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Sneha Dharshini

Vikas Muralidharan

Family Law

20 November 2023

A_______SEPARATION

The movie A Separation will be reviewed in this essay, however it will be done so by

using the ideas of Indian family law. October 29, 2012 was the releasing date of this film. Asghar

Farhadi directed this film. This movie was released in 6 languages. The fact that this film was the

2012 Academy Award winner for Best Foreign Language is one of the reasons to review it. This

is the first film from Iran to take home the award. The fact that this film captured both the

realities of Iranian law and the attitudes of the Iranian people towards their government is

another factor.

The story revolves on a middle-class family consisting of 3 members namely Nader,

Simin and Termeh. The family had intended to move outside of Iran, but they were unable to do

so after it was discovered that Nader's father had Alzheimer's. Simin persisted in moving

overseas to provide their daughter Termeh a better education and environment, even though

Nader wanted to stay in Iran and take care of his sick father. The application for divorce results

from this disagreement, but the family court denies the application. Simin was unable to stay

with Nader, therefore she later relocated to her parental home.

Termeh continued living with her dad. Nader employs Razieh, a woman, to look after his

kid while he is away because Simin left. Razieh therefore goes to her job every day with her

daughter Somayeh. After returning from work two or three days later, Nader found his father

lying on the floor with his hand tied to the bed. Out of rage, he went looking for Razieh, who

wasn't in the house at the moment. When Razieh came back a few hours later, Nader was waiting

for her. An argument followed, during which Nader pushed Razieh from his house and she

tumbled to the steps. Razieh later finds out that she had a miscarriage and her husband accused

Nader for the loss of his child. The later part of the story deals with the findings of the actual

reason for Razieh’s miscarriage and how this incident took a toll on Nader’s already broken

family.

The facts shown in this film make it very evident that the couple's marriage was formally

consummated, and they have been living together for 14 years. Out of wedlock, Termeh, their

daughter, was born. Termeh is eleven years old. As stated in the film, Simin's desire to relocate

overseas and provide her daughter Termeh with greater possibilities is the primary cause of their

divorce. They ultimately file for divorce. Iran serves as the backdrop for this film. Applying the

same context to the Indian environment, and analyzing the facts of the case, there arises two

possibilities. Given that Iranian law is founded on Islam, one option is that Islamic law will serve

as the family's personal law. The second hypothesis is that, given the majority of those who

immigrated to India from Iran were Parsis, their personal law may be Parsi. The Parsi law is also

worth discussing because, in the film, Nader would have expressed his strong opinions about the

distinctions between Arabic and Farsi in conversation with his daughter. Since Simin expressed

her disapproval of Islam by mentioning that she is leaving the country due to the conditions in
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Iran, it stands to reason that if Nader's family is in India, they are more likely to convert to

Parsis. Nader is also more impacted by the Farsi language. It is also essential in looking into the

Guardians and Wards Act, 1890 regarding the custody and guardianship of the Minor daughter,

Termeh.

Issues:

The issues that arises from these circumstances are that

● Who will receive the custody of the child?

● Who will receive the guardianship of the child?

● Whether the wife will receive the maintenance?

Laws involved with the analysis:

Analyzing the facts beginning with the divorce is crucial to understanding these

challenges. The spouses may file for divorce on the reasons specified in Section 2 of the

Dissolution of Muslim Marriages Act, 1939, provided the marriage is registered under Muslim

law. However, mutual consent is not a factor in this part. Furthermore, it is evident from the facts

that the wife was the one who first suggested a divorce. In that sense, it is comparable to Khula.

However, Khula was questioned by Simin on the subject of incompatibility, which occurs when a

husband and wife have such divergent viewpoints that they cannot possibly coexist. This

evidence clearly shows that Nader agreed to Simin's proposal for Khula. Both parties have given

their consent for their marriage to be dissolved. We refer to this as Mubara'at. The dissolution of

a marriage by consent, known as Mubara'at, can be started by either side. One partner makes the
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proposition, and the other accepts it.1 The spouses will next file a joint petition of Khula or

Mubara'at with the court, explaining that they have been living apart and they have been unable

to live together. They have mutually agreed upon or that the husband accepted Khula's proposal

on specific terms. The divorce will be granted if the terms are accepted by the court.2

If the marriage is to be taken place under the Parsi Marriage and Divorce Act, 1936, the t

divorce can be applied under section 32B of the Parsi Marriage and Divorce Act, 1936 which

deals with the divorce by mutual consent.

In both the cases under the Muslim and Parsi Law, Simin cannot claim maintenance for

herself. This is according to Section 125(4) of the CrPC which states that “No Wife shall be

entitled to receive an allowance from her husband under this section if she is living in adultery,

or if, without any sufficient reason, she refuses to live with her husband, or if they are living

separately by mutual consent.”

The same proposition was held in the Kerala High Court in the case of Noushad Flourish

vs Akhila Noushad.3 The wife will not just lose her right of maintenance but she is also obliged

to repay the mehr to her husband. Even though the husband is not obliged to provide

maintenance for the wife, he is liable to provide maintenance for his daughter until the age of

majority or till she gets married.

1
Surbhi Singh, ‘What is Mubarat/Muslim Mutual Divorce’ 2023 Legal Vidhiya
<https://legalvidhiya.com/what-is-mubarat-muslim-mutual-divorce/#:~:text=Mubarat%20is%20dissolution%20of%
20marriage,accepted%20by%20the%20other%20spouse> accessed 20 November 2023.
2
Shaikh Akbar Shaikh Jafar, ‘Dissolution of Muslim Marriage: Modes and Procedure’ 2023
TheLawAdvice
<https://www.thelawadvice.com/articles/dissolution-of-muslim-marriage-modes-and-procedure-complete-overview#
:~:text=(i)%20Where%20the%20spouse%20arrived,have%20not%20been%20able%20to> accessed 20 November
2023.

3
Sanya Talwar, ‘Muslim Woman Who Initiated Divorce Can’t Claim’ 2023 Lawbeat
<https://lawbeat.in/news-updates/khula-section-125-crpc-muslim-woman-who-initiated-divorce-cant-claim-mainten
ance-kerala-hc> accessed 20 November 2023.
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When it comes to the custody and guardianship of the child, welfare and best interest of

the child are taken into paramount importance. A three Judge bench of the Court in

V.Ravichandran (2) v Union of India & Ors. (2010) 1 SCC 174. said “ whenever a question

arises before a Court pertaining to the custody of a minor child, the matter is to be decided not on

considerations of the legal rights of the parties, but on the sole and predominant criterion of what

would serve the best interest of the minor.”4 A similar idea was evident in the Fakkruddin Ali

Ahmed v. Tobassum Fatma, AIR 2018 Pat 84. case as well. It has been said that the minor's

wellbeing will come first, regardless of the parties' rights. Additionally, there should be a broad

interpretation of what is meant by the phrase welfare. The phrase "welfare" refers to more than

just financial security and material luxuries. Moral and ethical welfare is also important.5

According to the Hizanat under Muslim law, a female child's custody remains with her mother

until she reaches puberty, according to the Hizanat. Custody will go to the father upon puberty.

Termeh reached puberty in this instance. Therefore, Nader should get custody following the

divorce. However, it is essential that the child's well-being be considered.

A. Ability to maintain continuous involvement with the child:

Nader made the decision to remain in Iran to take care of his Alzheimer 's-stricken father.

Nader's primary concern at this point is taking care of his father. A child raised in such

conditions won't always have a positive outcome. The fact that Nadar can spend time

with his daughter will only be assumed given his focus on his father. It is accurate to say

that Nader is well aware of Termeh's education and studies. However, the passage of time

will determine whether it stays the same or changes. Nader won't be able to devote all of

4
Smriti Madan Kansagra v Perry Kansagra [2020] SCC (SC).
5
Dr.Paras Diwan, Family Law (13th edn, Allahabad law Agency 2023) 318.
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his attention to Termeh if his father's condition worsens. Since Termeh is going through

puberty, it's important that she gets lots of attention and stays out of stressful

circumstances.

B. Ability to provide better education:

Simin is an English Teacher. The fact that Simin is going abroad may also open up new

options and environments for Termeh. It should be mentioned that Simin and Nader made

the decision to move abroad in order to give their daughter, Termeh, better living

circumstances and surroundings. However, as Nader's father fell ill, this started to

become a problem. This shows that even Nadar believed that moving Termeh overseas

would provide her with a better environment.

C. Moral Welfare:

The movie's facts indicate that Nader was charged with murder because he pushed Razieh

out of rage. Additionally, he lied when it came to his awareness about Razieh's pregnancy

during the case trial. Unfortunately, his daughter will also be forced to lie throughout this

investigation. She will experience mental distress after the investigation and learning that

her father was lying. Even though in the end the director would have shown that the

cause of the miscarriage was unsure and cannot blame anyone significantly, the fact that

Nader did lie which indirectly caused Teher to lie cannot be neglected.

Based on the aforementioned circumstances and the positive test, it can be concluded

that, even if the mother's personal law forbids her from having custody of her daughter, who has

reached puberty, it is reasonable to grant the mother custody in accordance with the Guardians

and Wards Act, 1890. In Salamat Ali v. Majjo Begum, AIR 1985 All 29, the court would have
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ruled that the child's welfare should take precedence over personal law and that the court should

not apply personal law.6 Guardianship in this instance ought to go to the father. The same ruling

will apply even in the case of Nader's family following the Parsi Law.

The film's director would creatively show us that everyone has their own reasons, that

neither of them is to blame for their suffering, and that it was only the unfortunate events that

brought them both to that state of unhappiness. A straightforward, unvarnished portrayal of an

Iranian family's existence would have also been featured in this film. This film is truly deserving

of an Academy Award.

6
Dr.Paras Diwan, Family Law (13th edn, Allahabad law Agency 2023) 317.