FAMILY LAW

Hindu Law

From thousands of years people living in the Indian subcontinent have been leading their lives by following the guidelines and concepts given in the Vedas. These guidelines have evolved into rules followed by the people and enforced by the rulers and have thus become de facto law. In this modern times, the same laws have been retrofitted to suit present conditions and have been codified in the form of several acts of which the important ones are - Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, Hindu Minority and Guardianship Act 1956, and Hindu Succession Act 1956.

Application of Hindu Law

A precise definition of Hinduism does not exist. Hence, it is impossible to define a fixed criteria for determining who is a Hindu. So a negative definition of 'who is not a Hindu' is used. Further, in this land, several religions have been born and they they follow the same customs and practices. So it cannot be said that Hindu Law can be applied only to people who are Hindus by religion. Due to these reasons, in general, the following people are considered to be Hindu with respect to application of Hindu Law.
Hindu by Religion - A person who is Hindu, Jain, Bauddha, or Sikh by religion. In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of Hindus such as Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they follow the same basic concept of Hindu Philosophy. Converts and Reconverts are also Hindus. SC, in the case of Peerumal v Poonuswami AIR 1971, has held that a person can be a Hindu if after expressing the intention of becoming a Hindu, follows the customs of the caste, tribe, or community, and the community accepts him. In Mohandas vs Dewaswan board AIR 1975, Kerala HC has held that a mere declaration and actions are enough for becoming a Hindu.
Hindu by Birth - A person who is born of Hindu parents. If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu. In Sapna vs State of kerala, Kerala HC, the son of Hindu father and Christian mother was held to be a Christian.
Persons who are not Muslim, Christian, Jew, or Parsee by religion.
Persons who are not governed by any other religious law will be governed by Hindu Law.

CONCEPT OF MARRIAGE - Sacramental or Contractual?
Historical Perspective - Manu, ardhangini, marriage is an essential sanskara, man is incomplete without wife. Once performed, it cannot be dissolved.
Modern Perspective - Civil contract. Can be dissolved. Cannot force to live together. Equality of sexes. Can't be done without consent.

1-Why is it Sacramental?

As per Contract Act 1872, contract with a minor is void ab initio. Even though section 5(2) says that valid consent is required and section 5(3) says that the boy should be above 21 yrs and the girl should be above 18 yrs, marriage done in contravention of these provisions is not void. Marriage with a minor is not even voidable only on that ground. The person married may be a minor or even of unsound mind, yet if the marriage rite is duly solemnized, it is a valid marriage.Section 7 of HMA1955 requires that religious ceremonies are a must to complete a marriage. A marriage done without "saptapadi" is void.
A person could not be convicted of bigamy because he performed 3 marriages without doing necessary ceremonies.

2-Why is it Contractual?

The fact that consent of the boy and the girl is required means that it is contractual. If the consent is obtained by force or fraud, the marriage is voidable.Marriage is no more permanent since divorce is available by mutual consent.Marriage is no more eternal since widow remarriage is permissible.saptapadi is required.

FORMS,VALIDITY,VOIDABILITY

>FORMS OF MARRIAGE
-Rite of Brahmana (Brahma) - where the father of the bride invites a man learned in the Vedas and a good conduct, and gives his daughter in marriage to him after decking her with jewels and costly garments.
-Rite of the Gods (Daiva) - where the daughter is groomed with ornaments and given to a priest who duly officiates at a sacrifice during the course of its performance of this rite.
-Rite of the Rishis (Arsha) - when the father gives away his daughter after receiving a cow and a bull from the brightgroom.
-Rite of the Prajapati - (Prajapatya) where the father gives away his daugher after blessing the couple with the text "May both of you perform together your duties"
-Rite of the Asuras (Demons) - when the bridegroom receives a maiden after bestowing wealth to the kinsmen and to the bride according to his own will.
-Rite of the Gandharva - the voluntary union of a maiden and her lover, which arises from desire and sexual intercourse for its purpose.
-Rite of the Rakshasa - forcible abduction of a maiden from her home after her kinsmen have been slain or wounded and their houses broken open.
-Rite of the Pisaka - when a man by stealth seduces a girl who is sleeping or intoxicated or is mentally disbalanced or handicapped.

>Essential conditions of a VALID Hindu marriage:
Section 5
marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
(b) 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
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not 'sapindas' of each other, unless the custom or usage governing each of them permits of a marriage between the two;
>Boy is over 21 and girl is over 18. years of age.

>Ceremonies for a Hindu Marriage (ACCORDING to section7)

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party.
(2) Where such rites and ceremonies include the 'saptapadi' (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

VOID MARRIAGE
Grounds of void marriage are:(according to section 11)
>Performed in contravention of 5(i) 5(iv), or 5(v)
>Ceremonies in section 7 not performed.
>In contravention of section 15 - Divorce not granted yet or time to appeal has not elapsed.

VOIDABLE MARRIAGE
according to section 12 voidable marriage are when:
>husband and wife are Unable to consummate - Impotence (not same as incapacity to conceive or impregnate)
>marriage is In contravention of 5(ii) - Mentally unsound.
>Consent obtained by force or fraud.
>Girl was pregnant by some other person

NIKAH(muslim marriage)
Definition, objects and nature:
>DEFINATION-The legal contract between a bride and bridegroom as part of muslim marriage is called nikah.

Nikah is an Arabic term used for marriage. It means "contract". The Quran specifically refers to marriage as "mithaqun Ghalithun,". Which means "a strong agreement".

The original meaning of the work nikah is the physical relationship between man and woman. It is also used secondarily to refer to the contract of marriage which makes that relationship lawful.

"A contract that results in the man and woman living with each other and supporting each other within the limits of what has been laid down for them in terms of rights and obligations."
Essential Condition Of Nikah
Nikah is based on few conditions. When these conditions are fulfilled, then a man and a woman are proclaimed as husband and wife and can live together and carry on their marital duties. These are:

>OBJECTS Of Nikah
-Procreation (Children)
One of the most important purposes of marriage is to continue and increase the population of the Muslims. Clearly, this goal could be achieved without marriage, but when actions are undertaken in disobedience to Allah, they do not receive the blessing of Allah and the whole society is corrupted. The Prophet said:
-Pleasure
Islam is the religion of the fitrah- the religion which is consistent with the natural instincts and needs of mankind. It is not like the man-made (of modified) religions which set unnatural constraints on people whether self-inflicted prohibition of marriage (nuns and monks, etc.), prohibition of divorce or monogamy. Men are inclined toward women and women are inclined toward men. Marriage is the institution which fulfills this desire and channels it in ways pleasing to Allah Most High. Allah mentions this attraction:
“The love of the desires for women, sons, ... has been made attractive to people.”

>NATURE
Rights & Duties
Mutual Rights and Obligations:
Marriage is a union for life having mutually inclusive benefits and fulfillment for the contracting parties including the following:
# Preservation of chastity and security of gaze
# Companionship inside and outside home
# Emotional and sexual gratification
# Procreation and raising of any children by mutual consultation
# Agreement to live together in a mutually agreed country and establish their matrimonial home therein
# Working collectively towards the socio-economic welfare and stability of the family
# Maintaining their individual property rights but contributing to the welfare of the family according to their capacity
# Maintaining social contacts with family and friends mutually beneficial for the family
# Managing their individual activities/roles inside and outside the home by mutual consultation

Obligations of the husband:
In addition to the mutual duties and obligations, the husband undertakes not to:
# abuse his wife/child(ren) verbally, emotionally, physically, or sexually
# desert/be absent from the marital home for more than 60 days unless by mutual agreement
# withhold economic contribution towards his wife/family
# sexually transmit disease or other transmissible diseases
# misuse /interfere with the wife’s property

Obligations of the Wife:
In addition to the mutual duties and obligations the wife undertakes not to:
# abuse her husband/child(ren) verbally, emotionally, physically, or sexually
# desert/be absent from the marital home for more than 60 days unless by mutual agreement
# sexually transmit disease or other transmissible diseases
# misuse/interfere with the husband’s property

ESSENTIAL AND VALIDITY

>ESSENTIALS of Marriage
The essentials of a valid marriage are as follows:-
(i) There should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other party. A Muslim marriage requires proposal ‘Ijab’ from one party and acceptance ‘Qubul’ from the other side. This must be done in one sitting.
(ii) The proposal and acceptance must both be expressed at once meeting. The acceptance must be corresponding to what is being offered. The marriage must be effectively immediate. If the Wali says “ I will marry her to you after two months”, there is no marriage.
(iii) The parties must be competent. The two parties must be legally competent; i.e. they must be sane and adult.
(iv) There must be two male or one male & two female witnesses, who must be sane and adult Mahomedan present & hearing during the marriage proposal and acceptance. (Not needed in Shia Law)
(v) Neither writing nor any religious ceremony is needed.
unlawful nikah:
# Marrying a fifth wife
# Marrying a woman undergoing iddat
# Marrying a non-Muslim
# Absence of proper witnesses
# Woman going for a second marriage even after the existence of the first marriage.
# Marrying pregnant women
# Marrying during pilgrimage
# Marrying own divorced wife

>VALIDITY
Aspects Of Marriage
-Valid Marriage (Sahih)
Under the Muslim law, a valid marriage is that which has been constituted in accordance with the essential conditioned prescribed earlier. It confers upon the wife; the right of dower, maintenance and residence, imposes on her obligation to be faithful and obedient to her husband, admit sexual intercourse with him & observe Iddat.

-Irregular Marriage (Fasid)
Those marriages which are outcome of failures on part of parties in non fulfillment of prerequisites but then also are marriages; to be terminated by one of the party is termed to be Irregular marriages. They are outcome of-
(a) A marriage without witness (Not under Shia Law)
(b) Marriage with fifth wife.
(c) Marriage with a women undergoing Iddat.
(d) Marriage with a fire-worshipper.
(e) Marriage outcome of bar of unlawful conjunction.
An irregular marriage has no legal effect before consummation but when consummated give rise to several rights & obligations.

-Void Marriage (Batil)
A marriage which is unlawful from it’s beginning. It does not create any civil rights or obligations between the parties. The offspring of a void marriage is illegitimate. They are outcome of-
(a) Marriage through forced consent.
(b) Plurality of husband.
(c) Marriage prohibited on the ground of consanguinity.
(d) Marriage prohibited on the ground of affinity.
(e) Marriage prohibited on the ground of fosterage

Iddat
In Islam, iddah or iddat (Arabic: period of waiting) is a period after a divorce, during which a woman may not marry another man. The period is calculated on the number of menses that a woman has, usually three. Iddah was intended to ensure that the male parent of any offspring produced after the cessation of a nikah would be known.


OBLIGATIONS arising out of marriage – Mahr, Maintenance etc.

Mahr is a sum that becomes payable by the husband to the wife on marriage either by agreement between the parties or by operation of law. It may either be prompt (Mu ajjal) or deferred (Mu wajjal).Mahr is a consideration which belongs absolutely to the wife.
Muslim marriage is like a contract where wife is the property and Mahr is the price or consideration. However, it is also true that non-payment of Mahr does not void the marriage, so Mahr is not purely a consideration.

Importance of Mahr
Marriage in Muslim Law provides an absolute power to the husband to divorce his wife. It also allows the husband to have multiple wives. This often results in a desperate situation for women because they are left with no means to support themselves. Mahr mitigates this issue to certain extent. Therefore, Mahr is very important for balancing the rights of the husband and wife. Mahr is an absolute requirement of a Muslim marriage and so, even if Mahr is not specified at the time of marriage, the law will presume it by virtue of the contract of marriage itself. Even if a woman stipulates to forgo the Mahr, her declaration will be invalid.
Thus, Mahr serves the following purposes -
to impose an obligation of husband as a mark of respect to wife.
to place a check on the power of husband to divorce and polygamy.
to provide for subsistence of wife in the event she is divorced by the husband.

Nature of Mahr
Mahr is an essential requirement of a muslim marriage. Thus, it is obligatory for the husband to pay Mahr to wife upon marriage. A wife has an unrestricted right to demand Mahr from husband.It provides the woman with the right to resist the husband until Mahr is paid. This right is akin to the right of lien of a vendor upon sold goods while they remain in his possession and so long as the price for the goods has not been paid. In Smt Nasra Begum vs Rizwan Ali AIR 1980, it was held that right to dower precedes cohabitation. Thus, a wife can refuse consummation of marriage until Mahr is paid.
The right of wife to her dower puts her in a similar position as that of other creditors. Just like other creditors, she must be paid out of the property of the husband. Thus, it can be said that Mahr is a kind of debt upon the husband incurred in marriage. However, at the same time, payment of Mahr is not a charge upon the estate of the husband, unless an agreement is made to that effect. The interest that a wife has over the property of her husband in lieu of dower debt is limited to existing lawful possession towards her self enjoyment only. It does not give her the right to alienate the property. After the death of the husband, she can sue the heirs for the dower but heirs are not personally liable for it. They are liable only to the extent of their share in the inherited property.
A dower can also be secured by an agreement just like any other debt.

>Legal Consequences of Mahr (Rights of wife in case of non payment of Mahr)
Dower is like a debt and the husband is liable to pay it to the wife before the consummation of marriage. Until it is paid, the wife has a right to resist cohabitation with the husband.
If the wife is in possession of husband's property, she has a right to retain it until dower is paid. She does not get a title to the property and does not get a right to alienate it.
Wife can sue heirs of the husband for payment of dower.
If the dower is deferred, the wife is entitled to it upon dissolution of marriage either due to divorce or due to death.
Dower is a vested right and not a contingent right. Thus, even after the death of the wife, her heirs can demand it.
If dower has not been agreed upon at the time of marriage, courts can decide the amount of dower by taking financial status of the husband, age of wife, cost of living, property of wife, into consideration.
>Right of wife over husband's property
Dower ranks as debt and the wife is entitled, along with other creditors, to have it satisfied on the death of husband out of his estate. Her debt, however, is no greater than any other unsecured creditor except that if she is lawfully in possession of the husband's property, she is entitled to that possession until she is able to satisfy her debt by the rents or issues accruing out of the property. She is also entitled to the possession against the heirs of the husband until her dower is satisfied.
>Who can change Mahr
A husband can increase the amount of debt at any time, though he cannot decrease it.
A wife can remit the dower wholly or partially. The remission of Mahr by wife is called Hibe e Mahr. However, she should have attained puberty to do so. She does not have to be a major to relinquish Mahr, only attaining puberty is sufficient. The remission made by the wife should be with free consent. Thus, in Shah Bano vs Iftikhar Mohammad 1956 Karachi HC, when a wife she was being ignored by husband and thought that only way to win him back was to waive Mahr, her remission of Mahr was considered without her consent and was not binding on her.

>Kinds of Mahr

Mahr is of two kinds - Specified (Mahr i Musamma) and Customary or Proper (Mahr i Misl)

Specified Dower means the dower that has been agreed upon by the parties at the time of marriage. Such a dower can be settled before marriage, at the time of marriage, or even after the marriage. In case of a minor or a lunatic, the guardian can fix the amount of dower. Dower fixed by the guardian is binding upon the boy and after attaining puberty or majority, he cannot take the plea that he was not a party to it.
A husband can settle any amount as dower to his wife, even if that leaves nothing to the heirs but he cannot settle for less that 10 dhirams in Sunni Law. Shia law has no minimum. For those Muslims who are so poor that they cannot even pay 10 dhirams, they can teach the wife Quran in lieu of paying Mahr.

Specified dower can further be divided into two categories - Prompt (Mu Ajjal) and Deferred (Mu Wajjal).
Mu Ajjal - As the names suggest, Mu ajjal dower means that the dower is payable immediately upon the marriage.
The wife has a right to refuse cohabitation with the husband until she is paid the dower.
If the wife is a minor, the guardian can refuse to allow the wife to be sent to the husband until dower is paid.
Only after the payment of dower, the husband is able to enforce the conjugal rights. However, if the marriage is consummated, the wife cannot refuse cohabitation after that.
Prompt dower does not become deferred after consummation and the wife has the right to demand and sue for it any time.
The period of limitation starts after demand and refusal and it is of three years.

Mu Wajjal - It means that the dower is payable upon dissolution of marriage either by divorce or by death of husband.
Even though it is deferred, an agreement to pay be before is valid and binding.
A wife does not have a right to claim dower but a husband can treat it as prompt and transfer property as payment.
A widow can relinquish her claim to dower at the time of the funeral of the husband by reciting a formula, but her relinquishment must be a voluntary act.
The interest of wife in deferred dower is a vested one and her heirs can claim it after her death.
Customary or Proper Mahr (Mahr i Misl)
When the amount of dower is not fixed in the marriage contract or even if the marriage has been contracted on the condition that she will not claim any Mahr, the wife is entitled to Proper Dower. The amount is to be arrived upon after taking into consideration the amount of dower settled for other female members of the father's family. It is also regulated with reference to the following factors -
age, beauty, fortune, understanding and virtue of wife.
social position of the father
dower given to her female paternal relations.
economic condition of the husband.
circumstances of the time.
There is no limit on the maximum limit in Sunni Law, but shia law prescribes a maximum limit of 500 dhirams, which was the amount paid by Prophet Mohammad for his daughter Fatima.