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At Zolvit, our experienced family lawyers provide client representation and support in important matters such as divorce, child custody, alimony, property settlements, and adoption. Whether you're going through a divorce, seeking custody, or guiding a custody dispute, our family law experts are here to guide you through the legal process. We offer personalised advice, mediation services, and strong representation in court to help you achieve the best possible outcome for your family. Family law, also known as matrimonial law, addresses issues related to divorce, child custody, child support, paternity, alimony, legal separation, guardianship, adoption, prenuptial agreements, domestic violence, and dowry disputes. In India, family law is a complex blend of personal laws based on religious customs, as well as statutory laws approved by Parliament. It encompasses various legal frameworks such as Hindu law, Muslim law, Christian law, Parsi law, and the Special Marriage Act of 1954. At Zolvit, we understand the sensitive nature of family legal matters and are dedicated to providing compassionate and effective legal support to ensure the best outcome for you and your loved ones.
Hindu Marriage Act, 1955
The Hindu Marriage Act was established in the year 1955, its main purpose was to amend and codify the law of marriage among Hindus and others. Though amending and codifying Sastrik Law it has also retained separation and divorce, which also exist in Sastrik Law. This legislation brought uniformity of law for all sections of Hindus. In India, there are religion-specific civil codes that individually control adherents of certain other religions. This law also applies to Hindus, Buddhists, Jains, and Sikhs. It sets the legal age for marriage at 18 for women and 21 for men. it allows for divorce on grounds such as cruelty, desertion, adultery, and mental illness. and provides for both mutual consent and contested divorce.
Special Marriage Act, 1954
This act was passed in the year 1954 with the provision for civil marriage for people of India and all Indian nationals in foreign countries irrespective of religion or faith followed by other parties. It allows for civil marriages and inter-religious marriages. It requires a 30-day public notice before marriage registration. It needs to provide for divorce on grounds similar to those in the Hindu Marriage Act, including mutual consent divorce. it has to facilitates registration of marriages that may not be recognized under personal laws.
The Special Marriage Act, of 1954 was replaced by the old Act III, 1872 new enactment had three major objectives:
1. To provide a special form of marriage in certain cases,
2. To provide for the registration of certain marriages and,
3. To provide for divorce
Muslim Personal Law (Shariat) Application Act, 1937
It is applicable to all Muslims in India. The British Raj enacted the Shariat Act in 1937 on matters related to marriage, divorce, and succession among Muslims. It deals with marriage, succession, inheritance, and charities within Muslims. Dissolution of Muslim Marriages Act, of 1939 states the circumstances where Muslim women can obtain a divorce and the rights of Muslim women who have been divorced by their husbands to provide for related matters. These laws are not applicable in the states of Goa, where the Goa civil code is applicable for all persons irrespective of religion and the state of Uttarakhand. These laws are not applicable to Indians, including Muslims, who married under the Special Marriage Act, of 1954. It recognizes practices such as Talaq (divorce initiated by the husband) and Khula (divorce initiated by the wife).
Indian Divorce Act, 1869
This act applies to all Christians in India, this regulates the divorce against Christians. Grounds for divorce include adultery, desertion, cruelty, and incurable insanity. Provides for judicial separation, annulment of marriage, and maintenance.
Parsi Marriage and Divorce Act, 1936
It applies to Parsis in India. This act governs marriage and divorce among Parsis. It sets the legal age for marriage at 18 for women and 21 for men. Grounds for divorce include adultery, cruelty, desertion, and unsound mind and provide for judicial separation, annulment, and maintenance.
Child Custody and Guardianship in India
In India child custody and guardianship is a combination of personal law with statutory provision which depends on the religion they follow. Its primary goal is to ensure the welfare of the interest of the child.
Child Custody
It determines who takes care of a child after the separation or divorce. The courts consider factors such as the child's best interests, the child's wishes, the parent's ability to care for the child, and the child's emotional and physical needs.
Types of Custody
There are three types of custody as per Indian law:
- Physical Custody means where the child lives primarily with one parent and while the other parent may have visitation rights.
- Joint Custody can be when both parents share custody of the child, with the child spending significant time with each parent.
- Sole Custody is where One parent is granted full custody of the child, with the other parent possibly having visitation rights.
Acts
Guardian and Wards Act, 1890
It applies to all Indian citizens, irrespective of their religion for the appointment of guardians by the court. The court’s prior concern is the welfare of the minor when appointing a guardian. This act is responsible for the duties, rights, and responsibilities of a guardian in relation to the minor's person and property.
Hindu Minority and Guardianship Act, 1956
This act applies to Hindus, including Buddhists, Jains, and Sikhs. It is a complement to the Guardians and Wards Act, especially for Hindus. It means the father is the natural guardian of a minor child, with the mother as the guardian of children under five years old. Yet, the mother often plays an important role in child custody decisions, especially for young children. The welfare of the child is important in determining custody and guardianship. It also includes provisions regarding the management of a minor's property by the guardian.
Muslim Personal Law on Guardianship
It applies to all Indian Muslims. This act defines the difference between guardianship of the person and property. The father is by default guardian, but the mother has custody of male children until the age of seven and female children until they reach puberty. The notion of 'Hizanat' grants the mother the primary right to custody of young children, but this can be overridden if it is not in the child's best interest. Guardianship of the child's property is generally with the father or another male relative.
Adoption Laws
It is according to personal law and statutory provisions, It ensures that the process of adoption is legal and protects the rights of both the child and the adoptive parents.
Hindu Adoption and Maintenance Act, 1956
It applies to all Hindus, Buddhists, Jains, and Sikhs. The eligibility to adopt a child has to meet certain conditions. The husband needs consent from his wife to adopt unless she is incapacitated. A single woman can adopt a child but an unmarried man can not adopt a girl child. The child to be adopted should be a Hindu and not already adopted and under the age of 15. Once adopted, the child is considered a natural-born child of the adoptive parents and has the same rights, including rights of inheritance. It also lays down provisions for the maintenance of the child and the obligations of the adoptive parents.
Juvenile Justice (Care and Protection of Children) Act, 2015
It is applicable for all Indian citizens irrespective of any religion it provides the act provides adoption for children who are orphans, abandoned, or surrendered. You can be married or single to adopt under this law. You must go through a procedure and register with the Central Adoption Resource Authority (CARA), home study reports, and legal formalities. Adoption under this act provides the adopted child with the same status, rights, and responsibilities as the biological child of the adoptive parent's inter-country adoptions, ensuring that all procedures comply with the Hague Convention on Intercountry Adoption.
Adoption under Muslim, Christian, and Parsi Laws
Muslim Law
The traditional Muslim law does not identify adoption in the same way as Hindu law. Rather, it recognizes the concept of 'Kafala,' where a person can care for a child without endowing the child the same rights as a biological child, particularly involving inheritance. Yet, Muslims in India can adopt under the Juvenile Justice Act, of 2015, which provides a secular law for adoption.
Christian Law
Christians don't have any specific adoption law but one can adopt under the Juvenile Justice Act, of 2015. Before this act, Christians had to go through legal guardianship under the Guardians and Wards Act, of 1890, which did not grant the status of a natural-born child to the adopted child.
Parsi Law
They do not have a specific adoption law and generally follow the Guardians and Wards Act, of 1890 adopted under the Juvenile Justice Act, of 2015. Adoption under the Juvenile Justice Act grants the child full status as a biological child, unlike guardianship.
Maintenance and Alimony Laws in India
It is a legal provision designed to provide financial help to a spouse, children, and sometimes elderly parents. It depends on the religious personal and statutory laws in India.
Section 125 of the Code of Criminal Procedure (CrPC), 1973
It applies to all Indian citizens, regardless of religion. Wives including divorced wives who have not been remarried, minor children legitimate or illegitimate, and elderly parents can claim maintenance. a person claiming maintenance should prove that they are unable to support themselves and that the person from whom maintenance is claimed has sufficient means to provide it. The amount of maintenance is set by the court, considering the income and financial capacity of the person accountable for providing it. The objective of Section 125 is to prevent destitution and ensure that dependents are not left without means of support.
Hindu Adoption and Maintenance Act, 1956
It applies to Hindus, including Buddhists, Jains, and Sikhs. A Hindu wife is entitled to be maintained by her husband during her lifetime. Even after divorce, the wife can claim maintenance unless she remarries. legitimate and illegitimate children are allowed to maintain until they attain majority, and unmarried daughters are entitled to maintenance until they get married. Elderly parents could also claim maintenance from their children as per this act. The amount is determined based on the needs of the claimant, the income and financial status of the person liable to pay, and other suitable factors.
Muslim Women (Protection of Rights on Divorce) Act, 1986
This act is applicable to Indian Muslim women who are entitled during the period of Iddat which is also the waiting period of their divorce. A divorcee is allowed to have maintenance from her ex-husband within this period and can include her future needs also. If the divorcee is not able to support herself post-Iddat and has no relatives who can inherit her property or have to provide her maintenance if they fail to do so then she can approach the State Wakf Board for assistance.
Inheritance and Succession Laws in India
It is the allocation of a person's property after their death. These laws depend on the religion of the deceased and assure that the rights of heirs are respected according to their respective personal laws.
Hindu Succession Act, 1956
In this act classes are divided into 2 heirs, the first class is the one who holds rights of the first right to the property which includes the deceased's spouse, children, and mother. If there is no such class one the property gets passed to class 2 heirs which can include the deceased's father, siblings, and other relatives. This law applies to Hindus, including Buddhists, Jains, and Sikhs. The 2005 amendment to the Act grants equal inheritance rights to daughters, making them coparceners in ancestral property, similar to sons. It differentiates between self-acquired property and ancestral property. Self-acquired property is distributed according to the deceased's will or, if there is no will, according to the rules of intestate succession. Ancestral property is divided equally among the heirs. If a Hindu dies without a will, the property is distributed according to the rules of intestate succession outlined in the Act.
Indian Succession Act, 1925
This act manages testamentary succession (wills) for all communities except Muslims. It provides the framework for the creation, execution, and probate of wills. Individuals have the right to dispose of their property according to their wishes through a will. If a person passes away without drafting a will, the property will be distributed among the legal heirs according to the rules in the Act. For Christians and Parsis, the property is usually divided between the spouse and children. This act applies to Christians, Parsis, Jews, and those married under the Special Marriage Act, of 1954. It has Special Provisions for Parsi including the order of succession, which differs little from that of other communities governed by the Act. The Rights of Widows and Daughters ensures that widows and daughters are allowed to share the deceased's property, promoting gender equality in inheritance matters.
Muslim Personal Law on Inheritance
As per Islamic law, the inheritance is controlled by rules in the Quran. Heirs are entitled to fixed shares of the deceased's property, and these shares cannot be altered by a will. The primary heirs include the spouse, children, and parents and sons generally receive a share that is twice of daughters which reflects the traditional responsibilities of male heirs in nourishing the family. The property is split into 24 equal shares, with fixed portions given to each heir based on their relationship to the deceased. A Muslim can bequeath only up to one-third of their estate through a will, and this bequest cannot go to an heir. The remaining two-thirds are distributed as per the rules of inheritance. Though sons receive a larger share, daughters and other female relatives are entitled to a fixed share of the inheritance, which is guaranteed by Islamic law. This law is applicable to Indian Muslims.
Prenuptial and Postnuptial Agreements
This procedure is not legally enforceable in India due to the traditional view of marriage. However, the agreements can still serve as a mutual understanding between spouses about the division of assets, financial responsibilities, and other matters in case of divorce. It is particularly considered in cases involving assets or when one party has financial obligations. It can be drafted with the help of a lawyer to ensure that they are fair and reasonable. Courts may consider them as evidence in case of disputes during divorce proceedings if they reflect the true intent of both parties.
Paternity and Legality
Establishing Paternity as per Indian law through a legal process, which can include DNA testing. This is done in cases where the legitimacy of a child is questioned or where a man pursues to establish his paternity rights. As per the Indian Evidence Act, of 1872, the law provides for such determinations which permits DNA tests as evidence. Once paternity is confirmed, the father gets rights and responsibilities, including the responsibility to provide child support and the right to inherit from the father.
Surrogacy and Assisted Reproductive Technology (ART)
In India, it is handled by the Surrogacy (Regulation) Act, 2021 which allows generous surrogacy but prohibits commercial surrogacy. It also provides regulations on Assisted Reproductive Technology (ART) to confirm that the rights of all parties involved, including the child, surrogate mother, and intending parents, are protected.
Guardianship for Elderly and Disabled Individuals
The Guardianship Laws followed by the Mental Health Act, of 1987 and the National Trust Act, of 1999 which appoints guardians for elderly or disabled individuals who are unable to care for themselves. The appointment of a guardian is to ensure that the individual’s personal and financial needs are managed.
Property Settlement and Division
The division of Marital Property is not automatically divided equally. The division depends on different aspects, including contributions to the property and financial stability of the spouses. The Hindu Succession Act, of 1956, and other personal laws handle these matters, and courts usually seek for an unbiased distribution rather than an equal one.
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