Family & Matrimonial Law

Family Courts Act 1984; HMA, s. 19

Which Act governs a marriage depends on the parties. The Hindu Marriage Act, 1955 applies to Hindus, Buddhists, Jains and Sikhs; the Special Marriage Act, 1954 to marriages solemnised or registered under it, including inter-faith marriages; the Parsi Marriage and Divorce Act, 1936 and the Indian Divorce Act, 1869 to Parsis and Christians respectively; and Muslim personal law, with the Dissolution of Muslim Marriages Act, 1939, to Muslims.

Under the Family Courts Act, 1984, matrimonial petitions, maintenance and custody are heard by the Family Court where one is established. Matters arising in Mumbai ordinarily go before the Family Court at Bandra.

Section 19 of the Hindu Marriage Act sets where a petition may be presented: where the marriage was solemnised, where the respondent resides, where the parties last resided together, where the wife resides if she is the petitioner, or where the petitioner resides if the respondent is outside India or has not been heard of.

HMA, s. 13B; SMA, s. 28

Section 13B requires that the parties have been living separately for a year or more, that they have not been able to live together, and that they have agreed the marriage should be dissolved. All three must be stated in the petition.

The petition is moved twice. On the first motion the statements are recorded. The second motion is made not earlier than six months and not later than eighteen months after the first, and the decree follows on it.

The six-month period is directory rather than mandatory. In Amardeep Singh v. Harveen Kaur the Supreme Court held it may be waived where the separation and the six months have already passed before the first motion, mediation has failed with no likelihood of success, and the parties have settled alimony, custody and everything else between them.

1. PetitionFiled jointly, setting out the separation, the inability to live together and the consent.
2. First motionStatements of both parties are recorded by the court.
3. Six monthsThe statutory interval, which the court may waive on the conditions laid down in Amardeep Singh.
4. Second motionMade within eighteen months of the first. The decree of divorce follows.

HMA, ss. 13, 13(1A), 14

Section 13(1) sets the grounds available to either party: adultery, cruelty, desertion for two years or more, conversion to another religion, unsoundness of mind, venereal disease in a communicable form, renunciation of the world, and not having been heard of for seven years. Section 13(2) adds grounds available only to the wife.

Section 13(1A) allows either party to petition where there has been no restitution of conjugal rights, or no cohabitation, for one year or more after a decree in those terms.

Section 14 bars a petition within one year of the marriage, except with the leave of the court on the ground of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent. Cruelty and desertion are questions of fact, proved by evidence, and what is pleaded at the outset sets the limits of what can be led later.

HMA, ss. 24–25; BNSS, s. 144

Maintenance can be claimed in more than one proceeding. Section 24 of the Hindu Marriage Act provides interim maintenance and the expenses of the proceeding; Section 25 provides permanent alimony. Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — the provision that replaced Section 125 of the Code of Criminal Procedure — provides for a wife, children and parents before a magistrate. Section 18 of the Hindu Adoptions and Maintenance Act, 1956 and Section 20 of the Domestic Violence Act are further routes.

In Rajnesh v. Neha the Supreme Court directed that an affidavit of assets, liabilities and income be filed by both parties in every maintenance proceeding, that overlapping claims in different proceedings be disclosed and adjusted, and that maintenance be awarded from the date of the application rather than the date of the order.

What is awarded turns on income, the standard of living during the marriage, the liabilities of both parties and the needs of any child. Salary slips, returns, bank statements and proof of expenses decide it far more than what is said in the pleadings.

GWA 1890; HMGA 1956, s. 6

Custody and guardianship are not the same thing. Guardianship is decided under the Guardians and Wards Act, 1890 and, for Hindus, the Hindu Minority and Guardianship Act, 1956; custody is the arrangement for where and with whom the child lives, and access is the arrangement for the other parent.

Section 6 of the Hindu Minority and Guardianship Act names the father as natural guardian of a minor, with the mother after him, and provides that custody of a child below five years shall ordinarily be with the mother. That provision is read subject to the welfare of the minor, which both Acts make the paramount consideration.

Orders are made on the arrangements as they actually are — schooling, who the child has been living with, the distance between the parties, the hours each works. Interim arrangements and access are commonly settled before the main question is decided.

PWDV Act 2005, ss. 12, 18–23

An application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 is made to the magistrate. It is a civil proceeding in form, though it is heard by a criminal court, and breach of a protection order made under it is an offence.

The reliefs are set out separately: a protection order under Section 18, a residence order under Section 19, monetary relief under Section 20, a custody order under Section 21 and compensation under Section 22. Section 23 allows interim and ex parte orders.

Section 12(5) directs the magistrate to endeavour to dispose of the application within sixty days of the first hearing. The Protection Officer's report, the medical record where there is one, and contemporaneous messages and complaints are ordinarily what the application is supported by.

HSA 1956, s. 6; ISA 1925

Where there is no will, a Hindu's property devolves under the Hindu Succession Act, 1956. Section 6, as amended in 2005, makes a daughter a coparcener in her own right. In Vineeta Sharma v. Rakesh Sharma the Supreme Court held that this right arises by birth, and does not depend on the father being alive on the date the amendment came into force.

Where there is a will, the Indian Succession Act, 1925 governs its proof. In Mumbai, probate is required for a will of immovable property within the ordinary original civil jurisdiction of the High Court; elsewhere letters of administration or a succession certificate under Section 370 may be what is needed instead.

A society or a registrar will usually ask for one of these before transferring a flat or a share certificate. Which one it is depends on whether there is a will, where the property is, and what is being transferred.

HMA, ss. 9–12; HAMA 1956

Section 9 provides for restitution of conjugal rights, Section 10 for judicial separation, and Sections 11 and 12 for a decree of nullity where a marriage is void or voidable. Which of these is appropriate depends on the facts and on what the party actually wants, and they are not interchangeable.

Adoption by Hindus is governed by the Hindu Adoptions and Maintenance Act, 1956; adoption otherwise, and through an agency, is governed by the Juvenile Justice (Care and Protection of Children) Act, 2015 and the regulations made by the Central Adoption Resource Authority.

Guardianship of a minor's person or property, for a purpose such as selling a minor's share in an immovable property, is applied for under the Guardians and Wards Act, 1890.