IMPLICATIONS AND REASONS FOR CHANGES IN FAMILY LAW

This article is written by Aaliya Fatima of University of Lucknow, an intern under Legal Vidhiya

Abstract

Family law is that branch of law that deals with issues regarding families, custodies, adoptions and maintenance and many more. As the time is passing, there have been many changes in the law not only in India but also worldwide in accordance with the present requirements of the time. Family law is one of the most significant laws whose implications and changes are of great importance for each and every citizen of the country. This research paper primarily focuses on the Family Law of the country as well as the changes that were brought in it with times due to the necessities that occurred over a period of times. The paper emphasizes on the importance of the changes and such reasons for the same in the family law of the country. With this paper, even the readers who are not from the law background can easily understand a concept that has a legal spirit attached to it thereby spreading some awareness about the doings of the country.

Keywords

Family, changes, family laws, matrimonial aspects, implications.

Introduction

Indeed, family is the basic unit of life. As Aristotle have truly said that man is a social animal who needs a community to live in and people to talk to. For any person, the family is his/her most important basic unit. A family in the simplest of words if defined is the group of people who may or may not live together under the same roof and are related to each other either by blood, matrimonial alliances or either by adoptions.

Although family maybe the most important thing for a man but sometimes the same family is means to be the reason for you happy survival becomes the dose of daily chaos in your life and this where Family Law comes into picture. Family Laws were framed for the times when the families become infested with various crimes and there are severe problems that become a curse in either matrimonial aspects of the people or for the custody of the children that become a victim of such situations and many more.

Family laws deals with marriages, custodies, adoptions, maintenance of the wife of she is separated with her husband or the spouse divorces each other and many more.

Family law for the very first time in India was introduced by the Christian Marriage Act of 1872 to consolidate and amend the law relating to the solemnization of the marriages of Christians in India[1]. After the enactment of this Law, the Family laws related to the Hindus, the Muslims, the Parsis etc. came into existence. When these laws were framed, they worked according to the then required provisions of the society but as the times passed, many changes had to be made due to the changing situations and the requirements of the changing times. This research paper would list all the reason due to which such implications were applied in the law.

Meaning of Family Law

Family law is that branch of law that deals with matters of family regarding adoptions, maintenance, custodies, marriages, divorce, inheritance and many more. In our country India, there are five types of Family Laws namely The Hindu Law which is responsible for governing all the Hindus of India as well as the Sikhs, the Buddhists and the Jains. The Muslim Law governs all the Muslim population of the country, the Parsi law is for the Parsis while the Christian Law for the Christians and last but not the least the secular law that is the Special Marriage Act.

The Family law in Australia was introduced in the year 1975 wherein the law was passed by the Parliament in the year 1976 after which there had been many amendments introduced in the same due to the changing social dynamics.

While in India we have the Hindu Marriage Act of 1955 which serves as the medium for all the rules and regulations for the Hindu Community and the Muslims are administered by the Muslim Personal Law (Shariat) Application Act of 1937.

Development in the Marriage Laws

Marriage in India is an institution or in the simplest of words defined as “legal status, condition, or relation of one man and one woman united in law for life, or until divorced, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex”[2].

The concept of marriage began changing with the passing of times according to the social standards of the society.

Here are some of the developments that took place in the Hindu Marriage as well as the Muslim Marriage respectively over the years.

The changes in the law were made by keeping the following concerns in mind.

1. Age of marriage
2. Succession Rights
3. Divorce
4. Maintenance Rights
5. Rate of exploitation
6. Custodies of children etc.
7. New requirements

• The Hindu Marriage

The marriage in the Hindu Community is defined as the “sacred” commitment of the two people and with the usage of religious rituals in the marriage, it is said that the bond between the two families increases.

Since India has always been a land of rituals and traditions, age of marriage in the Hindus of India has always been a concern. Child marriage for instance had been one of the most common practices that had always engulfed the country. The rate of exploitation at young age especially for the girls, the denial of education, pregnancy complications and many more urged the government of India to take a rather reformative step wherein the age of marriage for the girls is 18 years of age and for the boys it became 21 years of age.

Back 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.

Polygamy: The enactment of the Hindu Marriage Act in 1955 strictly prohibited polygamy among the Hindu Marriages. Polygamy is the practice of keeping more than one husband or wife at the same time. In the Hindu Marriage Act, the consent is not an essential component but a marriage can be called void if the consent was based on or obtained by fraud or coercion.

Thus, it can be concluded that Hindu Marriage is a mixture of contract and sacred bond.

Women’s right in coparcenary property in Hindu law:

The Hindu Succession Act[3] of 1956, was framed in India in order to deal with the succession Rights of the ancestors properties in relation to the Hindus. However, this act did not provide any succession Rights to the women of the family as it was assumed that they are a part of their husband’s family. Hence, in the year 2005 on September 9^th, the act was amended on the reason that it violated Article 14 of the India Constitution, that is the right to equality after which the succession Rights were also granted to the women as well.

In the case of Prakash & ors. V. Phulavati,[4] the Supreme Court clearly stated that the rights are only extended to the living coparceners by the living coparceners as from September 9^th,2005. In simpler words, a daughter whose father died before the enactment date cannot ask for the ancestral property.

Maintenance:

Under Section 24 of the Hindu Marriage Act of 1955, the section governs the part of marriage concerning to maintenance either in form of alimony or monthly expenses that the husband has to bear for the wife as well as the kids during divorce or separation.

• Muslim Marriage

Muslim Marriage in India is defined as a contract between two people which takes place in the presence of consideration or “Meher”.

Changes in divorce system:

A divorce or dissolution of marriage is a process wherein the bond formed between the spouses out of marriage gets cancelled due to many external factors. Recently there have been many changes in the divorce pattern which became very noticeable in the Muslim Marriage Act during triple talaq.

Triple talaq:

Unlike the Hindu marriage, where marriage is considered to be a sacred bond of seven births, where there was no chance of dissolution, Islam was the only religion that recognised divorce as a way to end the marriage. Divorce or simple “talaq” means to end the marriage.  Islam recognises two types of talaq among the Muslims namely-

1. Talaq-ul-sunnat which is further divided into Ahasan and Hasan
2. Talaq-ul- Biddat

Talaq -ul- Biddat between the two has been referred as the most controversial forms of divorce where the husband just by simply uttering the word “talaq” three times to his wife could easily seek a divorce. The practice was earlier recognised by the shariat law board or application Act of 1937.

Talaq -ul- Biddat was misused by the people especially Muslim men where there had been many cases in which the Muslim man would simply divorce the wife on a simple phone call due to any reason.

Later on in 2017, in the case of Shayra Bano bs Union of India and Ors[5], Triple Talaq or simply Talaq-ul-Biddat was declared unconstitutional by the apex court. In 2019, the Muslim Women Bill[6] which was basically made for the protection of the rights of the Muslim women prohibited the practice of talaq-ul-Biddat simply by uttering three words and whosoever commits such offence would be punishable to the extended period of three years.

Adultery as a ground for divorce:

Adultery if explained is defined as a sexual intimacy by a husband or wife with another person who is not their husband or wife. Adultery had been an offence for the last hundred and fifty-eight years but in the case of Joseph Shine vs the Union of India, the Supreme Court decriminalized adultery by striking off Section 497 of Indian Penal Code of 1860.

Adultery however is still seen as a reason for divorce and a person can seek divorce for the same. Adultery reasons hence are now solved in civil matters and not in criminal matters as they used to be solved before it got decriminalized.

Conclusion

Family laws were created for the benefit of the civilization consisting of people of different religions who may or may not face the same obstacles in the family or marriage institutions. If there had been no laws concerning the family aspect, it would have been a total chaos. Women wouldn’t have a right to free themselves from the clutches of their abusive husbands or vice versa, or it would have been a total mess of there were no organized rules and regulations for the custody of children or for that if maintenance. Family laws hence are very significant and any amendments done into it in accordance with the changing social dynamics of the society and the requirements of the people is more a reformative step because any amendment that is made into any laws apart from the family law as well ensures that the rights of the citizens of the country are being protected notwithstanding if the banned ritual had infested the society for centuries. Hence India clearly stands on its words that it is indeed the Democratic Republic of India, the largest democracy in the world where the rights of the country and the powers of the country rests on its people. This not only ensures the rights and protection of the citizens of the country but also serves as an applause for our constituent makers who through their sheer hard work made all these amendments so easy and flexible.

---

[1] Family Law and Religion, IAFL, available at https://www.iafl.com/media/1180/family_law_and_religion_the_indian_experience.pdf, last seen 9/6/23

[2] Black’s Law Dictionary (9^th ed.2009) available at Westlaw BLACKS

[3] Hindu Succession Act, 1956

[4] Prakash & ors. V. Phulavati & ors., (2016) 2 SCC 36

[5] Shayara Bano V. Union of India (2017) 9 SCC 1

[6] Muslim Women (Protection of Rights on Marriage) Bill, 2019, Bill no. 20 of 2019 (31^st July, 2019)