Inter-religious
The Special Marriage Act which enable inter
religious marriages in India provides for divorce as well. As a registered
marriage is considered as a “civil contract”, the Act recognizes divorce by
mutual consent as well, which is otherwise not available to marriages performed
under Muslim and Christian personal law.
Hindus
It is well established that marital relationships should be
safeguarded from every possible angle, and that severance of a marriage should
be allowed only when the marriage has irretrievably broken down. Prior to 1956
(i.e. before the coming into force of the Hindu Marriage Act, divorce among
Hindus was not recognized, except where allowed by custom. The Hindu Marriage Act, provides 15
grounds of divorce. Of the 15 grounds of divorce specified, eleven grounds are
available either to the husband or the wife and 4 additional grounds or divorce
are available to the wife only. In addition to the 15 grounds of divorce, the Hindu Marriage Act, also provides for
divorce by mutual consent. Muslim |
Muhammadean law is
based on the Quran mostly. It applies to all Muslims, whether by birth or
conversion. This body of law governs relations between Muslims, including
marriage and divorce. Talak, or repudiation of marriage is the main form of
divorce in Muslim law. There are a few traditional forms of divorce and a few
forms, which were added. For example, a Muslim woman cannot divorce her husband
under traditional law because of cruelty without losing a part of her property.
However, under the Dissolution of Muslim Marriages Act,
1939, she can. Muslim laws of
divorce give the husband the right to divorce his wife without any misbehaviour
on her part. Since Muslim law allows polygamy, seeking a divorce for adultery is
almost out of the question. Divorce, on the grounds of cruelty and desertion
came in with the Dissolution of Muslim Marriages Act,
1939,. Mutual Consent
divorces exist in Muslim law and are called Khul or Khulla and Mubaraa or
Mubaraat. In Khul, the wife has to part with some of her dower or some other
property. Since Mubaraa is repudiation by mutual consent, no property has to be
given. There are other forms of divorce. These are Ila, where the husband vows
that he will not have sexual intercourse with his wife for four months or more,
or an unspecified period. Zihar is another form of divorce where the husband
compares his wife to a woman whom he cannot marry. For example, he says that his
wife is like his mother. His wife then automatically gets the right to deny him
sexual intercourse. He can atone be doing suitable penance. Then there is Li'an
or Laan, which is a false charge of adultery. Where the husband falsely accuses
the wife of adultery, if she proves that she is not guilty of adultery, she is
entitled to a divorce. Talak can be pronounced in three ways. Firstly, three
separate pronouncements, each in the periods of purity, or the intervals between
menstruation, and abstinence from sexual intercourse in the interim. The next
form is one single pronouncement, followed by abstinence from sexual intercourse
for the period of iddat. Both these forms are sanctioned, and both these are
revocable till the period of iddat is completed. The third is the infamous
triple talak. This is irregular and not highly approved. In this form of
divorce, the man makes three pronouncements of divorce in immediate succession.
This form of talak becomes irrevocable immediately.
Christians |
Divorce for
Indian Christians is governed by the Indian Divorce Act
. The problem with this is that the husband can only seek divorce if
the wife has committed adultery. The wife has numerous grounds. If her
husband converts, commits bigamy or rape, sodomy or bestiality, she can seek a divorce. Apart
from these, she has to prove two faults to get a divorce,
e.g. Cruelty and adultery
2) Adoptions
The ancient Hindu law of adoption was mainly based on the
religious belief that a son was absolutely essential not so much for the
material welfare of man as for his spiritual salvation. However, with the
passing of the Hindu Adoptions and Maintenance Act, 1956, the law of adoption
applicable to Hindus has undergone a radical change. Under the present law, the
religious motive underlying adoption is completely superseded. Unlike the
ancient Hindu law, the Act now allows not only an adult person, married or
unmarried, to adopt a child (a boy or a girl), and also allows an adult woman
(unmarried, widowed or divorcee) a right to adopt a child to herself. The broad
areas where the Act has changed the customary law of adoption are in the matters
of
- the capacity to adopt;
- the capacity to be adopted
- the capacity to give in adoption, and
- the effect of adoption.
If it is not possible
to find suitable adoptive parents for the child within India, the child may be
given in adoption to parents outside India. This is known as “inter-country
adoption”. The guide lines for inter country adoption has been laid down by the
Supreme Court of India
3) Marriage
Marriage-Hindus |
The law relating to marriage
between two Hindus is contained in the Hindu
Marriage Act. The said Act
applies to any person who is a Hindu by religion as well as to any person who is
a Buddhist, Jaina or Sikh by religion. Notably, even the illegitimate children
of parents (one of whom is a Hindu) are governed by the Act if such illegitimate
child is brought up by the Hindu parent.
Inter Religious
Marriages- In India |
Inter religious marriages in India are basically governed by the Special
Marriage Act. A special marriage (commonly known as a civil marriage or a
registered marriage) is a marriage performed under the
Special Marriage
Act. The main object of the
Act is to provide a form of marriage which is secular in character. Its
ceremonies do not depend upon the religion of the parties. The unique features
of marriages conducted under this Act are that the marriages are: 1. Secular 2.
Uniform throughout India 3. Uniform to all persons who marry under the Act,
irrespective of their race, religion or caste.
Special Marriage Act (Register/Civil Marriages)
Christians Marriages
Christians, in India, are of two types according to the law.
There are Indian Christians, who either converted to Christianity themselves or
are descendants of those who converted to Christianity. The other type is
Christians, belonging to the Church of Scotland, Church of England, Church of
Rome. The marriage between Christians in India can either be under the Indian Christian Marriage Act, or
the Special Marriage Act. The
Indian Christian Marriage Act requires at least one of the parties to the
marriage to be Christian, so inter-religious marriages are possible. The only
problem is that once a couple get married under this Act, they can only get
divorced according to the Indian Divorce
Act. The grounds for divorce in that Act, are stricter than those in the
Special Marriage Act. 4) Family Courts
Family Courts in India have
been set up in several major cities and towns. Broadly, all matrimonial disputes
like divorce, maintenance, alimony, custody of children, etc. are tried by the
Family Courts. The concept of Family Courts in India imply an integrated broad
based service to families in trouble. It stipulates that the Family Court
structure should be such as to stabilize the marriage, to preserve the family,
and where a marriage has been broken down irretrievably, to dissolve it with
maximum fairness and minimum bitterness, distress and humiliation. The Family
Court system also visualizes assistance of specialized agencies and persons.
Jurisdiction
Jurisdiction of the Family Courts: The following disputes
fall within the jurisdiction of the Family Court:
a) Proceedings between a husband and wife for declaring a marriage as null
and void;
b) Proceedings between a husband and wife for restitution of
conjugal rights;
c) Proceedings between a husband and wife with respect to
judicial separation and divorce;
d) Disputes with respect to the validity of
a marriage or as to the matrimonial status of any person;
e) Property
disputes between a husband and a wife;
f) Disputes pertaining to the
legitimacy of any person;
g) Proceedings with respect to maintenance;
and
h) Proceedings in relation to guardianship of the person or the custody
of, or access to, any minor.
Confidentiality: It is now a part of the concept of
Family Court that confidentiality of the Court record should be maintained and
if the parties so desire or the Court so thinks proper, the proceedings should
be in camera. The Family Courts Act makes it obligatory on the part of the Court
to hold the proceedings in camera if any party so desires. They may also be held
in camera if the Court so deems fit.
Procedure:
The Family Courts are free to evolve their own rules of procedure, and
once a Family Court does so, the rules so framed over ride the rules of
procedure contemplated under the Code of Civil Procedure. The Act stipulates
that a party is not entitled to be represented by a lawyer without the express
permission of the Court (However, in reality, it is invariably a lawyer who
represents a party. This is done by filing a formal application seeking the
Courts permission to be represented by a lawyer, and such permission, more often
than not, is always granted). The most unique aspect regarding the proceedings
before the Family Court are that they are first referred to conciliation and
only when conciliation proceedings fail, is the matter taken up for trial by the
Court. The Conciliators are professionals who are appointed by the Court. Once a
final order is passed, the aggrieved party has an option of filing an appeal
before the High Court. Such appeal is to be heard by a bench consisting of two
judges.
Succession
Hindu Succession |
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The Hindu
law on Succession was very complicated to begin, with. Different parts of the
country subscribed to the views held out by different schools of Hindu Law. For example while the Dayabagha law prevailed in Assam
and West Bengal, the Aliyasanthana law pervailed in Kerala. The rest of the
country more or less subscribed to the views of the Mitakshara school.
With different parts
of the country subscribing to the views of different schools of Hindu Law the
situation was rather fluid and the administration of law of Hindu Succession was
rather uncertain. In this background, the
Legislature or the law makers of the country thought it fit to codify the law
relating to Succession among Hindus which culminated in the passing of Hindu
Succession Act in 1956. It is important to remember that the Hindu Succession
Act deals only with intestate succession which means succession to the property
of an Hindu male or female who has not made a Will.
If a Hindu male or female has in fact made a Will, the provisions of the
Indian Succession Act, 1925 take over. It therefore
follows that if a Hindu male or female has made a Will but has not dealt with
his/her entire property in the Will, the property not so dealt will be subjected
to the provisions of Hindu Succession Act with the Indian Succession Act
governing the properties taken care of in the Will.
The main intention of
the Legislature or the law makers of our country in passing the Act was of two
fold :-
a. to bring about uniformity in Hindu
intestate succession all over the country
b. to bring about parity between males
and females in regard to he right to property in intestate succession.
With the passing of the Hindu Succession
Act, 1956, the law of Hindu succession is governed by the provisions of the Act
and not by the dictates of different schools of Hindu law.
Muslim Succession |
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Muslim Law is founded upon ‘Al-Quoran’ which is believed by Muslims to have existed from
eternity. The Quoran is effectively the relevations of God which were made to
Prophet Mohamad at different times. The Quoran
besides being the holy book for Muslims, also contains references to law which
forms the basis of ‘Sharaa’. However, Quoran is not
a legal text as such and wherever the Quoran is silent on aspects of law
recourse is taken to the Sunnat and the Hadis which are respectively the acts
and approvals of the Prophet and his sayings respectively.
Muslim Law is therefore a combination of relevations from God i.e., the
Quoran as also the sayings and actions of the Prophet in the form of the Hadis
and the Sunnat.
Muslims can be broadly divided into three sects :-
1. The followers of the Sunni School
which would include the Hanifis, Malikis, Shafis and Ambalis.
2. The Shias which include within their
fold the Ismailyas, Zaidyas and Imamias.
The Ismailyas in turn include Khojas and
Bohras.
The Imamias include Akhabari and Usuli.
3. Motazila
The Muslim Law of Succession varies from
sect to sect.
Wills |
A Will or a ‘Wasiat', as it is normally referred to in the
Indian sub-continent is a legal declaration made in writing by a person which
clearly sets out the manner in which s/he would like his or her property
(movable and immovable), where ever situated, to be distributed after his death.
The Maker of the Will is called the Testator in law. A Will is therefore, a
document which comes into effect the moment the Maker dies. A Will lies dormant
so long as its Maker is alive. A Will can be altered as many times as the Maker
wants.
Published by Rudolph
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