The changes to Family Law in past 20 years: a review of important reasons and implications
Abstract:
The family is a unity of interacting persons related by ties of marriage, birth or adoption, whose central purpose is to create and maintain a common culture which promotes the physical, mental, emotional and social development of each of its members. – –Duval
A family is a set of human beings who are related to each other in a non professional manner.in order to share the love, care, traditions, norms and so on. In order to protect these customs and culture, the constitution has provided a uniform civil law i.e., family law. But these cultures and traditions have taken a modern form. This article discusses the changes in family laws in the past years, their reasons and implementation.
Introduction:
India has a rich culture with regards to the family and its norms. India inherited a system of family law which is defined as the, “set of rules that are in practice regarding family matters like marriage, inheritance, divorce, etc. They are some legally enforceable rights and responsibilities that arise when one gives legal validation to the status of interpersonal relationships.”[1] There are different communities of religion which are governed by their own laws and administered by common state courts.
The constitution of India provided the State to adopt a uniform civil code to govern the citizens of the country. Hindu law is one of them, which was codified in the 1950s, to recast Hindu marriage and related laws in order to incorporate the elements of marriage such as a minimum age of marriage, monogamy, consent of the parties, divorce and so on. Similarly, for Muslims, the Muslim Personal Law (Shariat) Application Act, 1937[2] is there in order to corporate these elements.
These elements have changed in the past years. The main reason behind these changes is the promotion of equality between men and women in the legal regulation of family life. These changes brought so many amendments in various areas of laws. Some of them are discussed below.
Changes in Marriage laws in India:
From very early times marriage was viewed as a sacrament under Hindu Law. It is an institution which involves many religious rituals which strengthen the system of the family. It provides a foundation on which the whole superstructure of prosperity and civilization is built.
Marriage is defined as,“ legal status, condition, or relation of one man and one woman United in law for life, or until divorced, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.”[3] But nowadays the meaning of this pure relationship has changed drastically.
The developing pattern in Indian society brings so many changes in various elements like minimum age of marriage, divorce, inheritance right in property and so on. There are positive as well as negative reasons due to which these changes have emerged. Negative reasons like increase in the rate of exploitation, child marriage, etc. And positive reasons are increasing awareness among women, better education facilities and so on.
This changing pattern brings some of the biggest amendments that have changed the history of India. Some of these elements are explained below.
Also Read: The uncertain legal framework of sex workers in India
- Valid age of marriage:
The practice of child marriage is one of the oldest issue in Indian society. The factors that effectuate child marriage are social norms, illiteracy, considering women as a financial burden and so on. In 1929, the British government enacted the Child Marriage Restraint Act (also known as the Sarda Act),[4] that raised the minimum age of marriage as 14 for girls and 18 for boys. But this act was an epic fail and was hardly implemented.
This Act was amended in 1978 and increased the age of girls to get married from 16 to 18 years, which was held in the case of Sushila Gothala V. State of Rajasthan.[5] In 2006, the legislation replaced the Act of 1978 to Prohibition of Child Marriage Act.[6] This act provided a provision which punished the parents and priests who get involved in child marriage. But the problem didn’t stop here. According to a report by UNICEF, between 2005- 2013, India has the second highest number of child marriage with 43% of women aged between 20 to 24 were married before the age of 18.[7]
Now, the government is planning to revise the age of marriage of girls from 18 to 21 in order to promote equality. A Public Interest Litigation (PIL) was filed in Delhi High Court in 2019, where the petitioner filed a petition by challenging the law on the ground of discrimination as the difference in age of marriage violates the Article 14[8] and article 21 of Indian Constitution.[9]
Changing pattern of divorce:
Divorce or dissolution of marriage is the process of terminating a marriage or marital union.[10] It can be defined as “the process of cancelling the legal duties and responsibilities of spouses in a marriage.[11]” Recently, India has faced a big controversy over triple talaq.
- Triple Talaq:
Islam was the only religion who recognized divorce or talaq as a medium to dissolve the marriage. Talaq is an Arabic word which means to “release”. One of the most controversial divorce in Muslim law is Talaaq-e-biddat which is popularly known as Triple Talaaq. In Muslim law, triple talaq is defined as “liberty from the relationship of marriage, eventually or immediately, where the man, by simply uttering the word ‘talaq’ three times, ends his marriage.”[12] This practice was legalized by the. Muslim Personal Law (Shariat) Application Act of 1937.[13]
But, in 2017, in Shayara Bano V. Union of India & ors.[14]case, triple talaq was declared as unconstitutional by the apex Court. In 2019, the Muslim Women (Protection of Rights on Marriage) Bill,[15] was passed by the Parliament of India. This Bill intends to protect the rights of Muslim women and protect them from instant divorce by prohibiting this practice of divorce by uttering three time talaq by their husband. Now, whoever violates this right of women and commits the offense shall be punishable with up to three years of imprisonment. The Bill also laid down provisions related to the maintenance and custody of children.
- Adultery as a ground of divorce:
Adultery is derived from a French word, i.e., adulterous, which means “to corrupt.”[16] It was treated as a crime since last 158 years, but in 2018, the Supreme Court in Joseph Shine V. Union of India,[17]struck down Section 497 of IPC[18] and decriminalized adultery. Now, it could be a ground of divorce or judicial separation only in civil matters and not as a criminal offense defined in Section 13 (1)[19] and Section 10 of Hindu Marriage Act, 1955.[20]
Women’s right in coparcenary property in Hindu law:
In 1956, the Hindu Succession Act[21] came into existence in order to deal with the succession of ancestral properties in relation to the Hindu law. But this Act was amended on 9th September, 2005, because this Act violated the Fundamental rights of equality guaranteed in Article 14 of the Indian Constitution[22] as it didn’t provide any right to women in ancestral property, because of the ideology that, they will be a part of their husbands family, so they must not be considered as a legal coparcener.
But the Hindu Succession (Amendment) Act, 2005[23] came into existence and provides a right to women to acquire the ancestral property equal to mail coparceners. But there was a confusion as to what extent a daughter has rights in the coparcenary property.
In the case of Prakash & ors. V. Phulavati,[24] The Supreme Court stated that, “the rights of the coparceners under this act of 2005 apply to the living daughter of the living coparceners as on 9th September,2005”. It means a daughter whose father has passed away before that date, cannot claim any right in coparcenary property.
In case of Danamma v. Amar Singh,[25] The Supreme Court held that if the father has passed away before that date and a prior suit has been pending for partition by a male coparcener, then the female coparcener is entitled to get a share in the property.
In case of Vineeta Sharma V. Rakesh Sharma & ors.,[26] The Hon’ble Supreme Court held that section 6 of Amendment Act of 2005 shall be applied retroactively and women have an equal right in coparcenary property as of men
Conclusion:
Indian society is adjusting to modernization. With changing times, Indian family structure, functions and traditional norms have changed and due to which the legal provisions related to family have also changed. The main motive behind this change is to promote equality or remove discrimination by giving equal rights to both males and females. Some new provisions have changed the history of India, but this is not enough.
There are some areas in Indian society where they treat women as their slaves and women are not aware of their basic rights, because of lack of proper education facilities. The legislature should make such provisions that remove the discrimination completely.
This article is written by Miss. Chesta Bamel, a 6th semester, BA LLB student, studying at Lloyd Law College, Greater Noida which is affiliated with Chaudhary Charan Singh University, Merut.
-Edited by Rudraksi Sharma
(Editor, The Legal State)
[1] Sylvine in General, The Must-know Family Law Summary (2016)
[2] Muslim Personal Law (Shariat) Application Act, 1937
[3] Black’s Law Dictionary ( 9th ed.2009) available at Westlaw BLACKS
[4] Child Marriage Act, 1929
[5] Sushila Gothala V. State of Rajasthan, AIR 1995, DMC 198, 1995
[6] Prohibition of Child Marriage Act, 2006 ( India)
[7] http://www.unicef.in/Itstartwithme/childmarriage
[8] INDIA CONST. art. 14
[9] INDIA CONST. art. 21
[10] Vidhikarya, How to Get Divorce in India, Legal Service India. http://www.legalserviceindia.com/legal/article-711-how-to-get-divorce-in-india.html
[11] Kiruthika Dhanapal, Annulment of Marriage under Hindu law, LegalserviceIndia. http://www.legalservicesindia.com/article/1700/Annulment-of-Marriage-under-Hindu-Law.html
[12] What is Triple Talaq Law, Business Standard. https://wap-business–standard-com.cdn.ampproject.org/v/s/wap.business-standard.com/amp/about/what-is-triple-talaq-law?amp_js_v=a6&_gsa=1&usqp=mq331AQHKAFQArABIA%3D%3D#aoh=16104313488665&referrer=https%3A%2F%2Fwww.google.com&_tf=From%20%251%24s&share=https%3A%2F%2Fwww.business-standard.com%2Fabout%2Fwhat-is-triple-talaq-law
[13] Muslim Personal (Shariat) Application Act, 1937
[14] Shayara Bano V. Union of India (2017) 9 SCC 1
[15] Muslim Women (Protection of Rights on Marriage) Bill, 2019, Bill no. 20 of 2019 (31st July, 2019)
[16] https://www.scconline.com/blog/post/2019/02/2s-497-ipc-and-s-1982-crpc
[17] Joseph Shine V. Union of India, 2018 SC 1676
[18] Indian Pen. Code. § 497
[19] Hindu Marriage Act, 1955 § 13 (1)
[20] Hindu Marriage Act, 1955 § 10
[21] Hindu Succession Act, 1956
[22] INDIA CONST. art. 14
[23] Hindu Succession (Amendment) Act, 2006, Acts of Parliament, 2006 ( India)
[24] Prakash & ors. V. Phulavati & ors., (2016) 2 SCC 36
[25] Danamma V. Amar Singh, (2018) 3 SCC 343
[26] Vineeta Sharma V. Rakesh Sharma (2019) 6 SC 162