Family Laws

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Family Law

Family law is an area of law that deals with family related issues and domestic relations including – the nature of marriage, domestic partnerships, spousal abuse, adoption, child custody, surrogacy, divorce, property rights, alimony and others. In the past, family law was largely concentrated around issues of marriage, divorce, property rights and succession. In certain societies such as India, the modern family law continues to be subjected to customary law – the customs, conventions, and practices that are part of the social fabric. Analysis of customary laws across cultures will bring forth the fact that it is women who were/are most affected by customary family laws. Below a discussion of the customary family laws as followed by Islam, Hinduism and Christianity (Roman and English Law) is taken up. Customary Family Laws in India

Women’s status within family and law, their rights to property and other rights varied significantly, depending upon the three phases of their lives – maidenhood, coverture and widowhood. While at every stage of their life women were confined within an inferior status, the worst was coverture. Under the Roman (continental) and English (common law1) legal systems, during coverture women were placed under the tutelage or guardianship of their husbands and deprived of all control over property. Since divorce was not recognized, only widowhood could end a period of coverture (Agnes 2000, 107-108). Of the three ancient legal system – the Islamic, the Hindu and the Roman – the Islamic system appears the most progressive, followed by the Hindu system, with the Roman system exercising the most stringent control of all, over women and their property (Agnes 2000, 108). Islamic Law

Islam was the first legal system to release women from the concept of coverture and recognized women’s right to property during marriage. Right from its inception in the seventh century, Islam redeemed marriage from the trappings of sacramental indissolubility and elevated it to the level of consensual, contractual unions. A thousand years later, this concept was adopted by the Continental legal system, from where it spread to England, and through this route was subsequently incorporated into Hindu law (Agnes 2000, 108). The custom of bride price in tribal Arabia – an amount paid to the father of the bride – was converted into mehr, which formed an essential ingredient of a marriage contract. Mehr could take the form of money, gold coins, or movable and immovable property. Once stipulated, the woman’s power over it was absolute. This stipulation was meant to balance the husband’s power of arbitrary oral divorce (Agnes 2000, 109). If the husband died without paying his mehr dues the woman was deemed a creditor, and if she was in possession of her husband’s property she could retain it till her mehr dues were paid and sometimes even alienate it if her mehr dues are not paid (Agnes 2000, 111). Since the Islamic system did not subscribe to the notion of coverture, the legal status of a married woman was not suspended during coverture. The position of a married woman in respect of her separate property was no different that of a single woman. A woman had the right to own her separate property during the subsistence of the marriage and the husband could not access it without her consent (Agnes 2000, 109). The contractual aspect also helped women to stipulate conditions in the marriage contract (nikahnama) or enter into pre-marriage agreements (kabin nama) regarding their individual property; access to the husband’s income and property; location of matrimonial home; the right to exclusive use of a house or at least a room; housekeeping allowance; the right not to do housework or breast-feed the children, the right of separate residence upon a husband’s subsequent remarriage; etc (Agnes 2000, 109-110). Ancient Hindu Law

Under both the Christian and the Hindu systems women lost their rights to acquire and...
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