Personal Law

Indian law on matters pertaining to marriage, divorce and succession are governed by personal laws. In Muslim matrimonial mattesr, the laws on a Muslim woman's right to maintenance are clearly laid down. In August 2010, the Delhi High Court ruled that a Muslim man is liable to pay maintenance, to his ex-wife and minor children, until she remarries. Further, the court held that a divorced Muslim woman is entitled to maintenance under the Criminal Procedure Code. The court further said that this is applicable regardless of the provisions of the Muslim law. Muslim law also provides that a person is liable to pay maintenance to his divorced wife, only for the Iddat period (nearly 3 months after dissolution of the marriage).

Domestic violence is a serious issue faced by several Indian women. Indian women are known to tolerate it in silence because they want to protect family honor and endure it for the sake of their children. However, Indian law recognizes cruelty as a major ground for divorce.

The 2001 official census reports state that the Parsi community forms 0.006% of India’s total population, with relatively high concentration in Mumbai. A few facts about the Parsis that you probably know already – they are followers of Zoroastrianism. The Parsis in India are believed to be the descendents of Iranian Zoroastrians, who migrated to India during the 10^th century A.D. The Constitution of India allows the Parsis, as all others, to practice their religion freely. Article 25 of the Constitution of India guarantees the right to freedom of religion, under which all of us, as Indian citizens, enjoy the same freedom too.

There are several inconsistencies in Indian law, regarding the definition of a child and the actual scope of child rights. As per criminal law in India, a child is a minor who is below the age of 18 years. The Age of Majority Act 1875 stipulates that an Indian citizen shall attain adulthood, only on attaining the age of 18 years, unless otherwise suggested by any personal law. This Act intends to bring uniformity in the applicability of various Indian laws to people of different religions.

As per India legal news reports, the Madras High Court has held that the courts in the country have jurisdiction to address matrimonial cases, which involve Hindus and are governed by the Hindu Marriage Act, including those cases where the opposite party is a foreign citizen, residing outside India.

The Women (Protection of Rights on Divorce) Act, 1986, was enacted with an objective, namely to protect the rights of divorced Muslim women. The Act, entitles a divorced Muslim woman, to claim maintenance from her ex-husband. Further, it provides that the husband is obliged to provide maintenance within the period of iddat (waiting period imposed upon a Muslim woman, after dissolution of her marriage). However, the obligation is not restricted to the period of iddat. Also, the Act provides that in case her husband fails to provide maintenance, she can approach the Wakf Board for the same.

Indian laws do not recognize a de facto guardian as the minor’s legal guardian. When a minor has no legal guardian, usually a close relative takes care of him and his property. Such a person is known as de facto guardian, who is not a lawful guardian. However, a de facto guardian shall be also the de facto manager of the minor’s property. He may apply for legal guardianship, in court under the Guardian and Wards Act.

The right of pre-emption or Shuffa, is a preferential right as it implies ‘to become the buyer of an immovable property.’ The principle of pre-emption was developed under the Muslim law, to prevent a stranger from becoming a co-owner of the property, which may cause inconvenience. The right of pre-emption arises only when a complete sale takes place.

India has always boasted of having a patriarchal society. Most festivals of India celebrate the importance of the male as the head of the family through elaborate customs and festivals. For example, Bengal’s Jamaishoshti festival celebrates the son-in-law. The North Indian festival called the Karva Chauth requires the wife to hold fast for the long life of her husband on that day. Male centric customs and festivals have always been a part of Indian life, mirroring the special social status given to men. Unfortunately, these male-focused customs also paved the way for the practice of demanding dowry on behalf of the male. Indian law treats it as an offence to give or receive dowry but it is practiced openly in the society.

Hindu law pertains to issues affecting Hindus at large, such as marriage, divorce, adoption, and succession. Section 27 of the Hindu Marriage Act, 1955, provides for disposal of property at the time of dissolution of marriage. According to this section, the court can make such provisions in the ruling/order as it required with respect to any property that may have been gifted, at or about the time of marriage, which belongs jointly to both the husband and the wife.