FAMILY LAW-I 1

FAMILY LAW-I 2

I HINDU LAW 011 Who is a Hindu? 012 Sources of Hindu law 033 Schools of Hindu law 054 Distinction between Mithakshara and

Dayabhaga Schools 06

II THE HINDU MARRIAGE ACT, 1955 075 Essentials of a valid marriage 076 Essential ceremonies of a valid marriage 097 Whether Hindu marriage is a sacrament or civil contract? 128 Restitution of conjugal rights 149 Judicial separation 1810 Nullity or Annulment of marriage or void and voidable marriage 2011 Divorce 2412 Cruelty as a ground for divorce 3013 Divorce by mutual consent 3314 Maintenance pendente lite 3515 Permanent alimony and maintenance 3716 Custody of children 3917 Disposal of property 40

I. INDEX I-IIIII SHORT NOTES INDEX IV-VIIII TABLE OF CASES VI-IXIII ESSAY QUESTIONS AND ANSWERS 1-114IV SHORT NOTES 115-138V DICTIONARY OF FAMILY LAW-I 139-149VI IMPORTANT QUESTIONS 150VII REFERENCE BOOKS 151

Contents

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18 Changes brought by Hindu Marriage (Amendment)Act, 1976 42

III MUSLIM LAW 4419 Who is a Muslim? 4420 Sources of Muslim law 4421 Schools of Muslim law 4722 Nikah or Shadi or Valid marriage 4923 Essentials of a valid marriage 5024 Valid, irregular and void marriages 5225 Muta marriages 5526 Option of puberty or Khyar-Ul-Bullugh 5627 Iddat 5728 Dower or Mahr 5929 Divorce or Talaq or Dissolution of marriage 6330 Divorce under the Dissolution of Muslim Marriage Act, 1939 6731 Maintenance of wife under Muslim law 7032 Maintenance of wife under Section 125 Cr.P.C 7233 Guardianship or Wilayat 74

IV CHRISTIAN LAW 7935 Who is a Christian? 7936 Conditions relating to solemnization of marriages

under the Indian Christian Marriage Act, 1872 8037 Dissolution of marriage under Christian Marriage Act 82

VI THE SPECIAL MARRIAGE ACT, 1954 8538 Advantages and consequences of marriage

solemnised under the Act of 1954 8739 Remedies under the Special Marriage Act, 1954 8840 Differences between the Hindu Marriage Act and

Special Marriage Act 9141 Uniform Civil Code 92

VII THE HINDU ADOPTIONS AND MAINTENANCEACT, 1956 94

42 Essential conditions of a valid adoption 9643 Factum valet 9844 Ante-adoption agreement 9945 Doctrine of relation back 100

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DivorceSection 13

DIVORCE: THE LAW relating to divorce is dealt underSection 13 of the Hindu Marriage Act, 1955. Divorcemeans separation or split. It is also known as dissolution

of marriage. Divorce puts an end to the marital relations. Accord-ing to the ancient Hindu law marriage comes to an end only withthe death of the parties to the marriage. Hence there was no rem-edy of divorce, but under the modern Hindu law, the Hindu Mar-riage Act, 1955 provides the remedy of divorce. Thus the Englishmatrimonial law had greatly influenced the Indian matrimonial law.Either husband or wife who aggrieved may file a petition for di-vorce in the District Court or Family Court. On a petition pre-sented by either the husband or the wife, the Court, if satisfiedwith the grounds specified under Section 13 shall pass a decree ofdivorce by dissolving the marriage. According to Section 14 nopetition for divorce can be filed within one year from the date ofthe marriage. The Court will not pass a decree of divorce withinone year. This one year time and opportunity is given to partiesfor reconciliation and adjustment. The parties are no longer behusband and wife after passing a decree of divorce. They are freeto marry again as per their own choice.I. Grounds of divorce in favour of both wife and husband:

Section 13(1) of the Hindu Marriage Act, 1955 lays down thefollowing eleven guilty grounds on which a petition for divorcecan be filled by either aggrieved husband or wife. That the otherparty

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1. Adultery: Sec 13(1)(i): The spouse who engages in extra-marital intercourse is guilty of adultery. Living in adultery isnot necessary. Even an isolated act of adultery is sufficient tofile a divorce petition.

In Subbarama Reddiar v. Saraswathy AIR 1967 Mad 85 The hus-band who returned home late in the midnight. He found astranger in his wife’s bedroom. Madras High Court held that,unless the act can be explained by some innocent explanation,adultery might be inferred. Therefore Court relied on the cir-cumstantial evidence and granted a decree of divorce.

2. Cruelty: Section 13(1)(i-a): Cruelty means unkindness or bru-tality. Violent behaviour is the basis of cruelty. Prior to theamendment, cruelty was a ground only for judicial separation.By the Marriage Law (Amendment) Act, 1976 cruelty is one ofthe grounds on which divorce can be claimed. e.g. beating,harassment etc. The petition for divorce can be filed on theground cruelty.

In Dastane v. Dastane AIR 1975 SC 1534 A reasonable appre-hension that it will be harmful or injurious for the spouse tolive with the other was held to be ‘Cruelty’ by the Supreme Court.The Court laid down that ‘cruelty’ requires danger to life, limbor health. Therefore a mere threat by the wife to commit sui-cide and set fire to the books written by her father-in-law doesnot amount to cruelty. Cruelty may be subtle or brutal, physicalor mental. It may be by words, gestures or mere silence.

3. Desertion: Section 13(1)(i-b): Abandoning or leaving thespouse by the other spouse without any reasonable cause andwithout the consent or against the wish of the other is calleddesertion. Desertion may be actual or constructive. Withdrawalfrom the place is called actual desertion and withdrawal from astate of things i.e. under the same roof is called constructivedesertion. The burden is on the petitioner to prove desertion.

In Durga Prasanna Tripathy v.Arundhati Tripathy 2005-AIR(SC)-0-3297 the Court held that a lengthy desertion of 14years, impossible reconciliation leads to the presumption themarriage is irretrievably broken and therefore the decree of

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divorce was upheld.In Rishikesh Sharma v. Saroj Sharma 2007 (2) SCC 263 both

husband and wife crossed 49 years and they were living inde-pendently for the past 25 years. On the ground of irretrievablebreakdown of marriage the Court passed a decree of divorce.

In B. Srinivasulu v. Mrs. Veena Kumari AIR 2008 AP 20 The wifesuspected her husband’s character and made unethical and un-holy allegations by linking up character of husband with char-acter of sister-in-law. Their marriage was irretrievably brokedown. The husband and wife hardly lived together only for 11months. The Court granted a decree of divorce on grounds ofcruelty and desertion.

4. Conversion: Section 13(1)(ii): Conversion means change ofreligion i.e. conversion to any other religion from Hinduism.It is also known as ‘apostasy’. If either party to the marriagehas voluntarily relinquishes his or her religion and adopts an-other religion after formal ceremonial conversion he or sheshall be ceased to be a Hindu.

5. Unsound mind: Section 13(1)(iii): Unsoundness of mind is amental disorder. If the respondent has been incurably of un-sound mind or has been suffering from mental disorder of sucha kind and to such an extent that the petitioner cannot reason-ably be expected to live with the respondent, is entitled to file apetition for divorce.

In Dr.Kollam Padma Latha v. Dr. Kollam Chandra Sekhar 2007(1) ALD 598 (DB) it was held that Schizophrenia which iscurable and treatable can not be a ground for divorce. Hencethe petition for divorce filed by the husband was dismissed.

6. Leprosy: Section 13(1)(iv): If the respondent has been suf-fering from virulent and incurable from of leprosy, the peti-tioner has a right to file a petition for divorce.

In Annapurna v. Nabakishore, AIR 1965 SC 72, lepromatous lep-rosy, which is malignant (hateful) and contagious and in whichprognosis is usually grave was held to be virulent leprosy.

1. Sec 13(2)(i) Bigamy of the husband

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2. Sec 13(2)(ii) Husband guilty of rape, sodomy orbestiality

3. Sec 13(2)(iii) Decree or order of maintenance4. Sec 13(2)(iv) Repudiation of marriage between

15-18 yearsIn Vinita Saxena Vs. Pankaj Pandit 2006-AIR (SCW)-0-1585 a

gap of 13 years without the consummation of marriage was heldto be a valid reason for the grant of divorce.

In Mahendranath Yadav v. Sheela Devi 2010 9 SCC 484 It washeld that customary dissolution of marriage through panchayatcan’t be a basis for divorce under Section 13 of Hindu Mar-riage Act,1955.

Evaluation1. Describe the various grounds on which divorce can be obtained by either

spouse under The Hindu Marriage act, 1955?2. State the legal meaning of divorce and on what grounds the marriage can be

dissolved under the provisions of Hindu Marriage Act,1955 ?

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Shortnotes IndexAcknowledgement of paternity 117Ad hoc guardian 117Adoptiosan 117Adoption by a Hindu female 117Adoption by a Hindu male 117Adoption by a Hindu widow 118Adultery 118Affinity under Muslim Law 118Annulment of marriage 118Ante-adoption agreement 118Certificate of marriage 119Certified guardian 119Christian marriage 119Consanguinity under Muslim Law 119Conversion 119Cruelty 119Custody children 120Custom 120Customary or proper dower 120Dastane v. Dastane 120Dayabhaga School 120De facto guardians 120Deferred dower 121Desertion 121Digests and Commentaries 121Disposal property 121Divorce 121Divorce by mutual consent 121Divorce by Talaq 122Doctrine of Relation Back 122Dower 122Dower in Muta marriage 122Factum valet 123Family Court 123Fasid . 123Faskh 123Fosterage or Riza 123

Guardian under Muslim Law 124Guardians by affinity 124Guardians of person 124Guardianship of property 124Hanafi school 124Hindu marriage is a civil contract 125Hindu marriage is a sacrament 125Iddat 125Ijma 125Ila 125Impotency 125Interim maintenance 126Irregular marriage 126Judicial separation 126Judicial separation:Muslim law 126Kanyadana 127Kharcha-I-pandan 127Khaykhyar-Ul-Bullugh 127Khula 127Legislation 127Leprosy 128Mahr 128Mahr-I-misl 128Maintenance Pendente Lite 129Maintenance: Muslim Law 129Maliki school 129Mitakshara School 130Muajjal mahr 130Mubaraat 130Mushaarat 130Muta marriage 130Muwajjal mahr 130Nafqah 131Precedent 132Premarital pregnancy 132Renouncing the world 133Restitution of conjugal rights 134

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Table of CasesAlka Sarma v. Abhinesh Chandra Sarma 1991 08Amirda Amalraj v. Thamima 1995 83Anita v. R. Rambilas 2003 34Annamalai v. Perumayee Ammal 1965 18Annapurna v. Nabakishore, 1965 28Ass Kaur (Dead) by LRs v. Kartar Singh (Dead) by LRs & Ors 2007 04Aviral Bhatla v. Bhawana Bhatla 2009 34AzizaKhan v. Dr. Amir Khan 2000 78B. Srinivasulu v. Mrs. Veena Kumari 2008 27,32Bai Tahira v. Ali Hussain 1979 73Balbir Kaur v. Raghubir Singh 1973 36Basanti Mohanty v. Rarikhit Rout 2003 102Bharatha Matha & Another v. R. Vijaya Renganathan &Ors 2010 21Bhaswati Sarkar v. Angshuman Sarkar II 2001 89Bipin Chandra v. Prabhavati 1957 26Brij Kishore v. Rekha 1992 41Dastane v. Dastane 1975 30Dattu v. Tarabai 1985 102Debnam v. Debnam 1949 36Deepa Sugal v. Dineshchandra, 1993 17Deivain Achi v. Chidambara Chettiar, 1954 10Dr.Kollam Padma Latha v. Dr. Kollam Chandra Sekhar 2007 27Durga Prasanna Tripathy v.Arundhati Tripathy 2005 27Flg.Officer Rajiv Gakhar v. M.S. Bhavana @ Shahar Warf 2011 23Ghisalal v. Dhapubai, 2011 95Godhabai v. Narayana 1972 18Gullipilli Sowria Raj v. Bandaru Pavani @ Gullipilli Pavani 2009 08Hanuman Prasad v. Musamat Babooee 1856 108Hitesh Bhatnagar v. Deepa Bhatnagar 2011 35Jaitunbi Mubarak Shaikh v. Mubarak Fakhruddin Shaikh & Ors 1999 21,78Jinia Keotin v. Kumar Sita ram Manjhi 2003 18Joyita Saha v. Rajesh Kumar Pandy 2000 11Kalicharan v. Sudhirchandra 1985 110Kamaladevi v. Shiva Kumar Swamy 2003 16Kartar Singh v. Suraj Singh 1974 97Kesari Bai v. Horibhan 1975 103Kumar V. Jahangirhar v. Chetana K Ramatheertha 2001 39

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Shortnotes

ACKNOWLEDGEMEN T OFpaternity: Muslim lawdoes not recognise the insti-

tution of adoption but recognises theinstitution of ikar or doctrine of ac-knowledgement. The children bornout of lawful wedlock are presumedto be legitimate children. The ques-tion of legitimacy arises where themarriage of the spouses is in dispute.In many cases, the parties may ormay not acknowledge the paternityor maternity of the children.Ad hoc guardian: A guardian ap-pointed only to do a particular isolatedtransaction in respect of minor’sproperty is called ad hoc guardian.He is not a guardian in the eye of law.He is neither natural guardian notguardian appointed by the Court, buthe can be described as de factoguardian. However he is bound tomanage the property like any otherguardian.Adoption Adoption under ancientHindu law was meant for spiritual andreligious purposes. Hence it wasbased on ‘religious theory’. Accord-ing to Shastric Hindu law adoptionwas a sacramental act than a secu-lar act, but The Hindu Adoptions andMaintenance Act, 1956 has madeadoption a secular institution andsecular act. Adoption is a matter ofstatus and not a matter of contract.

Even religious ceremonies and sac-ramental formalities are not neces-sary for adoption.Adoption by a Hindu female: AHindu unmarried female, widow ordivorcee can adopt but a Hindu mar-ried female has no capacity to adopteven with the consent of her husband.If there is to be an adoption, it mustbe made only by her husband withher consent. According to Section11(iv) a Hindu female who adopts amale child, must be older to him by atleast 21 years, otherwise the adop-tion is void.Adoption by a Hindu male: AHindu bachelor, married person, di-vorcee or widower can adopt. Ac-cording to Section 5(1) an adoptionmade without the consent of wife isvoid. Therefore, a Hindu marriedmale must obtain the consent of hiswife for adoption. In Bhotooram v.Ram Law AIR 1989 MP 198, theCourt held that even if the wife is liv-ing separately without dissolution ofmarriage, her consent is also neces-sary.Adoption by a Hindu widow: Awidow can also adopt a child withouther husband’s authority and withoutthe assent of her husband’s sapindas.A son adopted by his widow shall bedeemed to be her husband’s son and

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Abandoned:NeglectedAcknowledgement: RecognizingAdoption: taking up a childAdultery: willful extramarital sexAffinity: relation, likenessAge of major: of full ageAhsan: best or very properAlienate: transferAllowance: pocket moneyAmicus curiae: friend of the CourtAnalogous: similar in some respectAnalogy: similarity, equivalentAncestors: forefathersAnnulment: cancellationArthangi: life partnerAscendants: parentsBatil: Void marriageBequest: inheritanceBride: female partner in weddingCarnal conjunction: bodily unionCeremonies: official ritualsChastity: virtuous, pureCommentators: reporters or analystsConjugal rights: marital privilegesConjunction: combination, unionConsanguine: related by bloodConsanguinity: blood relationshipConsensus: agreement, consentCustom: tradition, practiceCustomary rites:traditional ritualsDayabhaga law: Law of DayabhagaDe facto: in fact, realityDeceased ancestors:dead relativesDeity: god or goddessDescent: parentage, lineage

Desertion: leaving, forsakingDevdasis: devadasisDevolve: pass to, give toDharmapatni: wifeDigests: publications, booksDisabilities: handicapsDiscrimination: bias, unfairnessDivine injunctions: godly bansDivorce: break-up, split-upDivorcee: a divorced womanEquity: fairness, impartialityFalse allegations: untrue chargesFamily Court: Court of matrimonyFamily custom: family traditionFasid: Irregular marriageFaskh: cancellation of marriageFidelity: faithfulnessFormal ceremony: official ritualFormalities: official procedureFosterage: bringing upGanapati Puja: Ganapati poojaGarbha Dana: Garbha danamGeeta: Holy Book of HindusGovern: administerHermit: vanaprastha, solitary person:

Hostile: unfriendlyIdolatress: a woman idolaterIjma: collective opinions and deci-sions of the commentatorsIlla: vow of continenceIllegitimate: unlawfulIllegitimate child: unlawful babyIllicit relation: illegal connectionImpotency: sexual weaknessImpotent: sexually powerless

Dictionary