Family law in India encompasses a wide range of legal issues that affect familial relationships, including marriage, divorce, child custody, inheritance, and adoption. It is a complex field influenced by various personal laws, statutes, and judicial interpretations. In India, family law is governed by different personal laws for different communities—Hindu law, Muslim law, Christian law, and others—each with its own set of regulations and principles.
Introduction to Family Laws in India
Family laws in India primarily aim to regulate and resolve disputes related to personal relationships and responsibilities within families. The Indian legal framework for family matters is a mosaic of statutory laws and judicial precedents. For Hindus, the primary statutes include the Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; and the Hindu Adoption and Maintenance Act, 1956. For Muslims, personal law is derived from religious texts and customary practices, though some reforms have been introduced through legislation such as the Muslim Women (Protection of Rights on Divorce) Act, 1986. Christians are governed by laws such as the Indian Christian Marriage Act, 1872, and the Indian Divorce Act, 1869. Additionally, the Special Marriage Act, 1954, provides a secular framework for marriages between individuals of different religions.
Current Family Law Disputes
Family law disputes in India often involve complex issues such as divorce, maintenance, child custody, and inheritance rights. With evolving societal norms and increasing awareness of women's rights and children's welfare, these disputes have become more prominent. Issues such as the adequacy of alimony, the rights of divorced women, and the enforcement of maintenance orders are frequently contested. Additionally, there are ongoing debates over the need for uniformity in family laws across different religious communities to ensure equal justice for all citizens.
Landmark Cases in Indian Family Law
Several landmark cases have significantly influenced the evolution of family law in India:
When a person’s spouse leaves them without any reason, they can find remedy under section 9 of the Hindu Marriage Act, 1955. This section allows the aggrieved person to file a petition for the restitution of conjugal rights, in which case the court endevours to bring the erring spouse back to the matrimonial house and lead a normal married life.
Even though adultery has been decriminalized under the Indian Penal Code, it remains a strong ground for divorce. Section 13(1)(i) of the Hindu Marriage Act lays down that if a person’s spouse is found to have had sexual intercourse with anyone other than their spouse, they have committed adultery and the aggrieved spouse can file for divorce on this ground.The court also ruled that a person indulging in phone sex with someone outside marriage does not come under the ambit of adultery; but it would be construed as infidelity.
Unfortunately, the Indian law does not as yet recognize marital rape as an offence and there is no legal recourse for the same, however the wife can file a complaint based on grounds of cruelty, unnatural sex and grevious hurt in the courts of law in order to get redressal.
When you and your spouse have amicably resolved terms of separation to part ways, you can dissolve the marriage by filing a mutual consent divorce petition (under Section 13B of the Hindu Marriage Act, 1955) (under Section 28 of the Special Marriage Act, 1954) before the Family Court.
You can apply at the office of the Sub-Divisional Magistrate in whose jurisdiction the husband or wife resides on any working day. Fill the Application form duly signed by both husband and wife. Verification of all the documents is carried out on the date of application, two witnesses from both sides duly sign the form and a day is fixed for the appointment and communicated to the parties for registration.
In case a woman has been subjected to domestic violence at the hands of her husband and/or in-laws, she can approach the nearest police station and file a complaint under section 498A of the IPC.
When a domestic violence complaint has been lodged, the victim retains a right of residence and cannot be forced to leave her house/premises even if it is a shared household.
No spouse can be forced to have a child against his/her wishes. Mutual consent is imperative and must be sought in order to procreate, however, not consenting to have a child without any reasonable excuse may amount to cruelty and can be taken up as a ground for divorce.
The Indian courts have ruled that a person indulging in phone sex with someone outside marriage does not come under the ambit of adultery; but it would be construed as infidelity. If the sexting by wife is considered as an act which causes mental harassment to husband and this mental harassment or cruelty is proven to be a good enough ground for breaking the marriage between both, then that may be taken into consideration by the Family Court for divorce on the ground of cruelty but definitely not on the ground of adultery as explained above.
Answers – Streedhan is a movable or immovable property that a woman receives during her lifetime such as, prior to marriage, during the marriage, etc. A woman has a right to her streedhan and this right is provided by S.14 of the Hindu Succession Act,1956 and S.27 of the Hindu Marriage Act,1955. “A Hindu woman is an absolute owner of her streedhan and can deal with in any way she likes even if it is in custody of her in-laws or husband or any other person, they are bound by law to return such property when and if demanded by her.” When they refuse to give it back, she may also be liable for the criminal offence of ‘criminal breach of trust’ U/S 405&406 IPC,1860.
In the case of Hitesh Bhatnagar v. Deepa Bhatnagar ((Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234)), the court stated that it can utilize its power under article 142 to break down the marriage if there remains no chance to save that nuptial bond. And all efforts have been made to save it from shrinking and there is no doubt remaining that it can be saved.
In the case of Reetha Das v. Himashu Sethi (2017), the court opined that judicial activism can be used if the marriage has turned irreparable. Additionally, in the case of Munshi Kakkar v. Nidhi Kakkar, it was held that this weapon cannot be used on a routine basis but only in the rarest case.
In this case, it was heard by the bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy that the SC has power under Article 142 to grant the divorce because of the irretrievable breakdown of the marriage. The court observed that marriage sometimes is only carried on to avoid societal judgments. If a person is living in a bond that he failed to repair impacts his mental stability and leads to mental cruelty.
In this case, the couple got separated soon after the solemnisation of marriage and did not cohabit even for a day. This led to non-performance of conjugal duties even for a day. In such matters, the court of law interferes and provides a solution to the parties.
Article 142 gives wide powers to the court that are discretionary in nature. The Supreme Court is free to interpret the matter that it founds fit for utilizing its power under 142. The power was incorporated into the Constitution to ensure complete justice. An unproductive marriage requires the interference of the court of law to decide the matter and entrust a solution.
The Court referred to Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288, wherein it was observed that the expression ‘cruelty’ has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status. The Court said that what is cruelty for a woman in a given case may not be cruelty for a man, and hence, a relatively more elastic and broad approach is required when we examine a case in which a wife seeks divorce. Further, the Court said that historically, the law of divorce was predominantly built on a conservative canvas on basis of the fault theory, however, with the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudinarianism. The Court also said that even with such a liberal construction of matrimonial legislations, the socio-economic stigma and issues attached to a woman due to divorce or separation are raised. The Court stressed on adoption of ‘social-context thinking’, cognisant of the social and economic realities, as well as the status and background of the parties by the Courts, while applying provisions for divorc...
https://www.scconline.com/blog/post/2023/09/12/sc-explains-grant-of-divorce-on-grounds-of-cruelty-under-hindu-marriage-act-legal-news/
