Expertise // Family Law
India is a secular nation where many religions exist. The major religions in practice include Hinduism, Islam, and Christianity. People solemnize weddings following religious rituals and ceremonies, which are often codified by statutory Personal Laws. Hence, the family laws prevalent in India, including laws on marriage, divorce, and other connected matters, are primarily governed by the personal laws of the individuals depending on their religion, which are codified by statute in most cases:
India is a secular nation where many religions exist. The major religions in practice include Hinduism, Islam, and Christianity. People solemnize weddings following religious rituals and ceremonies, which are often codified by statutory Personal Laws. Hence, the family laws prevalent in India, including laws on marriage, divorce, and other connected matters, are primarily governed by the personal laws of the individuals depending on their religion, which are codified by statute in most cases:
Besides, the Special Marriage Act 1954 applies to all persons of all religions. It is civil legislation, and individuals from all religions, caste, or community can choose to marry under it. A divorce would then be governed by the Special Marriage Act 1954.
All these laws apply throughout India.
Personal laws governing marriage contain provisions to guarantee the welfare of children born in wedlock. There is a general law, the Guardian and Wards Act 1890, which pertains 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.
The Family Court Act 1984 provides for the establishment of Family Courts to promote conciliation and secure speedy redressal of disputes relating to marriage and family, and for matters connected with them. The Family Courts hear disputes 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
All Indian marital statutes include jurisdictional rules. Two matters are relevant regarding jurisdiction:
Whether a court has jurisdiction depends on the:
Jurisdictional conditions are the same under the Hindu Marriage Act 1955 and the Special Marriage Act 1954. A divorce petition can be presented to the district court within the local limits of whose original civil jurisdiction the:
The applicability of the Special Marriage Act is not limited to Indians and foreign nationals who can marry under the Act. The parties need not be domiciled in India to solemnize their marriage under the Special Marriage Act.
Under the Indian Divorce Act 1869, a petition in a matrimonial cause can be presented in the court of the district judge within the local limits of whose ordinary jurisdiction either the:
Where a number of courts have jurisdiction, a party to the dispute can choose one of them. Where a court’s jurisdiction is questioned, preference is commonly given to factors that support its jurisdiction.
Same-sex spouses and civil partners
Same-sex marriages and civil unions are not legally recognized in India.
There is no notion of matrimonial property or assets under Indian law. A woman can generally claim maintenance and not a right over the property/house in which she resides. A wife can claim the “right to reside” in her matrimonial home under the Protection of Women from Domestic Violence Act 2005. Cases under this Act can be filed in the court of the place where the aggrieved woman resides.
Disputes over children are adjudged by the courts with the closest communication with the child. Therefore, the court of the place where the child resides will assume jurisdiction for any disputes over custody and other children-related issues
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