890 and the Juvenile Justice (Care and Protection) Act of 2000.

Maintenance-

Likewise, maintenance is also not a celebrated portion of Muslim personal law but their religious customs have been embedded under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986.

Maintenance is a financial support that is provided by a Muslim male to his divorced wife. The rights of Muslim women after divorce is as follows;

Mahr or other properties of Muslim woman to be given to her at the time of divorce; a divorced woman shall be entitled to-

(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;

(b) where she herself maintains the 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 or dower agreed to be paid to her at the time of her marriage or at any time thereafter according of Muslim law; and

(d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

Iddat period-

"iddat period" means, in the case of a divorced woman,-

(i) three menstrual courses after the date of divorce, if she is subject to menstruation;

(ii) three lunar months after her divorce, if she is not subject to menstruation; and

(iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy, whichever is earlier.

(c) Inheritance and Succession:

Muslim law of inheritance is indeed complex. Their religious texts suggested that upon death of a Muslim, he has to pay-back all obligations that the world has set upon him. A portion of his property has to be shared with outmost reach of his family members and relatives. There is a subsequent provision of leaving out a certain share as donation, to return all favours done to him by society.

Succession under Muslim law is governed by their personal religious laws and there lies no specific legislation to govern the same. There are the following 2 kinds of inheritance classification as dealt before;

(i)            Intestate- Intestate succession is made when a Muslim person dies without executing a will. The property under Intestate succession shall be divided amongst the heirs of the Muslim deceased.

Inheritance is considered as an integral part of Shariah Law. Muslims inherit from one another as stated in the Qur'an. Hence, there is a legal share for relatives of the decedent in his estate and property. The major rules of inheritance are detailed in Qur'an, Hadith and Fiqh (Religious Texts).

 

When a Muslim dies there are four duties which need to be performed (common for Shia and Sunni). They are:

a.    Pay funeral and burial expenses.

b.    Paying debts of the deceased.

c.     Distribute the remainder of estate and property to the relatives of the deceased according to Shariah Law.

d.    On execution of will, determine the fate of one third of the estate/property of the deceased.

Therefore, it is necessary to determine the relatives of the deceased who are entitled to inherit, and their shares.

 

Distribution to Heirs- Shia Law

 

Heirs referred to as primary heirs are always entitled to a share of the inheritance, they are never totally excluded. These primary heirs consist of the spouse relict, both parents, the son and the daughter. All remaining heirs can be totally excluded by the presence of other heirs. But under certain circumstances, other heirs can also inherit as residuaries, namely the father, paternal grandfather, daughter, agnatic granddaughter, full sister, consanguine sister and mother. Those who inherit are usually confined to three groups or classes of heirs:

Group/Class- I Heirs

a.   Quota-heirs, usually include daughters, parents, grandparents, husband and wife/ wives, brothers and sisters, and others. This group usually take a designated share or quota of the estates.

Group/Class- II Heirs

b.   Members of the asaba (residuaries), usually a combination of male (and sometimes female) relatives that inherit as residuaries after the shares of the Quota-heirs is distributed.

Group/Class- III Heirs

c.   In case a person leaves no direct relatives and there is no usaba, his property escheats to the state treasury, called as Bayt al-mal.

 

Distribution to Heirs- Sunni Law

Distribution in Sunni law may seem similar to that of Shia law as they both are driven from Qur’an, though fundamentally the same concept but Sunni law is a more complex system. Under Sunni law the estate of the deceased is even more widely distributed between family and relatives as reflected in the table given below. The table is merely an illustration as to provide a basic idea as to how distribution of estate of a Sunni Muslim is done.

SUNNI LAW OF INHERITANCE

Table of sharers

Sharers

Normal Share

Conditions under which the normal share is inherited

Variation of shares

When only one heir is present

When two or more heirs are present

Husband

1/4

 

In the presence of a child or child of a son how low so ever

1/2 in absence of a child or child of a son how low so ever

Wife

1/8

1/8

In the presence of a child or child of a son how low so ever

1/4 in absence of a child or child of a son how low so ever

Daughter

1/2

2/3

In the absence of a son.

In presence of a son she becomes a residuary

Father

1/6

 

In the presence of a child or child of a son how low so ever

In absence of a child or child of a son how low so ever the father inherits as a residuary.

Mother

1/6

 

In the presence of a child or a child of a son how low so ever, or two or more brothers or sisters, or even one full, consanguine or uterine brother and one such sister.

1/3 in the absence of a child or child of a son how low so ever, and not more than one brother or sister (if any); but if the wife or husband and the father, is also present, then only1/3 of what remains after deducting the share of the spouse.

True grandfather

1/6

 

In the presence of a child or child of a son how low so ever, and in absence of the father or a nearer true grandfather.

In absence of a child or child of a son how low so ever, the true grandfather inherits as a residuary, provided there is no father or nearer true grandfather.

True grandmother

1/6

1/6

A maternal true grandmother takes in absence of a mother, and a nearer true grandmother and a paternal true grandmother takes in absence of a mother, father, a nearer true grandmother and an intermediate true grandfather.

 

Son’s daughter how low soever

1/2

2/3

In absence of a son, daughter, a higher son’s son, higher son’s daughter, or an equal son’s son.

In absence of a son, higher son’s son, or an equal son’s son and when there is only one daughter, or higher son’s daughter the daughter or higher son’s daughter will take 1/2 and the son’s daughter how low so ever (whether one or more) will take 1/6.

Son’s daughter

1/2

2/3

In absence of a son, daughter, or son’s son

In absence of a son or son’s son and in presence of a only one daughter the son’s daughter (whether one or more) will take 1/6.  (In presence of a son’s son, she becomes a residuary.)

Son’s Son’s Daughter

1/2

2/3

In absence of a son, daughter, son’s son, son’s daughter, or a son’s son’s son.

In absence of a son, son’s son or son’s son’s son and in presence of only daughter or son’s daughter, the son’s son’s daughter (whether one or more) will take 1/6. (In presence of a son’s son’s son she becomes a residuary.)

Uterine brother Uterine sister

1/6

1/3

In absence of a child, child of a son how low so ever, father or true grandfather.

 

Full sister

1/2

2/3

In absence of a child, child of a son how low so ever, father, true grandfather, full brother.

In presence of a full brother she becomes a residuary.

Consanguine sister

1/2

2/3

In absence of a child, child of a son how low so ever, father, true grandfather, full brother, full sister, or consanguine brother.

When there is only one full sister and she succeeds as a sharer, the consanguine sister (whether one or more ) will take 1/6, if she is not otherwise excluded. (With the consanguine brother she becomes a residuary).

 

(ii)           Testamentary- Testamentary succession is where the Muslim person so dead has executed a will, and his property shall devolve according to the particulars of the will.

Will is a legal document by which, the person executing it, testator, expresses their wishes as to how their property is to be distributed at their death.

 

Limitations of Muslim Will-

These laws take greater prominence in Islam because of the restriction placed on the testator, the person making a will. Islamic law places two restrictions on the testator:

 

a.    To whom he or she can bequeath his or her wealth i.e. only to Muslims; non-Muslims cannot have any share in the property and wealth.

b.    The amount that he or she can bequeath; which must not exceed one third of the overall wealth. Remainder two-third shall devolve according to inheritance law.

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[3] CHRISTIAN PERSONAL LAWS

(a) Marriage and Divorce:

Marriage:

Governed under Indian Christian Marriage Act, 1872. The act lays down following essentials to Christian marriages;

1.    Both partners to be followers of Christianity

2.    Marriage is a solemnization, meaning it is for eternity.

3.    Marriage to be solemnized by persons authorised under the Act, for example, Clergyman of the Church of Scotland, Marriage Registrar, Minister of Religion etc.   

4.    Time of marriage to be between morning 6:00am to evening 7:00pm.

5.    Place of marriage can be no other place than a Church.

6.    Compulsory to register Christian marriages.

Divorce:

Governed under Divorce (Christian) Act, 1869. Section 10 of the Act lays down grounds for divorce.

When husband may petition for dissolution of marriage-

Any husband may file a divorce suit in the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery. There is no other provision that has been laid down in the act for divorce by male Christian.

When wife may petition for dissolution of marriage-

Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that,

1.    since the solemnization, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman; or

2.    has been guilty of incestuous adultery,

3.    or of bigamy with adultery,

4.    or of marriage with another woman with adultery,

5.    or of rape, sodomy or bestiality,

6.    or of adultery coupled with such cruelty,

7.    or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.

(b) Adoption and Maintenance: there are no distinct personal laws for Christian adoption and maintenance, and are governed by general Indian laws.

(c) Succession and Inheritance: there are no distinct personal laws for Christian inheritance and succession, and are governed by general Indian laws, which include intestate and testamentary formats of inheritance. Governed under Indian Succession Act, 1925.

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[4] PARSI PERSONAL LAWS

Under Parsi personal law there are general legislation known as Parsi Marriage and Divorce Act, 1936 and Parsi Succession Act, 1865 which governs their marriage, divorce, maintenance of wife, custody of children, succession etc.

Marriage:

Requisites to validity of Parsi marriages;

No marriage shall be valid if—

(a) the contracting parties are related to each other in any of the degrees of consanguinity or affinity; or

(b) such marriage is not solemnized according to the Parsi form of ceremony called “Ashirvad” by a priest in the presence of two Parsi witnesses other than such priest; or

(c) in the case of any Parsi (whether such Parsi has changed his or her religion or domicile or not) who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age; and

(d) both parties must be Parsi for the marriage to be a valid marriage.

Degrees of consanguinity or affinity-

These are prohibited relationships which cannot marry each other. The relationships are clearly laid down in the act itself. For example, a male Parsi person cannot marry his step-mother or sister’s son’s wife. There are 33 prohibited relationships for both marrying Parsi male and female.

Divorce:

Grounds for divorce as provided under Parsi personal law are;

(a) that the marriage has not been consummated within one year after its solemnization owing to the willful refusal of one partner to consummate it; (refused to produce children)

(b) that at the time of the marriage the partner was of unsound mind and has been habitually so;

(c) that the partner has been suffering continuously or intermit­tently from mental disorder of such kind and to such an extent that cannot reasonably be expected to live;

(d) that the female partner at the time of marriage was pregnant by some person other than the husband

(e) that a partner since the marriage has committed adultery or fornication or bigamy or rape or an unnatural offence;

(f) due to cruelty or improper behaved;

(g) on causing voluntarily grievous hurt or infecting with venereal disease;

(h) subjecting wife to prostitution;

(i) that one partner is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code, 1860;

(j) that the wife has been deserted by her husband for at least two years;

(k) that the wife or husband has ceased to be a Parsi by conversion to another religion; and

(l) on mutual consent.

Maintenance:

The non-earning partner after divorce can be granted alimony or maintenance; and under Parsi personal law, the time period of payment of maintenance can extend up to life time of the earning member. Maintenance can be payable both by man and woman as decided by the court of law.

Succession:

Governed under Parsi Succession Act, 1865 which lays down the following points to be considered while distributing the property of a Parsi died without executing a will:

1. Whoever actually born in the lifetime of the deceased Parsi person or at the date of his death only conceived in the womb and subsequently born alive, is considered.

2. If a lineal descendant i.e. a child or remoter issue dies before the deceased Parsi without leaving widow or widower or lineal descendant or widow or widower of lineal descendant, the share of such child shall not be taken into consideration.

3. Where a widow or widower of any relative marrying again during the lifetime of the intestate Parsi, such widow or widower is not entitled to receive any share in the property of the deceased Parsi.

General Rules for Division of the property of a Parsi died without a will among widow, widower, children and parents:

Illustration 1. Widow & Children:

Each of them receive equal shares.

Son- 1/3, Widow- 1/3, Daughter- 1/3

Illustration 2. No widow & 2 children:

Equally among children

Son- ½, Daughter- ½

Illustration 3. Parents in addition to widow or widower and children: Father’s share is equal to half the share of the son and the mother’s share is equal to half the share of the daughter. If one of the parents survives, he or she gets the same share.

Widow- 1, Son- 1, Daughter- 1, Father- ½, Mother- ½

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 [5] SECULAR LAWS

(a) Special Marriage Act, 1954

The act deals with marriage and divorce of citizens of India who are not Hindus, Muslims, Christians or Parsi, or applies to people who belong to different religious faith in a marriage.

Marriage:

Conditions relating to solemnization of special marriages-

A marriage between any two persons being citizens of India may be solemnized under this Special Marriage Act, if at the time of the marriage the following conditions are fulfilled, namely:―

(a) neither party has a spouse living;

(b) neither party―

(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

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

(iii) has been subject to recurrent attacks of insanity.

(c) the male has completed the age of twenty-one years and the female the age of eighteen years;

(d) the parties are not within the degrees of prohibited relationship (37 prohibited relationships for both man and woman):

Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, even if they are within the degrees of prohibited relationship; and

(e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India.

Divorce:

Divorce case may be presented in the District Court either by the husband or the wife on the ground that the respondent spouse;

(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(b) has deserted the spouse for a continuous period of not less than two years; or

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code, 1860;

(d) has since the solemnization of the marriage treated the spouse with cruelty; or

(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that cannot reasonably be expected to live with.

(f) has been suffering from venereal disease in a communicable form; or

(g) has been suffering from leprosy, the disease not having been contacted from the petitioner; or

(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of if he/she would have been alive.

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(b) Foreign Marriage Act, 1969

The act deals with marriage and divorce of individuals where atleast one partner is a citizen of India, or in cases both are foreign nationals.

Marriage:

Conditions relating to solemnization of marriage of foreign country’s citizenship-

A marriage between the parties one of whom at least is a citizen of India may be solemnized under this Act by or before a Marriage Officer in a Foreign country, if, at the time of the marriage, the following conditions are fulfilled, namely;

(a) neither party has a spouse living,

(b) neither party is an idiot or a lunatic,

(c) the bridegroom has completed the age of twenty-one years and be bride the age of eighteen years at the time of the marriage, and

(d) the parties are not within the degree of prohibited of relationship.

Provided that where the personal law or a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, even if they are within the degrees of prohibited relationship.

Divorce:

The law on divorce for foreign marriages is same as provisions which are given under Special Marriage Act, 1954.

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(c) Indian Succession Act, 1925

The act deals with inheritance and succession of citizens of India who are not Hindus, Muslims, Christians or Parsi. Under Indian Succession, there could again be two possible modes of inheritance, testamentary and intestate.

Testamentary-

Testamentary is simple, as the will made by the deceased person is executed by his lawyer or a trusted person, as decided by the testator. If a portion of the property remains after executing the will, the remaining property or estate is divided in an intestate manner. 

Intestate-

Intestate means when person dies without making a will. The property devolves upon the wife or husband or upon the relatives of the deceased in the following manner.

Rules of distribution (illustrative)-

[1] where there is only a widow, with no children (lineal descendants) or relatives (kindred): all of the estate goes to the widow.

[2] where there are only lineal descendants: equal division amongst all children. If no children, only then equally to all grand-children. 

[3] where there is a widow and lineal descendants: 1/3 of the estate goes to the widow and the remaining 2/3 is shared between remaining lineal descendants (children of deceased).

[4] if there is no widow or lineal descendants: the estate of the deceased is divided equally amongst all kindred (like, deceased’s father, mother, brother, sister etc.).  

[5] if the deceased has left no one behind: all of the estate of the deceased shall go to the Government.   

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(d) Guardianship and Wards Act, 1890

Guardianship:

The Guardians and Wards Act, 1890 was a law to supersede all laws regarding to guardianship of a child. It became the only non-religious universal law regarding the guardianship of a child, applicable to all of India except the state of Jammu and Kashmir. This law is particularly outlined for Muslims, Christians, Parsi and Jews as their personal laws don't allow for full adoption only guardianship. It applies to all children regardless of race or creed.

According to this act a minor or a child is any person who has not completed 18 years of age. The courts appoint and decide the guardian of a child by appointing one a guardian or removing another as a guardian. This is done mostly in cases where the property belonging to a minor has to be looked after. A minor and his property may have more than one guardian. The court must work in the interest of the minor, taking into consideration the age, sex, religion, character of the guardian, the death of the parent(s), relation of the child to the guardian, etc. The minor's preference could be taken into consideration.

Adoption:

Children are considered a bundle of joy and on whom the future of the country depends. There are over 60,000 children being abandoned per year in India according to a study by International Business Times, India in the year 2013. In some cases, these children become victims of human trafficking and sexual violence. In fortunate cases, the abandoned children are taken to any adoption agency and may hope for a better life while waiting to get adopted.

This law is particularly outlined for Muslims, Christians, Parsi and Jews as their personal laws don’t allow for full adoption, but this act approves only of guardianship (as an alternative mode to adoption). It applies to all children regardless of race or creed.

Essentials to adoption-

1.    General Rules

There are a few general rules that apply to adoption:

a)    An adopted child shall not exceed the age of 18.

b)    Both Indians and foreigners can adopt, but first preference shall be given to an Indian Parent.

 

2.    By Muslim Parent

There are a few rules in Islam surrounding the concept of Adoption:

a)    An adopted child retains his or her own biological family name (surname) and does not change his or her name to match that of the adoptive family.

b)    An adopted child inherits from his or her biological parents, not automatically from the adoptive parents.

c)     If the child is provided with property/wealth from the biological family, adoptive parents are commanded to take care and not intermingle that property/wealth with their own.  They serve merely as trustees.

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(e) Domestic Violence Act, 2005

Any kind of abusive behavior by a male partner/husband or their relatives (includes male and female relatives) to a married female is termed as domestic violence. It just need not be physical abuse. It could also be verbal, emotional, sexual or economic abuse, that a woman is subject to in a domestic setting.

Domestic violence is defined in Section 3 of the Act as,

“any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it;

a)   harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

b)   harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

c)   has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

d)   otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

What is domestic violence?

Any kind of abusive behavior by your husband or male partner or their relatives (includes male and female relatives). It need not be physical abuse. It could also be verbal, emotional, sexual or economic abuse. It is a law for women protection only; and cannot be availed by a male partner in a marriage.

If you are a victim of domestic violence, what can you do?

This is a special law focused on victims and giving them relief from domestic violence. You can file an application under this law. This does not stop you from seeking other civil or criminal action against the offenders.

Who are the different authorities you can approach under this law?

As a victim, you can approach either the ‘Protection Officer’ or the ‘Service Provider’ under this law. You can also approach the police or a Magistrate directly. This is a database of all Registered Protection Officers and Service Providers across India.

What can you expect from the courts when you file a complaint?

The judge or the Magistrate can order many different measures under this law in order to ensure your protection and well-being of the victim. This includes protection orders such as ordering the offender to stop violence, residence orders, monetary relief, custody orders and compensation orders.

(f) Child Marriage Restraint Act, 1929 & Prohibition of Child Marriage Act, 2006

Child marriage is complex subject under Indian law. It was defined by The Child Marriage Restraint Act in 1929, and it set the minimum age of marriage for men as 18, and women as 15.

UNICEF defines child marriage as marriage before 18 years of age and considers this practice as violation of human right. Child marriage has been an issue in India for a long time, because of its root in traditional, cultural and religious protection it has been hard battle to fight. According to 2001 census there are 1.5 million of girls in India under the age of 15 years already married. Some of the harmful consequences of such child marriage are that, child loses opportunities for education and segregation from family and friends, sexual exploitation, early pregnancy and health risks, child more vulnerable to domestic violence, higher infant mortality rate, low weight babies, pre-mature birth etc.

The definition of child marriage was last updated by India with The Prohibition of Child Marriage Act of 2006, which defines "child marriage" as/means a marriage, or a marriage about to be solemnized, to which either of the contracting parties is a child; and child for purposes of marriage is defined based on gender of the person; if a male, it is 21 years of age, and if a female, 18 years of age.

The act makes child marriage illegal, punishing those who decide the marriage and who conducts the marriage. Such regulation applies only;

(a) to Hindus, Christians, Jains, Buddhists and those who are non-Muslims of India, and

(b) citizens outside the state of Jammu and Kashmir.

Note:- For Muslims of India, child marriage definition and regulations based on Sharia and Nikah has been claimed as a personal law subject. The act and age limitation does not apply to Muslims and citizens of the state of Jammu and Kashmir.

It is a crime:

(a)   for an adult male to marry a child wife;

(b)   to perform or help with a child marriage in any way;

(c)   to allow, encourage or fail to stop a child marriage (as a parent or guardian); and

(d)   to attend or take part in a child marriage (as a parent or guardian).

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(g) Dowry Prohibition Act, 1961

Giving, taking and demand of dowry is illegal in India. Presents can be exchanged as part of customary practices, which are not said to be dowry.

Dowry means any property or valuable security (cash, jeweler, house-hold items etc.) given or agreed to be given, either directly or indirectly;

(a)   by one party to a marriage to the other party to the marriage; or

(b)   by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or any time after the marriage in connection with the marriage of said parties.

Note:- Dowry does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Presents are not dowry-

1.    Presents which are given at the time of a marriage to the bride without any demand having been made is not considered as dowry.

2.    Presents which are given at the time of marriage to the bridegroom without any demand having been made is not dowry.

3.    Presents which are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value is not excessive (having regard to the financial status of the person giving the present).

Penalty for giving or taking dowry-

If any person, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with the fine which shall not be less than Rs. 15,000/- or the amount of the value of such dowry, whichever is more.

Penalty for demanding dowry-

If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which may extend to Rs. 10,000/-.

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(h) Section 125 of Criminal Procedure Code, 1973

Section 125 of the Code of Criminal Procedure, 1973 lays down a mandatory obligation on a male, being a citizen of India, who has to maintain his wife, children and aged parents; irrespective of any religion he belongs to.

A wife who is neglected by her husband, unmarried daughters, minor and non-earning sons and aged parents; can sue the male person for their right to be maintained by such person. They are all dependents, meaning they are dependent on the person for their livelihood and survival; and need his support to sustain their living. 

Who can make a claim under Section 125;

1)    Wife

2)    Unmarried daughters

3)    Minor and non-earning son

4)    Parents (father/mother)

Section 125 of Criminal Procedure Code, 1973

Section 125. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Explanation.- For the purposes of this Chapter,-

(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875; is deemed not to have attained his majority;

(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such

Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

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(i) Dowry Death, Section 304B of the Indian Penal Code, 1860

Dowry deaths are deaths of women who are murdered or driven to suicide by continuous harassment and torture by husbands and in-laws in an effort to extort an increased dowry. In cases of dowry death, it is not only the husband who is investigated, but all relations such as in-laws, relatives, extended family and friends are also interrogated, charging all persons who have caused the death of the wife/married woman.

Victim: Wife (action can be taken only on behalf of the wife)

Accused: Husband, in-laws, family, relatives, friends of husband/in-laws.

Essentials to dowry death; when a death of a woman is caused-

1)    Within 7 years of her marriage,

2)    By burns or bodily injury,

3)    In abnormal and unnatural circumstances,

4)    She was subject to cruelty just before her death by her husband, in-laws, relatives or friends, and

5)    The death caused was preceded/instigated by demand of dowry.

Section 304B of the Indian Penal Code, 1860

Section 304B. Dowry death-

(1) 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.

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

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Important Case Law: Shah Bano’s Case, 1985.

Mohd. Ahmed Khan v. Shah Bano Begum was a landmark judgment delivered by the Supreme Court of India, deviating from the customary practices under Muslim personal law, declaring it to be anti-constitutional and against public policy of India. The case not only challenged the Muslim personal (Sharia) law, it triggered a debate and paved the way for Muslim women’s fight for justice. Muslim women under Muslim personal law are not entitled to maintenance after being divorced by their husbands, but in this case the apex court ruled in favour of Muslim woman, Shah Bano Begum.

Facts of the case-

Shah Bano, a 62 year old woman from Indore, was divorced by her husband in 1978. Unable to support herself and her five children, she moved the courts to be granted maintenance from her ex-husband.

Judgment-

Seven years later, the Supreme Court ruled in favour of granting Shah Bano alimony. Largely seen as a threat to Sharia law by some Muslims, the court gave justice to Muslim women by granting them protection from marital atrocities. These women are largely from weaker sects of society, who have been suffering from financial difficulties, after divorce from their husbands. This case led to passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986, by the government as a measure to safeguard Muslim women’s interest after divorce.

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