Important concepts under Family Law

HINDU LAW

Doctrine of relation back in hindu law

According to the idea of relation back in traditional Hindu law, if a Hindu widow adopts a son after the passing of her husband, the boy will be considered to have been adopted at the time of the husband’s passing. The theory goes against the prohibition against selling vested property.

Doctrine of surrender of limited estate

The female owner’s renunciation of her estate is referred to as surrender. A lady can freely surrender while still alive or right before she passes away. The woman has the right to abandon her estate in favour of her closest heir, and self-effacement on her behalf will be deemed to be her civil death. The first prerequisite for a lawful surrender is that it must cover the entirety of the estate.

For a surrender to be considered valid, the following prerequisites must be met:
The entire estate must be given up, it must be given to her nearest heir or the last owner’s heirs, and it must be given with the best of intentions.
Following such a surrender, the property will be examined for reversioners. Additionally, these reversioners have the authority to stop the female owner from misusing or unjustly alienating the property.

Stridhan is seen as the sole property of women, and she is entitled to all legal rights, including the right to be alienated. She is free to exchange, sell, give, mortgage, lease, and do any other action she chooses. If she was a married lady, however, some limitations were acknowledged on her power of disposal.
If a lady is married, the Stridhan is divided into the Saudayaka and NonSaudayaka categories.

Womens Estate

A woman has complete ownership rights over whatever property she receives as a gift or act of affection, and she is not allowed to give away any property she receives from a stranger or that she got via self-sufficiency or any other form of technical skill without her husband’s permission. A Hindu woman may obtain or secure property from a variety of sources, but not all property may be Stridhan.

The following criteria determine if a given property is Stridhan:

the property’s acquisition source,
status of the female at the time the property was purchased,
the institution she attends.

MUSLIM LAW

The following are the primary distinctions between dower and dowry.

-Since before the advent of Islam, Muslims have practised the ancient ritual of dower, which is given to wives as a mark of respect.

-Dowry is an evil custom that has recently become more common in India, particularly among the Hindu community.

-In a marriage, the husband gives the woman dower. It is the idea of getting married. While the bridegroom and his parents start making dowry demands.

The purpose of dower is to benefit the Muslim wife. The husband and his parents or relatives, however, take the bride’s parents’ dowry.

-Because the husband must pay the entire dower as per the contract after divorcing his wife, dower prevents Muslim husbands from divorcing their wives.

– However, dowry makes the bridegroom and his parents more avaricious, so they killed the wife in order to get married again.

-Although dowry is only observed in the Muslim community, it has infiltrated almost all communities.

-Several social reformers have praised Dower. While almost all social reformers oppose the practise of dowry.

Enforcement of right to dower

1 . Conjual rights

If the husband and wife have reached this understanding, the dower will be paid immediately. This implies that the husband must pay the dower before the woman leaves her mother’s house and enters the home of her husband. Furthermore, the man is now liable for paying the dower right away in addition to being responsible for doing so.

2 . Debt enforcement

In Ameer Ammal v. Sankaranarayana Chetty, the Madras High Court made the observation that the wife’s right to dower is like a right of any other creditor and can be enforced like any other debt.

The refusal to grant a husband marital rights after a marriage has been consummated prevents the wife from pursuing her claims. In this instance, the wife will pursue legal action to recoup her unpaid dower. As we’ve already seen, a wife can view the repayment of the loan from the husband in the same way as a creditor and can take legal action to recover an unpaid dower.The woman may exercise her claim by suing the husband to recover the unpaid dower if the husband is still alive and the dower is not paid.

If the husband passes away, the widow will have the right to sue the husband’s legal heirs to reclaim the money. The legal heirs of the spouse, however, are unable to personally pay the Dower. The Dower is an obligation owed by the heirs to the deceased person’s inheritance.

The property of the deceased is inherited by the family according to their respective shares, thus the genuine heirs are only obligated to pay the Dower to the extent that they are entitled to it.

The right to restraint to the widow

The most effective technique to enforce a dower is to use the “right of protection” after the husband’s passing. The property of the deceased husband may be retained by the widow as long as the Dower is unpaid. Instead of the unpaid Dower, this privilege is referred to as the protection right, and it can be granted to a widow whether or not the parties are in agreement.

A woman can also enforce her legal claim to a lien over her husband’s property until the family members or legal heirs who are entitled to the property compensate the woman from the assets they have acquired from her husband. Therefore, this is comparable to the security that the bank receives in exchange for the customer loan.

And when the borrowed money is not repaid, the bank may use its lien rights over the security for the loan until the borrower makes the required payment. This lien right is also known as the property retention right.

Dower in Shia Law

– There is no set minimum dower amount.
– The entire sum shall be deemed prompt if the amount is fixed and it is not specified whether it is prompt or postponed
– A mature, sane wife can refuse to pay her dower.
– The Mahr-e-Sunnat amount should not be exceeded by a proper dower.

Dower in Sunni Law

– Malikis fix it at three dirhams, while Hanafis set it at ten dirhams.
– In this scenario, half will be completed promptly, and half will be delayed.
– At the time of nikkah, a wife cannot refuse her dower.
– Sunni Law does not impose such limitations.

1. A marriage that is contracted without witnesses is void under Sunni law. The presence of witnesses is not required by Shia law.
2. A Sunni Muslim may wed a Kitabia, or a Jewess or a Christian, in addition to a Muslim woman. A marriage between a Muslim man and a non-Muslim woman, however, is forbidden and invalid under Shia law.
3. A Sunni Muslim is not permitted to wed his or her wife’s niece or aunt (on the ground of unlawful conjunction). Although only with his wife’s consent, a Shia Muslim is permitted to wed his wife’s aunt or even niece.
4. Sunni law allows for the nullification or irregularity of marriages. However, this distinction between invalid and irregular marriages is not recognised by Shia law. A marriage is either lawful or invalid in Shia law. As a result, Shia law will consider marriages that are simply irregular under Sunni law to be null and void.
5. Shia law only recognises the father and the paternal grand-father, no matter how high, when it comes to guardianship in marriage. According to Sunni law, the mother, brother, and other family members are also listed as guardians.
6. Sunni law prohibits limiting the period of a marriage. On the other hand, a Shia man may get into a muta marriage, which is a brief union.

Doctrine of Aul

The concept of increase (Aul) is applied when the aggregate value of the specific shares issued to various shares is greater than unity. According to this philosophy, each shareholder’s unique stake is diminished proportionately.

The proportionate share decreases as follows:
Reducing the shares to a common denominator is the first stage.
In the second phase, the denominator is raised until it is equal to the total of the numerators, leaving the numerators in place.

Doctrine of Radd

When a party of unity is divided and the sum is less than one, or when the property is left over after distribution. If there are no heirs of the deceased who fall under the category of residuary after the deceased’s property has been divided among the Sharers, the remaining property reverts to the Sharers in proportion to their shares. The Return or Radd Doctrine refers to the Sharer’s right to receive the Residue property back when the Residuary Heirs are absent.

Concept of will

An instrument by which a person disposes of his property to take effect after his death is referred to as a will, testament, or wasiyat.
“Conferment of right of property in a specific thing, in a profit or advantage, or in a gratuity to take effect on the death of the testator,” according to Tyabji, is what will mean.
A Will is distinguished by the fact that it is revocable and only takes effect after the testator dies.
In contrast to any other disposal (such as a sale or gift), the testator retains complete control over the property until his death: the successor or A beneficiary under a will is prohibited from interfering in any way with the owner’s enjoyment of the property, including the owner’s ability to sell or transfer it (in that case the Will becomes revoked)

WAQT ACT , 1913

The Mussalman Waqf Validating Act of 1913’s key characteristics include the following:

1. Under this Act, a Muslim is allowed to permanently pledge his property for the benefit of his family, as long as he specifies that the final proceeds will go to a charity cause with a long-term focus.

2. It is not required that there be a simultaneous gift to charity under this Act. A Muslim is not required to make any charitable donations until all lines of the settlor’s family’s ancestors have passed away.

3.In accordance with this Act, a Hanafi Muslim is not permitted to take full advantage of the income from the trust property or a life interest in it.

4. The purpose of the Act is described in Section 3 of the Act, which states that it is permissible for a Muslim to establish a waqf for the following objectives, provided that it is done in line with Muslim law in all other respects:

a) For fully or partially maintaining and supporting his family, children, or descendants.

b) If the individual establishing the waqf is a Hanafi Muslim, they may also do so for their own upkeep and support during their lifetime or to pay off their obligations using the rents and profits from the property they are dedicating.4. The purpose of the Act is described in Section 3 of the Act, which states that it is permissible for a Muslim to establish a waqf for the following objectives, provided that it is done in line with Muslim law in all other respects:

a) For fully or partially maintaining and supporting his family, children, or descendants.

Doctrine of pre-emption

Preemption law is a well-established idea in India and is based on the text of Muslim law. Up until the beginning of Moghal reign, it was unknown in India. Mulla defined the right of shufa or pre-emption as the ability an owner of an immovable property has to buy another immovable property that has been sold to another person. The human desire to prevent the difficulty and disturbance that would presumably result from the entrance of a stranger into the land forms the basis of the right of pre-emption. It is important to consider the Muslim law of succession in the context of the Muslim law of pre-emption. When a person dies, according to Islamic law, his property is divided into fractions. The introduction of strangers into a portion of the estate is likely to result in difficulties and inconveniences if an heir is permitted to sell his share without first presenting it to other co-heirs.

Christian Law

Indian Christian Marriage Act

1. The age of the bride should be at least 18 and the age of the groom should be at least 21 [Sec .60] 2. At the time of the marriage, one of the Parties must still have a spouse [Sec. 60].
3. The marriage must be performed in front of the licenced individual [Sec. 9] and at least two witnesses.
4.In accordance with personal law, nothing in the Act shall validate a marriage if no party is worried about it or if either party forbids the concern of marriage. [Sec.88]

For instance, if the personal law controlling the other person forbids marriage with a Christian, an inter-caste marriage between a Christian and another person will be invalid.

Grounds For divorce

Any marriage that has been solemnised, whether before or after the Indian Divorce (Amendment) Act, 2001, may be dissolved on a petition filed with the district court by either the husband or the wife on the grounds that, since the marriage’s solemnization, the respondent:
– has engaged in adultery
– has converted to a new religion, therefore ceasing to be Christian
– has been continuously and incurably insane for a period of not less than two years prior to the petition’s presentation.
– has been afflicted with a severe and terminal type of leprosy for a period of at least two years prior to the petition’s presentation.
– has had a contagious form of venereal disease for a period of at least two years immediately before the petition’s presentation.
– by individuals who would ordinarily have heard of the responder if the respondent were living, has not been heard of as being alive for a period of seven years or more.
– has purposefully abstained from doing so, and as a result, the marriage has not been finalised.
– The Court shall satisfy itself, to the extent that it is reasonably able, not only as to the fact alleged, but also as to whether or not the petitioner has been in any way accessory to, or connived at, the going through of the said form of marriage, or the adultery, or has condoned the same and shall, if the respondent has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree .

Marriages

The Parsi Marriage and Divorce Act, 1936, is a unique piece of legislation governing marriage in the Parsi language. Only after the Aashirvaad is the marriage ritual considered valid in Parsi.

Although the religious ceremony of Aashirvaad is required for the validity of a Parsi marriage, it is also thought of as a contract. Aashirvaad’s true meaning is blessing. It is a prayer or a divine command to the Parties to faithfully uphold their marital duties. The two genders are treated equally in Parsi. According to Parsi law, both the husband and the wife have equal rights and remedies. According to Parsi law, Section 3 of the 1936 Parsi marriage and divorce Act specifies the prerequisites for a valid marriage.

Inheritance

(i)The widow receives 1/3 of the estate, and the remaining 2/3 passes to the lineal descendants if the dead left any children or remote issue, also known as lineal descendants.
(ii)The widow receives one half, while the other half is given to the kindred if the dead left no lineal descendants but just a father, mother, other kindred, etc. If there are no related, however, the widow inherits the entire inheritance.
(iii)If the intestate has no widow, his property will be distributed in accordance with the ratios outlined in Sections 41 to 48 of the Succession Act, first to his lineal descendants and then, in the absence of lineal descendants, to his kindred.
(iii) The courts have ruled that an adopted child is presumed to have all the rights of succession afforded to a natural-born child9 even if Indian law does not expressly recognise adoption by Christians.
(v) A posthumous kid has the same legal status as if he had been alive at the time of the intestate’s passing.

Distribution in cases where there are lineal descendants: Sections 37 to 40 of the Succession Act specify the procedures to be followed when an intestate dies leaving behind lineal offspring, after taking into account the share of any widows that may have been left behind.

When an intestate dies without leaving behind children or other direct lineal descendants, the rules of distribution are outlined in Sections 42 to 48 of the Succession Act and are as follows in order of priority.
The Parsi intestacy laws, which are outlined in Part V Chapter III of the Act, govern Parsis.
According to sections 51–56 of the Act, the assets of a Parsi intestate are divided among his heirs. Fundamental guidelines for intestate succession .

Indian succession Act , 1925

The British Parliament felt that the law of succession needed to be consolidated due to its extreme dispersion. The Indian Succession Act of 1925 was passed by the British legislature in response to this necessity. The Hindu Succession Act of 1956 governs succession among Hindus. As a result, for successional reasons, the Act 1925 applies to Christians in general. The primary function of Act 1925 is consolidation. The purpose of this Act from 1925 was to codify the legislation governing both intestate and testamentary succession.
As a consolidating statute, this Act supplanted numerous enactments14 that dealt with intestate and testamentary succession at the time, notably the Indian Succession Act of 1865. There are 11 parts, 391 sections, and 7 schedules in the Act.

Intestate Succession Act

Christians’ intestate property passes to their heirs in the manner and in accordance with the laws outlined in Chapter II, Part V of the Succession Act. The following are some of the key devolutionary principles:
(i)The widow receives 1/3 of the estate, and the remaining 2/3 passes to the lineal descendants if the dead left any children or remote issue, also known as lineal descendants. The widow receives one half of the estate, and the other half is given to the kindred if the dead left no lineal descendants but merely a father, mother, other relatives, etc. If there are no related, however, the widow inherits the entire inheritance.
(ii)In the event that the intestate leaves no widow, his property will be distributed inaccordance with the ratios outlined in Sections 41 to 48 of the Succession Act, first to his lineal descendants and then, in the absence of lineal descendants, to his kindred.
(iii)The courts have ruled that an adopted child is presumed to have all the rights of succession accorded to a natural-born child9 even if Indian law does not expressly recognise adoption by Christians.
(iv) A posthumous kid has the same legal status as if he had been alive at the time of the intestate’s passing.

Reference

1 . Family Law Lectures: Family Law II Book by Poonam Pradhan Saxena
2 . https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf
3 . https://www.indiacode.nic.in/bitstream/123456789/2303/1/A1937-26.pdf
4 . https://www.legalbites.in/study-material
5 . http://lawfaculty.du.ac.in/files/course_material/I_Term/LB-%20105%20Family%20Law%20I%20.pdf

Author: Harsh Srivastava,
Second Year Law Student /The University of Petroleum & Energy Studies