IMPLICATION & REASON FOR CHANGES IN FAMILY LAW IN PAST 20 YEARS.

This article is written by Riya Bhatnagar of 2nd Semester of Galgotias University  

ABSTRACT

Family law governs legal matters pertaining to marriage, divorce, child custody, spousal support, adoption, and other familial relationships. Understanding the implications of these changes is crucial for legal professionals, policymakers, and individuals affected by family law. This abstract provides a concise overview of the key factors driving the evolution of family law and highlights the resulting implications for individuals and society as a whole.

Over the past 20 years, family law has undergone transformative changes in response to various societal, cultural, and legal shifts. Several factors have contributed to these changes, including:

Changing Social and Cultural Norms: Societal attitudes towards marriage, divorce, and family structures have evolved significantly. Increased recognition and acceptance of diverse family arrangements, such as same-sex marriages, cohabitation, and blended families, have influenced family law reform. These changing norms have prompted legal systems to adapt to the needs and realities of modern families.

Gender Equality and Women’s Rights: There has been a growing emphasis on gender equality and women’s rights in many societies. Family law has been reformed to address issues of domestic violence, spousal support, and property division in a more equitable manner. Legal frameworks have sought to empower women and protect their rights within the context of family relationships.

Focus on Best Interests of the Child: The best interests of the child have become a primary consideration in family law decisions, particularly in matters of child custody, visitation rights, and child support. Courts now strive to create parenting arrangements that prioritize the child’s well-being and foster positive relationships with both parents.

Alternative Dispute Resolution: The traditional adversarial approach to family law disputes has given way to alternative dispute resolution methods such as mediation and collaborative law. These approaches aim to reduce conflict, promote amicable resolutions, and prioritize the interests of all family members involved.

The implications of these changes in family law have been far-reaching. They have facilitated greater legal recognition and protection for diverse family structures, promoted gender equality, the need for continued refinement of legal processes, ensuring access to justice for marginalized communities, and addressing the evolving complexities of modern family dynamics.

KEY WORDS

Family laws, implications, marriage, divorce, adoption, custody, same-sex marriage.

INTRODUCTION

Family law encompasses a wide range of legal issues related to family relationships. The laws implicated in family law may vary depending on the jurisdiction, but here are some common areas of law that are typically involved and changed:

Marriage and Divorce Laws:

• Marriage requirements and procedures

Age: The legal age for marriage in India is 18 years for females and 21 years for males. Both individuals must be of legal age to marry. But in 2019, a PIL was filed in the High Court of New Delhi which stated that the law violates the Rights sanctioned in Article 21 and Article 14(8) of the Constitution of India after which the legislation was passed that the age of marriage for the girls would be 21 years of age.

Marriage Registration: It is advisable to register a marriage for legal validity. The couple needs to visit the local Sub-Divisional Magistrate (SDM) office or the Registrar of Marriages to apply for registration.

Marriage Ceremony: Hindu marriages are traditionally elaborate and involve various rituals and customs depending on regional and cultural practices. The couple can choose to have a religious ceremony conducted by a priest and perform the necessary rituals, such as the exchange of garlands, the sacred fire ceremony, and taking seven vows around the fire.

• Divorce grounds and procedures.

Grounds for Divorce: Each jurisdiction typically has specific grounds on which a divorce can be granted. These grounds may include:

No-Fault Divorce: Many jurisdictions now allow for “no-fault” divorces, where neither party needs to prove fault or wrongdoing. Instead, the couple may cite irreconcilable differences, an irretrievable breakdown of the marriage, or a similar reason as the basis for seeking a divorce.

Fault-Based Divorce: Some jurisdictions still recognize fault-based divorces, which require proving specific reasons for the divorce, such as adultery, cruelty, abandonment, or substance abuse.

Section 13(1), 13(1A), 13(2), 13(A), 13(B) of the Hindu Marriage Act talk about the ground and right of the couples for divorce.

(adultery) section 13(1)^[1] _& section (10) of Hindu marriage act ,1955 ^[2] lays down in Joseph shine v. union of India ^[3] 2018, decriminalized adultery. Now it could be ground for only divorce or judicial separation in civil matters not as a criminal offense.

• Changing pattern in divorce; (triple talaq) “means three times end his marriage.” ^[4] this practice was legalized by Muslim personal law (Shariat) application act of 1937.^[5] but in Shayara Bano v. Union of India &ors.^[6] TRIPLE TALAQ was declared unconstitutional by the apex court. In 2019 the Muslim women (protection of rights on marriage) bill ^[7] was passed by the parliament of India. Bill protects the rights of Muslim women and protect them from instant divorce.  
• Division of marital property and assets
• Spousal support or alimony.
• Prenuptial and postnuptial agreements.

Child Custody and Visitation Laws:

Child custody is one of the most challenging aspects of divorce. It has a direct impact on both parents, their children and the well-being of that child. This is why it is important to understand how child custody works in India.

What Is Child Custody in India?

In India, both parents have legal rights to the child. This means that the mother has the right to raise and care for the child and is entitled to visitations with the child. The father has equal rights to raise and care for his children but does not have the right to visitation. The courts do not decide on custody based on which parent is more suitable or better suited to care for the child. In this case, it would be a tie between both parents. This system of custody comes from how society views women as the weaker gender. They would rather give mothers legal rights over children because they believe mothers should be caring for children while fathers should be out working and providing financially for their children.

Types of custody:

• Physical Custody: Physical custody refers to the right and responsibility to have a child live with you. It involves providing day-to-day care and making decisions regarding the child’s well-being.
• Legal Custody: Legal custody refers to the right and responsibility to make major decisions about the child’s upbringing, including matters related to education, healthcare, religion, and general welfare.
• Joint Custody: The most common type of child custody is joint custody. Joint custody is when parents share the decision-making rights for their children with one another. This can be a viable option if you and your partner have different interests or are unsure if you want to raise your child in India or send them back home to your country of origin.
• Guardianship of Minor Children: The guardianship of a minor child is the most common type of custody that India recognizes. This type of custody is when one parent holds the title to their child’s care, maintenance, and education. The other parent has visitation rights, but they are not in charge of day-to-day care and education

 A cording to the Hindu Minority and Guardianship Act 1956^[8]: Third-party custodial rights are not considered in the provisions. The provisions of this Act pertain only to the biological parents and only if they are Hindu.

The Hindu Minority and Guardianship Act, 1956, Hindu Marriage Act, 1955, and Special Marriage Act, 1954 regulate the transfer of custodial rights after a separation:

Section 26^[9] of the Hindu Marriage Act, 1955: Section 26 of the Hindu Marriage Act provides for a child’s education and maintenance only if both parents are Hindus. The orders can be issued at any time and override the pending decree within a period of 60 days from the date of service of the notice.

Child Support Laws:  In India, child support laws are primarily governed by the Hindu Adoption and Maintenance Act, 1956, the Guardians and Wards Act, 1890^[10], and the personal laws applicable to different religious communities.

Maintenance for children: Under Indian law, both parents have a legal obligation to provide for the maintenance and welfare of their children. This includes providing financial support for the child’s education, healthcare, and other necessary expenses.

Determining child support: The amount of child support is determined based on factors such as the income and financial capacity of both parents, the child’s needs, and the standard of living the child is accustomed to. The court takes into account these factors and exercises its discretion in deciding the amount of child support to be awarded.

Child custody is well related to child support as the parent who is awarded with child custody is the one who receives child support from the other parent or the one who gets the visitation rights. Though alimony is the part of taxable income for the spouse who gets it but on the contrary the child support is exempted from tax for the person who is granted with the child financial support. The spouse who is paying the child support already pays the tax levied on the support amount to the government.

Adoption and Surrogacy Laws:

 Adoption Law in India:

The primary legislation governing adoption in India is the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), which replaced the earlier Juvenile Justice Act, 2000^[11].

The JJ Act provides a legal framework for the adoption of children who are orphaned, abandoned, or surrendered.

The act establishes the Central Adoption Resource Authority (CARA) ^[12] as the central authority responsible for promoting and regulating in-country and inter-country adoptions.

 Prospective adoptive parents (both Indian and foreign) must follow the guidelines prescribed by CARA for adoption.

The act establishes a two-step process for adoption: registration as prospective adoptive parents and matching with a child through a legally recognize agency.

Child Protection Laws:

Child protection laws are regulations and statutes that are designed to safeguard the well-being, safety, and rights of children. These laws vary from country to country, but they generally aim to protect children from abuse, neglect, exploitation, and harmful situations. Child protection laws encompass a wide range of areas, including child abuse, child labor, child trafficking, child pornography, child custody, and juvenile justice.

The specific provisions and scope of child protection laws depend on the legal system and jurisdiction. However, some common elements and principles found in child protection laws worldwide include:

• Child Abuse and Neglect: Child protection laws typically define various forms of child abuse, such as physical, sexual, emotional, and psychological abuse. Neglect, which refers to the failure to provide a child with adequate care, supervision, or basic needs, is also addressed.
• Child Labor: Laws concerning child labor aim to prevent children from engaging in work that is harmful to their health, safety, or development. These laws typically set minimum age limits for employment and establish restrictions on working hours and conditions for minors.
• Child Trafficking: Child protection laws combat child trafficking, which involves the illegal recruitment, transportation, transfer, harboring, or receipt of children for the purpose of exploitation. These laws focus on preventing, prosecuting, and providing assistance to victims of child trafficking.
• Child Pornography: Child protection laws address the production, distribution, possession, and consumption of child pornography. They aim to prevent the sexual exploitation of children through the use of visual or digital media.
• Child Custody and Guardianship: Laws related to child custody determine the rights and responsibilities of parents or guardians and may intervene to protect the best interests of the child in cases of disputes, divorce, or separation.
• Juvenile Justice: Child protection laws establish a separate legal framework for dealing with minors who are involved in criminal activities. They often emphasize rehabilitation and age-appropriate treatment rather than punishment.

The Constitution guarantees certain fundamental rights and protections for children, including the right to protection from exploitation and to free and compulsory education.

• The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act): This law is aimed at the care, protection, and rehabilitation of children in conflict with the law and children in need of care and protection. It establishes procedures for the administration of juvenile justice and emphasizes the principle of the best interests of the child.
• The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) ^[14]: This legislation specifically addresses child sexual abuse and exploitation. It defines various forms of sexual offenses against children, prescribes stringent punishments, and establishes special procedures for the reporting, investigation, and trial of such cases.
• The Child Labour (Prohibition and Regulation) Act, 1986^[15]: This act prohibits the engagement of children in certain hazardous occupations and regulates their employment conditions in non-hazardous industries. Amendments have been made over the years to strengthen the provisions and enhance protection for child laborers.
• The Commission for Protection of Child Rights Act, 2005: This act established the National Commission for Protection of Child Rights (NCPCR) and State Commissions for Protection of Child Rights (SCPCRs). These commissions monitor and promote the rights of children, inquire into complaints of violations, and recommend remedial measures.
• The Prohibition of Child Marriage Act, 2006: This law aims to prevent child marriages and provides for the annulment of child marriages, protection, and support for affected children, and punishment for those involved in promoting or solemnizing child marriages.
• The Right to Education Act, 2009: This act recognizes the right of every child to free and compulsory education between the ages of 6 and 14 years. It establishes the responsibilities of the government, schools, and parents in ensuring access to quality education for all children.

Same-Sex Marriage and LGBTQ+ Rights:

Same-sex marriage and LGBTQ rights are important topics that focus on equality and fairness for everyone, regardless of their sexual orientation or gender identity. Same-sex marriage refers to the legal recognition of marriage between two people of the same sex. This means that couples who love each other and happen to be of the same gender can have their relationships legally recognized, just like opposite-sex couples. It ensures that same-sex couples have the same rights and benefits as any other married couple, such as hospital visitation rights, inheritance rights, and the ability to make important decisions together. Same-sex marriage helps create a society that values love and commitment, no matter who you are or whom you choose to love.

LGBTQ rights go beyond just marriage and include various aspects of life where equality is important. LGBTQ ^[16] stands for lesbian, gay, bisexual, transgender, and queer/questioning. LGBTQ rights aim to protect and support individuals who identify as LGBTQ. These rights include anti-discrimination laws, which ensure that LGBTQ people cannot be treated unfairly or differently based on their sexual orientation or gender identity. LGBTQ rights also strive to promote acceptance, tolerance, and understanding in society, allowing LGBTQ individuals to live authentically and openly without fear of discrimination or prejudice. It is essential to respect and honor the rights of LGBTQ individuals to create a more inclusive and equal society for all.

same-sex marriage is not legally recognized in India. The country’s marriage laws define marriage as a union between a man and a woman. Section 5 of the Hindu Marriage Act, 1955, defines the conditions for a valid Hindu marriage, and it specifies that the groom must be a man and the bride must be a woman.

In 2018, the Indian Supreme Court issued a landmark judgment in the case of Navtej Singh Johar v. Union of India ^[17], decriminalizing consensual same-sex relations between adults. The court held that Section 377 of the Indian Penal Code ^[18], which criminalized “unnatural offenses” including same-sex relations, was unconstitutional to the extent that it applied to consenting adults.

While the decriminalization of same-sex relations was a significant step forward for LGBTQ+ rights in India, it does not automatically grant recognition to same-sex marriages. Same-sex couples in India do not have the legal right to marry or enjoy the same legal protections and benefits that opposite-sex couples do under the country’s family law.

Mediation and Alternative Dispute Resolution:

Mediation and alternative dispute resolution (ADR) are commonly used methods in family law to resolve conflicts and disputes outside of traditional court processes. These approaches aim to facilitate communication, negotiation, and collaboration between parties, helping them reach mutually satisfactory agreements.

• Mediation: Mediation involves the presence of a neutral third party, known as a mediator, who assists the parties in identifying issues, exploring options, and reaching a resolution. The mediator does not make decisions but facilitates discussions and promotes effective communication. Mediation can cover various family law matters, including child custody, visitation schedules, spousal support, and division of property.
• Collaborative Law: Collaborative law is another form of ADR used in family law. It involves both parties and their respective attorneys committing to resolving the issues through negotiation and cooperative problem-solving rather than litigation. The process encourages open communication and may involve other professionals, such as financial advisors or mental health experts, to provide guidance and support.
• Arbitration: Arbitration is a process where parties agree to present their dispute to a neutral third party, known as an arbitrator. The arbitrator’s role is to review the evidence and arguments presented by both sides and make a binding decision. In family law, arbitration is less common than mediation, but it can be used for specific issues or when parties prefer a decision-maker rather than negotiating directly.

Benefits of Mediation and ADR in Family Law:

a. Voluntary and Empowering: Mediation and ADR processes are voluntary, allowing parties to actively participate in decision-making and find customized solutions that meet their unique needs and interests.

b. Confidentiality: These processes typically offer confidentiality, which can provide a safe environment for discussing sensitive family matters.

c. Preservation of Relationships: By encouraging collaboration and communication, mediation and ADR methods focus on preserving relationships, particularly important in family law where ongoing relationships (such as co-parenting) are often involved.

d. Cost and Time Efficiency: Mediation and ADR are generally less time-consuming and expensive compared to traditional litigation. They can save parties from lengthy court battles and associated costs.

e. Greater Control: Parties have more control over the outcome, as they actively participate in negotiations and have a say in the final agreement.

Landmark Judgement

• Yousuf v. sowramma

INTRODUCTION

In this case A. Yousuf Rawther vs Sowramma the conjugal & maintenance rights of a wife are being examined where the wife pleaded for dissolution of marriage and the court discussed on the grounds of divorce. The court held that the principles of the Holy Quran of marriage regarding divorce were directed for betterment of womanhood and one not fulfilling his duty as a husband should not expect the same from the wife.

FACTS

The plaintiff after attaining puberty moved to the husband’s house. Then the defendant left for Coimbatore, the very next day, where he was running a radio dealer’s business. A month’s wait in the house of the husband and then the plaintiff went back to her parents, this separation lasted for over two years during which the defendant failed to maintain the wife, the ground alleged by the defendant being that he was willing to keep her with him but she refused to return to the conjugal home. Anyway, a litigation for dissolution of marriage erupted. The trial court dismissed the suit but the Subordinate Judge’s Court granted a decree for dissolution of the marriage for which the husband has filed this appeal. This is an appeal challenging the validity of the decree of the lower appellate court.

ISSUES

• Whether the wife can claim dissolution of marriage for failure of the husband to maintain the wife for 2 years?

JUDGEMENT

 The appeal was dismissed and held that failing to provide maintenance to the wife is grounds for dissolution of marriage.

• Jijabai v. Pathan khan

Facts:

The judgment was delivered by the apex court in the instant case, the appellant was the daughter of Champatrao. She obtained from her father under a gift deed, 27 acres of land. As the owner of the land, she served a notice on tenant informing him of her intention to terminate his tenancy of the land on the ground that she required the lands bona fide fir her personal cultivation.

In March 1963 the appellant filed and application before the Naib Tahsildar, under section 36 read with section 39 of the Bombay Tenancy and Agricultural Lands 1958 for termination of tenancy of the tenant and for directing him to surrender possession of the entire land.

Later on, she amended her application and prayed in the alternative that if for any reason she was found not entitled to get possession of the entire lands, she may be allowed to recover half of the land in the possession of tenant and that in respect of that half, in the eastern portion 13 acres and 38 gun that may be allotted to her.

The tenant resisted the claim of the landlord on the ground that the father and mother of the landlord had fallen out very long ago and that the landlord was a minor who was under the care of her mother Smt. Chandrabhagabai and she were managing the suit properties on behalf of her minor daughter.  During this time suit properties were being leased in the favour of the respondent (Tenant). Initially, the leases were granted by the mother who was managing the suit properties orally to the tenant but later on he executed a Kabuliyat in favour of the landlord represented by her mother as guardian.

Prior to the Act coming into effect, the tenant acquired the status of a protected lessee. The tenant pleaded that as the landlord hadn’t filed the application within one year of the coming into force of the act, thus her claim was barred by limitation and the application under Section 39 was not maintainable. The tenant raised controversy regarding the birthdate of the appellant.

The Naib Tahsildar held the application filed by the landlord under section 36 read with section 39 maintainable. He further found that the landlord was born on July 6, 1944, and attained majority on July 6, 1962, thus held that the landlord was entitled to file within one year of attaining the majority and in the instant case landlord has filed the case within that time only. The Tahsildar further held that since the father of the landlord was alive and was in law her natural guardian, the lease executed by the tenant on Feb 1956 was not legal and valid as the mother was not entitled to represent her minor daughter.

In view of the further finding, the landlord had no other land and no other source of income and as the suit lands were less than the family holding, she was entitled to get possession of the entire lands from the tenant. Accordingly, he granted the landlord relief in full.

Issues raised:

• Legal validity of the lease granted by the mother of the landlord in favour of the tenant.
• The maintainability of the application filed by the landlord under Section 39 of the Bombay Tenancy Act.

Judgment:

The High Court has rightly pointed out that the revenue tribunals have only granted relief to the appellant on the basis of Section 39. However, the High Court in spite of holding section 39 not applicable yet has shown consideration to the appellant and treated her application under section 36 read with section 38. For the purposes of effecting a division of the leased properties into two halves and place the landlord and the tenant in possession of one portion, that the high court after setting aside the order of the revenue tribunals remanded the matter to the Naib Tahsildar. The appeal fails and is dismissed by the Apex Court.

·Sarla Mudgal v. Union of India

fact of the case:

Petitions were filed in the Supreme Court of India under Article 32 of the Indian Constitution. Sarla Mudgal is the president of an NGO named Kalyani which aims to help women in distress. Meena Mathur, who was married to Jitender Mathur in 1978 found that her husband Jitender Mathur married another woman named Sunita Narula alias Fathima. Petitioner also learned that both Jitender Mathur and Fathima were converted to Islam before solemnizing their marriage. Fathima contended that the purpose of converting themselves to Islam and adopting the Muslim religion is to marry each other and circumvent the provision of section 494 of the Indian Penal Code, 1860.

In another petition, Sunita Narula accused Jitender Mathur, who was influenced by his Hindu wife Meena Mathur and her children. After marrying Sunita Narula, Jitender Mathur converted back to Hinduism. Jitender Mathur agreed to maintain his first Hindu wife and children born out of his first marriage. As a result, Jitender Mathur refuses to maintain his second wife who continues to be Muslim and has no protection under either of the personal law.

In another petition, petitioner Geeta Rani married respondent Pradeep Kumar according to Hindu rites in 1988. The petitioner alleged that her husband assaulted her and in one of the assaults her husband broke her jawbone. Petitioner’s Husband elopes with another woman named Deepa and married her after adopting Islam. The Petitioner also stated that the objective of conversion to Islam is to bypass the provision of section 494 of the Indian Penal Code, 1860.

ISSUES

Religious conversion is the way out for people to tie the knot with another woman without dissolving their prior marriage according to the procedure established by law. Several issues were raised in the court regarding the immoral act of deserting one’s partner and taking undue advantage of the freedom of religion in a secular state.

There are primarily three issues that need to be addressed in the first place.

• Can a Hindu man solemnize his second marriage by converting himself to Islam without dissolving his first marriage?
• Is such a marriage a valid marriage without dissolving the first marriage under the law?
• Whether the apostate husband would be liable under section 494 of the Indian Penal Code, 1860?

JUDGEMENT

The Supreme Court of India is also known as the guardian of the Indian Constitution. Since India’s Independence, the Supreme Court of India has never failed to protect the integrity and sovereignty of the constitution. The doctrine of dissolubility of marriage under traditional Hindu marriage law does not give any effect on the conversion of religion. The conversion of religion and marrying another woman will not result in the dissolution of the previous marriage solemnized under Hindu marriage law.

Marriage is the foundation of civilized society. Once the relationship of marriage is formed, it binds the parties to various obligations and liabilities. On one hand, monogamy is the law for Hindus. On the other hand, Muslim law permits four wives for a Muslim male in India according to the Shariat law of 1937. Hindu man embraces Islam to solemnize his second marriage without dissolving his first marriage and escape from the liabilities which were imposed upon him under section 494 of the Indian Penal Code, 1860.

A marriage can be dissolved under the provision of the Divorce act. A marriage can also be dissolved on the death of either of the spouses. According to Hindu Marriage Act, a marriage cannot be dissolved except on the grounds of section 13 of the Hindu Marriage Act, 1954. The second marriage of an apostate husband under Muslim law would be a marriage in violation of the provision of the act by which he would be continuing his first marriage.

As a result, a second marriage is illegal in the eyes of law. The second marriage of an apostate husband is against natural justice. It is arbitrary to allow individuals to solemnize their marriage without dissolving their prior marriage after conversion to Islam. It is a clear way out to circumvent the provision of section 494 of the Indian Penal Code.

The Supreme Court of India emphasizes the enforcement and implementation of the Uniform Civil Code in India to regulate matters related to marriage, divorce, adoption, inheritance, custody of the child, and other matters related to matrimonial disputes under a uniform law applicable to all religious communities uniformly. The objective of the Uniform Civil Code is to govern all the religious communities in India uniformly.

·Shayra Bano v. Union of India

Facts

Shayara Bano was married to Rizwan Ahmed for 15 years, and according to the claims, she was subjected to dowry harassment and domestic violence.

In 2016, she was divorced through talaq-e-bidat, which initiated the writ petition filed before the Supreme Court.

The petition stated that the practices of Nikah- Halala, triple Talaq and polygamy under Muslim personal law were unconstitutional, illegal and violated the fundamental rights guaranteed under Art 14, 15, 21, and 25 of the Indian Constitution.

The Union of India and women’s rights groups, including the Bhartiya Muslim Mahila Andolan (BMMA) and the Bebaak Collective, supported Ms Bano’s petition to declare these practices unconstitutional. They even sought the Court to pronounce that the Fundamental Rights apply to personal law.

The All-India Muslim Personal Law Board (AIMPLB) has argued that since Muslim personal law is not codified and is protected by Article 25 of the Constitution, it is not subject to constitutional judicial review. Additionally, the Court lacks jurisdiction to consider a constitutional challenge to Muslim personal law.

The Court sought written responses from the Union of India and Shayara Bano, several organisations working for women’s rights, and the All-India Muslim Personal Law Board (AIMPLB) on the challenges and issues surrounding polygamy, nikah-halala, and talaq-e-biddat on February 16, 2017.

Issues

• Does Triple Talaq violate any fundamental right guaranteed under the Constitution of India?
• Does the practice of talaq-e-biddat (instant Talaq) come under the purview of an essential practice of Islam?

Judgment

The SC established a 5-Judge Constitution Bench on March 30, 2017, to hear the case. J.S. Khehar, the Chief Justice, and Justices Kurian Joseph, R.F. Nariman, U.U. Lalit and Abdul Nazeer formed the Bench. The Bench considered the case from May 11 to May 19, 2017, and the judgement was handed down on August 22 of that same year. The majority of the 3:2 vote determined that the talaq-e-biddat custom was “manifestly arbitrary” and unlawful. Justice Nazeer and Chief Justice Khehar dissented on the grounds that the Right to Religion protected talaq-e-biddat and that Parliament should have drafted legislation to control the practice.

Triple Talaq was declared unconstitutional under Article 14 r/w article 13(1) of the Indian Constitution. The Court determined that the Muslim Personal Law (Shariat) Application Act, 1937 had penalised the practice as a matter of personal law. The punishment for committing this crime is imprisonment for up to 3 years.

The Court clarified that “an arbitrary action must include negation of equality” and found that the triple Talaq’s provision that “the marital tie can be broken capriciously with no attempt at reconciliation to preserve it” constitutes an arbitrary act that violates Article 14 of the Indian Constitution.

The SC found that the practice of Triple Talaq or Talaq-e-bidat is not protected by the exception outlined in Article 25 since it is not an essential practice of Islam.

The Court argued that even though the Hanafi School engages in it, doing so is wrong. Triple Talaq is against the fundamental principles of Islam, and since Shariah contradicts Quran, what is evil in theology cannot be good in legislation.

·Mohd. Ahmed khan v. Shah Bano begum

Facts of Shah Bano’s case

In 1932, Mohd Ahmed Khan (appellant) was a lawyer by profession, married to Shah Bano Begum (respondent), and had three sons and two daughters from this marriage. In 1975, Shah Bano Begum, aged 62 years, was abandoned by her husband and thrown out of her marital home with her children. In 1978, she brought an appeal before the Judicial Magistrate of first class, Indore claiming maintenance of Rs. 500 per month under Section 125 of CrPC. Then, her husband gave her irrevocable triple talaq and used it as a defence for not paying maintenance as they were no longer husband and wife and had already been paying maintenance of Rs. 200 per month for about two years. Also, he had deposited a total of Rs. 3000 in the court through dower during the period of iddat. In 1979, the Magistrate directed the husband to pay a maintenance of Rs 25 per month. In 1980, Shah Bano filed a revisional application in the MP High Court to change the amount of maintenance which the High Court increased to Rs. 179 per month. The husband then challenged this application in the Supreme Court as a special leave petition.

Issues of the case

Under Sec. 125 CrPC, does the definition of wife include a divorced Muslim woman?

Whether Section 125 CrPC override personal law?

Whether a Muslim husband is obligated under Sec. 125 CrPC to provide maintenance for a divorced wife if there is a conflict between section 125 and Muslim Personal Law?

Under Section 127(3)(b) CrPC, what is the sum payable on divorce and whether the meaning of Mehar or dower is not summed payable on divorce?

Overall, the main question was that the husband’s case was entirely based on the claim that maintenance under Section 125 CrPC must be excluded on the ground that Muslim law exempts the husband of any responsibility for his divorced wife beyond payment of any mahr due to her (dower paid in lieu of marriage by the husband) and an amount to cover maintenance during the iddat period and Section 127(3)(b) CrPC conferring statutory recognition on this principle.

What is Iddat?

Iddat is the waiting period, which a woman observes after her husband’s death or divorce before she marries another man. Iddat period’s length is circumstantial (usually 3 months). The main objective behind iddat is that this period provides sufficient time for the wife to mourn the death of her husband and also protects her from criticism which she might be subjected for remarrying too quickly after her husband died. Iddat also helps determine whether a woman is pregnant since four and a half months is half the duration of a normal pregnancy, if there is any. So, let’s go through time period for which the iddat period was observed:

A divorced woman observes iddat for 3 months, whereas a woman whose husband has died observes iddat for four lunar months & ten days after the death of her husband, irrespective of consummation during the marriage.

After the woman is pregnant, the period continues until childbirth.

If a woman is pregnant at the time of her husband’s death, she observes iddat for a whole year comprising nine months of pregnancy plus three months of iddat period.

In Shah Bano’s case, the appellant’s (Mohd Khan) contention was supported by the All-India Muslim Personal Law Board which contended that courts cannot interfere in those matters that are deliberated under Muslim Personal Law, stating that it would infringe “The Muslim Personal Law (Shariat) Application Act, 1937” and the courts must pass any judgment on such issues based on Shariat only.

Case judgment

In 1985, a judgment was passed by the Supreme Court on the issue of whether CrPC, which applies to all citizens of India irrespective of their religion, could apply here. And that CrPC would prevail over personal laws.

CJI Y.V. Chandrachud upheld the High Court’s judgment that gave orders for maintenance to Shah Bano under CrPC. Just that the Supreme Court enhanced the sum of maintenance. He said, “Section 125 was enacted to provide a quick remedy to a class of persons who cannot maintain themselves. What difference would it then make as to what is the religion professed by the neglected wife, child or parent? Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are crucial of a prophylactic nature, cut across the barriers of religion. The liability imposed by S. 125 to maintain close relatives who are indigent is founded upon the person’s obligation to society to prevent vagrancy and destitution. The moral edict of the law and morality cannot be clubbed with religion.”

CONCLUSION

The changes in family law have significant implications for individuals and society as a whole. These changes reflect a growing recognition of the evolving nature of family structures and the need for legal systems to adapt to these changes. The reasons behind these changes can be attributed to several factors.

Firstly, societal attitudes towards marriage, divorce, and parenthood have shifted over time. There is a greater emphasis on individual autonomy and personal happiness, leading to a higher divorce rate and an increase in non-traditional family structures such as single-parent households, blended families, and same-sex couples. Family law has responded to these shifts by providing legal protections and rights to individuals in these diverse family arrangements.

Secondly, there is an increased focus on the best interests of the child in family law. Courts and lawmakers recognize that children are often the most vulnerable parties in family disputes and should be shielded from harm. Consequently, there has been a shift towards promoting shared parenting arrangements, encouraging both parents to have meaningful involvement in their children’s lives, and prioritizing the child’s well-being and stability.

Thirdly, gender equality and women’s rights movements have played a significant role in shaping family law. Historically, family law was often biased against women, placing them in vulnerable positions during divorce and custody proceedings. However, changes in family law have aimed to rectify these disparities by promoting gender-neutral laws and ensuring fair treatment for all parties involved.

Furthermore, advancements in assisted reproductive technologies and the rise of surrogacy and adoption have necessitated legal frameworks to address the complex issues arising from these practices. Family law has adapted to provide legal recognition and protections for individuals involved in these alternative methods of family building.

Overall, the changes in family law reflect a society that acknowledges and embraces diverse family structures, prioritizes the well-being of children, and strives for greater equality and fairness. These changes are necessary to meet the needs and realities of modern families, and they aim to provide legal support and protection to individuals navigating the complexities of family life in the 21st century.

REFERENCES

1. Hindu marriage act, 1955 section 13(1)
2. Hindu marriage act, 1955 section 10
3. Joseph shine v. Union of india 2018 SC 1676
4. Triple talaqhttps://www.business-standard.com/about/what-is-triple-talaq-law
5. ShayaraBano v. Union of india [2017] 9 SCC 1
6. MUSLIM personal law [shariat] application act, 1937 https://www.legalserviceindia.com/helpline/shariat.htm
7. Muslim women [protection of rights on marriage] Bill no. 20 of 2019 [31^stjuly, 2019]
8. Hindu minority and guardianship act
9. Section 26 Hindu marriage act 1955
10. Guardian & ward act 1890
11. Juvenile justice act 2000
12. CARA [ central adoption resource authority] https://www.latestlaws.com/bare-acts/central-acts-rules/children-laws/central-adoption-resource-authority-cara
13. Reproductive technology regulation bill 2020
14. POSCO act https://www.business-standard.com/about/what-is-pocso
15. Child labour prohibition and regulation act 1986