Family Law I: Chapter I

1. Nature and Evolution of Family

Definition:
a. Social Group
b. United by ties of i. Marriage ii. Blood iii. Adoption
c. Live in single Household
d. Interaction and intercommunication as per respective social roles
e. Creating a Common culture.

Origin:
a. Social Contract Theory
b. Promiscuity - Causal and Social
c. Karl Marx - Birth of Property
d. Role of Religion - Sanctified morals of marriage

Changing dimensions
a. Live in relationship
b. Childless couple – e.g. Prakash Vrinda Karat
c. Single Parenting – celebrities e.g. Nina Gupta
d. Child birth through surrogacy- relevance of marriage diminishing

Function of Family
a. Provides home
b. Legalized marital relationship
c. Procreation and legitimization of children.
d. Informal school for Religion, culture, education.

Kinds / Forms of Family

Basis Kinds/Forms
1. Authority A. Patriarchal
B. Matriarchal

2. Conjugal Units A. Nuclear

B. Extended
C. Joint

3. Residence A. Patrilocal
B. Matrilocal
4. Plurality of marriage A. Polygamous
B. Polyandrous
C. Monogamous

5. Ancestor A. Patrilineal
B. Matrilineal

6. Affiliation (Group) A. Endogamy (Within group)

B. Exogamy
(Inter-caste outside the group)

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2. Marriage
Relationship that exists Husband and Wife
The state of being united to a person of opposite sex as Husband or wife in a consensual or
contractual relationship recognized by law.

Gillin and Gillin

A Socially approved way of establishing a family of procreation.

Malinowshi
A contract for the production and maintenance of children.

H.T. Majumdar
Socially sanctioned union of male and female.

Anderson and parker

Is the sanctioning by a society of a durable bond husband or wife one or more male and
one or more females established and permit sexual intercourse for the implied purpose of
parenthood.

Forms of Marriage
Hypergamy : Daughter’s marriage in superior family.
Lavirate : Marrying childless widow of brother.
Sororate : Marrying sister of deceased wife.
Sororal polygamy : Marrying several sisters.

Anuloma : High Caste/Varna Husband + Low Caste/Varna Wife

Pratiloma : Low Caste/Varna Husband + High Caste/Varna Wife

Concubinage : Woman living without marriage, a keep.

Who is a Hindu?
1) Hindu by religion
a) Hindu, Sikh, Jain, Buddhist
b) Hindu, Sikh, Jain, Buddhist - convert and reconvert
c) Vaishnava, Shaiva, Lingayat, Tantric, Brahmo Samajist, Arya samajist etc.

2) Hindu by Conversion
Conversion: Hindu, Sikh, Jain, Buddhist
a) Normal ceremony is mandatory to be performed.
b) Person must have an intention to become a Hindu.
c) Bonafide declaration about acceptance/conversion.

3) Hindu by Birth
a) A child of Hindu parents/ Hindu, Sikh, Jain, Buddhist.
b) A child legitimate/ illegitimate Hindu, Sikh, Jain, Buddhist
c) One parent is Hindu, Sikh, Jain, Buddhist and child brought up as
d) Parents Hindu at the time of birth and child brought up as a Hindu

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4 Hindu by Domicile
a) All persons who are not Muslims, Christian, Jews and Parsis.
b) Those-Who Domicile in India.
c) To whom no other law is applicable is a Hindu. eg. Adivasi

Case laws
Shastri Vs Muldas (SC AIR 1961)
SC held that subjects of Hindus such as Swaminarayan, Satsangi, Aryasamajis are Hindus by
religion because they follow same basic concepts of Hindu philosophy.

Peerumal Vs Poonuswami (1971)

SC held that if a person after expressing an intention of becoming a Hindu, follows the customs
of caste, tribe or community and community accepts him, is a Hindu.

Mohandas Vs Dewaswan Board (1975)

Kerala High court held that a man declaration and action one enough for becoming a
Hindu.

Who is a Muslim?
1) Muslim by religion
A) One who follows basic tenets of Islam. i.e.
a) Principle of unity of God. God is one-Allah
b) Mohammad is prophet of God.
B) Whose Parents are Muslim.
C) Childs parents are Muslim at the time of birth of child.
D) If another of parent of child is Muslim at the time of birth and the
child brought up as a Muslim.

2) Muslim by Conversion
a) One can become Muslim by conversion.
b) Mere professing of Islam is enough.
c) Motive of conversion immaterial.
d) Person must renounce old fact as faith.
e) Conversion by reading Kalma and Sunta.
f) Conversion must be bonafide, honest and should not be colourable.

Shariat Act 1937

All converts to Islam are governed by Shariat Act 1937 relating of marriage, divorce,
guardianship, Gift, trust/Waqf, Adoption, Will etc.

Case laws

Jiwan Khan v. Habib (1933) 14 Lah 518

If a person is born of muslim parents he will be a Muslim, and it is not necessary to
establish that he observes any Islamic sites or ceremonies, such as performance of five-time
Namaz, Ramzan fast etc.

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Rai Bahadur v. Bishan Dayal (1882) 4 All 343

A person will be become a muslim, just because he calls himself a muslim or is
considered by others a muslim.

Syed v. Rajamma (1977 AP 132)

One who acknowledges
1. There is only one God and
2. Mohammad is his prophet is a Muslim.

Who is Parsi/Parsian/Zoroastrian
One who has faith in
1 One God
2 Good thoughts
3 Good words, Good Deeds.

No Conversion
1 One can’t become Persian through conversion.

Persian by Birth
Descendants of migrated Zoroastrian parents
Father Parsi, but mother alive but admitted faith.
Nusli wadia = Mohammad Jinah

Who is Christian?
Indian Christian marriage Act 1872
1 A person professes Christian Religion.
2 Descendant of Christian (parent)
3 Convert, Baptized

Who is Jew?
1 Who professes/ practices Jewish Religion.
2 If one asserts, he is a Jew and unless contrary is proved.
3 Person has to show some degree of his Jewness.