Family Law Basics: Navigating Divorce, Child Custody and Support

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6 months ago

Author: Akanksha Mani Nirmal a student at Chaudhary Charan Singh University.

Abstract

The ubiquitous presence of discords occurring between familial ties is evident to everyone. These discords can be in one form or the other like conflicts between husband and wife, dissenting views of parents and children, inheritance and succession, custody of children etc. The personal laws deal with these issues in detail.

Here in this article, we will talk about how the different aspects of Family Laws in India such as Hindu Law, Muslim Law, Christian Law, Parsi Law and Special Marriage Act,1954 deal with these issues. We will talk in detail about divorce, child custody and child support.

Introduction

Family Law in India, is a diverse field that governs the complexities of relationships within the families. It is one of the broadest branches of civil laws which deals with various legal problems revolving around families. It is the foundation of the legal framework which deals with family life in India. Family law covers varying range of issues and rules influencing life of citizens and their families all over the country.

Due to this it becomes even more important to grasp the details of these aspects.

Divorce In India

A family is the most important primary group in a society. The family members are connected to each other through the ties of marriage, consanguinity or adoption. A family begins through a marriage between a man and woman. Marriage is considered as a religious duty and indissoluble union in almost all the societies of the world.

But sometimes due to some internal strife divorces occur between couples. What is divorce? Divorce is derived from a Latin word ‘Divortium’ which means to turn aside or separate. Divorce is the termination of a marital union which terminates all the legal duties and responsibilities of marriage. The legal process of divorce involves alimony (spousal support), child custody, child support, distribution of property and division of debt.

Hindu Law on Divorce

The concept of divorce was unknown to the old textual Hindu law of marriage. Section 13 of the Hindu Marriage Act,1955 introduced a vital change in the marriage law of Hindus. According to section 14 divorce can’t be granted ordinarily within one year of marriage.

Section 13 shows grounds of divorce. Thay are as follows:

Adultery
Cruelty
Desertion for at least two years
Conversion to another religion
Incurable mental disorder and insanity
Venereal disease – the sexually transmitted diseases like AIDS
Renunciation of all the worldly affairs by embracing a religious order
Not heard alive for seven years
Non resumption of co-habitation

Section 13-B : Divorce by mutual consent

A petition for dissolution of marriage may be presented to the district court by both the parties to a marriage, on the ground that they have been living separately for a period of one year or more, they have not been able to live together and they have mutually agreed to such dissolution.

Muslim Law on Divorce

The concept of divorce is very old and immemorable institution. Originally, this power was only given to the husband. Later on, wives were also granted this right. Prophet Mohammad pronounced talaq to be the most detestable before the Almighty of all the permitted things.

A divorce becomes necessary when the husband can’t do his duties, i.e., when he is impotent or eunuch. Talaq is of two types, i.e., talaq-ul-sunnat and talaq-ul-biddat. The talaq-ul-sunnat is considered as the most approved form of talaq. It can be divided into two kinds, i.e., talaq-ul-ahsan and talaq-ul-hasan.

Talaq-ul-ahsan

In this form of talaq, the husband should fulfill the following conditions:

He must pronounce talaq once, in a single sentence;
He must do so when the woman is in a state of purity (tuhr) and there is no bar to intercourse nor has there been any intercourse during that state;
He must abstain from exercising conjugal rights after pronouncing the formula.

Talaq-ul-hasan

The husband is required to pronounce talaq during three successive tuhrs, i.e., three periods of purity of the wife. When the last formula is pronounced, the divorce becomes irrevocable.

Talaq-ul-biddat

It consists of :

Three pronouncements made during single tuhr either in one sentence or in separate sentence.
A single pronouncement made during a tuhr clearly indicating an intention irrevocable to dissolve the marriage.

Christian Law on Marriage

The marriage and divorce among Christians is governed by The Indian Divorce Act,1869. The Christian marriage may be dissolved on fulfilment of the conditions given in section 10 of this act. The act provides that unless parties to the marriage are domiciled in India at the time when the petition is presented, the courts have no jurisdiction to dissolve the marriage. To determine the domicile of the parties, only husband’s domicile is considered. Section 7 as a residuary section permits the court to interpret the provisions of the act with the help of the principles and rules of English courts. But section 7 can’t be read as to interfere the grounds of dissolution of marriage as given under section 10.

Parsi Law on Marriage

A Parsi husband or wife may file a suit to dissolve the marriage under the Parsi Marriage and Divorce Act,1936. When a court passes a decree for divorce, the court shall send a copy of the decree to the Registrars of marriages. The provisions of Part II (Section 3-17) applicable to the Registrars and registers of marriages shall be applicable, to the registrars and registers of divorces.

Child Custody and Support Post- Divorce

Child custody post- divorce is a critical component in ensuring the well being and financial stability of children. The purpose of granting child custody is to ensure that child or children have the resources to meet their basic needs, such as food, shelter, clothing and healthcare expenses. Additionally, it can cover other things like education and extra- curricular activities.

Mostly, the custodial parent is responsible to pay for the day-to-day care and financial expenses of their children. However, the non-custodial parent also has a legal responsibility to contribute for such expenses. This financial contribution is known as child maintenance.

While determining child custody, many factors are considered like, income of both parents, number of children and children’s needs. The amount of child maintenance given is usually determined through guidelines or laws established by the government or court. Child maintenance is not limited to financial support only, but includes providing of emotional support too.

Understanding Child Maintenance Under Section 125 of the Code of Criminal Procedure, 1973

A Class I Magistrate has the authority to order a person to pay a monthly allowance for the maintenance of their child, wife, mother or father if there is evidence that the person has neglected to provide the necessary support. The amount of maintenance is decided on the basis of individual’s capacity and the needs of the person receiving support.

Section 125 is a tool that provides protection to vulnerable individuals, including children, and ensures that they have access to the resources they need to grow.

Maintenance Provisions under Various Religious Laws: A Comparison

Hindu Law: Maintenance of a wife and her children is governed by the Hindu Adoption and Maintenance Act, 1956. As per this act, a wife can claim maintenance if she is unable to maintain herself and her children.
Muslim Law: Maintenance for a divorced Muslim woman is governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986. Under this act, a divorced woman is entitled to maintenance during the iddat period. Also she is entitled to get back any dower agreed at the time of marriage, and maintenance for 2 years after the divorce to support herself and her children.
Christian Law: Maintenance for a divorced Christian wife is governed by section 37 of the Indian Divorce Act, 1869. Under this act, a wife can apply for maintenance in a civil court or High Court, and the spouse will have the duty to support her and her children.
Parsi Law: Maintenance for a divorced Parsi wife is governed by the Parsi Marriage and Divorce Act,1936. A Parsi woman has the right to receive maintenance and the court can award a maximum of 1/5th of the husband’s net worth as maintenance for maintenance only if she remains unmarried for her lifetime.

Conclusion

Family law, in India is a vast field of law that encompasses a range of legal matters crucial to family life. It covers secular laws which are enacted to meet the specific requirements and customs of different religious communities within the country. Not only marriage and divorce but also child custody, inheritance, adoption, guardianship and maintenance are covered by it which plays a major role in regulating and protecting familial relationships. As India is progressing day by day it becomes even more necessary for family law to evolve at the same pace while also upholding traditional values. Legislative reforms, court interpretations and landmark cases have altogether shaped the concept of family law in India.

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