Hindu, Jewish and Muslim law Flashcards
What are the requirements for a valid hindu marriage?
- parties had to belong to the same caste (otherwise invalid) unless otherwise sanctioned by custom. this requirement lost its force in India after the commencement of the Hindu Marriage Validity Act
- parties shouldn’t be sapindas (besides where custom allows)
- performance of proper marriage ceremonies (either vivah homa or saptapadi)
what is a hindu marriage called?
samskara (religious sacrament). its the last of the 10 sacraments and is regarded as a divine unification of souls
public joining together of man and woman as husband and wife
accomplished by solemnisation of customary rites and ceremonies by both parties
what are the ceremonies of a Hindu marriage
in general, there were 2 marriage ceremonies —
vivah homa (invocation before the sacred fire) and saptapadi (bride and bridegroom taken seven steps around the sacred fire)
List the 11 grounds for divorce?
- adultery
- cruelty
- desertion
- conversion
- leprosy
- venereal disease
- renouncing the world
- presumption of death
- insanity
- decree of judicial separation
- decree of conjugal rights
what are the 2 parts of a jewish marriage?
kiddushin (betrothal)
nissuin (completion of marriage)
what are the 3 ways of effecting kiddushin?
1.1. through money (bridegroom transfers to his bride, in front of 2 witnesses, money or property (a ring) to a specified value and making a declaration basically that she’s consecrated to him in accordance with the law of Moses and Israel
1.2. a deed transferring a deed to the bride (who must accept it) in front of 2 witnesses bridegroom expresses his intention to e betrothed to the wife with the same declaration as b4 ^^^ 1.3. cohabitation declaration + in front of 2 witnesses + sexual intercourse between the bridegroom and his wife
explain the ceremony of nissuin?
bride is brought to the bridegroom under the huppah where in front of 2 witnesses they are married
nissuin brings into effect full mutual rights and duties and completes kiddushin
What is a ketubbah
groom is required to give a marriage document (ketubbah)
→ which details the obligations of both parties to each other
this was included to protect women and making divorce conditional upon payment of a large sum mentioned in the ketubbah (to deter divorce)
What are the consequences of a jewish marriage?
- it brings into being certain rights and duties between spouses
- duty of husband was as breadwinner, provider and protector
- wife was expected to bear children and maintain the home
- nowadays the husbands obligations are:to provide the wife with maintenanceto supply his wife with clothing and lodgingto have sexual intercourse with his wife and satisfy her sexually (obligation of onah)to provide the ketubbah (sum fixed for wife by law)to procure medical attention and care during his wife’s illnessesto ransom his wife if she’s taken captiveto provide suitable burial upon his wife’s deathto provide for her support after his death and ensure her right to live in his house as long as she remains a widowto provide for the support of the daughters of the marriage from his estate after his death until they are married or reach majorityto ensure son’s of their marriage inherit mother’s ketubbah
what are the husbands rights in a jewish marriage?
the benefit of his wife’s handiwork performed at home
his wife’s chance gains or finds
the usufruct of his wife’s property
to inherit his wife’s estate
what are the grounds and consequences of divorce for jewish marriages?
Application of s5A of the Divorce Act
grounds for divorce and get (letter of divorce)
- jewish law has developed to allow for divorce but there isn't a systematic or detailed legislation in the written Torah concerning divorce - divorce isn’t encouraged or taken lightly. priests are forbidden to marry divorcees - the marriage document (ketubbah) provides a detterent to divorce as it requires the husband to pay a large amount - consequences of divorce — parties free to remarry; wife is entitled to a return of her property and the ketubbah unless she forfeits it by adultery divorce terminates husbands duty to maintain his wife but tradition suggests that he should continue to maintain her above the level of those who are generally poor (for charitable reasons)
What are the principles relating to the granting of custody of children
focus on parental duty and the best interests of the child
general rules -> children under 6 should be in custody of their mother
above the age of 6 -> boys - with their father; girls - with their mother
these can change if not in the best interests of the child
in jewish law, rules relating to custody are separate to those of maintenance. but just because the child is with their mother doesn’t mean the father doesn’t have to pay maintenance
both parties have rights of access to their children
ito guardianship, the default position is that the father has guardianship over his minor children
a mother generally doesn’t have legal standing over her children unless specifically appointed by a jewish court these matters are generally handled by a secular court outside of israel in israel, jewish law applies but has been modified to provide for equality between men and women: both parents are regarded as natural guardians
list the 4 types of divorce is Muslim law
forms of divorce
- divorce by the husband
- divorce by the wife
- divorce by mutual agreement of the spouses
- judicial divorce (tafriq)islamic law allows for divorce by judicial intervention where a court arbitrates and pronounces a divorcehusband/ wife can bring a suit for a judicial order of separation2 methods of dissolution —
- li'an (mutual imprecation) although not strictly speaking a judicial termination of the marriage - faskh (usually utilised by women since men have the right to talaq)this divorce is invoked where, although there is no evidence of adultery, the husband accuses his wife of adultery. this could be a reason to deny paternity of a child born of herfaskh - the only way a woman can obtain a irrevocable divorce (as understood in secular law) without her husband’s consent and participation agrounds for application:- injury or discord between the wife and husband
- failure of the husband to provide maintenance
- physical and mental defect on the husband’s part or
- husband’s prolonged absence sine causa (desertion) or his imprisonment
Discuss Arendse v Arsendse
Quasi-recognition of Mahr (dower)
woman applied to the court to have an eviction order set aside
the eviction order was brought forward by the woman’s ex husband
the woman had bipolar, and 3 children with whom she was granted sole custody of
the husband was seeking an eviction order because he alleged that his ex-wife had stopped paying rent and therefore rescinded his consent which would make her an illegal occupier
ex wife brought this application ito the PIE act and claimed the eviction infringed on her s26 con right to adequate housing
the court held that mahr hadn’t been paid, coupled with the fact that she was a vulenrable persons as were her children, considerations for alternative housing the court set aside the eviction order
and stated that the issue of mahr hadn’t adequately been dealt with
Discuss divorce by the husband ITO Muslim Law
3 forms —
two of which are ila224 (husband vows to abstain from sexual intercourse with his wife) & zihar225 (husband compares his wife in a derogatory manner to a female relative within a prohibited degree) both still valid but rarely used today talaq only 1 still relevant. can be effected in a no. of forms some being more meritorious than others
