PROBLEMS UNDER THE SCOPE OF FAMILY LAW

Family law is a branch of the Indian legal system which covers matters related to family issues. India is a society of great diversity where people of different religions reside, and so do they have their laws for dealing with the disputes related to the family.

To entertain the disputes related to family matters, the Indian Judicial System has established Family Courts with territorial jurisdiction subject to change by notification by the State government after consultation with the respective High Court. The Family Courts are established and governed by the Family Courts Act, 1984.

Matters related to Family Law:

There are various disputes which come within the rubric of Family law. The laws related to marriages which are governed by personal laws of Hindu, Muslim, Christian, and Parsi, are discussed further. The laws related to maintenance, Divorce Alimony, property matters, child adoption, guardianship, etc., can be dealt with under family law. The above-mentioned disputes can be elucidated a

s here:

Matters related to Marriage:

India is a secular democratic republic, everyone has the right to profess and practice their religion and the rituals so provided. The solemnization of Marriage is done in accordance with the religious rituals; thus, the matrimonial laws in India are governed by personal laws, which are primarily codified.

The marriages between Hindus are governed by the Hindu Marriage Act, 1955, wherein the Mohammedans do not have any codified law for Marriage, so governed by the Muslim Law. The Christians and Parsi have their own personal and codified laws to deal with their marital disputes. Moreover, among Hindus, Marriage is a sacrament, so they have to follow the requisites of a valid marriage as prescribed in the Act of 1955 to give the Marriage a legal effect.

However, Mohammedans consider Marriage as a contract, so they have to fulfill the attributes of a valid contract to give their Marriage a legal effect. The Christian and Parsi Marriage have their requirements. Apart from the personal laws, there is legislation for people in general for Marriage, and disputes related to Marriage called the Special Marriage Act, 1954.

Apart from Marriage's solemnization, the matrimonial law deals with divorce, voidable marriages, void marriage, and other connected issues.

Matters related to Maintenance and Alimony:

Maintenance is a vast concept, and each religion has its law to deal with maintenance law. The law of maintenance lays down a man's duty to maintain his parent, wife, and children's livelihood. It is the duty to maintain the one who is dependent on him. Among Hindus, it is governed under:

• The Hindu Marriage Act, 1955.
• The Hindu Adoption and Maintenance Act,1956.
• Section 125 CrPC.
• The Protection of Women from the Domestic Violence Act, 2005.

The term maintenance has been defined under section 3 (b) of the Hindu Adoption and Maintenance Act, 1956 as below:

"Maintenance includes—

(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;

(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her Marriage."

Sections 24 and 25 of the Hindu Marriage Act enumerates temporary/ interim and permanent maintenance provisions, respectively. The Court can decree maintenance under the aforementioned provisions. Moreover, under section 18 of the Hindu Adoption and Maintenance Act,1956, a Hindu married woman shall be entitled to be maintained by her husband for her lifetime.

However, if such a wife has ceased to be Hindu or is unchaste, she cannot claim maintenance. Moreover, section 19 incorporates the provision for maintenance of a woman whose husband is dead and has no means of living. Her father-in-law shall maintain such a woman, and this right of maintenance ceases if the widow remarries.

Under section 23 of the Act, the Court decides the quantum of maintenance to be awarded to wives, children, and aged parents. Furthermore, the Protection of Women from the Domestic Violence Act, 2005 provides provision for maintenance of there is domestic violence or any kind of oppression against the victim woman by her husband or his relatives or both, the Court awards compensation and maintenance to the aggrieved under section 20 of the Act.

Further, maintenance under Muslim law is governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986. It specifies the circumstances when a divorced Muslim wife is entitled to maintenance. The concept of maintenance is almost the same in Muslim law as in others.

If a divorced Muslim wife is unable to maintain herself and her children, then the wife's maintenance can be claimed from the person inheriting property. If the relatives cannot pay the maintenance, then the Magistrate may order the State Wakf Board to pay the maintenance.

Among Parsi, the provision for maintenance has been contemplated under the Parsi Marriage and Divorce Act, 1936. The Court may award the maximum of one-fifth of the salary of her husband as maintenance. Further, the provision for maintenance among Christians is governed by the Indian Divorce Act, 1869.

Moreover, the provision for maintenance under section 125 of CrPC is universal and applies to all, irrespective of religion.

Matters Related to Adoption:

The provision for adoption comes under the ambit of personal laws, so a uniform code on adoption is not possible. Hence, the law of adoption is governed by various personal laws of a different religion. Adopting a child is not permitted among the Muslims, Parsi, and Christians in India; instead, they opt for guardianship of a child under the Guardians and Wards Act, 1890.

However, the Hindus have consistent provisions for the adoption of a child. The provision for adoption has been enumerated in the Hindu Adoption and Maintenance Act, 1956. It deals with every aspect of adoption, i.e., capacity to adapt, capacity to give in adoption, the effect of adoption, etc.

Conclusion:

The matters related to marital affairs, maintenance, adoption, guardianship, etc., are disputes to be entertained under the family law and the Family Court. The Indian population is diverse, and the constitution allows every citizen to profess and propagate their own religion. Certain laws can only be dealt with and come within the scope of personal laws.

The Hindus have their own codified personal laws incorporating every family matters to be dealt with according to the laws therein. Further, the Muslims have their own personal laws partially codified and mostly uncodified. They have their own concept of Marriage (Nikah), divorce (Talaq), maintenance, etc. The Parsi and the Christians have their own codified laws to deal with the disputes arising out of family matters.

Found this informative? Visit Rest The Case's Knowledge Bank and read more such legal blogs.

Author Bio: Mr. Harsh Buch is an Innovative and dynamic first-generation litigation expert enrolled with the Bar Council of India who possesses a pioneering approach to legal practice. Primarily based in Mumbai, Mr. Buch personally represents clients in various fora including the High Courts across India and Hon’ble Supreme Court of India with a robust professional network. With a proven track record of delivering strategic and tailor-made legal solutions and having achieved successful outcomes for a diverse range of clients both internationally and domestically, Mr. Buch’s chamber today is recognized as an established full-service law chamber with an extremely professional outlook and non-negotiable professional ethics. Individually, Mr. Buch is a dedicated and accomplished Maritime Lawyer having graduated from the World Maritime University, Sweden as a Richard Charvet Scholar Merit Ranker and has garnered experience in navigating complex legal issues related to maritime law concerning Maritime Claims, Cargo Claims, Vessel Arrests, Collisions and Maritime Risk Assessment and Customs Duty Laws which aids his primary practice of Commercial Disputes. Mr. Buch has also gained experience in Space Law, Tech & IT Laws, and Energy Laws through his practice in various practice areas such as Telecom & Media laws, Offshore and Onshore Energy Law, Real Estate and Resettlement Laws, Corporate Structuring-Company Law and Project Infrastructure and Government Policy assignments. Beyond his practice, Mr. Buch is a regular speaker at various institutions and law schools and professes that academicians are the architects of a successful society.