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School of Law
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E-Notes
Class : BALLB/BBALLB
Paper Code : LLB 201 Subject : Family Law- I Faculty Name : Anubha Jain
Unit- 1
The ancient human society was nomadic society. There was only perhaps a herd- instinct type of marital relationship before the dawn of civilization .With the passage of time, the nomadic human beings evolved into an agricultural society. Then, it was essential to know or ascertain the paternity of the children. So as long as the sex relationship remained unregulated .It was maternity alone which could be know, paternity remained unregulated. It is logical to say that at some stage of human development the necessity arouse for demarcating human possession and ownership of material belongings as a natural consequence of human and the males seized to the idea of knowing there children. This was not possible if the proximity continues to be the rule. If sex relationship could be made exclusive union of man and women only then it was possible to define the paternity. Thus, it seems the man’s quest to know the paternity of children lie the seed of institution of marriage. The concept of marriage – a sort of man women relationship, a responsible union of one to one in a society evolved a unique family system. It’s essential components were living together, procreation of children and intercourse .Mutual obligations and responsibility to care the off springs.
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) The traditional Hindu family was an institution of joint family system characterized by homogenous togetherness. That of parents, grandparents, sons, daughters, there spouses and even there uncle and aunts. There was a distinct family identity with each member knowing his or her roots. the institution of marriage gives respectability to women, enhances their personal happiness and welfare, provides family support and companionship. Conjugal fidelity was supremely practiced in a sacramental form. Whereas, in muslim, parsi, jew marriage is considered as a contract more than a sacramental bond. It is a contract made for continuing of generations, giving birth and rearing the children. Types of Marriage Polygyny Polygyny is a form of marriage in which one man marries more than one woman at a given time. It was in practice in most of the ancient civilizations. It prevailed among the ancient Herbrews, Assyrians, Babylonians, Indians and others. At present, it is widespread among primitive tribes but usually it is confined to the wealthier class. It is in practice among the Eskimo tribes, Crow Indians, African Negroes, the Nagas, Gonds and Baigas of India. However, it is permitted in the Muslim community. Types of Polygyny It is of two types namely: ➢ Sororal Polygyny: It is a type in which the wives are invariably the sisters. It is often called ‘sororate’. The Latin word ‘Soror’ stands for sister. When several sisters are simultaneously or potentially the spouses of the same man, the practice is called the sororate. ➢ Non- Sororal Polygyny: As the term suggests, it is a type of marriage in which the spouses are not related as sisters.
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) given time. It is practised among the Tibetans, Marquesan Islanders of Polynesia, the Bahama of Africa, the tribal’s of Samoa and others. In India, the tribe’s such as Tiyan, the Toda, the kota, the Khasa and Ladhaki Bota also practice polyandry. The Nairs of Kerala were polyandrous previously. It is however relatively a rare type of marriage and is generally an improvised adjustment to certain peculiar and extreme conditions. Types of polyandry Polyandry may take two forms namely: ➢ Fraternal Polyandry: In this form one wife is regarded as the wife of brothers who have sexual relations with her. It is also known as alelphic polyandry. The children are treated as the offspring of the elder brother. This practice of being mate, actual or potential, to one’s husband’s brother is called “levirate.” It is prevalent among the Todas. ➢ Non-fraternal polyandry: In this type, the husbands need not have any close relationship prior to marriage. The wife goes to spend some time with each husband. So long as a woman lives with one of her husbands, the others have no claims over her. Nair polyandry was one of these types. If a child I born out of such relationship, then any husband is chosen its social parent by a special ritual. Causes of Polyandry No universal generalisations can be made with regards to the causes of polyandry. Still factors which cause polyandry are: ➢ Lesser number of Women: According to Westermark, when the number of women is lesser than the number of males in a society, polyandry is found, for example among the Todas of Nilgiri that was the reason for this form of marriage. ➢ Poverty: Polyandry has developed in areas where there was scarcity of natural resources so that many men may support one woman and her children.
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) ➢ Bride Price: When in a society, bride price is high on account of the lesser number of women, polyandry develops. ➢ Backwardness: Generally, polyandry is found in such areas as are situate far away from the centres of culture and progress. ➢ Joint family: the spirit of joint family gets strengthened when several brothers marry the same woman. So, polyandry is generally considered an obstacle in the way of social progress. It causes harm to married life and creates several other psychological problems. It is on this account that polyandry has come to an end in those societies also wherein it once prevailed. Monogamy Monogamy is the form of marriage in which one man marries one woman at a given time. This is the most widespread form of marriage found among the primitives as well as the civilised people and is the leading form of marriage. Itproduces the highest type of affection and sincere devotion. According to Malinowski “Monogamy is, has been, and will remain the only true type of marriage.” It is practised among the tribals such as the Kadars, the Santals, theKhasis, the Canella, the Hopi, the Iroquois, the Andaman Islanders and few others. Monogamy has a long history of its own. Westermarck is of the opinion that monogamy is as old as humanity. Ancient Greek philosopher Aristotle had recommended only monogamous marriage. Ancient Hindus regarded monogamy as the most ideal form of marriage. Advantages Monogamy seems to be superior to other forms of marriage. It enjoys certain merits over other forms and these merits are now well recognised. Some of them are: ➢ Universally Practicable: Since there is one-to-one ratio in almost all the
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) Marriage as we know is a very important social institution. That is why no society allows a couple quietly to pair off and start living as husband and wife. Marriage brings a number of obligations and privileges affecting many people. Every society has, therefore, developed a pattern for guiding marriages. So for marriage the most important step is the choice of mates. Though there are no standard laid down for choosing a partner yet from time to time rules have been made to regulate the selection of mates. Exogamy In every human society there are certain regulations which control the relation of the sexes and the selection of a mate. Intercourse between close blood-relations as brother and sister, father and daughter, and mother and son, is almost everywhere condemned. But among very many tribes it is forbidden both on grounds of consanguinity and because two individuals are members of the same social group. This prohibition, based upon common membership of a social group, is the law of exogamy. If the group is a territorial unit, e.g., a village, the exogamy is local. More commonly, membership of the group concerned is determined by kinship, real or fictitious, as in the clan. Hence exogamy is often loosely used to indicate clan exogamy. That exogamy prevents the marriage of all near relatives is true only if membership of the exogamous group is determined by descent reckoned through both parents, but this is very rare. Normally descent is traced through only one parent and it is therefore inevitable that certain close blood-relations will not belong to the same group and will therefore be possible mates for each other. Thus if a tribe is patrilineal a man can select wives from among his mother’s sisters, her brother’s daughters and her brother’s son’s daughters, and, were exogamy the only marriage prohibition, even his mother would be available to him. On the other hand, clan exogamy does prevent unions between people bearing no relationship to each other, since membership of a clan is dependent upon fictive, not blood relationship.
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) The rigidity with which the law of exogamy is observed varies considerably. Among some people a breach of it is regarded as incest; among others, though marriage is forbidden, extra- marital relations between clan members are tolerated; while in some cases even marriage can be condoned. McLennan, who first coined the word, regarded it as the outcome of female infanticide which, by limiting the number of women available within the group, forced tribesmen to capture their wives from their neighbours, but increased knowledge of the facts has made this theory untenable. Another suggestion is that the horror of incest, supposedly innate, has extended to all those women whom, under the classificatory system of relationship, a man addresses by the term for “sister.” On another view the original form was local exogamy arising from a natural distaste on the part of those who have been reared together to cohabit. Others believe it originated with Totemism while the diffusionists consider that it developed under special conditions in one place and spread thence throughout the world. Forms of Exogamy ➢ Gotra Exogamy: Among the Hindus the prevailing practice is to marry outside the ‘gotra’. People who marry within the ‘gotra’ have to repent and treat the woman as a sister or mother. The offspring resulting from her is believed to be heathen. This restriction has been imposed since people of same ‘gotra’ are believed to have similar blood. ➢ Pravar Exogamy: Besides forbidding marriage within the gotra, the Brahmins also forbid marriage between persons belonging to the same pravar. People who utter the name of a common saint at religious functions are believed to be of the same pravar. Thus, pravar is kind of religious and spiritual bond. ➢ Village Exogamy: Among many Indian tribes there is the recognised custom to marry outside the village. This restriction is prevalent in the Munda and other tribes of Chhota Nagpur of Madhya Pradesh. Among some tribes of Baroda, marriage is forbidden within the village since the residents of same village are considered as relatives.
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) ➢ Sub-Caste Endogamy: this is the endogamy in which choice for marriage is restricted to the sub-caste. ➢ Race Endogamy: Race endogamy is that in which one can marry in the race. People of the Veddah race never marry outside their race. Advantages ➢ Preserves the group’s homogeneity. ➢ Protects its prestige and status. ➢ Maintains the numerical force of its group. ➢ Preserves the purity in the group. ➢ Keeps women happier. ➢ Fosters the sense of unity within the group. ➢ Keeps property within the group. Disadvantages ➢ Endogamy shatters the national unity, because the nation is divided into small endogamous groups. ➢ The scope of choice of a life partner is limited due to which malpractices such as unsuitable marriage, polygamy, dowry system, bride price etc. are fostered. ➢ It generates hatred and jealousy for other groups. This is the main cause at the root of casteism in India.Thus, Endogamy as a rule of marriage has both its advantages and disadvantages. But due to its disadvantages, endogamy is condemned. The modern civilised people are more in favour of exogamy than endogamy. Hindu Marriage The institution of Hindu marriage occupies a prominent place in the social institutions of the civilised world. Hindu marriage can be defined as religious sacrament in which a man and
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) woman are bound in permanent relationship for physical, social and spiritual purposes of dharma, procreation and sexual pleasure. Thus, Hindu marriage is not merely a social contract but a religious sacrament. It results in more or less permanent relationship between a man and woman. Its aim is not merely physical pleasure but spiritual advancement. It is not merely an individual function but has social importance. Its ideals are fulfilment of Dharma, procreation and enjoyment of sexual pleasure. It exhibits an integral approach to this social institution. Aims of the Hindu Marriage ➢ Fulfilment of Dharma or religious duties: According to the Hindu scriptures marriage is the basis of all religious activities. In the words of K.M. Kapadia “marriage being thus primarily for the fulfilment of duties, the basic aim of marriage was Dharma.”According to Mahabharata, “wife is very source of the Purusharthas , not only of Dharma, Artha and Kama but even of Moksha. Those that have wives can fulfil their due obligations in this world; those that have wives can be happy, and those that have wives can lead a full life.” ➢ Procreation: In the Hindu family, the child is given a very important place. According to Rigveda, the husband accepts the palm of the wife in order to get a high breed progeny. According to Manu, the chief aim of marriage is procreation. ➢ Sexual Pleasure: According to Manu, marriage is a asocial institution for the regulation of proper relation between the sexes.The Hindu scriptures have compared the sexual pleasure with the realization of divine bliss. According to Vatsyayan sexual pleasure is the chief aim of the marriage. A maiden who has attained youth should herself get married without waiting for the assistance of elders. Conditions for a Hindu Marriage A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) ➢ Provision for the Guardianship of the Mother: According to this act, the mother will be considered as the legal guardian of the minor son or daughter after the father. ➢ Provision for Divorce: This act provides for divorce by wife or husband under certain specific circumstances. Special Marriage Act, 1954 Section 4 of the Special Marriage Act 1954 lays down conditions for solemnization of special marriages. It states: Chanderprabhu Jain College of Higher Studies & School of Law An ISO 9001:2008 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) Conditions relating to solemnization of special marriages. – A marriage between any two persons may be solemnized under this Act, if at the time of marriage the following conditions are fulfilled, namely: ➢ Neither party has a spouse living; ➢ Neither party-Is incapable of giving a valid consent to it in consequence of unsoundness of mind; or ➢ Though incapable of giving a valid consent, has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or Has been subject to recurrent attacks of insanity; ➢ The male has completed the age of twenty-one years and the female the age of eighteen years; ➢ The parties are not within the degrees of prohibited relationship; ➢ Where the marriage is solemnized in the state of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) extends. Important Rites in the Hindu marriage Among the Hindus there are certain rites which must be performed for marriage to be complete. These rites and the importance attached to them have added to the sanctity of the Hindu marriage. The main rites are: ➢ Vagdana (Oral Promise): In the presence of the people gathered for the marriage the names, gotras and pravaras of the bride and the bridegroom are announced along with the announcement that they are ready for the marriage. The ritual is known as “PanigrahanaSankalpa” or Vagdana. ➢ Homa: ‘Homa’ refers to the offering in the sacred fire. A number of ‘homas’ or fire rituals are observed in the marriage of which “LajaHoma” is an important one. This ‘homa’ is symbolic of fecundity and prosperity. Fred grains dipped in ghee are offered to fire [that is lord Agni] by the couple with a prayer to the God requesting him to bless them with progeny and prosperity. ➢ Kanyadaana: This is the most important ceremony connected with marriage. It is the ceremony of giving away the bride as a gift to the bridegroom in presence of the sacred fire and in the presence of the people gathered. The father of the bride gifts her away to the bridegroom with a promise on his part that he would not transgress her “in the attainment of piety, wealth and desire”. The same promise is repeated thrice and the bridegroom affirms his promise thrice. ➢ Panigrahana(Holding the Hand of the Bride): This ritual refers to taking the right hand of the bride with the words: “I seize thy hand for the sake of happiness that you may live to old age with me...” With this the bridegroom takes the responsibility of looking after the bride. ➢ MangalayaDharana(Tying of the Tali or Mangalasutra): This involves the act of tying the tali or mangalasutra(which is regarded as the sign of longevity of the husband) round the neck of the bride by the bridegroom. This ritual for which there is no reference in the Dharmashastras is more in practice in South India than in North India.
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) marriage: Ancient Hindu tradition forbids the marriage of persons belonging to same Gotra and Pravar. This very much restricts the field of choice of mate. Therefore, at the present the educated persons are gradually violating the restriction. It has been also rejected by law.
- Opposition of Child Marriages: In medieval India the custom of child marriage was very much in vogue. After the passing of Sarada Act child marriages have become illegal. Another factor leading to the restriction of child marriage in Hindu society is the tremendous increase of women education. The boys do not marry early because of late settlement in career.
- Permission of Inter-caste Marriage: Formerly, inter-caste marriage was considered to be wrong in the Hindu society. It has now been legally permitted. With the increase of co-education, women education and the democratic ideal of equality and liberty, inter-caste marriages are now considered to be signs of forwardness.
- Permission of Widow Remarriage: due to the untiring efforts of the social reformers and educated persons widow remarriage is no more considered to be wrong in Hindu society. Consequently, its incidence is now on the decrease.
- Prohibition of Polygamy: Formerly, a man was allowed to marry several women in order to get a son. With the increase of women education the ladies are demanding equal rights in marriage. The Hindu Marriage Act of 1955 has declared polygamy to be illegal. No one can marry a second time, while the former spouse is alive.
- Provision for Divorce: The Hindu Marriage Act of 1955 has introduced a significant change in the institution of Hindu marriage by permitting divorce under certain specific circumstances. Problems of Marriage Following are the main problems faced by the institution of Hindu marriage:
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)
- Child marriage: The problem of child marriage was very serious in Hindu society till the passing of Sarada Act. The reasons behind the child marriages in Hindu society were religious conservatism, endogamy, sati-custom, the custom of dowry and the joint family. The Hindu marriage act of 1955 has fixed the valid age for marriage of the boys and girls at 18 and 15 respectively. These legal steps could not work immediately because of the widespread conservatism among Hindus, incompleteness of Prohibitive Act and the absence of female education. With the removal of these difficulties in the way of restraint of child marriages, this problem has appreciably diminished in Hindu society.
- Widow Remarriage: About the condition of widow remarriage in ancient India, A.S.Aletkar has written, “side by side with Niyoga, the widow remarriage also prevailed in the Vedic society.”[57] The custom of widow remarriage, however, disappeared gradually and it was considered to be wrong as early as 200 AD. The restriction of widow remarriage resulted in the increase of immorality among widows, sexual exploitation of child widows, increase of prostitutes and the lowering of general status of women in the Hindu society. Then due to the untiring efforts of IshwarchandraVidyasagar the Hindu Widows Remarriage Act was passed in the year of 1856 which declared the legal validity of widow remarriage and laid specific circumstances for its validity.
- Dowry: According to Max Radin, “ordinarily dowry is the property which a man receives when he marries, either from his wife or her family.” The Websters New International Dictionary has defined dowry as, “the money, goods or estate, which a woman brings to her husband in marriage.” In brief, dowry is that money, property or valuables which the bride party has to give to the bride-groom party in exchange of marriage. Some persons have pointed out to some so- called advantages of the dowry system. They have maintained that it helps in the establishment of the new house-hold of the newly married couple and that the lure of dowry helps in marriage
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) ➢ has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot be reasonably expected to live with the respondent. ➢ has been suffering from a virulent and incurable form of leprosy; or ➢ has been suffering from venereal disease in a communicable form; or ➢ has renounced the world by entering any religious order; or ➢ has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive. (1A) either party to a marriage whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- ➢ that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or ➢ That there has been no restitution of conjugal rights in a proceeding to which they were parties. (2.) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-s ➢ In the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner. Provided that in either case the other wife is alive at the time of the presentation of the petition, or
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An ISO 9001:2015 Certified Quality Institute (Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi) ➢ that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or ➢ that in a suit under section 18 of the Hindu Adoption and Maintenance Act 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure 1973(2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure Code 1898) (5 of
- a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; ➢ that her marriage(whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before the age of eighteen years. Special Marriage Act, 1954 The divorce provision under the Special Marriage Act 1954, is contained in Section 27, which is as follows: (1.) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or thee wife on the ground that the respondent- ➢ has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or ➢ has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or ➢ is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code(45 of 1860);
