Family Law-I ( LLB -201)

SEMESTER: THIRD
BBALLB / BALLB
NAME OF THE SUBJECT: FAMILY LAW - I
UNIT - 1
TOPIC: INSTITUTION OF MARRIAGE UNDER HINDU
LAW
FACULTY NAME: Ms. Anubha Jain
(Assistant Professor)

Introduction of the Hindu Law
Concept of Dharma
• Hindu Law is a body of principles or rules called ‘Dharma’. Dharma
according to Hindu texts embraces everything in life.
• According to the Hindus, ‘Dharma’ includes not only what is known
as law in the modern sense of the term but all rules of good and
proper human conduct.
• Dharma is used to mean justice what is right in a given circumstance,
moral, religious, pious or righteous conduct, being helpful to living
beings and things, duty, law and usage or custom having in the force
of law and also a valid Rajashasana
Origin of Hindu law
• The Hindu system as modified through centuries has been in existence
for over ten thousand years and has continued to govern the social and
moral patterns of Hindu life with harmonizing the diverse elements of
Hindu cultural life.

Nature and scope of Hindu Law
• Hindu law, though believed to be of divine origin, is based essentially on
immemorial custom and many of the acts of the people which were purely
of a secular nature. But the secular nature of the acts have been modified to
suit the religious preferences of a Brahmin community. With a desire to
promote the special objects of religion or policy, they have used their
intellectual superiority and religious influence to mold the customs of the
people

Who are Hindus
• The term ‘Hindus’ denotes all those persons who profess Hindu religion
either by birth from Hindu parents or by conversion to Hindu faith.
• In Yagnapurus dasji v. Muldas [AIR 1966 SC 1119], the Supreme Court
accepted the working formula evolved by Tilak regarding Hindu religion
that ‘acceptance of Vedas’ with reverence, recognition of the fact that the
number of Gods to be worshiped at large, that indeed is the distinguishing
feature of Hindu religion.

• In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of
Hindus such as Swaminarayan, Satsangis, Arya Samajis are also Hindus by
religion because they follow the same basic concept of Hindu Philosophy.
• Converts and Reconverts are also Hindus.
• If only one parent is a Hindu, the person can be a Hindu if he/she has been
raised as a Hindu. In Sapna vs State of Kerala, Kerala HC, the son of
Hindu father and Christian mother was held to be a Christian

To whom Hindu Law apply:
• 1. Hindus by birth
• 2. Offshoots of Hinduism
• 3. Persons who are not Muslims, Christians, Parsis or Jews
• 4. Converts to Hinduism
• 5. Reconverts to Hinduism
• 6. Harijans
• 7. Aboriginal Tribes
To whom Hindu law does not apply
• to converts from the Hindu to the Mohammedan faith
• to the Hindu converts to Christianity
• to the illegitimate children of a Hindu father by Christian mother and who
are brought up as Christians

Sources of Hindu Law
Ancient Sources
• Before the codification of Hindu Law, the ancient literature was the only source of the
law. These sources can be divided into four categories:
1.Shruti & Vedas
• Shruti means “what is heard”. It is believed that the rishis and munis had reached the
height of spirituality where they were revealed the knowledge of Vedas. Thus, shrutis
include the four vedas – rig, yajur, sam, and athrava along with their brahmanas. The
brahmanas are like the apendices to the Vedas. Vedas primarily contain theories about
sacrifices, rituals, and customs.
2. Smritis
• Smriti means “what is remembered”. With Smritis, a systematic study and teaching of
Vedas started.. So it can be said that Smritis are a written memoir of the knowledge of
the sages. Immediately after the Vedic period, a need for the regulation of the society
arose.

.Dharmasutras:
• The Dharmansutras were written during 800 to 200 BC. They were mostly written
in prose form but also contain verses. It is clear that they were meant to be training
manuals of sages for teaching students.
Dharmashastras:
• Dharmashastras were mostly in metrical verses and were based of Dharmasutras.
However, they were a lot more systematic and clear.
• Manusmriti: This is the earliest and most important of all. It is not only defined the
way of life in India but is also well know in Java, Bali, and Sumatra. The name of
the real author is not known because the author has written it under the mythical
name of Manu, who is considered to the first human.
• Yajnavalkya Smriti: Though written after Manusmriti, this is a very important
smriti. Its language is very direct and clear. It is also a lot more logical. He also
gives a lot of importance to customs but hold the king to be below the law.

3.Commenatries and Digests
• After 200 AD, most the of work was done only on the existing material given in
Smritis. The work done to explain a particular smriti is called a commentary.
• Commentaries were composed in the period immediately after 200 AD. Digests
were mainly written after that and incorporated and explained material from all the
smritis. As noted earlier, some of the commentaries were, manubhashya and
mitakshara.
• While the most important is Jimutvahan’s Dayabhag that is applicable in the
Bengal and Orissa area.
• Mitakshara literally means ‘New Word’ and is paramount source of law in all of
India

4.Customs
• Most of the Hindu law is based on customs and practices followed by the people all
across the country. Even smrutis have given importance to customs.
• They have held customs as transcendent law and have advised the Kings to give
decisions based on customs after due religious consideration.
Customs are of four types:
• Local Custom: These are the customs that are followed in a given geographical
area.
• Family Custom: These are the customs that are followed by a family from a long
time. These are applicable to families where ever they live.
• Class or Caste Custom: These are the customs that are followed by a particular cast
or community. It is binding on the members of that community or caste. By far, this
is one of the most important source of laws.
• Guild Custom: These are the customs that are followed by traders.

Requirements for a valid custom
• Ancient
• Continuous
• Certain
• Reasonable
• Not against morality
• Not against public policy
• Not against any law

Modern Sources
Judicial Decisions (Precedents)
• The doctrine of stare decisis started in India from the British rule. All cases are now
recorded and new cases are decided based on existing case laws.
• Today, the judgment of SC is binding on all courts across India and the judgment of
HC is binding on all courts in that state.
Legislatures / Statutes (Codification of Hindu Law)
• In modern society, this is the only way to bring in new laws. The parliament, in
accordance with the needs society, constitutes new laws. For example, a new way
of performing Hindu marriages in Tamil Nadu that got rid of rituals and priests was
rejected by the SC on the basis that new customs cannot be invented. However, TN
later passed an act that recognized these marriages

Justice, equity and good conscience
• Equity means fairness in dealing. Modern judicial systems greatly rely on being
impartial.
• True justice can only be delivered through equity and good conscience.
• In a situation where no rule is given, a sense of ‘reasonableness’ must prevail.
• According to Gautama, in such situation, the decision should be given that is
acceptable to at least ten people who are knowledgeable in shastras.
• Yagyavalkya has said that where ever there are convincing rules, the decision must
be based on ‘Nyaya’

Schools of Hindu Law
Due to the emergence of various commentaries on SMIRITI and SRUTI, different
schools of thoughts arose. The commentary in one part of the country varied from
the commentary in the other parts of the country.
The Mitakshara School
• The Mitakshara School exists throughout India except in the State of Bengal and
Assam. The Yagna Valkya Smriti was commented on by Vigneshwara under the
title Mitakshara. The followers of Mitakshara are grouped together under the
Mitakshara School.
• Mitakshara school is based on the code of yagnavalkya commented by
vigneshwara, a great thinker and a law maker from Gulbarga, Karnataka. The
Inheritance is based on the principle or propinquity i.e. the nearest in blood
relationship will get the property.
• The school is followed throughout India except Bengal state. Sapinda relationship
is of blood. The right to Hindu joint family property is by birth. So, a son
immediately after birth gets a right to the property.

• Dravidian School Of Thought (Madras School)
• Maharashtra School (Bombay School Of Thought)
• Banaras School Of Thought
• Mithila School Of Thought
The Dayabhaga School
• It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by
Jimootavagana under the title Dayabhaga. It has no sub-school. it differs from
Mitakshara School in many respects.
• This school is followed in Bengal state only. Sapinda relation is by Pinda offerings.

Evolution of the Institution of Marriage and Family
Definition and Forms of Hindu Marriage
• Marriage is a civil and religious contract whereby a man is joined and united to a
woman for the purpose of civilized society. In law ‘marriage’ may mean either the
acts, agreements, or ceremony by which two persons enter into wedlock, or their
subsequent relation created thereby.
• Marriage is the civil status or personal relation of one man and one woman joined
together in a matrimonial union which was lawfully entered into characteristics of
Marriage: Marriage is universal, It is for the formation of family, It forges a new
social link, It fixes the responsibility of bringing up children on the parents, It is a
result of civil or religious ceremony.
• Legitimization of children born out of such union which is a social need
• In marriage, the male and female get the right of mutual relationship in economic,
social and biological spheres

Importance of the Institution of Marriage
• The institute of marriage regulates and socially validates relatively long-term
legitimate sexual relation between males and females.
• Marriage serves to start reproductive process, Marriage is also a way to acquire new
Kinsmen, It is only after marriage a family comes into being

Matrimonial Rights and Obligations
Duties of a Husband are: to protect his wife, to give her a home, to
maintain her by providing her with comforts and necessities of life within
his means.
Rights of a Husband are: he is entitled to the custody and the conjugal
society of his wife.

• Duties of a Wife are: to attend to the needs of her husband both in religious
and household activities, to show obedience and veneration for the
husband, to live with him wherever he may choose to reside unless he is
guilty of cruelty or misconduct
• Rights of a Wife are: right for maintenance throughout her life, right of
equality in the house of her husband, right to bring suit for the restitution of
conjugal rights, right to get divorce for the cruelty, insults, etc

Different forms of marriage
Ancient Hindu Law:
The four obsolete approved forms
• Brahma (to a man learned in vedas)
• Daiva (to a priest)
• Arsha (father’s taking girI from groom: a cow and a bull)
• Prajapatya (similar to Brahma, girI of a daughter by father, but bridegroom
need not be a bachelor)

The four unapproved forms:
• Asura (When groom buys bride through money)
• Gandharva (When voluntary union against parent’s wishes)
• Rakshasa (When forcible abduction / kidnapping)
• Paishacha (when intoxicated)

Forms of Marriage in Modern Hindu Law
Hindu Marriage Act 1955 does not specifically provide for any forms of
marriage. The Act calls marriage solemnized under the Act as Hindu
Marriage which may be performed in accordance with the shastric rites and
ceremonies or prevalent custom

Hindu Marriage Act,1955
• Definitions
• Custom and Usages
• Full Blood, Half Blood and Uterine Blood
• Sapinda Relationship
• Degree of Prohibited Relationship

Conditions of a Valid Marriage
5 Conditions for a Hindu marriage.:
—A marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled, namely:
—(i) neither party has a spouse living at the time of the marriage;
[(ii) at the time of the marriage, neither party
—(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind;
or
(b) though capable of giving a valid consent, has been suffering from mental disorder of
such a kind or to such an extent as to be unfit for marriage and the procreation of
children; or
(c) has been subject to recurrent attacks of insanity
(iii) the bridegroom has completed the age of 4 [twenty-one years] and the bride, the age
of 5 [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of
them permits of a marriage between the two;

• Monogamy: The first essential condition for a valid marriage is that neither party
should have a spouse living at the "me of marriage. Monogamy is the voluntary
union for life of one man with one woman to the exclusion of all others.
• Bigamy is the reverse of monogamy.
• Section 11 makes a bigamous marriage void and section 17 makes it a penal
offence under Section494 and 495 IPC

Leading Case Laws:
• Bhaurao Shankar Lokhande v. State of Maharashtra (AIR 1965 ALL 489)
• Sarla Mudgal v. UOI ( AIR 1995 SC 1531)
• Lily Thomas v. UOI ( AIR 2000 SC 1650)
• S.Nagalingam v. Sivagami (2001 (7) SCC 487

Age Condition
• Prohibition of Child Marriage Act 2006
Leading Case laws
• P.V Venkataramana V. State (AIR 1977 A.P 43)
• Doctrine of Factum Valet: It is a doctrine of Hindu law, which was originally
enunciated by the author of the Dayabhaga, and also recognized by the followers of the
Mitakshara, that ‘a fact cannot be altered by a hundred texts’. The text referred to are
directory texts, as opposed to mandatory texts. The maxim, therefore, means that if a
fact is accomplished, i.e., if an act is done and finally completed, although it may
contravene a hundred directory texts, the fact will nevertheless stand, and the act done
will be deemed to be legal and binding.
• This doctrine came from Roman maxim ‘factum valet quod peri non debuit’ which
literally means that ‘what ought not to be done become valid when done’.
• In the case of Venkatrama v. State, the court has applied the doctrine of factum valet to
child marriage and held that the marriage itself is valid though penal consequences are
attracted. The child marriages are neither void nor voidable. They continue to be valid
even though punishable.

Void ( Section 11) and Voidability ( Section 12) of Marriage
• The Act introduced the concept of void, voidable and dissoluble Marriages. Some
marriages performed in contravention of certain legal provisions are void ab initio
and have no legal effect.
• There are those which are legal so long as they are not challenged, and these are
called voidable. The other category of marriages that are perfectly legal or valid but
due to existence of certain conditions, the petitioner is entitled to seek a divorce.

Impediments or Bars to marriage:
a. Absolute, if exist marriage is void
b. Relative, if exist marriage is voidable
Section 11:Void marriages
Any marriage solemnised after the commencement of this Act shall be null and
void and may, on a petition presented by either party thereto [against the other
party], be so declared by a decree of nullity if it contravenes any one of the
conditions specified in clauses (i), (iv) and (v) of section 5.

Section 12:Voidable marriages
1) Any marriage solemnised, whether before or after the commencement of this Act,
shall be voidable and may be annulled by a decree of nullity on any of the
following grounds, namely:
[(a) that the marriage has not been consummated owing to the impotence of the
respondent; or]
(b) that the marriage is in contravention of the condition specified in clause (ii) of
section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in
marriage of the petitioner 2[was required under section 5 as it stood immediately
before the commencement of the Child Marriage Restraint (Amendment) Act, 1978
(2 of 1978)], the consent of such guardian was obtained by force 3[or by fraud as to
the nature of the ceremony or as to any material fact or circumstances concerning
the respondent]; or
(d) that the respondent was at the time of the marriage pregnant by some person
other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a
marriage
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if
(i) the petition is presented more than one year after the force had ceased to
operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the
marriage as husband or wife after the force had ceased to operate or, as the case
may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained
unless the court is satisfied
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnised
before the commencement of this Act within one year of such commencement and
in the case of marriages solemnised after such commencement within one year from
the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place
since the discovery by the petitioner of the existence of [the said ground].

Impotency
Leading Cases
• Shantabai v. Tara Chand (AIR 1966 M.P 9)
• Digvijay Singh v. Pratap Kumari (AIR 1970 SC 137)
• Amendment of 1976

Incapacity to consent and Mental disorder
Leading cases
• Bennett v. Benett (1969) ALL ER 539
• R.Lakshmi Narayan v. Santhi(AIR 2001 SC 2110)
Fraud and Force
• 1976 Amendment
Leading Cases
• Asha Qureshi V. Afaq Qureshi (AIR 2002 MP 263)
• Babui Panmato Kuer v. Ram Agya Singh (AIR 1968 Pat 190)

Restitution of Conjugal Rights
Section 9:
• When either the husband or the wife has, without reasonable excuse, withdrawn
from the society of the other, the aggrieved party may apply, by petition to the
district court, for restitution of conjugal rights and the court, on being satisfied of
the truth of the statements made in such petition and that there is no legal ground
why the application should not be granted, may decree restitution of conjugal rights
accordingly.
[Explanation.—Where a question arises whether there has been reasonable excuse
for withdrawal from the society, the burden of proving reasonable excuse shall be
on the person who has withdrawn from the society.]

• The meaning of Restitution of Conjugal Rights: Either husband or wife has without
reasonable excuse withdrawn from the society of other, the aggrieved party, may
approach the court for ‘Restitution"on of Conjugal Rights’ and the court on being
satisfied on the truth of the statement in such petition may grant decree for
‘Restitution of Conjugal Rights’.
• In case, husband or wife lives separately, then they can avail Conjugal Rights.
• In case, if there was any valid reason to live separately, then they cannot avail
Conjugal Right

Pre-Requisites for grant of RCR
1. Respondent has withdrawn from the society of the petitioner
2. Withdrawal is without reasonable exuse
3. Court is satisfied that statements made in petition are true
4. No legal ground for refusing to grant application

Problem of Choice of Matrimonial Home(Case of Working
Ladies)
• Can a husband compel his wife to resign her job and stay with him?
Cases to be discussed:
Traditional view
• Kailashwati v. Ajodhia Parkash,79 PLR 216 (1977)
Progressive view
• Shanti Nigam v. Ramesh Chandra,AIR 1971 ALL 567
• Swaraj Garg v. K.M Garg, AIR 1978 Del 296

Constitutional Validity of Section 9
Cases to be discussed:
• T.Sareetha v. Venkata Subbaiah, AIR 1983 AP 356
• Harvender Kaur v. Harmender Singh, AiR 1984 Delhi 66
• Saroj Rani v. Sudharshan Kumar, AIR 1984 SC 1562

Divorce
• Under Hindu Custom, Marriage is considered as sacred and they have this
relation by the blessings of the God. They believed the concept of
marriages are made in heaven”. Hindus considered the separation of
couple as a sin and hence the question of living separately did not arise in
olden days. Once married, then it will lasts till the end of life.
• Divorce means putting an end to the marriage by dissolution of marital
relations. The parties can no longer be husband and wife. Divorce was
unknown to the old textual Hindu law of marriage.
• Manu declared that a wife cannot be separated from her husband either by
sale or by abandonment because marital "e could not be severed under any
circumstances whatsoever.
• Manu did not approve of the dissolution of marriage in any condition

Theories of Divorce
• Divorce at Will Theory
• Frustation of Marriage Theory
• Offence or Guilt or Fault Theory
• Mutual Consent Theory
• Irretrievable Breakdown Theory ( Yousuf v. Sowramma, AIR
1971 Ker 261)

Position in Modern Hindu Law(Amendments)
• The Hindu Marriage Act,1955 originally based divorce on the faulty theory and
enshrined nine fault ground in Section 13(1) on which either husband or wife could
sue for divorce and two fault ground in Section 13(2) on which wife could sue for
divorce.
• In 1964,by an Amendment, clauses (viii) and (ix) of Section 13(1) were recasted in
the form of 13(1A),thus recognizing two grounds of breakdown of marriage. The
1976 Amendment Act inserted two additional fault grounds of divorce for wife and
a new Section 13 B (Divorce by Mutual Consent)

Statutory Provisions (Section 13,13A,13B,14,15,23 & 23A)
Section 13:(1) Any marriage solemnized, whether before or after the
commencement of this Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of divorce on the ground that
the other party—
• Adultery:
• Cruelty:
• Desertion:
• Conversion:
• Unsoundness of mind:
• Venereal disease:
• Renunciation of the world:
• Presumption of death:
• Non-resumption of cohabitation after the decree of judicial separation:
• Non-compliance with the decree of restitution of conjugal rights:

• (1A) Either party to a marriage, whether solemnized before or after the
commencement of this Act, may also present a petition for the dissolution of the
marriage by a decree of divorce on the ground:
• (i) that there has been no resumption of cohabitation as between the parties to the
marriage for a period of [one year] or upwards after the passing of a decree for
judicial separation in a proceeding to which they were parties; or
• (ii) that there has been no restitution of conjugal rights as between the parties to the
marriage for a period of [one year] or upwards after the passing of a decree for
restitution of conjugal rights in a proceeding to which they were parties.]

Section 13(2) Grounds available for wife:
• Bigamy:
• Rape, Sodomy and bestiality:
• Maintenance decreed to Wife
• Repudiation of Marriage by Wife

Adultery ( Section 13(1)(i))
• Adultery (extra marital sex), may be defined as consensual sexual intercourse
between a married person and a person of the opposite sex, not the other spouse,
during the subsistence of the marriage.
• Prior to 1976 Amendment, it was only available for judicial separation and for
divorce, the respondent had to prove that respondent was ‘living in adultery’( which
means continuous period of acts), now one single act is enough.

Points to discuss
• Voluntary Sexual Intercourse
• After the solemnization of Marriage
• Nature and Burden of Proof
• One Single Act

Cruelty (13)(1)(ia)
• Out of all grounds it is the most difficult to define. No precise definition.
• In Russel v. Russel(1897) A.C (305), cruelty defined as, Conduct of such a
character as to have cause danger to life ,limb or health, bodily or mental, or as to
give rise to a reasonable apprehension of such danger.
• Before 1976,cruelty was not a ground of divorce, but only judicial separation.

Physical and Mental Cruelty
Instances of Physical Cruelty
• Repeated beating
• Burning any limb
• Neglect in providing or starving
• Keeping in illegal confinement

Instances of Mental Cruelty
• False Charge of unchastity
• Compelling the wife to adopt the adopt life of prostitution
• Repeated threats to commit suicide
• Voluntary abortion

Leading case Laws
• Dastane v. Dastane (1975) 2 SCC 326
• Samar Ghosh v. Jaya Ghosh, 2007(3) SCJ 253
• Concept of Mental Cruelty explained in Parveen Mehta v. Inderjit
Mehta,(2002) 5 SCC 706
• V. Bhagat v. D. Bhagat (AIR 1994 SC 710
• Suman Kapur v. Sudhir Kapur ( AIR 2009 SC 589)

Desertion( Section 13(1)(ib)
• It may be defined as permanent foresaking or abandonment of one spouse by the
other without any reasonable cause and without the consent of the other.
• Total repudiation of obligations of marriage
• Withdrawal not just from a place but also from a state of thing.
• Thus desertion is there even if spouses are living under one roof but refuses to
fulfill the matrimonial obligation.

• Desertion may be Actual or Constructive or Willful Neglect.
For Actual Desertion, following elements must be there:
a. The factum of separation
b. Animus deserdendi (intention to desert)
c. Without reasonable excuse
d. Without the consent of other party
e. Statutory period of two years must have run out before petition is
presented

Constructive Desertion
• It cannot always be equated with separate living by the parties to marriage. If it is
proof that despite of living under same roof spouse intentionally neglects the other
spouse then also he is guilty of desertion.
• Thus desertion is not actually the abandonment of a place but of a relationship.
• It has same requirements as actual.

Willful Neglect
• Explanation to 13(1) of the Act states that desertion includes willful neglect of the
petitioner by the other party to the marriage.
• Thus it can be said that willful neglect adds a new dimension to the notion of
desertion.
• Thus it will amount to willful neglect if a person consciously acts in a reprehensible
manner in the discharge of his obligations.

Leading Case Laws
• Bipinchandra v. Prabhawati ,AIR 1957 SC 176
• Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591

Conversion 13(1)(ii)
• Conversion implies that the person has voluntary relinquishes his faith and
adopted another religion after ceremonial conversion.
• Conversion does not itself result in Divorce. A petition under this section is
to be made to the court for obtaining divorce.
Leading Case Laws:
• Sarla Mudgal v. UOI, AIR 1995 SC 1531
• Lily Thomas v. UOI, (2000) 6 SCC 224

Mental Disorder( Section 13(1)(iii) & Virulent and Incurable form
of Leprosy(13(1)(iv)
• Prior to 1976 “unsoundness of mind” and virulent and incurable form of leprosy for
one year was a ground for judicial Separation, and for three years for divorce. But
after amendment now no period is prescribed.
Leading Case Law
• T.N Bhagat v. Bhagat ( AIR 1967 Bom. 80)

Irretrievable Breakdown of Marriage (13(1A))
• [(1A) Either party to a marriage, whether solemnized before or after the
commencement of this Act, may also present a petition for the dissolution
of the marriage by a decree of divorce on the ground:
• (i) that there has been no resumption of cohabitation as between the parties
to the marriage for a period of 8[one year] or upwards after the passing of a
decree for judicial separation in a proceeding to which they were parties; or
• (ii) that there has been no restitution of conjugal rights as between the
parties to the marriage for a period of [one year] or upwards after the
passing of a decree for restitution of conjugal rights in a proceeding to
which they were parties.]

Things to Discuss
• The Law Commission of India,71st Report
• The Supreme Courts Recommendations
• The Marriage Laws (Amendment) Bill,2010
Leading Case Laws
• Yousuf v. Sowramma (AIR 1971 Ker 261)
• Dharmendra Kumar v. Usha Kumar AIR 1977 SC 2213
• Hirachand Srinivas v. Sunanda, AIR 2001 SC 1285
• Naveen Kohli v. Neelu Kohli, 2006 4 SCC 558

Divorce by Mutual Consent (13B)
Section 13B. Divorce by mutual consent.
• (1) Subject to the provisions of this Act a petition for dissolution of marriage by a
decree of divorce may be presented to the district court by both the parties to a
marriage together, whether such marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the
ground that they have been living separately for a period of one year or more, that
they have not been able to live together and that they have mutually agreed that the
marriage should be dissolved.

• (2) On the motion of both the parties made not earlier than six months after the date
of the presentation of the petition referred to in sub-section (1) and not later than
eighteen months after the said date, if the petition is not withdrawn in the
meantime, the court shall, on being satisfied, after hearing the parties and after
making such inquiry as it thinks fit, that a marriage has been solemnized and that
the averments in the petition are true, pass a decree of divorce declaring the
marriage to be dissolved with effect from the date of the decree.]

• Since Divorce is the last remedy available to put an end to the marital tie, the
parties can decide to separate amicably, divorce petition may be submitted by any
one of the spouses to the District Court on any one of the grounds given in Section
13 of the Act to take divorce on mutual consent.
• Divorce by mutual consent was not incorporated in the original Act of 1955. It has
been inserted in the Section 13-B by the Hindu Marriage (Amendment) Act, 1976.
Essentials
• parties living separately for a period of one year or more
• not able to live together
• mutual agreement in dissolving the marriage
• consent of the parties has been obtained

Leading Case Laws
• Sureshta Devi v. Om Prakash, AIR 1992 SC 1904 (One Party withdraws
consent unilaterally)
• Anil Kumar Jain v. Maya Jain, 2009 10 SCC 415
• Amardeep Singh v. Harveen Kaur, Manu/SC/1134/2017

Judicial Separation
Section 10:
[(1) Either party to a marriage, whether solemnized before or after the commencement
of this Act, may present a petition praying for a decree for judicial separation on
any of the grounds specified in sub-section (1) of section 13, and in the case of a
wife also on any of the grounds specified in sub-section (2) thereof, as grounds on
which a petition for divorce might have been presented.]
(2) Where a decree for judicial separation has been passed, it shall no longer be
obligatory for the petitioner to cohabit with the respondent, but the court may, on
the application by petition of either party and on being satisfied of the truth of the
statements made in such petition, rescind the decree if it considers it just and
reasonable to do so

• A petition can be filed on any of the grounds specified in sub-section (1) and (2) of
Section 13.
• Judicial or legal separation means living apart by the parties to the marriage. If a
decree for judicial separation is passed by a competent Court, it is no longer
obligatory for either party to cohabit with the other.
• Such a decree does not sever or dissolve the marriage.
• Yet it is equally true that certain mutual rights and obligations arising from the
marriage are suspended when such a decree is passed.

Grounds
• Adultery
• Cruelty
• Desertion
• Unsoundness of Mind
• Conversion/Apostasy
• Virulent and /incurable Leprosy
• Venerable Disease
• Renunciatiation of World
• Presumed Death (missing Spouse)

Additional Grounds to Wife
• Bigamy
• Rape, Sodomy or Bestiality
• Non-resumption of Cohabitation after decree or Order of Maintenance
• Option of Puberty

Incidents and effects of Decree of Judicial Separation (Section
10(2))
1. permits the parties to live separately
2. does not dissolve the marriage
3. husband and wife continue to have the same status
4. not be obligatory for them to cohabit with each other
5. does not prevent the parties from resuming cohabitation and living together as
husband and wife

Rescission of Decree of Judicial Separation (Section 10(2))
• Section 10(2) of the Act empowers the Court to rescind the decree of the judicial
separation if it considers it just and reasonable to do so.
1. the decree has been obtained by showing reasonable excuse for his or her
absence.
2. the parties cohabited with each other after the decree was passed or they have
resumed living together.
3. the opposite party has condoned the offence

Difference between Divorce and Judicial Separation
• The relationship of husband and wife stands suppressed, while in Divorce the
relationship of husband and wife ceases to exist.
• Temporarily suspends the marital rights and duties of parties to marriage for some
"me by Court, while Divorce puts an end to the marital relationship between the
parties.
• The object is the hope of adjustment, reconciliation and reunion of the spouses,
while in Divorce, the object is to give the last resort.
• The parties to the marriage cannot remarry, while in Divorce, the parties are entitled
to get another marriage of his/her choice
• Original marital relationship can be restored, while in Divorce, the original marital
status cannot be restored
• It is a lesser remedy than divorce, but in Divorce, it is stronger, drastic and last
remedy than judicial separation

UNIT – II
TOPIC: INTRODUCTON TO MUSLIM LAW

Introduction
In India, Muslim personal laws are governed by the Shariat Law (by the provision of
the Quran and the teachings of Prophet Mohammad) due to Art. 25 of the
Constitution of India which incorporates the Right to Religion. While most Islamic
countries in the world have chosen to modify and incorporate a modernized version
of the Shariyat laws, India is still battling to do the same in the personal law
governing marriage, divorce, inheritance, maintenance, etc.
Personal laws are those which have been witnessed to be beyond the concept of the
legislature, as they are very much identified with religion, customs or their beliefs.
Shariat is law in the wider sense which means the totality of Allah’s commandment.
Each of such commandments are called Hukum. It is the doctrine of duties. Thus
the Shariat is totalitarian; human activity is embraced in its sovereign domain.

Who is a Muslim:
• Muslims are people who follow or practice Islam, Quran, their holy book, to be the
verbatim, (word of God), revealed to the Islamic prophet and messenger
Muhammad. The majority of Muslims also follows the teachings and practices of
Muhammad (sunnah) as recorded in traditional accounts. (hadith) "Muslim" is an
Arabic word meaning "submitter" (to God).
• Muslim law in India means “that portion of Islamic Civil Law which is applied to
Muslims as a personal law”. It consists of the injunctions of the Quran, of the
traditions introduced by the ‘practice’ of the Prophet of the common opinion of the
jurists of the analogical deductions of these three (Qiyas) and of the pre Islamic
customs not abrogated by the Prophet Mohammed.

• The Shariat Act,1937
This is the most important enactment dealing with the application of Muslim
Law.It is applicable to every Muslim regardless of the school he belongs to.
• Sources Of Muslim Law
It may be divided into two categories:
1. The Primary ( Shariah) Sources- These are those which the prophet himself
directed to be the sources of Law. These are (i) The Quran, (ii) Sunnah or Hadith,
(iii) Ijma and (iv) Qiyas
2. The Secondary Sources- These are those sources which are developments on the
foundation laid down by the primary sources. These are (i) Customs(Urf), (ii)
Judicial Precedents,(iii) Legislation and (iv) Justice, equity and Good Conscience.

Primary Sources
1. Quran
• Muslim law is founded upon Al-Quran which is believed by the muslamans to
have existed from eternity, subsisting in very essence of god. The word Quran has
been derived from the Arabic word Quarra which means to read. The word Quran
which is the a divine communication and revelation to the prophet of Islam is the
first source of Muslim law.
• Quran is a primary source of Muslim law, in point of time as well as in importance.
The Islamic religion and Islamic society owes its birth to the word of Quran. It is a
paramount source of Muslim law in point of importance because it contains the
very word of god and it is foundation upon which the very structure of Islam rests
Quran regulates individual; social, secular, and spiritual life of Muslims.

2. Sunnat
• The word sunna means the trodden path & as this meaning shows it denotes some
kind of practices and precedent. It is belief of Muslim that revelations were two
kinds- manifest (zahir) and internal (batin). Internal revelation is opinions of the
prophet which is delivered from time to time on questions that happened to be
raised before him. Sunna means the model behavior of the prophet. The narrations
of what the prophet said, did or tacitly allowed is called hadis or traditions. The
traditions, however, were not reduced to writing during lifetime of Mohammad.
They have been preserved as traditions handed down from generation to generation
by authorized persons. The importance of hadith as an important source of Muslim
law has been laid down in the Quran itself.
3. Ijma
• It means the consensus of the companions and followers of the Prophet. Ijma has
been defined by Sir Abdul Rahim as agreement of the jurists among the followers
of Prophet Mohammad in a particular question of law. The validity of ijma, as
containing a binding precedent, is based upon a hadis of the prophet which says that
god will not allow His people to agree on an error. Ijma thus become a source of
law. According to the classical theory, failing Quran and traditions, and consensus
of opinion amongst the companions of the prophet is recognized as the best guide
of law. Thus it is the third source of law, both in point of time and importance.

4) Qiyas
• This is a last primary source of Muslim law. Qiyas means reasoning by analogy
from above 3 sources i.e., Quran, Sunna and Ijma. In Qiyas rules are deduced by
the exercise of reason.
• Qiyas may be defined as a process of deduction by which the law of the text is
applied to cases, which though not covered by the languages are governed by
reason of text. Thus, it should be noted that Qiyas does not purport to create a new
law, but merely to apply old established principles to new circumstances.
Secondary Sources
• Customs
• Judicial Decisions
• Legislations
• Justice, Equity and Good Conscience

Schools of Muslim Law
During the lifetime of Prophet Mohammed, there were no schools of Muslim Law
and the Principles of Muslim Law were uniform at that time. After the death of the
Prophet Mohammed, the question of succession to prophet arose. There were two
conflicting views/opinions among Arabs. One group supported election
method/principle, while the other group supported the principle of inheritance.
According to the first view (i.e., election method) , the successor to Prophet
Mohammed should be elected by the Muslim Community. The other view (i.e., the
principle of inheritance) the legal heir of the Prophet Mohammed should succeed.
The members of the first group, who supported the Election principle/method came
to be known as ‘Sunnis’. While the other group, who supported the principle of
inheritance came to be known as ‘Shias’.
Thus, there are two main Schools of Muslim Law namely –i) Sunni School, and ii)
Shia School. Both sects are subdivided into various schools.

• The Sunni Schools were developed during the reign of the Abbadids. They are
sub-divided into four as stated below;
i) Hanafi School;
ii) The Maliki School;
iii) Shafei School; and
iv) Hanabali School
• Imam Jafar as Sadik, the Sixth Imam of Imamias founded the Shia School and
hence, the Shia School is earlier than the Sunni School). After the Sunnis, the Shias
consist of the next largest group of Muslims in India. The Shias do no accept any
tradition. According to them, the Imam is the final interpreter of the law. The Shia
Schools are sub-divided into three as follows:
• i) The Ismailias
• ii) Athna Asharias or Immamia; and
• iii) The Zaidia.

Nikah (Muslim Marriage)
• The Arabic word ‘Nikah’ (marriage) means “the union of sexes” and in law, this
means “marriage”. The term Nikah has been used for marriage under Muslim law.
‘Nikah’ literally means, “to tie up together”. It implies a particular contract for the
purpose of legalizing generation. Nikah in its primitive sense means carnal
conjugation. It is a matrimonial contract as well as an institution that gives the
women a particular and high status in the society. Nikah was to ensure stability in
married life as it bound both the partners together for an indefinite period and also
required the woman to be honoured with the Mahr.
• Hedaya : - Marriage is a legal process by which the several process and procreation
and legitimation of children between man and women is perfectly lawful and valid.
• Abdur Rahim :- The Mohomedan priests regard the institution of marriage as
par taking both the nature of Ibadat or devotional arts and Muamlat or
dealings among men.
• Under Section 2 of Muslim Women (Protection of Rights on Divorce) Act, 1986
Marriage or Nikah among Muslims is a ‘Solemn Pact’ or ‘Mithaq-e-ghalid’ between
a man & a woman

Muslim Marriage a Civil Contract or Sacramental tie:
According to the Mohommedan law, marriage is a not a Sacrament but a Civil
Contract. All rights and obligations it creates arise immediately, and are not
dependent on any condition precedent such as the payment of dower by husband to
wife.
Marriage according to Muslim law is a contract for the purpose of legislation for
intercourse, procreation of children and regulation of social life in the interest of
society by creating:
• the rights and duties between the parties themselves, and
• between each of them and the children born from union
Justice Mahmood observed:
Marriage among Mohammedans is not a Sacrament, but purely a civil contract; and
though it is solemnized generally with the recitation of certain verses from the
Quran, yet the Mohammedan law doesn’t positively prescribe any service peculiar
to the occasion.
He described that Muslims marriage dependent upon declaration or proposal of the
one and the consent or the acceptance of the other of the contracting parties.

Lawfully, a Muslim marriage is considered as a contract; because the aspects which
constitute a marriage and the manner in which it is completed, is almost similar to
that of a civil contract. The contractual nature of a Muslim marriage is explained on
the basis of the following elements:
• The parties to the marriage also must be competent.
• The marriage is not complete without offer, acceptance and free consent of the
parties or guardians.
• The terms of marriage contract within legal limits may be settled by the parties
themselves.
• Just as there are rules for governing the rights and duties of the parties upon the
breach of a contract, there are also provisions for various rights and duties of
husband and wife on divorce or dissolution of marriage.

Essentials of a valid Marriage
• Competency/ Capacity of the Parties:
(a) Age of Puberty
(b) Sound Mind
(c) Muslims
( Refer Ghulam Bibi v. Mohammad Shafi, AIR 1940 Pesh 4)
• Free Consent of Parties:
No Compulsion, Fraud and Mistake of Fact
• Formalities and Ceremonies are duly Completed-Offer(Ijab) is there, Acceptance
(Qabool) must be there
• Absence of Prohibition and Impediment

Absence of Prohibition and Impediment
• Absolute Prohibitions: A marriage contracted in violation of any of the absolute
prohibitions is null and void under all the schools of Muslim law. For a valid
marriage, therefore, there must be absence of prohibited relationship between the
parties. There is an absolute prohibition for a Muslim to marry a person who is
within his or her prohibited relationship if they are related to each other by:
i. Affinity( Relation by Marriage):Affinity means nearness. It is created through
marriage. On the basis of affinity one cannot marry with any of the following
relations:
a. his wife’s mother or grandmother how highsoever;
b. his wife’s daughter or granddaughter how lowsoever;
c. the wife of his father or paternal grandfather how highsoever; and
d. the wife of his son, of his son’s son or daughter’s son how lowsoever,
A marriage with a woman prohibited by reason of affinity is void.

ii. Fosterage: Where a child, under the age of two years, has sucked the milk of any
woman (other than its own mother) such a woman is called the foster-mother of that
child, although there is no blood-relationship between that woman and the child yet,
she is treated as the real mother of that child for purposes of prohibitions in the
marriage.
iii. Consanguinity ( Relation by blood): Under Consanguinity or blood relationship,
a Muslim cannot marry with any of his or her following relations:
(a) Ones own descendants or ascendants, how highsoever
(b) Descendants of ones father and mother how lowsoever
(c) Brothers or sisters of ones ascendants how highsoever

Relative Prohibitions
• Relative prohibitions are those prohibitions the compliance of which is not
mandatory (must) but their presence is deemed to be unjust. Therefore, a marriage
contracted in violation of these prohibitions is merely irregular but not void. As a
matter of fact, these violations of any relative prohibition in marriage is because of
some small irregularity. As soon as that irregularity is removed, the marriage
becomes perfectly valid. Under Shia law, which does not recognize an irregular
marriage, a marriage against any of these prohibitions is either void or perfectly
valid.
The relative prohibitions are given below:
i. Marriage with Fifth Wife:
ii. Marriage without Witnesses
iii. Unlawful conjunctions
iv. Marriage with Non-Muslim
v. Marriage during Iddat

Miscellaneous Prohibitions
1. Marriage during Pilgrimage
2. Rule of Equality
3. Re-marriage between divorced couple
4. Polyandry
Presumption of Marriage:
Under Muslim Personal law, a marriage can be proved directly or indirectly
evidences. In direct evidences, a marriage has to be proved by calling witnesses
present at the time of marriage or showing the Nikahnama, whereas in the case of
absence of direct evidence, the marriage may be inferred from circumstances. This
is called presumption of marriage. Presumption of a valid marriage arises even
though there is lack of some formalities of a marriage.

A valid marriage is presumed in the following cases:
1. When there is consummation of marriage which is presumed from a valid
retirement.
2. When a man acknowledges a child of a woman as his legitimate child, a
presumption of a valid marriage between the man and the mother of the child arises.
3. When a man acknowledges that a woman is his wife.
4. When there is a continuous and a prolonged cohabitation of a man and a woman.

Classification of Marriage
All the schools of the Sunnis classify marriage into:
• Sahih (Valid)
• Batil(Void)
• Fasid (Irregular)
The Ithna Ashari School of the Shias does not recognize the irregular marriage; and
therefore, among them, marriages are either valid or void
( i) Sahih (Valid) Marriage
Under all the schools of Muslim law, a valid marriage is that which has been
constituted in accordance with the essential conditions prescribed under the law.
That is to say, a marriage is valid only where-
• The parties must be competent;
• The consent must be free;
• There must be proper offer and acceptance according to law
• Proposal and acceptance must have taken place at one meeting and before two
witnesses.

Legal Effects of a Valid Marriage
• Mutual Rights and Obligations between the parties.
• Prohibited degree of relationships would be created between the parties.
• Sexual intercourse and the procreation of child is legalised
• Wife becomes entitled to her Dower
Batil ( Void) Marriage
When a marriage is performed in violation of absolute impediments or perpetual
impediments, the marriage is Batil, null and void and void ab initio. A void
marriage is no marriage and no legal consequences flow from it. Neither it confers
the status of legitimacy on the children, nor mutual rights and obligations arise from
such marriage. It is called a marriage because two persons have undergone the
necessary formalities of marriage. But since they totally lack capacity to marry,
marriage cannot come into existence between the two.

Under Shia Law following marriage are Void:
• Marriage in violation of absolute in capacity.
• Marriage with any non-Muslim.
• Marriage with fifth wife.
• Marriage during pilgrimage.
• Marriage with the woman undergoing Iddat.
Case Law:
Chand Patel v. Bismillah Begum, (2008) 4 SCC 774

Fasid ( Irregular or Invalid) Marriage
• In Muslim law, there are some marriages which are not valid but which are not
wholly void. Marriages of this kind are defective or irregular but are not entirely
without any effect. Irregular marriage is one which may be regularized by certain
attempts or which becomes regular (lawful) after lapse of time.
• Irregular marriages are recognized only under Sunni law. Irregular marriage is an
incomplete marriage. Only the observance of formalities is the basis of determining
whether a marriage is valid or not. It is possible that in some cases, only minor
formalities were not observed. Under such circumstances, the marriage may not be
void but only irregular. The Ithna Ashari School of Shias does not recognize the
irregular form of marriages.
Legal Effects of Irregular Marriage
• Marriage against unlawful Conjunctions
• Marriage with the fifth wife
• Marriage without two competent witnesses
• Marriage with a woman undergoing iddat
• Marriage with two sisters at the same time

Muta Marriage
In Pre-Islamic Arabia, there was a custom whereby the Arab women used to
entertain men in their tents. The man entering the tent had to pay some
consideration as the entrance fees. There were no mutual rights and obligations
between the parties. Any one of them could terminate the union at any time. The
children born out of the union belonged to the woman. In fact, it was prostitution
and nothing else. The practice was found convenient by the Pre-Islamic Arabs
particularly during long travels. Slowly, this union got some changes and the
fixation of the term of union for some amount to be given to the woman, was made
compulsory which attained the name of Muta. The literal meaning of the Arabic
word Muta is “enjoyment” or “use”. In original Quranic text, Arabic word “Tamtaa
Turn” has been used. “To enjoy” means, in Arabic “istamta-a”. It was also be
regarded as ‘marriage for pleasure’.
It is a kind of temporary marriage recognized in the Ithna Asharis of Shia School,
but according to the Sunnis, such marriages are void

Conditions of Muta:
• In the contract of Muta, the term and duration denotes a period of cohabitation. If
the period would be specified, the marriage become Muta.
• Dower must be specified.
• If the period of cohabitation is not fixed, but dower is specified, then it will be
regarded as permanent marriage.
• If the term or duration is fixed but dower is not specified, the Muta marriage will be
void.
• The period for which, the Muta is being contracted, must be clearly specified. It
would be for few hours, few days, a few weeks or a few months or few years.
A Muta without any stated period is to be treated as a permanent marriage. Even
supposing, the word Muta was used, but since the term was not specified, the
marriage was considered as permanent marriage.

Legal Effects of Muta Marriage:
• The cohabitation between the parties lawful.
• The period for which a Muta is contracted, need not commence immediately from
the time when the contract for marriage is concluded.
• The children are legitimate and have rights to inherit in the properties of both the
parents.
• The wife under is not entitled to any maintenance under Shia Law.
• The husband can also terminate the contract after making Zihar.
• The parties may also terminate the contract by mutual consent.
• Muslim wife in a Muta marriage is required to observe Iddat in case of death of her
husband, for a period of four months and ten days. In case of pregnancy, this period
is extended till delivery.

CONCEPT OF TALAQ UNDER MUSLIM LAW
• Divorce means the legal dissolution of the marital union between a man and a
woman. In India, divorce law and procedures generally varies depending upon the
community to which the couple belongs. Among Muslims in Pre-Islam Arabs, the
powers of divorce fascinated by the husband were unlimited. They could divorce
their wives at any time, for any reason or without any reason.
• Talaq is originated from Urdu word and its literal meaning is to ‘release’, which is
used for divorce. Under Muslim law, the divorce is considered to be the absolute
power of husband to obtain or may pronounce it at his pleasure through express
words or implied acts. However, the theory of divorce in the Islamic world have
varied according to time and place.
• The Prophet Mohammad pronounced Talaq to be the most detestable before God of
all permitted things.

Conditions for a Valid Talaq
1. Capacity - All Muslim husbands of sound mind and attained the age of puberty is
competence to pronounce a Talaq. No guardian can pronounce Talaq on behalf of
the minor husband, Talaq which is pronounced against a minor or insane wife is
void.
2. Free Consent - The consent of the husband pronouncing the Talaq should be free as
per Hanafi law, also Talaq pronounced under coercion, undue influence, fraud,
compulsion and voluntary intoxication etc. is valid and dissolve the marriage.
3. Express Words - The pronouncement must be expressed, the words of Talaq must
clearly indicate the husband’s intention to dissolve marriage.
4. Formalities of Talaq

Case Laws:
• Shamim Ara v. State of U.P , (2002) 7 SCC 518.
• Masroor Ahmad v. State , (2008) (103) DRJ 137 .

Kinds of Talaq
Extra Judicial
From the point of view of Mode of pronouncement and effect, there are two kinds
of Talaq:
1. Talaq-ul- Sunnat or revocable Talaq, and
2. Talaq-ul-Biddat or irrevocable Talaq
Talaq by Husband:
• Talaq-ul-Sunnat - The approved form of Talaq.There is a possibility of compromise
and reconciliation between husband and wife so it is also called as Talaq-ul-Raje,
followed by shia and sunnis and it may be pronounced either in Ahsan or Hasan
form.

( i) Talaq Ahsan ( Most Proper)
The most proper form of repudiation of marriage because there is possibility of
revoking the pronouncement before the expiry of the Iddat period and the evil
words of Talaq are to be uttered only once. There is only a single declaration during
the period of purity followed by no revocation by husband for three successive
periods of purity.
In this form, the following formalities are required:
a. The Husband has to make a single pronouncement of Talaq during the Tuhr of the
Wife.
b. After this pronouncement, Wife has to observe iddat of three monthly courses.

ii. Talaq Hasan ( Proper)
This is also regard as proper and approved form of Talaq, there is also provision of
revocation but it is not the best mode because the evil words of Talaq are to be
pronounced three times in the successive Tuhr/s. The husband has to make a single
declaration of Talaq in a period of Tuhr/s.
2. Talaq-ul- Biddat ( Disapproved)
Biddat means sinful. This is the disapproved mode of divorce. This becomes
effective as soon as the words are pronounced and there is no possibility of
reconciliation between the parties so it is also called Tlaq-ul-Bain. This mode of
Talaq was introduced by the Omayyad Kings. It is practice under Sunni Muslims,
under Shia law irrevocable Talaq is not recognized.

Constructive Divorce (Ila and Zihar)
• Besides Talaq, a Muslim Husband can repudiate his marriage by two other modes
Ila and Zehar, though no practical importance as virtually non existent in
India.Under this Husband does not expressly repudiate the marriage but through his
conduct he intends to dissolve the marriage
Ila
Husband takes an oath not to have sexual intercourse with the Wife. After this oath
if for four months no consummation takes place then the marriage stands as
dissolved.
Zihar(Injurious Comparison)
In this the Husbans compares his wife with a woman within his prohibited
relationship.
If for four months then marriage dissolved.

Divorce at Wife’s Instance
• Muslim Wife has no independent right of divorce, she cannot divorce her husband
whenever she likes, as her husband may do. She cannot do so without her husbands
consent or without judicial decree.
• Following are the forms of divorce at the instance of Wife:
a. Talag-e Tafweez( Delegated Divorce)- Where the husband delegates to the wife the
right of Talaq.
b. Where she is a party to divorce by Mutual Consent ( Khula and Mubarat)
c. Where she wants to dissolve the marriage under the Dissolution of Muslim
Marriage Act, 1939

Divorce by Mutual Consent ( Khula and Mubarat)
• Khula
In this form wife does not want to continue with marital tie.It literally means to lay
down. Generally the wife offers to give up her claim to Dower.
Essentials:
1. Competence of Parties
2. Free Consent
3. Formalities
4. Consideration
• Mubarat
Under this the offer may come either from husband or from wife. Essential is
willingness of both parties to get rid of each other.

Lian ( False charge of Adultery)
Wife is entitled to sue for divorce on the ground that her husband falsely charged her
with Adultery.
Features of Lian:
1. Husband chardeg with adultery
2. This charge is false
3. Does not ipso fact dissolve marriage
4. She files regular suit for dissolution of marriage

Judicial divorce (Faskh)
The Dissolution of Muslim Marriage Act
The Act now lays down several other grounds on the basis of any one of which, a
Muslim wife may get her marriage dissolved by an order of the court. Now
according to this Act, a Muslim wife can claim a Judicial divorce from her husband
under any of the following grounds mentioned u/s 2 of the said Act;
• Failure to perform marital obligations
• Impotency of Husband
• Insanity
• Option of Puberty
• Cruelty; Husband treats wife with cruelty
• Absence of Husband
• Neglected to Maintain
• Other grounds

• Case Laws
Cruelty
Itwari v. Smt Asghari, AIR 1960 ALL 684
Option of Puberty ( Khyar-ul- Bulugh)
Ghulam Sakina v. Falak Sher, AIR 1950 Lah 45
Also discuss Section 4: Apostasy (Giving up of ones religion)

TOPIC: Adoption and Maintenance

INTRODUCTION
• The concept of adoption is not a new concept rather the custom and practice of
adoption is continuing from the past. The dictionary meaning of the term
‘adoption’ is the act of taking and rearing of the child of other’s parents as one’s
own child. Attitudes and laws regarding adoption vary greatly. Not all cultures have
the concept of adoption. One of the biggest examples is Muslim law where
adoption is not recognised.
• Adoption is the institutionalized practice through which an individual belonging by
birth to one kinship group acquires new kinship ties that are socially and legally
defines as equivalent to the congenital ties. These new ties supersede the old ones
either wholly or in part
• In the past, a childless couple would ‘adopt’ a child from one’s own family. But
now, it’s not like this; adoption is not limited to relatives’ children.

• The Act has no description of the word “Adoption” per se, but it is a Hindu law
derived from uncodified Hindu laws of Dharamsastra, specifically Manusmriti.
• Adoption has been described in Manusmriti as ‘taking someone else’s son and
raising him as one’s own’.
• Hindu Adoption and Maintenance Act has made the definition of ‘adoption’ much
wider by using the word ‘child’ instead of ‘son’. Child includes both a girl and a
boy child, and not merely a son.
• In the present scenario, the Hindu Adoption and Maintenance Act, 1956 has
completely codified the law of adoption and has materially modified it in
correspondence to the needs of dynamism of Hindu society. Therefore, every
adoption shall be made in conformity with this act and any contravention of the
provisions of this act shall be void.

The Act sheds light upon:
• What a valid adoption is?
• Who can adopt children?
• Procedure to adopt children along with other duties and obligations that occur after
adoption.

Requisites of a Valid Adoption
Section 6 of the Act enumerates the requisites of a Valid Adoption
• The person adopting has the capacity and also the right to take in
adoption.
• The person giving in adoption has the capacity to do so,
• The person adopted is capable of being taken in adoption and the
adoption made in compliance with the other conditions mentioned in
this Chapter.

Capacity of a Hindu male to adopt(Section 7)
Section 7 states that a male Hindu who is willing to adopt a child must fulfil the
following conditions:
• Attained the age of majority; and
• Be of sound mind.
• If have a wife that is alive, then her consent is absolutely necessary.
• If a person has multiple wives, the consent of all the wives is necessary for
adoption.
• In the case of Sarabjeet kabir v. Gurumal Kaur, AIR 2009 NOC 889 (P &
H), the Court upheld that if adoption taken by the husband without the consent of
the wife, that adoption will be illegal
• But the consent of the wife of a male Hindu is not necessary in the following three
conditions:-
• The wife has completely and finally renounced the world, or
• The wife has ceased to be Hindu, or
• The wife has been declared by a Court of competent jurisdiction to be unsound
mind

Capacity of a Hindu female to adopt( Section 8)
• The 2010 amendment of the Section 8 of the Hindu Adoption and Maintenance Act,
1956 has brought a radical change in the Hindu Law.
• The newly enacted Section 8 reads as under,
• “Any female Hindu who is of sound mind and is not a minor has the capacity can
take a son or daughter in adoption,
• Provided that, if she has a husband living, she shall not adopt a son or daughter
except with, the consent of her husband unless the husband has completely and
finally renounced the world or has ceased to be a Hindu or has been declared by a
court of competent jurisdiction to be of unsound mind.”
• Ghisalal v. Dhapubai, AIR 2011 SC 644

Who can give a child for adoption( Section 9)
• According to the Hindu Adoptions and Maintenance Act (HAMA), no person
except the father or mother or the guardian of a child will have the capacity to give
the child in adoption.
Rights of Father
• If the father is alive, he has the right to give in adoption, but such right will not be
exercised save with the consent of the mother unless the mother has completely and
finally renounced the world or has ceased to be a Hindu or has been declared by the
court of competent jurisdiction to be of unsound mind.
Rights of Mother
• The mother can give the child in adoption if the father is dead or has completely
and finally renounced the world or has ceased to be a Hindu or has been declared
by a court of competent jurisdiction to be of unsound mind.

Rights of Guardian
• The guardian of the child can give the child in adoption with the previous
permission of the court to any person including the guardian himself
• In case of both the father and mother are dead
• In the case of parents are finally renounced the world
• Abandoned child
• It has been declared by a court of competent jurisdiction to be of unsound mind
• In the case of the parentage of the child is not known

Who can be adopted(Section 10)
Section 10 of the Hindu Adoption and Maintenance Act, 1956 the following person
who fulfil the conditions are capable for adoption:-
• He or she should be Hindu.
• He or She not already be adopted any child adopted.
• He or She has not completed the age of fifteen years which is to be considered
being taken for adoption
.

Adoption of an orphan-
• Under the present law an orphan could also be taken in adoption. In such cases the
guardian of the orphan can obtain the permission of the court to this event and
thereafter could give the child in adoption.
• The case of Balakrishna v. Sadashive-1977, another case of Mayaram v. Jai
Naraian -1989 and Kodippa Rama Papal urf Shirke v. Kannappam -1990. It
was held that where customs or traditions allow there a person aboove 15 years of
age or married can be adopted.
• Another case of Dev Gonda v. Sham gonad -1992, the Bombay High Court held
that any insane can also b e adopted. Further any orphan found child or abandon
child may be adopted.
•

Other conditions for a valid adoption ( Section 11)
• The Hindu Adoption and Maintenance Act prescribes a set of rules for a valid
adoption, which must be complied with. Such as:
Adoption of a son
• Section 11(i) of the act states that if a Hindu male or female desires to adopt a son,
they must not have a living son, grandson, or even a great-grandson at the time of
adoption.
• It is irrelevant whether the son is legitimate, illegitimate, or adoptive. They should
not already have a son who is living.
Adoption of a daughter
• Similar to the conditions of adopting a son – Section 11(ii) states that one wishing
to adopt a daughter must not have a living daughter or a granddaughter from their
son at the time of the adoption.
• It is immaterial whether the daughter or granddaughter is legitimate, illegitimate, or
adoptive.

Adoption of a female child by a male
• A Hindu male willing to adopt a girl child must have the capacity to adopt a child
as prescribed in Section 7 of the act, and Section 11(iii) states that he must be at
least 21 years older than the girl child that is to be adopted.
Adoption of a male child by a female
• If a Hindu female wants to adopt a male child she must first meet the requirements
prescribed in Section 8 of the act and have the capacity to adopt a child.
• Also, she has to be at least 21 years older than the child she wishes to adopt

Other conditions
• When adopting a child a person must comply with some additional conditions along
with all the aforementioned conditions.
• These additional conditions are basic and are very important for the welfare of the
child.
• Section 11(v)of the act says that the same child can not be adopted by multiple
people at the same time.
• Section 11(vi) states that a child that one wants to adopt must have been given up
for adoption as per the guidelines of this act, by their biological parents or
guardian.
• The Section further states that the child shall be given up for adoption with the
intention to transfer him/her from their biological family to the adoptive one.
• In the case of an abandoned child or whose parents are unknown, the intention must
be to transfer him/her from the place or family that they have been brought up to
their adoptive family.

Effects of a valid adoption(Section 12)
• Adoption will completely change the life of a child in many ways. He becomes a
part of a new family and will have rights in the property as well.
Section 12 of the act states:
• When a child has been adopted,
• They shall be considered as the child of their adoptive parents for all purposes.
• The adoptive parents shall have all the parental obligations and rights.
• The child shall have all the rights and obligations of a son/daughter.

However, there are some conditions that the child must abide by after he has been
adopted, such as:
• He/she must not have an incestuous relationship with anyone from their biological
family, and should not marry anyone from their birth family. The rules of the Hindu
Marriage Act, 1955 regarding ‘sapinda relation’ shall be applicable to them towards
their birth family.
• If the child had any property before the adoption, it shall continue to be in their
possession after. However, such property may bring some obligations over him and
he shall be liable to all those obligations, including having to maintain his
biological family if required.
• The adopted child shall not deprive any member of his birth family of any property
that he held before the adoption.

Right of adoptive parents to dispose of their properties(Section
13)
• If adoptive parents wish to dispose of their properties by transfer by gift or will,
they are free to do so and adoption does not stop them. Unless there is an
existing agreement that states the contrary.
• Thus an adoptive parent is in no way restrained in the disposal of their property
by reason of adoption.

Determination of Adoptive Mother(Section 14)
Section 14 lays down as to how an adopted child will be related to certain relations
of adopter. The Section provides for the determination of adoptive mother in certain
cases. The Section lays down that –
• Section 14(1) of the act states that in such cases the wife shall be deemed to be the
mother of the adopted child.
• If a male who adopted the child has multiple wives, the senior-most wife shall be
considered to be the mother of the adopted child while his other wives shall have
the status of stepmothers as stated in Section 14(2) of the act.
• Section 14(3) of the act states that if a child has been adopted by a bachelor or a
widower, the woman he marries if he ever gets married will become the stepmother
of the child.
• A widow or bachelorette who adopts a child will be their mother and in case she
gets married to anyone, the man will be deemed to be the child’s stepfather as
per Section 14(4) of the act.

Can a valid adoption be cancelled?( Section 15)
• When a person has opted for adoption and it has been validly made, there is no way
that they can cancel the adoption.
• Section 15 of the act clearly states that neither the parents can cancel a valid
adoption, nor the child has any right to renounce their adoption and return to their
biological family.
• Once a valid adoption is made, there is no going back. It is final.

Leading Case Laws:
• Sitabai v. Rameshchandra ( 1969) 2 SCC 544
• Brajendra Singh versus State of Madhya Pradesh, AIR 2008 SC 1058
• Malti Roy Choudhary v. Sudhindranath Majumdar, AIR 2007 Cal 4

Law of Maintenance in India
• Hindu sages in most unequivocal and clear terms laid down that maintenance of
certain persons is a personal obligation. Manu declared: “the aged parents, a
virtuous wife and an infant child must be maintained even by doing hundred
misdeeds.” Brihaspati said, “ A man may give what remains after the food and
clothing of family: the giver or more (who leaves his family naked and unfed ) may
taste honey at first but afterwards finds it poison.” According to the Mitakshara,
“where there may be no property but what has been self-acquired, the only persons
whose maintenance out of such property is imperative, are aged parents, wife and
minor children.” A person who involves in charity or at the cost of maintenance of
his aged parents, infant children and wife is condemned by the sages; it is like
tasting honey which turns out to be poison later. During the British period, it was a
well established rule that the maintenance of the aforesaid three sets of persons was
a personal obligation of every male Hindu.

• The whole concept of maintenance was introduced in order to see that if there is a
spouse who is not independent financially than the other spouse should help
him/her in order to make the living of the other person possible and independent.
Providing maintenance means that the other person who is getting the maintenance
should be able to live the life as he or she lived before marriage in case of divorce
and in case where the two partners are not living together and they seek
maintenance than the spouse getting maintenance should be able to live a life as
when they lived together. Maintenance is the amount which a husband is under an
obligation to make to a wife either during the subsistence of the marriage or upon
separation or divorce, under certain circumstances

• Therefore it can be said that maintenance not only includes basic necessities like
food, clothing and residence but it also includes the things necessary for comfort
and status in which the person entitled is reasonably expected to live. The main aim
of providing maintenance is that the wife should not be left destitute on separation
or divorce from her husband. In a laymen’s term maintenance are those things
which are indispensible for the survival of human being.
• The most important aspect of maintenance is that the party which relies on
maintenance has no independent source of income to support himself/herself.

Hindu Marriage Act
• Section 24 and 25 of Hindu Marriage Act provides for maintenance and alimony.
These are the terms of English Matrimonial Law. Under English law, maintenance
and alimony can be claimed by wife alone and not by the husband. Under the Hindu
Marriage Act, alimony and maintenance can be claimed by either party.
• The Corpus Juris defines alimony as “the allowance required by law to be made to a
wife, out of her husband’s estate for her support either during the matrimonial suit
or on its termination, where the fact of the marriage is established and she proves
herself entitled to a separate maintenance.

Maintenance pendent lite and Expenses of the proceedings -Section 24 of
Hindu Marriage Act
• Section 24: - Where in any proceeding under this Act it appears to the
court that either the wife or the Husband , as the case may be has no
independent income sufficient for her or his support and the necessary
expenses of the proceedings, it may, on the application of the wife or the
husband , order the respondent to pay to the petitioner the expenses of the
proceeding and monthly during the proceeding such sum as, having regard
to the petitioners own income and the income of the respondent, it may
seem to the court to be reasonable.
• [Provided that the application for payment of the expenses of the
proceeding and such monthly sum during the proceeding, shall, as far as
possible, be disposed of within sixty days from the date of service of notice
on the wife or the husband, as the case may be].
•

• The above section deals with the Maintenance during the pendency of the
proceedings which is known as maintenance pendente lite, interim
maintenance or temporary maintenance. The Hindu Marriage Act uses the
first expression. Under S.24 of Hindu Marriage Act, 1955 (herein after
mentioned as HM Act), either the wife or husband can apply for interim
maintenance. An application for interim maintenance can be made both at
the trial court as well as at the appellate court. Claim may be made for (i)
personal maintenance of the claimant and (ii) expenses of proceedings.
• In fixing the quantum of maintenance, the court takes into consideration
several factors. Viz, income of the applicant and the non-applicant, means
of the non-claimant, the conduct of applicant as well as of the non-
applicant.(Balbir Singh vs. Swaran Kanta , 981 Raj 266),number of
members to be maintained, reasonable wants of the claimants, and other
factors the court may deem necessary.

Permanent Maintenance and Alimony
Section 25:- (1) Any court exercising jurisdiction under this Act may, at the time of
passing any decree or at any time subsequent thereto, on application made to it for
the purpose by either the wife or the husband, as the case may be, order that the
respondent shall pay to the applicant for her or his maintenance and support such
gross sum or such monthly or periodical sum for a term not exceeding the life of the
applicant as, having regard to the respondent's own income and other property, if
any, the income and other property of the applicant [, the conduct of the parties and
other circumstances of the case], it may seem to the court to be just, and any such
payment may be secured, if necessary, by a charge on the immovable property of
the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at
any time after it has made an order under sub-section (1), it may at the instance of
either party, vary, modify or rescind any such order in such manner as the court may
deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under
this section has re-married or, if such party is the wife, that she has not remained
chaste, or, if such party is the husband, that he has had sexual intercourse with any
woman outside wedlock, [it may at the instance of the other party vary, modify or
rescind any such order in such manner as the court may deem just].

• In B.P Achala Anand v. S. Appi, 2005 SC 986, it was held that Right to
maintenance under Section 25 would include right to residence.
• On the application of either spouse, the court may pass an order for permanent
alimony and maintenance:
(i)at the time of passing of the decree granting the petition, or
(ii)at any time after passing of the decree granting petition.
• Further, In Rameshchandra Ramparatapji Daga vs. Rameshwari, 2005 SC 422, the
Supreme Court has held that the expression “at the time of passing of any decree”
encompasses or takes into fold all decrees governed by Section 9 to 13 of the Act.
Thus, Court can award maintenance at the time of passing of any type of decree
resulting in breach of marriage relationship.

• In fixing the amount of maintenance, the court is required to consider the following
matters:
(i)the income and other propert of the claimant
(ii)the income and other property of the non-claimant
(iii)the conduct of parties, and
(iv)any particular circumstance or special factor.
Further Section 25(3) lays down two circumstances in which an order passed in
favour of a party may be rescinded:
(I) if he or she has remarried, or
(ii) if she ( in case of the wife) has not remained chaste, or he ( in case of the husband)
has sexual intercourse with any women.
• There may be a third case also when an order for maintenance may come to an end.
The resumption of cohabitation by the parties after maintenance order, nullifies that
order, whatever be the duration of the stay together, if there is a clear intention to
resume cohabitation
•

Maintenance Of Wife Under The Hindu Adoptions And
Maintenance Act, 1956
• S. 3(b)(i) of Hindu Adoption and Maintenance Act, 1956 defines maintenance as
"provision for food, clothing, residence, education, and medical attendance and
treatment." In the case of unmarried daughter, it also includes her marriage
expenses. The provisions for permanent maintenance are present in all the personal
laws and are substantively similar. However there are some differences between the
personal laws.

• Under section 18(1) of the act wife is entitled to maintenance by her husband for
lifetime i.e. she will be given maintenance until she dies or her husband
dies. Under section 18 of this Act a Hindu wife is entitled to live separately from
her husband without cancelling her right to claim maintenance.
Grounds for award of maintenance:
• Only upon proving that at least one of the grounds mentioned under the Act, exists
in the favour of the wife, maintenance is granted. These grounds are as follows:-
a. The husband has deserted her or has willfully neglected her;
b. The husband has treated her with cruelty;
c. The husband is suffering from virulent form of leprosy/venereal diseases or any
other infectious disease;
d. The husband has any other wife living;
e. The husband keeps the concubine in the same house as the wife resides or he
habitually resides with the concubine elsewhere;
f. The husband has ceased to a Hindu by conversion to any other religion;
g. Any other cause justifying her separate living;
• But there are two bars which will prevent a wife from claiming maintenance from
her husband i.e. (i) if she is unchaste or (ii) if she ceases to be a Hindu by
conversion to another religion.

Quantum of Maintenance:
• The means and capacity of a person against whom the award has to be made should
be taken into consideration for determining the quantum of maintenance. In fact, in
case of the husband, it is not only the actual earning, but also his potential earning
capacity, which must be considered i.e. there is a presumption that every able-
bodied person has a capacity to earn and maintain his wife. The income of the
husband is a significant factor to be considered by the court in fixing the quantum
of maintenance. It is disposable income and not the gross income, which is to be
considered. Section 23(2) of act states the factors to be considered in determining
the amount of maintenance payable to the wife, children and aged parents, and they
are as follows – the position of and status of the parties, the reasonable wants of the
claimant, the claimant if living separately is justified or not, the income of the
claimant and the value of the claimant’s property and the number of persons
entitled to maintenance under the Act.

Maintenance of Children:
• Section 20 of the act imposes an obligation upon the parents –mother and father,
both equally to maintain the children – both legitimate and illegitimate. This is a
unique feature of the Hindu law where both the parents are equally responsible to
maintain the children. S.20(2) of the act lays down that the children are entitled to
maintenance during their minority. This right of maintenance for the daughter is
extended till she gets married. The parents are obliged to bear her marriage
expenses. However even after marriage a minor married daughter, if she is unable
to maintain herself then she can claim for maintenance under S.125 CrPC. When an
application has been filed under section 24 and 25 of the act, the children are also
entitled to get maintenance if the claimant has the responsibility of maintaining
them i.e. the claimant’s right to maintenance also includes the right of maintenance
of the children. Section 26 of the act also provides that in any proceeding under the
Act the court can from time to time pass interim orders and make provisions in
respect of the custody, maintenance and education of the minor children.

Maintenance of Parents:
• Further, Section 20 of the act also lays down an obligation of maintenance of old
and infirm parents who are not able to maintain themselves out of their own
personal earnings and property. This act is the first statue in India, which imposes
an obligation on the children to maintain their parents. The obligation to maintain is
not only limited to the sons but it also extends to the daughters. Under this act, both
the mother and the father have an equal right to claim maintenance. The
explanation to this section also includes stepmother in the term parent. However it
is important to note that the section imposes an obligation to maintain only those
parents, who are unable to maintain themselves and therefore the obligation to
maintain the parents other than those infirm and unable, is only moral.

Maintenance Under Muslim Law
• Muslim Law passively considers male to be superior to the woman. It is believed
that a man can take care of himself whereas the woman cannot, in other words it is
deduced that a woman cannot be self reliant. Hence, in Muslim law the wife has
been bestowed with an absolute right to be maintained and the husband is bound to
maintain her regardless of the fact whether she’s poor or not. Wife’s right to
maintenance is a debt against the husband.
• Prior to the landmark judgment of Supreme Court in Shah Bano case, Divorced
Muslim women did not have right to maintenance. This in the point of fact
handicapped the situation of Muslim women as the husband according to
Muslim law possesses the Authority to divorce from his wife whenever he
wants whereas the woman lack this right. Hence, the said case led to the
enactment of Muslim women (protection of rights on divorce) Act, 1986 which
enables a divorced Muslim to have a reasonable and fair provision of
maintenance from her husband and from the relatives who are entitled her
property after her death after Iddat.

Maintenance Under The Muslim Women Act, 1986
• According to this act a Muslim women is to be awarded maintenance by her
husband only during the iddat period and not after that. But in case if she is
financially not independent and needs maintenance than in that case her relatives
who would get the share of her property will award her with maintenance. In the
scenario where she does not have any such relatives than the State Waqf Board has
to pay her the maintenance. So in a way the personal law of the Muslims was saved
and the new law prevented any conflict between the two major communities of the
country. The divorced wife is also entitled to unpaid dower and all such properties
which were given to her during her marriage by her husband, his relatives, friends
or her relatives. She also has an option to use the Sections 125-128 of the CrPC,
1973. Finally the cases pending under the provisions Sec. 125-127 shall be disposed
by the Magistrate.
•

Maintenance Under Muslim Law In Comparison With Hindu
Law
• From the above it can be seen that a Hindu woman is more privileged than
Muslim women .As a Hindu woman is entitled to maintenance by her
husband throughout her life but in case of Muslim women she is entitled
to maintenance by her husband only during the iddat period. The court
tried to make both the communities on the same line and tried to provide
women of both the communities with maintenance throughout the life.
The judiciary tried to provide women of both communities with equal
opportunities and rights. But as usual in the case of Indian democracy the
congress government bowed in brought in the ‘The Muslim Women
(Protection of Rights on Divorce) Act, 1986.’ This act completely took away
the right of the women to maintenance beyond the period of iddat by the
husband. Hindu women can ask for award of maintenance under section
125 of the Code of Criminal Procedure but in case of a Muslim women she
can file a case under the same but will be awarded maintenance under
this act only if the husband recognizes this in a way

Maintenance Under Section 125 Cr.P.C
According to this Section magistrate of first class has the power to order the
person to provide monthly allowance to:
• His parents,
• Wife, or
• To his legitimate or illegitimate minor children who are unable to maintain
themselves
• Legitimate or illegitimate major child not being a married daughter, who are unable
to maintain themselves due to any physical injury or abnormality
• Married daughter till she attains her majority if her husband is unable to maintain
her
• His or her father or mother if they are unable to maintain themselves,whoever
neglects or refuses to do so.

• Magistrate may issue warrants for levying the amount due, in case of non-
compliance with the order. Making of an application is mandatory to the court for
levying such amount within a period of one year from the date on which the amount
was due, otherwise warrant cannot be issued.
• Where in case a wife is living separately without any sufficient reason or is living in
adultery or they have separated through a mutual consent, then in such cases she is
not entitled to receive allowance.
• Ramesh Chandra Kaushal v. Veena Kaushal , 1978 (4) SCC 70

TOPIC: CIVIL MARRIAGES AND EMERGING TRENDS IN
FAMILY LAW

Special Marriage Act
• In our country if we go back to the Vedic age it can be said that inter-religious and
inter-caste marriages were recognized. The Hindu Prince use to marry girls from
other land and other religion, and to an extent this practice continued to prevail till
the codification of Hindu Law of Marriage. In the pre- Hindu Marriage Act, the
courts observed that as such there is no condition that a Hindu cannot marry a Non-
Hindu and even if it exists it does not effects to Sudras.
• But after the codification of Hindu Law, 1955 a Hindu cannot marry a Non- Hindu.
The Act permits marriage between any “two Hindus” and marriages among the
people belonging to the four religions and considered by law as Hindus viz.,
Hinduism, Buddhism, Jainism, and Sikhism is absolutely valid under the Hindu
Law.

• As far as Muslim community is concerned, there are two different sects Sunnis and
Shia, Shia follow very stringent rules as far as inter-religious marriages are
concerned and render such marriages as void. But on the other hand Sunnis adopt a
liberal approach as such Muslims can marry with a Kitabia one who is not an idol
worshipper but this thing is only with males but not females as they are not allowed
to marry a Non- Muslim.
• Under the Christian and Parsi community, their respective personal laws do not
permit marriage outside the religion and thus declaring such marriage as invalid.
For instance, the parsi law prohibits the marriage of a Parsi with a non- Parsi.
• Thus from the above it can be seen that in our country most marriages are governed
by the specific personal laws governing each religion and almost all the personal
laws of different communities prohibit marrying outside ones religion.

• Earlier interaction between girls and boys was very less as compared to present
time, these days people very often meet and fall in love with people outside religion
and thus wishes to turn this out into marriage but as they face disagreements from
the society such an act becomes an important piece of legislation.
• The Special Marriage Act mandates certain pre-conditions essential for any
marriage to be solemnized under this law.
• This provision is definitely a huge step towards an end to narrow minded society.

• Under the act any “two persons” can perform a marriage.
• Thus, inter-religious or inter-communal or international marriages are possible in
India only under The Special Marriage Act, 1954.
• The Act does not stipulate any form of ceremonies or rituals to be performed and
does not support forceful conversion to another religion in order to get married.
• In May 2011, the Department of Foreign Affairs and Trade (DFAT) regarded India
as a secular nation where inter religious marriages are absolutely legal.

Scope of the Act
• The Special Marriage was specially enacted to give way to a new form of marriage
where caste and religion has no role to play. Now gone are those days when people
used to blindly marry the person chosen by their parents just on the basis of religion
and caste.
• Now youth have their own saying and prefer marrying one who is more compatible
rather than one who simply belong to their religion and as personal laws are little
stringent when it comes to marry outside ones religion The special marriage Act
enhanced its scope and made this thing possible.

Conditions for Marriage( Section 4)
• The Following are the conditions to perform a marriage under this Act, though
almost similar to the conditions prescribed in the other law: –
• The first and foremost condition to marry under this act is the age of the boy and
girl i.e. 21 for boy and 18 for the girl.
• The girl and boy both should not have any other livingspouse at the time of
marriage i.e must not perform bigamous marriage.
• Both boy and girl must be of sound mind at the time of marriage.
• Marriage between them is possible that is must not be restricted by any prohibited
relationship between them.
Thus from the above provision related to the conditions for marrying under this act
nowhere it is mentioned that person marrying under this act should belong to a
particular religion and thus this act is beyond ones religion.

Ceremonies
• Under this act the marriage has to be in civil form and as such does not require any
particular ceremony to be performed for solemnisation of marriage, though the
parties are free to perform any ceremony they choose to perform, the only thing
required is consent of parties and not their religion or caste.
Application on succession Rights
• People who marry under the act are governed by Indian Succession Act with regard
to succession. However in cases where parties belong to Hindu, Buddhist, Sikh or
Jain Then it will be governed by Hindu Succession Act.

Conflict of Laws in the Special Marriage Act
• The Act specifies for prohibited degrees of marriages in Schedule I and Schedule II
of the Act. The important entries to be noted are that on cousin relations, both
paternal and maternal. Under the personal Hindu Law marriage with second cousins
is prohibited as they come under sapindas.
• But the SMA does not mention second cousins in the prohibited degree of marriage.
Similarly under the Muslim and Christian Law marriage between cousins both
paternal and maternal is allowed. But SMA specifically prohibits such marriage in
the schedule.

Surrogacy and IVF
• The nature offer human beings a beautiful capacity to procreate or produce a life
within a woman. And it is observed that each woman who gets a chance cherishes
the experience of motherhood but unfortunately there are a few women in this
world who due to some physiological conditions or some other reasons cannot give
birth to their own child i.e. are not capable of keeping the child in the womb.
• The acute thoughts to become parents and to experience the joys of motherhood
drives them to search for alternative options, and for some surrogacy presents itself
as one of the most suitable options.
• Earlier couples who were not able to bear child only had the option of adoption to
attain their dream of becoming a parent. But now with advent of technology in the
field of medical science there are many options available to infertile couples, single
parents as well homosexual couples who cherish a dream of having their own kids.
• The desire to become parents leads them to try alternative options like Artificial
Reproductive Technology (ART), In-Vitro Fertilization and Intra-Uterine Injections
(IUI).

Assisted Human Reproductive Technologies(ART)
• Artificial Insemination (AI)
• In-Vitro Fertilization (IVF)
• Surrogacy

Surrogacy
• The word ‘surrogate’ has its origin in Latin term ‘surrogatus’ meaning a substitute,
that is a person appointed to act in place of another. Thus we see that surrogate
mother is the one who carries the child for another woman. She does that either
from her own eggs or from the implantation in her womb of a fertilized egg from
another woman.
• According to Black’s Law dictionary, surrogacy means the process of carrying and
delivering the child for another.
• The Report of the Committee of Inquiry into Human Fertilization and Embryology
or the Warnock Report (1984) defines surrogacy as the practice whereby one
woman carries a child for another with the intention that the child should be handed
over after birth.

• According to Artificial Reproductive Technique (ART) guidelines, surrogacy is an
arrangement in which a woman agrees to a pregnancy, achieved through assisted
reproductive technology, in which neither of the gametes belong to her or her
husband, with the intention of carrying it to term and handing over the child to the
person or persons for whom she is acting as surrogate.
Surrogacy Includes:
• Surrogate Mother
• Commissioning Parents
• Surrogate House

Types of Surrogacy
• Natural (Traditional/ Straight) Surrogacy
• Gestational Surrogacy
• Commercial Surrogacy
• Altruistic Surrogacy

Rights and Duties in the process of Surrogacy
Rights of the Surrogate Mother vis-à-vis Duties of the Intended Parents:
• Rights of the Surrogate Mother
• Duties of the Intended Parents
• Rights of Intended Parents
• Duties of Surrogate Mother

Various Case Studies:
• Baby Manji Yamada V Union Of India, JT 2008 (11) SC 150
• Israeli Gay couples case
• Jan Balaz V Union of India, AIR 2010 Guj 21
Surrogacy and Bollywood
1.Tushar Kapoor and sister Ekta Kapoor
2. Karan Johar
3. Sohail Khan and Seema Khan
4. Shahrukh Khan and Gauri Khan
5. Shilpa Shetty and Raj Kundra

Potential of ART Bills
• The Union Health and Welfare Ministry introduced the Assisted Reproductive
Techniques (Regulation) Bill 2014 in the winter session of Parliament
2014.However there has been no move made by the Parliament to materialize the
Bill into the much needed official regulatory mechanism.
• Assisted Reproductive Technology (ART) refers to “all the techniques that attempt
to obtain a pregnancy by handling or manipulating the sperm or oocyte outside the
body, and transferring the gamete or the embryo into the reproductive tract”.
• Numerous ART Bills since 2008 have been introduced like in the year 2009, 2010,
2013 and now recently in 2014, also in 2020.

Live in Relationship
• The term ‘live in relationship’ is nowhere defined. Talking about India there existed
only one type of relation between an unknown man and woman i.e. Marriage,
which is considered sacramental and divine to an extent. It is presumed that people
who get married are made in heaven. But with pace of time as we are getting
westernized concept of marriage is loosing its grip and many other social relations
are taking its place, one such relation is live-in-relation.
• Live-in-relation, which can be taken as substitute of marriage means an
arrangement in which unmarried man and women live together like husband and
wife but are not legally wedded.
• A live-in relationship not only gives the couple an opportunity to know the partner
without having to engage into a legally binding relationship but also excludes the
chaos of family drama and lengthy court procedures in case the couple decides to
break up.
• It involves continuous cohabitation between the partners without any
responsibilities or obligations towards one another. There is no law tying them
together, and consequently, either of the partners can walk out of the relationship, as
and when they want.

• There is as such no legal definition of this kind of a relation but in can be said a
connection between a boy and a girl, though not marriage but somewhat like that
wherein they decide to live together and if they are further satisfied then they tie
themselves into a legal relationship. Thus this kind of relation is opposed as the idea
of pre marital sex still haunts people, specially our old generation
.
• The concept of marriage is purely governed by law and comes under the umbrella
of various personal laws in our country like for Hindus we have Hindu Marriage
Act,1955, whereas live in relationship though legalized in some countries like
France, has not received any such legal recognition in India, though our Hon’ble
Supreme Court through its judgments have given some amount of sanctity to such a
relation which we will be discussing later on.

Judicial Decisions leading to acceptance of Live-in-relation
• Judiciary through its several judgments have uplifted the status of live in relations
and tried to give it some sort of legality. The main reason behind this is that in India
there is as such no law to safeguard the interest of people who are part of such a
relation. This very step taken by the Hon’ble Supreme Court was done to bridge the
gap between the thinking of old and young generation and also to cope up with the
changing environment so as to protect our young generation who is more inclined
towards such a relation.
• In Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Blahamy , 1927
SCC PC 51 the Privy Council showing a positive attitude towards live in relation
observed that, when a woman and man lived as spouses , a presumption will be
drawn in favour of the legality and legitimacy of this relation and such relation will
not be treated as concubinage.
• This very view was adopted in several other judgments. In another case, Mohabbat
Ali Khan v. Md. Ibrahim Khan, AIR 1929 PC 135 it was held it is to be deemed
that in such a scenario it will be taken as a legitimate marriage as both partners
lived together as spouse.
• .

• Also in Badri Prasad v. Director of Consolidation, AIR 1978 SC 1557 the Apex
Court accorded legality wherein the couple was residing together for 50 years, but it
was also observed that such a presumption is always rebuttable and burden lies
upon the the one who deprive the relationship of legal origin to prove that no
marriage took place, so as to bring about legitimacy and frowns upon a bastard.
TERM ‘LIVE-IN-RELATION
• It can be seen that though justifying such relation but nowhere any name is assigned
to such a relation and thus for the first time in 2001 the Allahabad High Court in the
case of Payal Sharma vs. Superintendant, Nari Niketan , Agra ,CM , AIR 2001 All
254 observed that a man and woman living together, even without marriage,
voluntarily, is not illegal may be morally wrong but not illegal and thus court
justified live in relationship.

• Despite of various judgments live in relations is still looked upon as a taboo and
also the lack of protection to such people was a big issue, not only protection from
the society but also from each other.
• When we say each other by this I mean when two people live together there are
chances of domestic abuse similarly like that in case of marriage, but as live in
relation did not have any legal sanctity, people who are in such a relation and are
subjected to violence from their respective partners did not have any right in their
hand.
• Thus to overcome this problem the Hon’ble Supreme Court in its landmark
Judgment ‘D Veluswamy Vs D Patchaiammal, (2010) 10 SCC 469 on 21st October,
2010’gave a clear picture and this proved out to be a major turning point with
regard to status of such relation.The court in this case gave some meaning of the
term domestic relationship given under Protection from Domestic Violence
Act,2005

• It was held that to qualify coming into the ambit of the expression ‘in the nature of
marriage’ few basic criterias must be fulfilled, as merely spending few weekends
together or one night stands or keep in someone just for sexual favours giving
money in return will not make a relation as a domestic relation, thus it must fulfill
the following:
• They must be of legal age to marriage
• The couple must come out to society as being akin to spouses
• They must be competent to enter into legal marriage , which also includes being
unmarried
• Such living must be voluntary and should be for a considerable time
These four key requirement to fulfill the criteria of live-in relationship were given
by the court in this case.

Cases to Discuss:
• Khushboo v. Kanniammal 2010 5 SCC 600
• Alok Kumar v. State 2010 DEL 2645
• Virendra Chanmuniya v. Chanmuniya Kumar Singh Kushwaha and Anr (2011) 1
SCC 141
• Indira Sarma v. V.K.V Sarma (2013) 15 SCC 755

Children Born out of such Relation
• In the case the Supreme Court of India, in Revanasiddappa v. Mallikarjun, (2011)
11 SCC 1 remarked that irrespective of the relationship between parents, birth of a
child out of such relationship has to be viewed independently of the relationship of
the parents. It is as plain and clear as sunshine that a child born out of such
relationship is innocent and is entitled to all the rights and privileges available to
children born out of valid marriages. This is the crux of Section 16(3) of the
amended Hindu Marriage Act, 1955.
• From the above judgment it becomes evident that judiciary in the absence of
specific legislation have been protecting the rights of the children by giving law a
broader interpretation so that no child is “bastardised” for having no fault of his/her
own.

Legislative Protection
As discussed above as such there is no legislative protection for people in live-in-
relation but such relation acquired status under law after various judicial
pronouncements by the Hon’ble Supreme Court and through amendments or
interpretations various legislations could prove to be helpful for such couples,These
are:
• Protection of Women from Domestic Violence Act, 2005
• Code of Criminal Procedure Code, 1973
• Evidence Act, 1872
• Hindu Marriage Act, 1955- Legitimacy and Inheritance Rights of Children

Domestic Violence
• Domestic Violence is towards someone who we are in a relationship with, be it a
wife, husband, son, daughter, mother, father, grandparent or any other family
member. It can be a male’s or a female’s atrocities towards another male or a
female. Anyone can be a victim and a victimizer. This violence has a tendency to
explode in various forms such as physical, sexual or emotional.
• Since times immemorial, domestic violence has been an intrinsic part of the society
we are living in. The contributing factors could be the desire to gain control over
another family member, the desire to exploit someone for personal benefits, the
flare to be in a commanding position all the time showcasing one’s supremacy so
on and so forth. On various occasions, psychological problems and social influence
also add to the vehemence.

Types of Domestic Violence
• Psychological/Emotional abuse
• Physical abuse
• Sexual abuse
• Financial abuse

Different Forms of Domestic Violence in India
• Domestic Violence Against Women
• Domestic Violence Against Men
• Domestic Violence Against Children/Teens
• Domestic Violence Against Olds

Provisions related to Domestic Violence in India
• In 1983, domestic violence was recognised as a specific criminal offence by the
introduction of section 498-A into the Indian Penal Code. This section deals with
cruelty by a husband or his family towards a married woman.
• The main legislative measures at the national level for the children who become a
victim of child labor include The Child Labor Prohibition and Regulation Act -1986
and The Factories Act -1948.
• The first act was categorical in prohibiting the employment of children below
fourteen years of age, and identified 57 processes and 13 occupations which were
considered dangerous to the health and lives of children. The factories act again
prohibits the employment of children less than fourteen years of age.

The Protection of Women from Domestic Violence Act, 2005
• The Government of India passed a Domestic Violence Bill, 2001, “To protect the
rights of women who are victims of violence of any kind occurring within the
family and to provide for matters connected therewith or incidental thereto”
• An act called Protection of Women from Domestic Violence Act, 2005 [ DVA, 2005
] also has been passed”. This Act ensures the reporting of cases of domestic
violence against women to a ‘Protection Officer’ who then prepares a Domestic
Incident Report to the Magistrate “and forward copies thereof to the police officer
in charge of the police station within the local limits of jurisdiction…

• The legal definition of domestic violence used in India, mentioned in the Protection
of Women from Domestic Violence Act (PWDVA), 2005, is –
• Section 3- For the purposes of this Act, any act, omission or commission or conduct
of the respondent shall constitute domestic violence in case it –
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether
mental or physical, of the aggrieved person or tends to do so and includes causing
physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce
her or anyother person related to her to meet any unlawful demand for any dowry or
other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by
any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved
person.

• The Act thus deals with forms of abuse that were either not addressed earlier, or that
were addressed in ways not as broad as done here.
• For instance, it includes in its ambit sexual abuse like marital rape which, though
excluded under the IPC, can now be legally recognized as a form of abuse under the
definition of sexual abuse in this Act.
• The definition also encompasses claims for compensation arising out of domestic
violence and includes maintenance similar to that provided for under S.125 of the
Code of Criminal Procedure (CrPC).
Cases to be discussed
• B.R Mehta v. Atma Devi, (1987) 4 SCC 183
• S. R Batra v. Tarun Batra, (2007) 3 SCC 169
• Varsha Kapoor v. UOI, (2010) 6 AD 472 (Del)
• Kusum Lata Sharma v. State, Cri M.C No. 725/2011

Same sex Marriage
Legal Recognition of Same sex Relationships
• In India Marriage laws only recognize heterosexual unions, depriving same-sex
couples of the state benefits as well as social and legal recognition that married
persons enjoy. The struggle against social and legal discrimination of the lesbian,
gay, bisexual and transgendered community (‘LGBT’) has been long and arduous.
• The initial objective of decriminalizing private and consensual same-sex acts has
been achieved in most countries either by legislation or by courts overturning such
laws

• On December 11, 2013, the Supreme Court in Koushal upheld the constitutional
validity of Section 377 of the Indian Penal Code, a hangover from the colonial days
that criminalizes “carnal intercourse against the order of nature”. Koushal reversed
the progressive decision of the Delhi High Court in Naz Foundation v. Govt. of
NCT of Delhi6 (hereafter referred to as Naz Foundation) that read down Section
377 to decriminalize private consensual sex between adults. Post the judgment,
there has been wide-ranging discussion on the most effective method to obtain an
over-ruling of Koushal.
• It is not sufficient to merely work towards decriminalization of same-sex acts but it
is also necessary to seek legal recognition for same-sex relationships and examine
the various options that could be pursued to obtain such legal recognition.

• Both inside and outside the LGBT communities, there are differing views about the
desirability of marriage—either in any given individual’s personal life or as to
government policies that use marriage as a condition for a wide range of benefits.
• There are, however, compelling practical reasons to seek social and legal
recognition of same-sex relationships. Certain legal benefits such as succession,
maintenance, and pension rights that are available to married couples are not
available to same-sex couples.
• Economic benefits from laws like the Employment Provident Fund Scheme, 1952
and Workmen’s Compensation Act, 1923 are given only to those related by blood or
marriage. After the Central Adoption Resource Authority (CARA) issued guidelines
for adoption, single persons and unmarried couples have found it increasingly
difficult to adopt.
• Further, not all persons in same-sex relationships are seeking radical changes in
society and its institution, and many are politically conservative

• A further utilitarian argument made after a detailed survey of social science
research on the subject is that same-sex and heterosexual relationships do not differ
in their essential psychosocial dimensions, that marriage bestows substantial
psychological, social, and health benefits and that same-sex couples and their
children are likely to benefit in numerous ways from a legal recognition of the
relationship as marriage.
• Many same-sex couples wish to marry simply because they are part of a culture in
which marriage has long been represented as the ideal institution of connection and
commitment and this belief transcends the bounds of sexual orientation. They also
believe that the choice of a marital partner is an important personal decision, over
which others, particularly the state, should have no control.
• Thus the straightforward argument in favor of same-sex marriage is that if two
people want to make a commitment of marriage, they should be permitted to do so,
and excluding one class of citizens from the benefits and dignity of that
commitment demeans them and insults their dignity

• It is pertinent to observe that same-sex marriages are not illegal in India. While
Section 377 of the Indian Penal Code criminalises sexual acts between persons of
the same sex, it is possible to argue that same-sex marriages are not equal to the
performance of such acts.
• Nonetheless the marriage laws in India do not explicitly permit same-sex marriages,
and, in fact, reflect a strong heterosexual bias and use terms suggesting only a
heterosexual partnership.
• Moreover, on a realistic note, so long as a provision in a criminal statute such as
Section 377 is considered non-discriminatory it would be illogical to seek legal
recognition under civil marriage laws.
• If a civil union model were to be adopted in India, it would be necessary not only to
enact a new law governing civil unions but also amend relevant legislations like the
Indian Succession Act, 1925, Guardians and Wards Act, 1890, Workmen’s
Compensation Act, 1923 and a host of other legislations relating to succession,
adoption, pensions etc. so that a partner in a civil union is given the same status as a
spouse and considered to be ‘family’.

• In India, marriages and weddings have a strong religious and cultural significance
as well as social importance. Marriage is considered to be a sacrament and the
religious ceremonies are an essential part of the marriage.
• This perhaps explains the many instances of lesbian marriages, including
performance of religious ceremonies, exchange of garlands in temples or quasi-
legal friendship contracts (maitrikarar) in several reported cases.
• For instance, in 1988, two policewomen married each other in a Hindu ceremony.
Though their marriage could not be registered and they were suspended from their
jobs, their marriage was accepted and supported by their families and community. It
is interesting that the numerous reported lesbian marriages have been largely
between small-town, lower-middle class, non-English speaking women who are not
connected to the LGBT movement

• In this milieu, the most satisfactory course would be the recognition of same-sex
marriages under Indian personal marriage laws.
• The Hindu Marriage Act that governs Hindus, Sikhs, Jains and Buddhists states that
a marriage may be solemnised between any two Hindus.
• It also specifically provides that the bridegroom should have attained the age of
twenty one and the bride eighteen.
• The Christian Marriage Act provides that the age of the man shall be twenty one
and the age of the woman eighteen.
• Since Muslim marriages are not governed by a statute, there is no statutory
definition of ‘marriage’, but they are normally considered to be a contract for the
purpose of procreation.
• Thus, all Indian personal laws appear to envisage marriage as only a heterosexual
union.

Recognition of same-sex marriages under Hindu personal laws can be obtained by
any one of the following approaches:
(i) interpreting the existing law to permit same-sex marriages,
(ii) interpreting that the LGBT community constitutes a separate community, the
customs of which permit same-sex marriages,
(iii) reading down the Hindu Marriage Act, 1956 (‘Act’) to allow same-sex
relationships, on the ground that it would otherwise be rendered unconstitutional, or
(iv) amending the Act to permit same-sex relationships.

• Since the Act is gender neutral except in the use of the terms bride and bridegroom,
it is possible to argue that same-sex couples can get their marriages solemnised
under the Act provided one of them is characterised as the bride and the other as the
groom. This approach has been tried by lesbian couples, where one partner
presented herself as the bride and the other as the bridegroom.

Same-Sex Marriages under the Special Marriage s Act
• An option which ought not to raise religious hackles is to seek an amendment to the
Special Marriage Act, 1954 (‘SMA’) to permit same-sex marriages.
• The SMA is a secular legislation that facilitates marriages between people of
different religions or those who do not wish to be bound by their personal laws.
Instead of a religious ceremony, a Marriage Officer registers the marriage.
• In its existing form, the SMA seems to apply to heterosexual couples, since it
provides that the male should have attained the age of twenty- one years and the
female the age of eighteen years. But it is not difficult to accommodate same-sex
marriages within the framework of SMA.
• It is clear that the anti-discriminatory initiative of Naz Foundation has to be built on
to obtain legal and social recognition of long term same sex relationships through
marriages

Family Law-I ( LLB -201)

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