WHAT IS FAMILY LAW? (INTRODUCTION)

Family law is the branch of legal study that deals with personal relationships, marriage, divorce, maintenance, guardianship, adoption, inheritance, and succession. It governs the rights, duties, and obligations of individuals within a family setup.

In India, family law is unique because it is based on personal laws—different religions follow different legal systems for marriage, divorce, property, and family matters.

Thus, India does not have a Uniform Civil Code (UCC) yet and relies on religion-based laws.

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MAJOR PERSONAL LAWS IN INDIA

1. Hindu Law

2. Muslim Law

3. Christian Law

4. Parsi Law

5. Secular Law (Special Marriage Act)

6. Customary Laws (tribals, local traditions, etc.)

Among all these, Hindu Law is the most codified and well-developed system, which is why it’s taught deeply in Family Law courses.

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WHAT IS HINDU LAW?

Hindu Law is the personal law that governs all Hindus, Sikhs, Jains, and Buddhists in matters of:

• Marriage

• Divorce

• Adoption

• Maintenance

• Guardianship

• Property

• Succession

• Partition

• Joint family system

Hindu law is considered one of the oldest legal systems in the world—thousands of years old—based originally on Dharma, Vedas, Smritis, and customs.

Today, Hindu Law is largely codified by Parliament through modern statutes.

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WHO IS A HINDU UNDER HINDU LAW?

A person is considered Hindu if:

1. Born to Hindu parents

2. Follows Hindu religion

3. Converts to Hinduism

4. Is not Muslim, Christian, Parsi, or Jew (unless proves otherwise)

5. Any child of Hindu parents even if one parent is Hindu

This broad definition ensures millions fall under Hindu law.

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SOURCES OF HINDU LAW

1. Ancient Sources

• Vedas

• Upanishads

• Smritis (Manu, Yajnavalkya, Narada)

• Dharmashastras

• Purana and customs

2. Modern Sources

• Judicial decisions

• Legislation

• Justice, equity, and good conscience

• Codified Acts

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HINDU CODIFIED FAMILY LAWS (1955–1956)

In 1955–56, India codified Hindu family law into four major Acts:

1. The Hindu Marriage Act, 1955

2. The Hindu Succession Act, 1956

3. The Hindu Adoption and Maintenance Act, 1956

4. The Hindu Minority and Guardianship Act, 1956

Let us study each in detail.

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1. THE HINDU MARRIAGE ACT, 1955

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This Act governs all matters of marriage, divorce, restitution, judicial separation, maintenance, legitimacy, remarriage among Hindus.

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A. Conditions for a Valid Hindu Marriage (Section 5)

1. Both parties must be Hindu

2. Neither party should have a spouse living (monogamy)

3. Both must be of sound mind

4. Age:

   • Male: 21 years

   • Female: 18 years

5. Not within prohibited degrees

6. Not within sapinda relationship

Case Law:
Sarla Mudgal v. Union of India (1995) – second marriage without divorce = void & criminal.

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B. Ceremonies of Marriage (Section 7)

Marriage must be performed with Hindu customs; Saptapadi is essential in many traditions.

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C. Registration of Marriage (Section 8)

Registration gives strong legal proof.

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D. Matrimonial Remedies

1. Restitution of Conjugal Rights (Sec 9)

For restoring cohabitation.

2. Judicial Separation (Sec 10)

Couple lives apart without divorce.

3. Divorce (Sec 13)

Grounds:

• Adultery

• Cruelty

• Desertion

• Conversion

• Unsound mind

• Venereal disease

• Renunciation

• Not heard for 7 years

4. Divorce by Mutual Consent (Sec 13B)

Six-month cooling-off period (can be waived).

Case Law:
Amardeep Singh v. Harveen Kaur (2017) – cooling-off period not mandatory.

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2. THE HINDU SUCCESSION ACT, 1956

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This Act governs inheritance and succession of property for Hindus.

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A. Types of Property Under Hindu Law

1. Ancestral Property

2. Self-acquired Property

3. Coparcenary Property

4. Stridhan (Woman’s absolute property)

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B. Major Amendments

2005 Amendment – Gave daughters equal rights

• Daughter = coparcener by birth

• Equal share as son

• Right to demand partition

• Right to ancestral property

• Liability for family debts

Landmark Case:
Vineeta Sharma v. Rakesh Sharma (2020) – Daughter is coparcener irrespective of father’s death before 2005.

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C. Inheritance Rules (Intestate Succession)

If a Hindu male dies without a will:

Property goes to Class I heirs first:

• Mother

• Widow

• Sons

• Daughters

• and children of deceased sons/daughters

If none → Class II heirs → agnates → cognates.

For female Hindus, property devolves upon:

• Children + husband

• Heirs of husband

• Parents

• Heirs of father

• Heirs of mother

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3. THE HINDU ADOPTION AND MAINTENANCE ACT, 1956

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This Act deals with adoption rules and maintenance rights.

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A. Adoption

Who can adopt?

• Any Hindu male or female

• Must be major & of sound mind

• Must not have a child of the same gender if adopting

Who can be adopted?

• Hindu child

• Unmarried

• Below 15 years (unless custom allows)

• Not previously adopted

Effect of Adoption

• Adopted child = natural child

• Inherits property equally

• Loses rights from biological family

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B. Maintenance

Persons entitled to maintenance:

1. Wife

2. Dependents

3. Minor children

4. Unmarried daughter

5. Aged parents

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4. THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956

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This Act explains who can be a guardian, and what the powers and duties of guardians are.

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A. Types of Guardians

• Natural guardian

• Testamentary guardian

• Court-appointed guardian

Natural guardians:

• Father → then mother (for boys & unmarried girls)

• Mother is primary guardian for children under 5 years

• For married girls → husband is not guardian (UNLIKE old custom)

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B. Guardian Must Act for Benefit of Minor

Guardian must:

• Protect child’s property

• Use property for welfare

• Cannot sell property without court permission

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HINDU JOINT FAMILY SYSTEM (MITAKSHARA & DAYABHAGA)

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Hindu families often live in a Joint Hindu Family.

A special unit inside a Joint Hindu Family is the Hindu Coparcenary, consisting of:

• Father

• Son

• Son’s son

• Son’s son’s son

• After 2005 → Daughter also becomes coparcener

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MITAKSHARA

• Follows survivorship

• Widely practiced across India

• Daughter became coparcener after 2005 amendment

DAYABHAGA

• Follows inheritance, not survivorship

• Practiced in Bengal & Assam

• Son gets property only after father’s death

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IMPORTANT PRINCIPLES OF HINDU LAW

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1. Dharma

Moral and legal duty.

2. Pious Obligation

Son’s duty to pay father’s debts (abolished after 2005).

3. Stridhan

Woman’s absolute property.

4. Notional Partition

Used to calculate a deceased coparcener’s share.

5. Survivorship Rule

Mitakshara rule (now limited after 2005).

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LANDMARK CASE LAWS IN HINDU FAMILY LAW

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1. Vineeta Sharma v. Rakesh Sharma (2020)
   Daughter = coparcener by birth.

2. Sarla Mudgal v. Union of India (1995)
   Bigamy void even if converted to Islam.

3. Gurupad v. Hirabai (1978)
   Explained notional partition.

4. Githa Hariharan v. RBI (1999)
   Mother can be natural guardian.

5. Shayara Bano v. Union of India (2017)
   Triple Talaq unconstitutional (Muslim Law case but often studied in Family Law).

6. Danamma v. Amar (2018)
   Daughter gets equal share even if father died earlier.

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MODERN DEVELOPMENTS IN FAMILY LAW

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• Equal inheritance rights for women

• LGBT+ rights (post Navtej Johar judgment)

• Debate around Uniform Civil Code

• Live-in relationships recognized

• Domestic violence protection laws expanded

• Maintenance strengthened under CrPC 125

• Surrogacy and adoption rules updated

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CONCLUSION

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Family Law in India, especially Hindu Law, is a dynamic, evolving, and progressive field.
It has moved from ancient religious customs to a modern codified system emphasizing:

• Equality

• Women’s rights

• Child welfare

• Social justice

Hindu Law today is a blend of tradition and modern legal principles, making it one of the richest personal law systems in the world.