Introduction to Family Law | Free Notes

Introduction to Family Law

INTRODUCTION

What is a Family Law? A Family Law is a set of laws which are framed in relation to matters such as Marriage, Divorce, Inheritance, Succession, Adoption, Minority and Guardianship. The laws relating to such matters in India are governed through different sets of personal laws namely, HINDU LAW (regulating all Hindus including Jains, Buddhists and Sikhs), MUSLIM LAW, CHRISTIAN LAW, PARSI LAW and a SPECIAL LAW comprising of the SPECIAL MARRIAGE ACT.

As India is a country with lot of diversity, the Indian Family Law is thus divided into sets of personal laws which are to be applied in their respective cases, as all the personal laws are regulated by their religious rituals, ceremonies, beliefs, backgrounds and according to their sacraments. The country is striving to enact a Uniform Civil Code throughout India, though the process will be time consuming but till then family matters would be governed through their respective personal laws.

WHAT IS A FAMILY?

The term ‘FAMILY’ was derived from a Latin term ‘Famulus’ which earlier meant as ‘Servants’ i.e. a group of people in service to individual; later the Latin term was modified as ‘Familia’ which had a new modern meaning as ‘Household’ i.e. a group of servants and relatives. Today Family means a relation which is developed by consanguinity or by affinity, i.e. by birth, marriage or adoption.

Various scholars have defined family, as per

Elliot and Meril, “Family is the biological social unit composed of husband, wife and children”.

Davis, “Family is a group of persons whose relations to one another are based upon consanguinity and who are, therefore, kin to one another”.

Maclver, “Family is a group defined by a sex relationship, sufficiently precise and enduring to provide for the procreation and upbringing of children”.

A Family is very important part of a society, a family is a cultural religious unit; one can become a part of family by being born in it, by marring in it or by being adopted by it. A family purely consists of parents and children. To survive in a society, everyone needs a family; it is a type of a social structure which enhances the society. A family is a tied by relations, relations between mother and father, parents and children, sister and brother, uncle and aunt, etc. Every person is connected by other through relations that help to form a family, relations being of any kind blood, marital or adoptive.

CHARACTERISTICS OF A FAMILY

Listed below are few characteristics of a family which are almost found in all types of families:

• MARRIAGE-A family comes into existence when there is a marital relation between a man and a woman coupled with copulation. A marriage is the institution of family; the society plays a big role in marriage. A marriage takes place when the groom marries the bridegroom as per the religious rituals and ceremonies. A marriage can be monogamous or polygamous; today a marriage can be an arranged marriage or a love marriage.
• COPULATION-A marriage is the institution of family, this institution takes place when there is copulation between a man and a woman. Copulation or a mating relationship can help in procreation of offspring.
• FIXED HABITATION-In order to spend life together, family needs a permanent house or a household where they can perform their day to day chores and essential functions and this is called as a fixed habitation. A place of fixed habitation forms the important characteristic of a family as a family cannot move from place to place on daily basis.
• NOMENCLATURE-This is the characteristic of a family where the family is recognized by its descent. A family has its own name like in case of Indian families, they are recognized through their surnames, and their descent can be discovered with the help of their surnames. Today married girls use their maiden surname along with their husband’s surname.
• FINANCIAL PROVISION-A family requires a source of income which can help to fulfil their basic needs, this function of providing financial or economic assistance to family is generally performed by the head of the family; although nowadays there is no such compulsion and even the females of the family are engaged in providing financial assistance to the family.
• EMOTIONAL FOOTING-A family is formed on basis of emotional bonds between the members. It is very important that in order to spend life together there has to be a mutual love and affection between the members of family, a family is a not a contract but is an emotional bonding which helps the members to not just spend the life but to actually live life together.
• SENSE OF SECURITY AND RESPONSIBILITY-Every person feels safe with their family; there is a sense of security which a family has towards its members. Similarly all the members of the family are responsible for shaping their family; everyone is bound by a sense of responsibility which they have towards their family, children of such families learn the importance of being responsible towards their actions.
• EDUCATIVE CHARACTER-A family plays a role of an educator during early period of life. During his childhood a child is under complete influence of his family and it is then the family can impart good values and knowledge within the child which will help him in future.
• UNIVERSALITY-A family is a universal institution that is found in all types of societies which existed in past or present and there is no person who does not have a family.
• LIMITED SIZE & CLOSED GROUP-A family is the smallest form of social groups, it is nuclear in nature and thus has a limited size with limited no. of members in it. Also a family is a closed group that is in order to get admission in to a family a person has be either born or married or adopted in the family there is no other option for the admission into a family.
• CHANGES ALONG WITH PERMENANCE-A family is of a permanent nature, its institution is of a permanent character but then there are changes which take place in a family by medium of births and deaths, so it causes hindrance to the permanent nature of family but also changes like these are bound to happen.

TYPES OF FAMILY

Families can be classified on different grounds. There are many forms of family which are grouped on basis of structure, authority, residence, descent or lineage, marriage, relations and group affiliation. All the above mentioned categories are further subcategorized which can be seen as below:

• STRUCTURE
  • NUCLEAR                                   
  • EXTENDED                                       
  • JOINT

1. NUCLEAR FAMILIES-These types of family are considered to be the smallest composite unit in the society. These families are very commonly found in this generation. It consists of a husband, wife and their unmarried children. Children get separated as soon as they are married and build their different household.
2. EXTENDED FAMILIES- These families are considered to be a mixture of two nuclear families which consists parents, their unmarried daughter, married son along with wife and their children. This is a type of continuous family.
3. JOINT FAMILIES- These types of families were common during the earlier period. It is a mixture of two or more nuclear families or two extended families, which consists of grandparents, parents, and their unmarried daughter, married son along with wife and their children. Though nowadays these types of families are becoming extinct.

• AUTHORITY
  • PATRIARCHAL                                                                                           
  • MATRIARCHAL

1. PATRIARCHAL FAMILIES- These types of families are those where the all the authorities and decisions regarding the family and its members are taken by the paternal side. The father is the head of the family and he acts as the protector, he also is the bread earner of the family, he also performs all religious activities. These families are very common in Indian society, the role of the wife is to merely take care of house and children, she is under total subordination mode, after marriage she comes to live in her husband’s house, she adopts his surname.
2. MATRIARCHAL FAMILIES- In these type of families it is the mother/wife who is the supreme controller of family, she performs all the functions which are performed by a male in patriarchal families; the reason behind this is that the father/husband would be out of the house for the purpose of hunting or is a solider etc. today these types of families are found Khasi and Garo tribes of Assam and Meghalaya, among Nayars of Malabar in Kerala.

• RESIDENCE
  • MATRILOCAL       
  • PATRILOCAL        
  • BI-LOCAL        
  • AVANCULOCAL      
  • NEOLOCAL

1. MATRILOCAL FAMILIES- In such types of families the married couple goes to live at wife’s house after marriage.
2. PATRILOCAL FAMILIES- In this type of family it is the wife who comes to live at husband’s house after their marriage.
3. BI-LOCAL FAMILIES- Here, it is couple’s choice to either live with the bride’s parents or the groom’s parents.
4. AVANCULOCAL FAMILIES- Here, the couple lives with husband’s maternal uncle who is brother of husband’s mother. This type of family is found in Nayars of Kerala.
5. NEOLOCAL FAMILIES- These families are those where the husband and wife live separately as per their job locations, these families are often referred to as ‘changing residence families’. Here the husband lives near the place of his work and the wife lives near her place of work. These families are mostly found in western countries.

• DESCENT / LINEAGE
  • MATRILINEAL                                                                                                 
  • PATRILINEAL

1. MATRILINEAL FAMILIES- These families have a descent or ancestry which is through mother. It is the mother in these families whose lineage is passed on. The properties are inherited through mother. This type is usually found amongst the Nayars, Bunts and Garos of Kerala, Karnataka and Meghalaya. A person is usually said to follow a matrilineal descent when he belongs to a matrilineal family.
2. PATRILEAL FAMILIES-These families are those where the descent or the ancestry of a person is traced through his father’s lineage. Patrilineal families are those where the property and title can be inherited through the father’s lineage. These types of families are common in India. Patrilineal families include father’s, father’s, father genetic kinship.

• MARRIAGE
  • MONOGAMOUS                                                                                       
  • POLYGAMOUS 

1. MONOGAMOUS FAMILIES- This type of family which comes under the marriage criteria. Monogamous families are those where there is a monogamy is practised i.e. neither the husband nor the wife can marry another person till their marriage subsides which would be in case of death of either spouse or divorce between couple. In India, monogamy is permitted and bigamy is punishable offence under Indian Penal Code.
2. POLYGAMOUS FAMILIES- Polygamous is further divided into 2 sections which consist of Polygynous and Polyandrous. Polygamy is basically where a spouse has married to more than one spouse. In polygynous families it is the husband who has more than one wife at the same time, this system is permitted under Muslim personal law; and polyandrous is family where a wife has more than one husband at the same time, and this system is not permitted in India.

• RELATIONS
  • CONSANGUINE                                                                                            
  • CONJUGAL

1. CONSANGUINE FAMILIES- These families come under blood relation category where a consanguine family is a family which consist of members who are related by blood with each other. It is a parent-child relation family who are blood relatives and live under the same roof together.
2. CONJUGAL FAMILIES- These families are those where there the relations are not by blood but by marriage. This family consists of husband wife and their child and relatives on basis of the marriage.

• GROUP AFFILIATION
  • IN GROUP (ENDOGAMOUS)                                         
  • OUT GROUP (EXOGAMOUS)

1. IN GROUP (ENDOGAMOUS) FAMILIES- These families are those where marriage has to take place between the couple belonging to the same in group which is known as endogamy. Marriage can take place only between same castes in these types of families and marrying outside the caste will not be accepted in this family.
2. OUT GROUP (EXOGAMOUS) FAMILIES- These families are those where one cannot marry within the same group. The system of marrying outside one’s group is called as Exogamy. In India marrying a person with same Gotra is not permitted.

CONCLUSION

As seen above a clear picture of a family can be derived from the various definitions, the characteristics and the types of family. As we all are aware that family is a social group which we all are part of, we become a part of a family by being born in it, or by marrying in it or by being adopted by it. We all are from different types of families according to our religious background our ancestry.

As India is a country with lots of diversity we can easily find all these above types of families in our culture. A family usually has all the basic characteristic features involved in it, it is a mating relationship, it is formed on basis of marriage, and it has a fixed habitation also has a financial provision for its members and all the other features mentioned above.