Statutory Basis
Primary Acts: Hindu Marriage Act, 1955 | Section 125 CrPC
Key Sections: Sec 13B (Mutual Consent), Sec 9 (RCR), DV Act 2005.
Your Rights in Family Matters
Family law is not just about divorce. It safeguards your rights to property, dignity, and children.
Property Rights
- Daughters: Have equal right to ancestral property by birth (Hindu Succession Amendment Act, 2005).
- Wives: Right to reside in the matrimonial home under DV Act, even if she doesn't own it.
- Stridhan: A woman has absolute ownership over gifts/gold received during marriage.
Child Custody & Guardianship
- Welfare Principle: The child's welfare is the ONLY paramount consideration for courts, not parental ego.
- Natural Guardian: Under Hindu law, father is natural guardian, but custody of child under 5 usually goes to mother.
Divorce Proceedings (Hindu Marriage Act)
1. Mutual Consent (Section 13B)
The fastest way to separate. Both parties file a joint petition.
- Cooling Off: Mandatary 6 months wait (can be waived by Supreme Court discretion under Article 142).
- Terms: Alimony and Child Custody are pre-agreed.
2. Contested Divorce (Section 13)
Grounds include Cruelty (Mental/Physical), Desertion (2+ years), Adultery, Conversion, or Unsoundness of mind.
Restitution of Conjugal Rights (Section 9)
If a spouse leaves the matrimonial home without reasonable excuse, the other can file for RCR. While the court can decree restitution, compliance cannot be forced physically, but non-compliance for 1 year is a ground for divorce.
Maintenance & Alimony
Under Section 125 of CrPC (Criminal Procedure Code), a wife, children, and aged parents unable to maintain themselves can claim maintenance from the husband/son.
Rajnesh vs. Neha (2020) Guidelines:
The Supreme Court mandated that both parties must file an Affidavit of Assets and Liabilities. Maintenance is decided based on status of living, reasonable needs, and inflation.
Domestic Violence Act, 2005
A fast-track law to protect women in domestic relationships. Reliefs include:
- Protection Order: Restrain abuser from entering workplace/home.
- Residence Order: Right to reside in the shared household.
- Monetary Relief: Medical expenses and loss of earnings.
10 Landmark Supreme Court Judgments
Mohd. Ahmed Khan vs. Shah Bano Begum (1985)
Established that Section 125 CrPC (Maintenance) applies to all women regardless of religion, including Muslim women.
Shayara Bano vs. Union of India (2017)
Declared the practice of instant 'Triple Talaq' as unconstitutional and void, protecting Muslim women's marital rights.
Vineeta Sharma vs. Rakesh Sharma (2020)
Clarified that daughters have coparcenary rights in ancestral property by birth, even if the father died before 2005.
Rajnesh vs. Neha (2020)
Mandated filing of 'Affidavit of Assets' by both parties to determine fair maintenance based on real income and lifestyle.
Velusamy vs. D. Patchaiammal (2010)
Recognized 'relationship in the nature of marriage' (Live-in) as covered under DV Act for maintenance and protection.
Lata Singh vs. State of UP (2006)
Upheld the right of adults to marry a person of their choice inter-caste/inter-religion. Police must protect such couples.
Shilpa Sailesh vs. Varun Sreenivasan (2023)
Supreme Court can use Art 142 powers to grant divorce on ground of 'irretrievable breakdown' without waiting for 6 months.
Ammini E.J. vs. Union of India (1995)
Struck down the 2-year separation requirement for Christian divorce under Section 10A of the Divorce Act, making it 1 year.
Pratibha Rani vs. Suraj Kumar (1985)
Husband/in-laws are merely trustees of Stridhan. Refusal to return it amounts to Criminal Breach of Trust (Sec 406 IPC).
Satish Chander Ahuja vs. Sneha Ahuja (2020)
'Shared Household' under DV Act includes the house owned by in-laws where the daughter-in-law lived.
Family Court Procedures
- Counseling: Mandatory step in most Family Court cases to explore reconciliation.
- In-Camera Proceedings: Cases can be heard privately to protect privacy.
- Child Custody: "Welfare of the Child" is the paramount consideration, not just the rights of parents.
Confidential Consultation
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