Family Law
Family Laws encompass the broad set of rules that are in practice regarding family matters, such as marriage, divorce, inheritance etc. There are some legally enforceable rights and duties that arise when one gives legal validation to the status of interpersonal relationships.
The justification for having laws that affect the most private aspects of our life is to ensure protection of individual rights and to uphold certain norms that are essential to human dignity. Another reason is that laws act as agents of social change and may succeed in improving the status of individuals in society.
There are five broad sets of family laws in India – Hindu law, which governs all Hindus as also Buddhists, Jains and Sikhs; Muslim law for the Muslims; Christian law for the Christians; Parsi law for the Parsi’s and a secular law i.e. the Special Marriage Act. The religion-based laws are derived from religious texts. These laws have also been amended from time to time by parliamentary legislation. Hindu law has been substantially altered on account of extensive legislation enacted post-independence. Christian and Parsee laws have been changed more recently in the last few decades through legislation. Muslim law has been the least modified and hence retains most of the text and interpretation of the times when its religious texts were written.
Sources of law
Marriage and divorce. India is a secular country and a wide number of religions are freely practised. The major religions practised include Hinduism, Islam and Christianity. People solemnise marriages in accordance with religious rituals and ceremonies, which are mostly codified by statutory personal laws. Therefore, the matrimonial laws in India, including laws on marriage, divorce and other connected issues, are essentially governed by the personal laws of the parties depending on their religion, which are codified by statute in most cases:
Hindu: Hindu Marriage Act 1955.
Muslim: Muslim marriage is a contract under Muslim law.
Christian: Indian Christian Marriage Act 1872 and the Divorce Act 1869.
Parsi: Parsi Marriage and Divorce Act 1936.
In addition, the Special Marriage Act 1954 applies to all persons of all religions. This is a civil legislation and parties from all religions, caste or community can elect to marry under it. A divorce would then be governed by the Special Marriage Act 1954.
All these laws apply throughout India.
Welfare of children. Personal laws governing marriage contain provisions to ensure the welfare of children born in wedlock. There is a general law, the Guardian and Wards Act 1890, which applies to all communities.
The Guardian and Wards Act 1890 is a complete code defining the rights and liabilities of guardians and wards. It applies to minor children of any caste and creed. However, while approving and declaring a person as a minor's guardian, the court will also consider the minor's personal law. The Guardian and Wards Act 1890 aims to protect the minor child's person and property.
Court system
The Family Court Act 1984 provides for the establishment of Family Courts with a view to promote conciliation, and secure speedy redressal of disputes relating to marriage and family affairs, and for matters connected with them. The Family Courts hear matters relating to marriage, marital breakdown and the welfare of children. These courts are trial courts and are presided over by Additional District Judges who undertake trials and review evidence. The Family Courts follow the Civil Procedure Code. Family proceedings are generally public but can be conducted in private at the request of the parties or if circumstances require.