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Family Law
▼ 2013 (1)
▼ September (1)
UNIT- I
LL.B Notes
1. Define Dower. What are its kinds? Discuss the nature and legal
significance of Dower in Muslim Law.
INTRODUCTION: - As it is evident from Quran, “if you separate ABOUT ME
yourself from your wives, send them away with generosity, it is not
permitted to you to appropriate the goods you have once given them.”
Thus the custom originated in ancient times with the payment which
husbands often made to their wives as means of support in their old age or Career Muskan Magazine Hisar
when turned out by them. Mehr in the baal form of marriage was also Follow 90
recognised by the prophet to ameliorate the position of wife in Islam and it View my complete profile
was combined with sadaq, so that it became a settlement or a provision for
the wife. According to K.P.Sexena, “Dower is a sum of money or any
property promised by the husband to be paid o delivered to the wife as a
mark of respect for the surrender of her person after the marriage contract
but generally said to be consideration for marriage.”
DEFINITION:-Dower or mehr is a sum that becomes payable by the
husband to the wife on marriage either by agreement between the parties or
by the operation of law. It may either be prompt or deferred. According to
Wilson, “dower is a consideration for the surrender of person by the wife. It
is the technical Anglo Mohammedan term for its equivalent ‘Mehr’ in
Arabic. According to Amir Ali, “Dower is a consideration which belongs
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Legal Significance of Dower in Muslim Law :-The following are the legal
significance of Dower in Muslim Law:-
1. The reason of its significance lies in the protection that it imparts to the wife
against the arbitrary exercise of the power of divorce by the husband.
2. Dower is a right of the wife is fundamental feature of marriage contract and
has a pivotal place in the domestic relation affecting the mutual rights.
3. According to Muslim Law on the dissolution of marriage the wife can claim
her dower money. It may be higher or it may be low depends upon on the
source of income of the husband.
4. Legislature has given the power to make law providing that, the court will
not be bound to award the amount of dower according to marriage deed (Sec.
Of Oudh Law Act.1876). but only such sum as shall be reasonable with
reference to the means of husband and the Iddat of the wife as held in a case
of Adul Rehman v/s Inayati Bibi-1931.
5. Another Significance of Dower is to place a check on the capricious use of
divorce on the part of husband.
6. To impose an obligation on the husband as a mark of respect of the wife.
7. To provide for her subsistence after the dissolution of her marriage so that
she may not become helpless after the death of the husband or termination of
marriage by divorce.
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(i) that the whereabouts of the husband have not been known for a period
of four years;
(ii) that the husband has neglected or has filed to provide for her
maintenance for a period of two years;
(ii-A) that the husband has taken an additional wife in contravention of the
provisions of the Muslim Family Laws Ordinance, 1961; but wife is
not entitled to maintenance in the following situations and it is the
reason that she cannot present a litigation of divorce against her
husband on the following grounds :
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Smt. Bibi v/s Smt. Ramkali-1982: It was held that the customs of case and
sub case acquire it to be proved for their validity that they are ancient,
definite and earnable.
2. Judicial Decisions:- These includes the decisions of Privy Council, the
Supreme Court & High Courts of India, Judges explain what law is. These
decisions are regarded as precedents for future cases. It becomes a source of
Law. Hammeera Bibee v/s Zubaida Bibi: In India interest on loan is not
allowed, but in this case the Privy Council allowed interest on the amount
unpaid dower.
3. Legislation: - In India Muslims are also governed by various legislation
passed either by Parliament or by state legislature e.g.:- i) Guardian & Wards
Act, 1890. ii) The Shariat Act, 1937. iii) Muslim Woman Protection of Right
& Divorce Act, 1986. iv) The Mussalman Waqf Act, 1923. V) The
Dissolution of Muslim Marriage Act, 1939.
Justice, Equity & Good Conscience: It is also regarded as one of source.
a) Abu Hanifa: Expounded principle that rule of law based on analogy.
These principles are “Isihsan” or Jruistic equity. b) Maliki:- Ibn-Anas
proposes the use of Istiah i.e. seeking peace or amending & he followed it
up by distinct method of juristic interpretation known as Istidal. However
the main sources are Quran, Ahadis and Ijmaa.
5. Discuss the various Schools of Muslim Law and point out their
differences.
INTRODUCTION:-There are two main schools of Muslim Law the Sunni
and the Shia. In India the majority of the Muslims are of Sunnis and hence it
is presumed that the parties to a suit are Sunnis unless proved otherwise.
Shia law has been applied to Shia since the decision of the Privy
Council in Rajah Deedar Hossein v/s Ranee Zuhor-oon-Nissa-1841. The
division between the Sunnis and the Shias originated in the dispute
concerning the question of Imamat or the spiritual Leadership of Islam.
Schools of Muslim Law:- After the death of Prophet the question arose who
would be his successor. On this point the Muslim community was divided
into two factions. The Shias advocatd that the office should go by the right
of succession and thus Imamat i.e. headship should be confined to Prophet’s
own family as his prophet. Whereas on the other hand the Sunnis advocated
the principle of election by the Jamat and chose out their Imam by means of
votes.
The majority of Muslims suggested that there should be
election to choose successor of the Prophet. This group was led by the
youngest wife of the Prophet. Thus the difference between the two lies in
political events.
Mohammadans
1 Sunni 2 Shia 3 Motazila
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(i) Hanafi: This school is the most famous school of Sunni Law. Abu
Hanifa was the founder of this school, he recognised Qiyas, urf, Ijma.
(ii) Maliki: It was founded by Malik, leaned more upon traditions. He was
not different from Hanifa’s.
(iii) Shafei: Imam Shafie was the founder of this school. He was the
founder of doctrine of Qiyas based upon Quran, Ahadis or Ijma.
(iv) Hanbali:- It was founded by Ibn Hanbal who stressed on traditions and
allowed very narrow margin to the doctrine of analogy.
SHIA SUB SCHOOLS: -
I) Athana Asharia School:- This school is very orthodox. The supporter
of this school is the followers of twelve Imams and regards them.
II) Ismailia School: - The sixth Imam Jafar-us-Sadiq had two sons 1.
Ismail and 2.Musa-ul-kazim. The followers of this school called
Ismailas.
III) Zaidia School:-Zaid who was the son of fourth Imam, Imam Ali ashgar
was the founder of this school.
CONCLUSION:- Where it is not alleged not shown that the parties are
shias, there is a presumption that they are sunnies, to which sect the great
majority of mohammedans of this country belong. Shia law is also the law of
the land. In india shia law has been applied to shia since the decision of the
privy council.
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6. What are the different forms & Modes of divorce under Muslim Law?
Discuss.
Introduction:-Among almost all the nations of antiquity divorce was
regarded as a natural corollary or marital rights. The provisions of divorce
were recognised in all religions Islam is perhaps the first religion in the
world which has expressly recognised the termination of marriage by way of
divorce. In England it was introduced 100 years back. In India it was allowed
only by Hindu Marriage Act 1955 amongst the Hindu community. Before
passing this act divorce was not recognised by Hindu Law.
Before Shamim Ara v/s State of U.P.-2002, a Muslim husband had
unlimited power of effecting Talaq without assigning any reason. But in
Shamim Ara’s case the Supreme Court held that the talaq must be for a
reasonable cause and there must be preceded by an attempt of reconciliation
between her husband and the wife by two arbiters one chosen by the wife
and the other by the husband.
Different forms & Modes of divorce under Muslim Law
1.Capacity for Pronouncing Talaq:-The only and only essential condition
for pronouncing Talaq by a Muslim husband is that he must have attain the
age of puberty and must be of sound mind at that time. In view of the
position of Muslim Law it cannot be said that Talaq namah was not sufficient
to dissolve the marital relations. Refer case Abdul Wahid v/s Raisa Bi-
2007.
In another case of Mohamad Siddiqu Ali v/s Mustt. Fatima
Rashid-2007, it was held by the court that mere pronouncement of Talaw
orally or in writing is not sufficient to terminate the marriage. The factum of
the Talaq should be proved by the independent witnesses.
In the case of Iqbal Bano v/s State of U.P.-2007, the Apex Court
held that the conclusion that in view of the statement in the written statement
about an alleged divorce30 years back by utterance of the words talaq, talaq,
talaq three times is sufficient in law is not sustainable. A mere pleas in the
written statement of a divorce having been pronounced sometimes in the past
cannot by itself be treated as effectuating Talaq.
2. Talaq-ul- Sunnat: This form of Talaq is revocable hence it is regarded as
approved form of Talaq. This form of Talaq was approved by the Prophet
both Shia and Sunni schools recognise this form. It has two parts:-
i) Talaq Ahsan:- This consists of a single pronouncement of divorce made
during a tuhr followed by abstinence from sexual intercourse for the period
of Iddat. The main requirements of a Talaq Ahsan are :-
a) Formula of Talaq must be pronounced only once by the husband.
b) If the marriage has been consummated the pronouncement must be made
during the period of her purity.(tuhr). After such pronouncement the husband
should abstain from sexual intercourse during the period of purity and Iddat.
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UNIT - II
7. Discuss the provisions of Muslim Law concerning Guardianship for
marriage. Power of legal guardian alienation of minor’s property.
INTRODUCTION:- In chapter iv of the holy ‘Quran’ it is mentioned
that, “ to restore the orphans when they come of age, their substance do not
substitute bad for good, nor devour their substance by adding it to your own,
for this is an enormous crime.” However the term Guardianship (wilayat)
means the guardianship of a minor. Minor is one who has not attained the
age of majority, Puberty and majority are in the Muslim Law one and the
same. Puberty is presumed to have attained on the completion of 15 years
but now the Muslims are governed by the Indian Majority Act, except in the
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matters relating to marriage, divorce and dower. However 15 years is the age
of majority for the purposes of marriage, dower and divorce under the
Muslim Law.
DEFINITION OF GUARDIAN:-The term guardian is defined in the
Guardians and Wards Act, “A person having care of the person of a minor
or of his property, or both his person and his property.”
In Muslim Law, Quran is the basis of the law relating to guardianship and
therefore there is very little room for differences between Shia and Sunni’s.
GUARDIANSHIP IN MARRIAGE (JABAR):-1.One of the most
essential part of a valid marriage that the parties are competent to enter
into marriage contract, i.e. among other things they must have attained the
age of puberty. However there is exception which is most distinguishing
feature of Islam which empowers a father to impose status of marriage on his
minor children. This power of imposition is called Jabar. Under this
exception the marriage is contracted on behalf of the minors by the guardian.
2. No one can be appointed guardian by the Court in respect of marriage
guardianship.
3. The Court also cannot appoint Wali for marriage; however in some cases
Quazi or Court itself can act as a marriage guardian.
4. Under the Muslim Law of all schools, the father has the power to give his
children of both sexes in marriage without their consent until they reach the
age of puberty i.e. known as bulugh.
5. The following persons who can act as guardians in the marriage of a
minor:-
1. Father.2.The father’s father how high-so-ever. 3. Full brother and other
male relations on the father’s side. 4. Mother. 5. Maternal relation within
prohibited degrees. 6. The Quazi or the Court.
Legal Guardian: - The person entitled in the order mentioned below to be
guardian of the property of a minor: - 1. Father. 2. The executor appointed
by the father’s will. 3. The father’s father. 4. The executor appointed by the
will of the father’s father. Thus mother, brother and uncle etc. are not
entitled as of right to be the legal guardians of the property of minor as held
in the case of Sayed Shah Gulam Ghoshe v/s Sayed Shah Ahmad-1971.
POWERS OF LEGAL GUARDIAN:- 1.Regarding Immovable
Property:- Legal guardian cannot alienate by sale of mortgage the
immovable property of the minor except when alienation is absolutely
necessary or for the clear benefit of the minor.
When the minor has no other means of livelihood and sale is absolutely
necessary for maintenance. Where the double price of the property can be
obtained by him. Where the expenses exceed he income of the property.
When the property is falling into decay. The legal guardian has no power
to carry on business of his ward especially if the business is one which may
involve his minor’s estate in speculation or loss. When the property has been
usurped and the guardian has reason to fear that there is no chance of fair
restitution. A legal guardian is empowered to enter into contracts on behalf
of minor provided that such contracts are for the benefit of the minor.
2. Powers regarding movable properties:- The guardian is empowered to
sell or pledge the goods and chattels of the minor for the minor’s necessities
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as food, clothing and nursing etc. Muslim Law does not impose upon
minors any obligation to pay interest on sums advanced to them. The legal
guardian is bound to deal with the property as carefully as he has dealt with
it if it were his own property, as held by Madras High Court in l940.
3. De facto Guardian: A person who is neither a legal guardian nor a
guardian appointed by the Court but has voluntarily placed himself in charge
of the person and property of the minor is known as de facto guardian. He is
mere custodian of the minor’s person and property but has no right over
either as held in the case of M.Fiaz v/s Iftkhar-1932. He has only the
responsibility towards the minors person or property or both but no rights in
respect thereof. He has no power or authority to alienate the minor’s
property. However authority given by the Court is void as provided in
Guardians and ward Act.
8 What is the object behind making a gift under Muslim Law? Who can
make a valid gift? Explain Is Registration is necessary?
Introduction: - In India it is often assumed that term ‘gift’ is the exact
equivalent of ‘hiba’ and both are understood to connote all transfer of
property without consideration. Gift however an expression of much wider
explanation than hiba is. According to Baillie, “The conferring of a right in
something specific without an exchange.”
In Muslim Law, it is treated as a contract consisting of a
proposal or offer on the part of donor to give a thing and the acceptance of it
by the donee. The word hiba literally means the donation of a thing from
which the donee may derive a benefit, the transfer must be immediate and
complete. It is also to mention here the most important ingredient of Hiba is
the declaration, “I have given”.
DEFINITION OF GIFT:- Under Muslim Law a person is allowed to
lawfully make a gift of his property to another during his life time or he may
transfer it by way of will which take effect after his death.
In its technical sense, it is defined as, “unconditional transfer of property
made immediately and without any exchange or consideration by one person
to another and accepted by or on behalf of the latter.”
According to Mulla, “Gift is a transfer of property, made immediately and
without any exchange by one person to the other and accepted by or on
behalf of the latter.”
A leading case in this regard is of Smt. Hussenabi v/s Husensab Hasan-
1989, gist of the case that offer of gift was made by grandfather to his grand
children who were living with him and on behalf of minor children the
acceptance was made by the doner but no express or implied acceptance of
gift was made by the major grandson. The court held that when the three
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intimately connected with religion having relation to the repose of the souls
of the departed and the preservation of the house hold divinities. Amir Ali
explained that in fuller terms that adoption similar to what was practised in
the ‘Days of Ignorance’ created no such tie between the adopted and the
adopting as resulted from blood relationship. On the one hand Muslim Law
recognizes the institution of ‘iris or acknowledgment on the other hand it
disapproves legitimating.
The doctrine of acknowledgment relates only to cases where
either the fact of marriage itself or the exact time of occurrence with
reference to the legitimacy of the acknowledged child is not proved in the
sense of the law as distinguished from disproved. In a case of Mohammad
Khan v/s Ali Khan-1981.
ESSENTIALS OF LEGITIMACY
When there is a direct proof of marriage or there are
circumstances from which marriage may be presumed the question of
acknowledgment of legitimacy does not arise because in such cases the
legitimacy is ‘ipso facto’ established or presumed to be established. If there
is no such direct proof of legitimacy indirect proof may suffice and one of
the ways of indirect proof is by acknowledgment of legitimacy by father (not
mother) in favour of a son. In other words the doctrine applies only to cases
of uncertainty as to legitimacy and in such cases acknowledgment has its
effect but that effect always proceeds upon the assumption of a lawful union
between the parents of the acknowledgment child.
In the case of a good acknowledgment of legitimacy the
marriage between the parents of the child acknowledged will be held proved
and this legitimacy established unless the marriage is disproved as held in
the case of Mohammad sadiq v/s Mohammad Hassan- 1943.
In case the marriage between the parents of the child could not
be proved the acknowledgment shall carry no force in the eyes of law. The
acknowledger must acknowledge the child specifically as held in a case of
Haribur Rahman v/s Altaf Ali-1921.
EXPRESS OR IMPLIED ACKNOWLEDGMENT
It is not necessary that an acknowledgment should be express it
may also be implied as was held in the case of Mohammad Amin v/s Valil
Ahmad -1952: where a person habitually and openly treat another as his
legitimate child this fact may give rise to a valid presumption of legitimacy.
The acknowledgment may be of son or of daughter but it must
be made the father. The acknowledgment of the child must not be casual. In
a case of Mohabat Ali v/s Mohammad Ibrahim-1929: The father made the
acknowledgment of the child in a casual manner. He never intended that his
acknowledgment should have serious effects. It was held that the act of
the father is not sufficient to confer the status of legitimacy.
Conditions:-1.When a man expressly or impliedly acknowledges another as
his lawful child the paternity of the child will be established in the man
provided the following conditions are fulfilled:-
· Intention to Confer Legitimacy: The acknowledgment must be made in
such a way that it shows that the acknowledger is to accept the other not
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only as his son but as his legitimate son as held in Habibur Rahman v/s
Altaf Ali-1921.
· Age of the Acknowledger:- The age of the parties must be such that it is
possible that they may be father and son.
· Child of Others: - The child so acknowledged must not be known to be
the child of another.
· Person Acknowledged should confirm acknowledgment:- The child, if
adult, must confirm, or acquiesce in acknowledgment. It is very important
that the acknowledged child should verify acknowledgment.
· Legal Marriage possible between Parents of the child acknowledged:-
The acknowledger and the mother of the child must have been lawfully
joined in marriage at the time when the child was begotten. It is essential
to show that a lawful marriage is possible between the acknowledger and
child’s mother because the child is not the fruit of an adulterous
intercourse.
· Competency of the Acknowledger:- The acknowledger must be
competent to make a contract, that is, he should be adult and sane.
· Offspring of ‘Zina’:- An offspring Zina is one who is born either without
marriage, or of a mother who was the married wife of another, or of a void
marriage.
· An acknowledgment once made cannot be revoked:- In a case of
Ashrfod Dowlah v/s Hyder Hussain-1886: It was held that
acknowledgment of paternity is a recognition not simply of son-ship but
of legitimacy as a son.
Rules of legitimating:- depends on the assumption of legitimacy and its
establishment by avoidance of the hypothesis of unlawful relationship
between the parents. Refer the case of Nazibunnissa Bibi-1864.
· This rule is based on contractual form of marriage under Muslim Law.
· No ceremony is prescribed for a valid marriage.
· It is also not necessary that the marriage should be published.
· Muslim Law does not recognize western concept of legit
effects of acknowledgmrnt:-Acknowledgment of paternity raises a two-fold
presumption. B) One in the favour of son-claimant. C) The other in favour of
the wife claimant i.e. mother of the acknowledge. D) It produces all the legal
effect of natural paternity and vests in the child right of inheriting from the
acknowledger in case of a son. E) The mother of the acknowledged son gets
the status of legal wife and hence the right of inheritance.
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UNIT- III
11. Define Maintenance. Discuss the provisions regarding maintenance of divorced
woman according to Muslim Women Protection Rights on Divorce-1986. OR What
are the arrangements for maintenance under Muslim Law? Who are entitled for
Maintenance? Discuss. OR Maintenance of Muslim Women.
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Introduction:-The Muslim Law, like the English Law treats the property as
primarily and naturally individual. It does not like the Hindu system
contemplate as the normal state of things. The existence of mass of family
property kept together thorough several generations as common fund for the
common needs. Under Muslim Law a man is bound maintain his wife
irrespective of his and her means and his minor children if he is not indigent.
Definition of Maintenance: - Maintenance is equivalent to Arabic ‘Nafqah’
which means, “What a person spends over his family” however in legal
sense maintenance signifies and includes three things: (i) Food (ii) clothing
(iii) lodging.
According to Hedaya: “Maintenance as all those things which are necessary
to the support of life such as food, clothes and lodging.”
Provisions regarding maintenance of divorced woman:- In Shah Bano
Beguum v/s Mohammad Ahmed Khan-1985, the five judges bench held
that a Muslim husband having sufficient means must provide maintenance to
his divorced wife who is unable to maintain herself. Such a wife is entitled to
the maintenance even if she refuses to live with the Muslim husband. The
court also held that the ability of the husband to maintain his divorced wife
till the expiration of the iddat period extends only in case the wife is able to
maintain herself. The following are the rights of maintenance of divorced
wife:-
1. Maintenance during the subsistence of marriage:-The husband is liable
to maintain the wife from the date when the wife attains puberty and as long
as she is obedient and faithful to her husband. The husband is bound to
maintain her even though she may have the means to maintain herself. A
Muslim wife who is living separately may claim maintenance against him for
example if the husband treats her cruelty or marries with second wife
without her consent or if he paid prompt dower to her as held in a case of
Itwari v/sAshgari-1960.
2. Maintenance of a divorced wife:-Under Muslim Law a divorced wife is
entitled to obtain maintenance from husband up-to her period of Iddat. In a
case of Mohammad Ahmad Khan v/s Shah Bano Begum-1985, although
the Muslim law limits the husband’s liability to provide maintenance for his
divorced wife up to the period of Iddat. The court held that if the divorced
wife is unable to maintain herself after the period of Iddat she is entitled to
recourse to sec. 125 Cr.P.C.
3. Maintenance of a Widow: - According to Hedaya says, “That a widow
shall not have any right of maintenance after the death of her husband. Under
the Shia Law a Widow is not entitled to any maintenance though she was
pregnant at the time of the death of her husband. There are some authorities
in Mohammadans who recognised widow’s right if on the death of her
husband she was pregnant to maintenance until delivery, out of share in
estate of her husband which child borne by her entitled to inherit.
In order to nullify the effect of the Shah Bano’s decision, Parliament
passed the Muslim Women’s Protection of Rights on Divorce Act-1986,
the following are the provisions :-
1. A reasonable and fair provision and maintenance to be made and paid to
her within the Iddat period by her former husband.
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2. Where she herself maintains the Children born to her before or after her
divorce a reasonable a reasonable and fair provision and maintenance for a
period of two years from the respective dates of birth of such children.
3. An amount equal to the sum of mehr or dower agreed to be paid to her at
the time of her marriage or at any time thereafter according to Muslim Law.
4. All the properties given to her before or at the time of marriage or after the
marriage by her relatives or friends or the husband or any relatives of the
husband or his friends.
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3.Family Court has the jurisdiction to suit for proceeding between the
parties to a marriage for a decree of nullity of marriage(declaring the
marriage to be null &void or as the case may be annulling the marriage) or
restitution of conjugal rights or judicial separation or dissolution of marriage.
4. Family Court may accept the suit or proceeding for a declaration as to the
validity of a marriage or as to the matrimonial status of any person.
5. The Family Court may commence a suit or proceeding for an order or
injunction in circumstances arising out of a marital relationship.
6. Proceeding for declaration about the legitimacy of any person is accepted
by the Family Court.
7. The family court has the jurisdiction to suit or proceeding for
maintenance and in relation to the guardianship of the person or the custody
of, or access to any minor.
PROCEDURE:-
Section 9 of Family Courts Act, 1984, laid down the following procedures:-
1. Duty of Family courts to make efforts for settlement:- Every suit or
proceeding endeavour shall be made by the Family Court in the first
instance, with the nature of circumstances of the case to assist and persuade
the parties in arriving at a settlement and follow those rules framed by High
Court as deemed fit.
2. Family Court may Adjourn:-If any suit or proceeding at any stage seems
to be that there is a reasonable possibility of a settlement between the parties,
the Family Court may adjourn the proceedings for such period as it thinks fit
to enable attempts to be made to effect such a settlement.
3. The power to adjourn: - conferred by sub-sec.2 shall be in addition to
and not in derogation of any other Power of the Family Court to adjourn the
proceedings.
Procedure Generally
1. Sec.10 of Family Courts Act also provides subject to other provisions of
this act and the rules of provisions of the Code of Civil Procedure and of any
law for the time being in force shall apply to such proceedings under
criminal procedure code. Family Courts shall deem to be a civil court and
shall have all the powers of such court.
2.Provisions shall prevent a family Court from laying down its own
procedure with a view to arrive at a settlement in respect of the subject
matter of the suit or proceedings or at the truth of the facts alleged by the one
party and denied by the other. Under section 10(2).
3. Proceedings to be held in Camera:-In every suit or proceeding to which
this act applies, the proceedings may be held in camera if the Family Courts
so desires and shall be so held if either party so desires u/sec.11.
3. Assistant of Medical & welfare:-Under sec. 12 of the Act, every suit or
proceedings, it shall be open to family court to secure the services of a
medical expert or such person (preferable a woman where available) for the
purpose of assistance in discharging the functions imposed by this act.
4. Record of oral evidence:-In suits or proceedings before a family court it
shall not be necessary to record the evidence of witnesses at length but the
judge as the examination of each witness proceeds shall record or cause to be
recorded a memorandum shall be signed by the witness.
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UNIT-IV
14 What are the essential conditions to solemnize the marriage under
Special Marriage Act, 1954? Discuss the consequences of Marriage
under this Act.
Introduction:-In Indian legislation enacted by the Parliament of India to
provide a special form of marriage for the people of India and all Indian
National in foreign countries irrespective of the religion or faith followed by
either party. The act originated from a piece of legislation proposed in 1872
was enacted, but later it was found inadequate for certain desired reforms
and Parliament enacted a new legislation.
The law legitimate the marriages for those willing to renounce their
profession of faith altogether. It is believed that the legislation encouraged
marriages based on lust which would inevitably lead to immorality. The
Special Marriage Act, 1954 replaced the old Act, l872.
DEFINITION: The Parliament of India to provide a special form of
marriage for the people of India and all Indian national in foreign countries,
irrespective of the religion or faith followed by either party.
Objectives:
1. To provided a special form of marriage in certain cases.
2. To provide for registration of certain marriage
3. To provide provision for divorce.
Applicability:
1. Any person irrespective of religion,Hindu, Budihist, Jains and Sikh can
also perform marriage under Special Marriage Act, 1954
2. The Muslim, Christian, Parsi or Jewish religions can also perform
marriage under the Special Marriage Act, 1954.
3. Inter-caste marriages are performed under this act
4. The act is applicable to the entire territory of India excluding the State of
J&K and extends to intending spouses who are both Indian nationals living
abroad.
Requirements
1. The marriage performed under SM Act is a civil contract and accordingly
there need be no rites or ceremonial requirements.
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2. The parties have to file a Notice of intended marriage in the specified form
to the marriage Registrar of the district in which at least one of the parties to
the marriage has resided for a period of not less than thirty days immediately.
Proceeding the date on which such notice is given.
3. After the expiration of thirty days from the date on which notice of an
intended marriage has been published the marriage may be solemnized
unless it has been objected to by any person.
4. The marriage may be solemnized at the specified marriage office.
5. Marriage is not binding on the parties unless each party states l. I take thee
_________to be my lawful wife/or husband, in the presence of the Marriage
Officer and three witnesses.
Conditions of marriage
1. The each party involved should have no other subsisting valid marriage in
other words each arty should be monogamous.
2. The bridegroom must be at least 21 years old and the bride must be at
least18 year’s ole.
3. The party should be competent in regards to their mental capacity to the
expedient that they are able to give valid consent for the marriage.
4. The parties should not fall within the degree of prohibited relationship.
Special Marriage Act, 1954 Hindu Law
Marriage solemnized is void if either of The marriage under Hindu law would not be
the parties to the marriage had not void though punishable under the Child
attained the requisite age. Marriage Restraint Act.
CONCLUSION:- In fact this act was introduced for the first time in 1872
and also was enacted too. After sometimes inadequate discrepancies were
noticed and it requires some reforms. The law sought to legitimate marriages
for those willing to renounce their profession of faith altogether means I do
not profess the Hindu, Christian, Jewish, etc. religion.
The Special Marriage Act replaced the old Act and new was enacted the
same during the year l954, which provides special form of marriage in
certain cases and registration of marriage as well as the provisions of
divorce.
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