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Family Law (Set of 2 Volumes)
Family Law (Set of 2 Volumes)
Description
About The Book (Volume:I- Family Laws and Constitutional Claims)

Family Law in India has a complex legal structure where different religious communities are guided by their own personal laws, each of which historically evolved under various social, religious, political, and legal influences. In two comprehensive and lucid volumes, Flavia Agnes, a leading activist and advocate in the area, examines family law in the light of social realities, contemporary rights discourse, and the idea of justice. What is unique in the volumes is that the ground level litigation practices around women’s rights are interwoven with the critical analyses of the statutory provisions.

Relying extensively upon case law, Volume 1 examines:
• The evolution of the personal laws of Hindus, Muslims, Christians, Parsis, and Jews during the colonial and post-colonial periods
• How these laws are applied in contemporary questions of marriage, divorce, property rights, and succession, and
• Whether it is possible to bring the law in conformity with modern changes through and in both the formal, statutory law, and the pluralistic and fluid community-based practices.

It also extensively examines the role of the judiciary, the political and academic debates around the issue of uniform civil code, and women’s citizenship claims in a stratified and hierarchical social order. Catering to the Family Law course at both the LLB and LLM levels, the volumes will be invaluable for students and teachers of law. They will appeal to lawyers, judges, and activists keen to get a fresh perspective on women’s rights and laws. Scholars working in the disciplines of political science, sociology, and gender studies will also find them usefull.

 

About The Book (Volume: II- Marriage, Divorce and Matrimonial Litigation)

Family Law in India has a complex legal structure where different religious communities are guided by their own personal laws, each of which historically evolved under various social, religious, political, and legal influences. In two comprehensive and lucid volumes, Flavia Agnes, a leading activist and advocate in the area, examines family law in the light of social realities, contemporary rights discourse, and the idea of justice. What is unique in the volumes is that the ground level litigation practices around women’s rights are interwoven with the critical analyses of the statutory provisions.

Relying extensively upon case law, Volume 2 critically analyzes:
• The litigation around the validity of marriage and procedures for dissolving it, the contemporary debates around issues such as child marriages, NRI marriages, and registration of marriages
• The framework of law on the issues of maintenance, matrimonial residence, and custody and guardianship of children, and
• Whether considering the procedural aspects of matrimonial law, and the increased powers of the family courts, gender justice concerns are being adequately addressed.

The Volume also emphasizes that it is necessary and possible for the law to fairly reflect individual and social contingencies at the ground level.

Catering to the Family Law course at both the LLB and LLM levels, the volumes will be invaluable for students and teachers of law. They will appeal to lawyers, judges, and activists keen to get a fresh perspective on women’s rights and laws. Scholars working in the disciplines of political science, sociology, and gender studies will also find them usefull.

 

About The Author

Flavia Agnes is a practicing advocate specializing in the area of women‘s rights. She is the founder member, and Director of Majlis, a legal and cultural resource centre in Mumbai.

 

Foreword

It is indeed a matter of great privilege for me to have been entrusted with the task of writing the Foreword to the two volumes of Family Law. Despite the size of the volumes, when taken together, there is an unwavering clarity of thought in both the volumes. The author stays true to her image of a person whose primary aim behind writing the present book (as also the ones previously written by her) is to bring a number of problems in the society to the fore, and not merely to enter into an academic exer- cise of compilation of information.

There is no gainsaying that India has under- gone an unprecedented transformation in last few decades. However, other than the changes in the economic and political spheres, the Indian society has also changed exponentially, leading to an upheaval in human relations. Since India is being observed and scrutinized at the world stage more than ever before, there is an impending duty upon the legislature to do away with some of the draconian and . exceedingly conservative personal laws that are considered to be unequal and biased against women and, thereby, present a more liberal face before the world. In the march towards becoming an economic superpower, an equally important need to create a balanced society can certainly not be underplayed. Personal laws have witnessed rapid advances due to the constantly changing nature of human relations. Therefore, to keep pace with such changes is a great challenge for both, the legislature and the judiciary. However, the courts have shown a positive and a fair amount of pro-activeness, combined with judicial creativity in meeting with the demands of a dynamic society. At the same time, in keeping pace with the changing trends in the society, the courts have taken utmost care to preserve the social fabric. These volumes greatly emphasize the idea that 'justice' in its true sense, can never be achieved without bringing about a sense of fairness and parity in the society. It is in this light that the author delves into the real idea of a truly participative democracy and the need to accord an equal place to women in the society. The uniqueness of these books lies in the fact that they have tried to view the idea of fairness and justice from the point of view of women, particularly those who have hitherto been marginalized as to what is their idea of a fair social order. The books cover vast contours of the society, thereby making it a multi-dimensional work. In volume I, chapter 1 elaborately exammes the various personal laws of the Hindus, Muslims, Christians, Parsis, and Jews and states that the personal laws of each religious community is a cumulative result of the social, economic, and political factors prevalent in the society. Therefore, the concept of justice differs in each religion depending upon such factors. However, the common thread running through all these religions is the underlying and impending need for a change in the personal laws and to increasingly bring it in conformity with the modern advances in the society.

Chapter 2 of the same volume studies the constitutional provisions which have a bearing on the field of personal laws and the role of the judiciary in reconciling the personal laws of each community with the supreme constitutional provisions. The author also intellectually enters into areas which are currently rnired in political debates, such as the comparison of personal laws of the minority communities with that of the majority, Uniform Civil Code and so on. In volume 2, chapter 1 scrutinizes the institution of marriage and its evolution from olden times to its swiftly changing nature in today's society owing to various social, moral, and economic factors. The author further examines the legislative changes brought about to maintain harmony and preservation of this institution, such as the Protection of Women from Domestic Violence Act. This chapter also highhghts several problems that have perennially plagued the society, such as child marriage, registration of marriages, and traditional notions of heterosexual marriages.

In volume 2, chapter 2 provides a broad perspective on the rights and duties of spouses, not only towards each other, but also in relation to other family members, especially children. In addition, the author has also discussed the various legal mechanisms in place for enforcement of these rights and duties.

Chapter 3 in volume 2 is a detailed study of the procedural aspects of matrimonial laws and whether such procedural mechanisms are in consonance with the idea of justice . However, inspite of the present legal mechanisms, the author has also given due importance to conciliatory measures as an alternative means to avoid litigation.

Personal laws occupy a unique position in today's age and play a pivotal role in keeping the society within the moral and civil bounds. It is trite to say that every person is covered under the ambit of such personal laws, and is greatly affected by changes that are brought about in this field. Therefore, there is an indispensable need to educate, not only the lawyers, but also the citizenry about the importance and impact of personal laws. It is informative books such as these that help in positively shaping the public opinion.

The legislative and judicial decisions mentioned on every subject are a result of extensive collection from a number of sources and have been carefully edited to cover each realm of the subject. Legal principles have been succinctly extracted from these decisions and lucidly interpreted. The books are, therefore, an exhaustive amalgamation oflegal principles, decisions, and opinions. However, apart from reliance on legal texts and case laws, the author has not lost sight of the ground realities and the practicalities that exist in the society as well as the operation of law. Further, an extensive subject index has been provided for an uncomplicated search of the point under reference, keeping in mind the wide nature of the laws that these books cover.

It would not be incorrect to say that going through the entire two volumes has been a highly enriching experience for me. I am of the sincere belief that this educative work is highly useful and will be well received by the members of the Bench, Bar, students oflaw, and academics.

 

Contents (Volume-I)

 

List of Boxes and Figures xiii
List of Abbreviations xv
Foreword by Justice Ajit Prakash Shah xvii
Acknowledgements xix
LAW,JUSTICE, AND GENDER xxi
CHAPTER 1: PERSONAL LAWS AND 1
WOMEN'S RIGHTS  
An Overview of the Personal Law Regime 1
Section A  
Hindu Law of Marriage and Property 10
Section B  
Islamic Law of Marriage and Succession 41
Section C  
Christian Law of Marriage and Succession 65
Section D  
Parsi Law of Marriage and Succession 75
Section E  
Jewish Law of Marriage and Divorce 84
Section F  
Civil Law of Marriage and Divorce 106
Section G  
Validity of Customary Laws 95
Conclusion 106
CHAPTER 2: CONSTITUTIONAL LAW 114
AND CITIZENSHIP CLAIMS  
Section A  
Locating Women's Claims within the Constitutional Domain 115
Section B  
Uniform Civil Code: Contesting Claims and Communal Hues 148
Section C  
Attempts at Formulating the UCC 170
Conclusion 183
List of Cases 196
Bibliography 200
Index 207
Contents (Volume-II)

 

List of Tables and Boxes xiii
List of Abbreviations xv
Foreword by Justice Ajit Prakash Shah xvii
Acknowledgements xix
LAW,JUSTICE, AND GENDER xv
CHAPTER 1: MARRIAGE AND ITS DISSOLUTION 1
Section A  
Marriage and Matrimonial Reliefs 1
Marriage: A Social Institution 1
Matrimonial Remedies 8
Section B  
Divorce 29
Divorce on Fault Grounds 29
Consent Theory of Divorce 49
Irretrievable Breakdown of Marriage 59
Section C  
Incidental Issues Concerning Marriage 66
Marriage of Minors 66
Marriages with Expatriate Indians 83
Registration of Marriages 93
Legal Incidents of Marriage 102
Conclusion 106
CHAPTER 2: MATRIMONIAL RIGHTS AND OBLIIGATIONS 128
Section A  
Maintenance Rights of Women 117
The Rights to Maintenance 118
Section B  
Maintenance: Incidental and Proceduaral Aspects 164
Section C  
Right to Matrimonial Home and Property 207
Right to Matrimonial Home 208
Nation of Matrimonial Property and Rules for its Division 224
Section D  
Custody and Guardianship of Minors 243
Conclusion 259
CHAPTER 3 : FAMILY COURTS AND GENDER JUSTICE 269
Ideological Premise of the Act 270
Chasm between the Demand and the Enactment 271
Institution and Jurisdiction 272
Presiding Officers 289
Lawyers and Counselors 294
Challenges Confronting Family Courts 305
Best Practices in Family Courst 312
Conclusion 316
Appendix A : Family Courts in India In 2005 323
Appendix B : Family Courts in India In 2010 326
Chapter 4 : The Interface Between Life And Law 328
List of Cases 350
Bibliography 367
Index 372

Sample Pages

Volume I











Volume II

















Family Law (Set of 2 Volumes)

Item Code:
NAG341
Cover:
Paperback
Edition:
2011
ISBN:
9780198067900
Language:
English
Size:
9.5 inch X 7.0 inch
Pages:
658
Other Details:
Weight of the Book: 938 gms
Price:
$65.00   Shipping Free - 4 to 6 days
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About The Book (Volume:I- Family Laws and Constitutional Claims)

Family Law in India has a complex legal structure where different religious communities are guided by their own personal laws, each of which historically evolved under various social, religious, political, and legal influences. In two comprehensive and lucid volumes, Flavia Agnes, a leading activist and advocate in the area, examines family law in the light of social realities, contemporary rights discourse, and the idea of justice. What is unique in the volumes is that the ground level litigation practices around women’s rights are interwoven with the critical analyses of the statutory provisions.

Relying extensively upon case law, Volume 1 examines:
• The evolution of the personal laws of Hindus, Muslims, Christians, Parsis, and Jews during the colonial and post-colonial periods
• How these laws are applied in contemporary questions of marriage, divorce, property rights, and succession, and
• Whether it is possible to bring the law in conformity with modern changes through and in both the formal, statutory law, and the pluralistic and fluid community-based practices.

It also extensively examines the role of the judiciary, the political and academic debates around the issue of uniform civil code, and women’s citizenship claims in a stratified and hierarchical social order. Catering to the Family Law course at both the LLB and LLM levels, the volumes will be invaluable for students and teachers of law. They will appeal to lawyers, judges, and activists keen to get a fresh perspective on women’s rights and laws. Scholars working in the disciplines of political science, sociology, and gender studies will also find them usefull.

 

About The Book (Volume: II- Marriage, Divorce and Matrimonial Litigation)

Family Law in India has a complex legal structure where different religious communities are guided by their own personal laws, each of which historically evolved under various social, religious, political, and legal influences. In two comprehensive and lucid volumes, Flavia Agnes, a leading activist and advocate in the area, examines family law in the light of social realities, contemporary rights discourse, and the idea of justice. What is unique in the volumes is that the ground level litigation practices around women’s rights are interwoven with the critical analyses of the statutory provisions.

Relying extensively upon case law, Volume 2 critically analyzes:
• The litigation around the validity of marriage and procedures for dissolving it, the contemporary debates around issues such as child marriages, NRI marriages, and registration of marriages
• The framework of law on the issues of maintenance, matrimonial residence, and custody and guardianship of children, and
• Whether considering the procedural aspects of matrimonial law, and the increased powers of the family courts, gender justice concerns are being adequately addressed.

The Volume also emphasizes that it is necessary and possible for the law to fairly reflect individual and social contingencies at the ground level.

Catering to the Family Law course at both the LLB and LLM levels, the volumes will be invaluable for students and teachers of law. They will appeal to lawyers, judges, and activists keen to get a fresh perspective on women’s rights and laws. Scholars working in the disciplines of political science, sociology, and gender studies will also find them usefull.

 

About The Author

Flavia Agnes is a practicing advocate specializing in the area of women‘s rights. She is the founder member, and Director of Majlis, a legal and cultural resource centre in Mumbai.

 

Foreword

It is indeed a matter of great privilege for me to have been entrusted with the task of writing the Foreword to the two volumes of Family Law. Despite the size of the volumes, when taken together, there is an unwavering clarity of thought in both the volumes. The author stays true to her image of a person whose primary aim behind writing the present book (as also the ones previously written by her) is to bring a number of problems in the society to the fore, and not merely to enter into an academic exer- cise of compilation of information.

There is no gainsaying that India has under- gone an unprecedented transformation in last few decades. However, other than the changes in the economic and political spheres, the Indian society has also changed exponentially, leading to an upheaval in human relations. Since India is being observed and scrutinized at the world stage more than ever before, there is an impending duty upon the legislature to do away with some of the draconian and . exceedingly conservative personal laws that are considered to be unequal and biased against women and, thereby, present a more liberal face before the world. In the march towards becoming an economic superpower, an equally important need to create a balanced society can certainly not be underplayed. Personal laws have witnessed rapid advances due to the constantly changing nature of human relations. Therefore, to keep pace with such changes is a great challenge for both, the legislature and the judiciary. However, the courts have shown a positive and a fair amount of pro-activeness, combined with judicial creativity in meeting with the demands of a dynamic society. At the same time, in keeping pace with the changing trends in the society, the courts have taken utmost care to preserve the social fabric. These volumes greatly emphasize the idea that 'justice' in its true sense, can never be achieved without bringing about a sense of fairness and parity in the society. It is in this light that the author delves into the real idea of a truly participative democracy and the need to accord an equal place to women in the society. The uniqueness of these books lies in the fact that they have tried to view the idea of fairness and justice from the point of view of women, particularly those who have hitherto been marginalized as to what is their idea of a fair social order. The books cover vast contours of the society, thereby making it a multi-dimensional work. In volume I, chapter 1 elaborately exammes the various personal laws of the Hindus, Muslims, Christians, Parsis, and Jews and states that the personal laws of each religious community is a cumulative result of the social, economic, and political factors prevalent in the society. Therefore, the concept of justice differs in each religion depending upon such factors. However, the common thread running through all these religions is the underlying and impending need for a change in the personal laws and to increasingly bring it in conformity with the modern advances in the society.

Chapter 2 of the same volume studies the constitutional provisions which have a bearing on the field of personal laws and the role of the judiciary in reconciling the personal laws of each community with the supreme constitutional provisions. The author also intellectually enters into areas which are currently rnired in political debates, such as the comparison of personal laws of the minority communities with that of the majority, Uniform Civil Code and so on. In volume 2, chapter 1 scrutinizes the institution of marriage and its evolution from olden times to its swiftly changing nature in today's society owing to various social, moral, and economic factors. The author further examines the legislative changes brought about to maintain harmony and preservation of this institution, such as the Protection of Women from Domestic Violence Act. This chapter also highhghts several problems that have perennially plagued the society, such as child marriage, registration of marriages, and traditional notions of heterosexual marriages.

In volume 2, chapter 2 provides a broad perspective on the rights and duties of spouses, not only towards each other, but also in relation to other family members, especially children. In addition, the author has also discussed the various legal mechanisms in place for enforcement of these rights and duties.

Chapter 3 in volume 2 is a detailed study of the procedural aspects of matrimonial laws and whether such procedural mechanisms are in consonance with the idea of justice . However, inspite of the present legal mechanisms, the author has also given due importance to conciliatory measures as an alternative means to avoid litigation.

Personal laws occupy a unique position in today's age and play a pivotal role in keeping the society within the moral and civil bounds. It is trite to say that every person is covered under the ambit of such personal laws, and is greatly affected by changes that are brought about in this field. Therefore, there is an indispensable need to educate, not only the lawyers, but also the citizenry about the importance and impact of personal laws. It is informative books such as these that help in positively shaping the public opinion.

The legislative and judicial decisions mentioned on every subject are a result of extensive collection from a number of sources and have been carefully edited to cover each realm of the subject. Legal principles have been succinctly extracted from these decisions and lucidly interpreted. The books are, therefore, an exhaustive amalgamation oflegal principles, decisions, and opinions. However, apart from reliance on legal texts and case laws, the author has not lost sight of the ground realities and the practicalities that exist in the society as well as the operation of law. Further, an extensive subject index has been provided for an uncomplicated search of the point under reference, keeping in mind the wide nature of the laws that these books cover.

It would not be incorrect to say that going through the entire two volumes has been a highly enriching experience for me. I am of the sincere belief that this educative work is highly useful and will be well received by the members of the Bench, Bar, students oflaw, and academics.

 

Contents (Volume-I)

 

List of Boxes and Figures xiii
List of Abbreviations xv
Foreword by Justice Ajit Prakash Shah xvii
Acknowledgements xix
LAW,JUSTICE, AND GENDER xxi
CHAPTER 1: PERSONAL LAWS AND 1
WOMEN'S RIGHTS  
An Overview of the Personal Law Regime 1
Section A  
Hindu Law of Marriage and Property 10
Section B  
Islamic Law of Marriage and Succession 41
Section C  
Christian Law of Marriage and Succession 65
Section D  
Parsi Law of Marriage and Succession 75
Section E  
Jewish Law of Marriage and Divorce 84
Section F  
Civil Law of Marriage and Divorce 106
Section G  
Validity of Customary Laws 95
Conclusion 106
CHAPTER 2: CONSTITUTIONAL LAW 114
AND CITIZENSHIP CLAIMS  
Section A  
Locating Women's Claims within the Constitutional Domain 115
Section B  
Uniform Civil Code: Contesting Claims and Communal Hues 148
Section C  
Attempts at Formulating the UCC 170
Conclusion 183
List of Cases 196
Bibliography 200
Index 207
Contents (Volume-II)

 

List of Tables and Boxes xiii
List of Abbreviations xv
Foreword by Justice Ajit Prakash Shah xvii
Acknowledgements xix
LAW,JUSTICE, AND GENDER xv
CHAPTER 1: MARRIAGE AND ITS DISSOLUTION 1
Section A  
Marriage and Matrimonial Reliefs 1
Marriage: A Social Institution 1
Matrimonial Remedies 8
Section B  
Divorce 29
Divorce on Fault Grounds 29
Consent Theory of Divorce 49
Irretrievable Breakdown of Marriage 59
Section C  
Incidental Issues Concerning Marriage 66
Marriage of Minors 66
Marriages with Expatriate Indians 83
Registration of Marriages 93
Legal Incidents of Marriage 102
Conclusion 106
CHAPTER 2: MATRIMONIAL RIGHTS AND OBLIIGATIONS 128
Section A  
Maintenance Rights of Women 117
The Rights to Maintenance 118
Section B  
Maintenance: Incidental and Proceduaral Aspects 164
Section C  
Right to Matrimonial Home and Property 207
Right to Matrimonial Home 208
Nation of Matrimonial Property and Rules for its Division 224
Section D  
Custody and Guardianship of Minors 243
Conclusion 259
CHAPTER 3 : FAMILY COURTS AND GENDER JUSTICE 269
Ideological Premise of the Act 270
Chasm between the Demand and the Enactment 271
Institution and Jurisdiction 272
Presiding Officers 289
Lawyers and Counselors 294
Challenges Confronting Family Courts 305
Best Practices in Family Courst 312
Conclusion 316
Appendix A : Family Courts in India In 2005 323
Appendix B : Family Courts in India In 2010 326
Chapter 4 : The Interface Between Life And Law 328
List of Cases 350
Bibliography 367
Index 372

Sample Pages

Volume I











Volume II

















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