2nd CJT Lecture – Digitization of Courts: Experiences from the Bar 
Introduction:
Marriage, divorce, and child custody are deeply ingrained in the fabric of Indian society, representing significant milestones and challenges in the lives of millions of families. These legal aspects hold immense importance, as they dictate the rights and responsibilities of individuals within a family unit. India, being a diverse country, has a multifaceted legal landscape with various personal laws governing these matters based on religious affiliations. This article delves into the legal issues surrounding marriage, divorce, and child custody in India, shedding light on the complexities and implications involved.
1.Marriage in India:
Marriage is a sacred institution in India, a union of two individuals and their families, and it is governed by personal laws based on religion and customs. The four major personal laws in India are Hindu Law, Muslim Law, Christian Law, and the Special Marriage Act, each catering to specific religious communities.
A.Hindu Marriage: Hindu Law, governed by the Hindu Marriage Act of 1955, outlines the legal requirements and conditions for a valid Hindu marriage. These include the age of consent (18 years for males and 21 years for females), mental capacity, the absence of prohibited relationships, and the voluntary consent of both parties. Hindu marriages are often accompanied by rituals and customs that differ across regions and communities.
B. Muslim Marriage: Muslim Law, subject to the Muslim Personal Law (Shariat) Application Act of 1937, considers marriage a civil contract. Muslim marriage is valid if it fulfills specific conditions, such as the proposal (Ijab) and acceptance (Qubool), in the presence of two competent witnesses and without any legal impediments. After the 2019 legal amendment, the practice of instant triple talaq was declared unconstitutional, providing greater protection to Muslim women during divorce proceedings.
C. Christian Marriage: Christian Law in India, governed by the Indian Christian Marriage Act of 1872, prescribes the requirements for a valid Christian marriage. It involves mutual consent, a competent authority to solemnize the marriage, and compliance with any denominational requirements. The act also recognises marriage between Christians of different denominations.
D. Special Marriage Act: The Special Marriage Act of 1954 facilitates inter-religious and inter- caste marriages in India. Under this act, couples from different religious backgrounds can marry in a civil ceremony without converting to each other’s religion.
Divorce in India:
Despite the sanctity of marriage, divorce is a reality that many couples face for various reasons. The legal processes for obtaining a divorce differ under different personal laws.
A. Hindu Divorce: Under Hindu Law, divorce can be obtained on various grounds, including adultery, cruelty, desertion, conversion to another religion, mental disorder, or incurable leprosy. Couples seeking divorce must present evidence supporting their grounds in court.
B. Muslim Divorce: Muslim law allows divorce through various methods. The wife can seek divorce through khula, or mutual consent.
C. Christian Divorce: Christian Law permits divorce on grounds such as adultery, cruelty, desertion for two years or more, or suffering from an incurable form of leprosy or venereal disease. However, divorce in Christian communities is less common due to the emphasis on preserving the sanctity of marriage.
D. Special Marriage Act Divorce: Couples married under the Special Marriage Act can seek divorce through mutual consent or on grounds similar to those under Hindu law.
2. Child Custody in India: Child custody is an integral part of family law in India, primarily dealt with by the Guardians and Wards Act of 1890. Child custody decisions revolve around the best interests of the child, irrespective of the personal laws governing the parents.
A. Sole Custody: In sole custody, one parent is granted physical and legal custody of the child, and the other parent may have visitation rights or parenting time.
B. Joint Custody: In joint custody, both parents share physical and legal custody of the child, jointly making decisions concerning the child’s welfare.
C. Shared Custody: Shared custody involves an arrangement where the child spends substantial time with both parents, sharing decision-making responsibilities.
The court considers several factors, including the child’s age, emotional and physical well-being, educational needs, financial capacity of the parents, and their willingness to co-parent effectively, when determining child custody.
Legal Procedures and Mediation:
The legal procedures for marriage registration, divorce, and child custody in India can be intricate and time-consuming. Family courts strive to promote mediation to encourage amicable resolutions before proceeding with the trial. Mediation allows parties to negotiate and find mutually agreeable solutions, minimising the emotional stress on all parties involved and expediting the resolution process.
Recent Legal Reforms:
In recent years, India has witnessed significant legal reforms addressing various issues related to marriage, divorce, and child custody.
A. The Muslim Women (Protection of Rights on Marriage) Act, 2019, criminalised the practise of instant triple talaq, providing greater protection to Muslim women during divorce proceedings.
B. The Protection of Women from Domestic Violence Act, 2005, was enacted to provide more comprehensive protection to women facing domestic violence, irrespective of their marital status.
Conclusion:
Marriage, divorce, and child custody are crucial aspects of family life in India, shaped by diverse personal laws based on religion and custom. Navigating the legal issues surrounding these matters can be complex and emotionally taxing. An understanding of the relevant personal laws and legal procedures empowers individuals to make informed decisions and seek resolutions in family law matters. The recent legal reforms reflect the evolving nature of Indian society, aiming to promote justice, equality, and the best interests of families and children.
