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Q.1. ADOPTION Q.11. Can a Hindu ADOPT a child whose parentage is unknown? Q.21. APOSTACY
Ans: Adoption is a mode of taking up of a child by a person as his daughter or son, who is Ans: According to the Hindu Adoption and Maintenance Act (HAMA). This Act came into Ans: Renunciation of a Muslim to some non-Muslim religion is called Apostasy. In order to
not or her daughter or son as a fact. On adoption, such a child is de-rooted from his natural force in 1956 and is applicable to: - any person who is a Hindu by religion in any of its forms constitute apostasy, it must be total renunciation of the Muslim faith.
family and thus all his or her ties to the natural family are severed. The adopted child is or development; - any person who is a Buddhist, Jain or Sikh; - any person who is not a After the coming into force of the Dissolution of Muslim Marriage Act, 1939, the effects
transplanted in the new family of the adopting parents. Hindu law had always recognized Muslim, Christian, Parsi or Jew; -any child legitimate or illegitimate whose parents are of apostasy in Modern Indian are:
adoption even before the passing Hindu Adoption and Maintenance Act (HAMA). Hindus, Buddhists, Jains or Sikhs; -any child legitimate or illegitimate one of whose parents a. The apostasy of the husband results in an instant dissolution of Marriage. Thus, where
Requisites of a valid adoption under HAMA: Section 6 mentions the essential of a valid are Hindus, Buddhists, Jains or Sikhs and has been so brought up; -any abandoned child, on the apostasy of the husband the wife married another man even before the expiration
adoption. It reads as follows: legitimate or illegitimate of unknown parentage brought up as a Hindu, Buddhist, etc.; - of te iddat it was held that she was not guilty of bigamy [Abdul Gani V. Azizul (1912)
1. The person adopting has the capacity and also the right to take in adoption; any person who is a convert to the Hindu, Buddhist, Jain or Sikh religion. Under this Act ILR 39 Cal 409]
2. The person giving in adoption has the capacity to do so; only Hindus may adopt subject to their fulfilment of certain criteria. The first of these asserts b. If a Muslim wife who belongs to another faith before her marriage, reconverts to her
3. The person adopted is capable of being taken in adoption and that the adopter has the legal right to (under this Act that would mean they are a Hindu). original faith or to some other faith results in the instant dissolution of marriage.
4. The adoption is made up in compliance with the other conditions mentioned in this Next, they have to have the capacity to be able to provide for the adopted child. Thirdly the c. The apostasy of the Muslim wife does not result in the dissolution of Marriage, instant
chapter. child must be capable of being adopted. or otherwise.
Conditions mentioned in S. 6 have to be read cumulatively and thus, all the conditions have Q.12. Is CEREMONY of ADOPTION compulsory for a valid adoption? Apostasy may be expressed or implied. A mere declaration such as “Inenounced islam” is
to be fulfilled for a valid adoption. Ans: This adoption is valid if it does not violate the requisites of valid adoption contained in enough and no formal conversion is necessary.
S.6 of the Hindu Adoptions and Maintenance Act, 1956. It provides that no adoption shall be Q.22. What is BETROTHAL?
Q.2. Under what circumstances a female Hindu may adopt a child in ADOPTION? valid unless Ans: betrothal means an engagement or a promise to marry. It can also refer to the act of
Ans: S. 11 of Hindu Adoption and Maintenance Act (HAMA) regulates adoption made be a. the person adopting has the capacity and also the right to take in adoption promising or offering a child or young person in marriage, whether by a parent, guardian or
a Hindu female. b. the person giving in a adoption has the capacity to do so family elder.
The essential conditions for a female Hindu to take a son or daughter in adoption are: c. the person adopted is capable of being taken in adoption and
1. The female Hindu should be of sound mind and not a minor that is she has to be of the Q.23. What may be BEQUEATHED?
d. the adoption is made in compliance with other condition mentioned in Chapter II Ans: A testator can bequeath by will all the properties of which he can make a gift. Thus, all
age of 18 years or more. which deals with the subject “Adoption”.
2. She is not married. properties which a person can dispose of by a transfer inter vivos may be disposed of by him
3. If she is married and her husband is dead. Q.13. What is the main objective of LAW OF ADOPTION? by a will.
4. If she is married and has a husband living her marriage has been dissolved or her Ans: Objectives of adoption Prior to 1956, a Hindu could not dispose of the property by will which he could not
husband has completely and finally renounced the world or has ceased to be a Hindu or  To secure the family property. have alienated by a gift inter vivos. But now he can. To this proposition there is one
has been declared by a Court of competent jurisdiction to be of unsound mind.  To grow family name and fame. exception that he cannot so dispose of his property by will as to defeat his wife’s or any
5. If the adoption is of a son, she must not have a Hindu son, son’s son or son’s son’s son  To provide a home to the homeless child. person’s legal right of maintenance.
(whether by legitimate blood relationship or by adoption) living at the time of adoption.  To provide a child to the childless Now under Section 30 of the Hindu Succession Act, 1956: “Any Hindu may dispose of
6. In case of adoption of daughter, the adoptive mother must not have a Hindu daughter or  To protect the old age of the parent by the adopted child. by will or other testamentary disposition any property, which is capable of being so disposed
son’s daughter (whether by legitimate relationship or by adoption) living at the time of  To help in the last rites and rituals of parents of by him, in accordance with the provisions of the Indian Succession Act, 1925 or any other
adoption. law for the time being in force and applicable to Hindus. Explanation to Section 30 makes
Q.14. AFFINITY: this position very clear and removes old restrictions. However, the following propositions
7. If the person to be adopted is a male, she has to be at least 21 years older than the Ans: Prohibition of Affinity is based in the relationship arising out of marriage. The
person to be adopted. must be taken care of.
peculiarity of the doctrine is that prohibition of affinity arises once a marriage has taken Though the undivided coparcenary interest of a Hindu governed by Mitakshara law is
placed, irrespective of the fact whether the marriage is void or valid. The prohibition arises not capable of being disposed of by him by means of a sale, gift or otherwise inter vivo, it
Q.3. Can a married HINDU woman ADOPT a CHILD during the time of her husband? from an adulterous connection also.
And: A wife can adopt a son or daughter for herself if she has completed the age of 18 years can now be disposed of by him by a will.
Q.15. AGE OF MUSLIM marriage One cannot by making a will of his entire property defeat the claims of one’s wife and
and if she is of sound mind provided – 1) Her husband has divorced her or the marriage has
Ans: Under the Muslim personal law in India, which continues to remain uncodified and of other persons legally entitled to maintenance from him.
been dissolved; or 2) Her husband has been completely and finally renounced the world; or
unconsolidated, persons who gave attained puberty are eligible to get married i.e. on attaining Q.24. What is BIGAMY?
3) He ceased to be a Hindu; or 4) He has been declared to be unsound mind by a court of
the age of 15 years. Ans: In cultures that practice marital monogamy, bigamy is that act of entering into a
competent jurisdiction.
Q.16. What is the MINIMUM AGE of a Muslim male for pronouncing talak? marriage with one person while still legally married to another. Bigamy is a crime in most
Q.4. Can a child be ADOPTED without PERFORMING CEREMONY of adoption Ans: Age of puberty which is 15 years. There is certain criterion to be fulfilled in order to western countries, and when it occurs in this context often neither the first nor second spouse
under the Hindu Adoption and Maintenance of 1956? pronounce talaq. This requirement is further different according to different Muslim school is aware of the other. or
Ans: Sections 11 of the Hindu Adoptions and Maintenance Act, 1956 requires proof of the of thoughts. Bigamy is the act of entering into a marriage with one person while still legally married
ceremony of actual giving and taking of the child in adoption. As such, a child cannot be  Shia – He must be of sound mind and must have attained the age of puberty. It must be to another. Second marriage during the subsistence of the first marriage is illegal in India and
legally adopted without performing ceremony of adoption under the HAMA, 1956. pronounced orally in the presence of two witnesses, unless he is unable to speak. Further, the relationship arising from the same does not have any validity. One of the conditions for a
Talaq pronounced under coercion is void. It must be spoken in Arabic terms and strictly in valid marriage under Section 5 of the Hindu Marriage Act, 1955 is that neither of the party
Q.5. Person who may be ADOPTED? accordance to sunnah. should have a spouse living at the time of the marriage. Under Section 11 of the Act, second
Ans: Section 10 – No person shall be capable of being taken in adoption unless the following  Sunni – In Sunni, only two requirements are needed, i.e.- The husband pronouncing marriages can be declared null and void. It will not apply:
conditions are fulfilled, namely: divorce must be of sound mind. He has attained majority. A Talaq pronounced under • if the husband or wife of the first marriage is dead or
1. he or she is a Hindu compulsion or intoxication is ineffective. • if the first marriage has been dissolved by a decree of divorce or
2. he or she has not already been adopted Q.17. What is the importance of AGE of MARRIAGE under Hindu law? • the former marriage is void or declared void by a decree of nullity
3. he or she has not been married, unless there is a custom or usage applicable to the Ans: By the Child Marriage Restraint (Amendment) Act, 1978, for 18years and 15 years the
parties which permits persons who are married being taken in adoption. figures and words 21 years for the groom and 18 years for the bridegroom were substituted Q.25. CHILD MARRIAGE
respectively. Or Ans: Child marriage in India, according to the Indian law, is a marriage where the woman
Q.6. Who are capable of giving a child in ADOPTION? The ancient Hindu law did not prescribe any age for marriage but it is now a condition of and man is below the age of 18 and 21 respectively. As per the 1929 Act, marriage of girls
Ans: No one but the parents and guardian of the child can give them up for adoption as per marriage that the bridegroom must have completed 21 years and the bride must have below the age of 14 years and boys below the age of 18 years was prohibited. This Act was
Section 9 of the Hindu Adoption and Maintenance Act. completed the age of 18 years (Section 5). Thus, a child marriage is prohibited under Hindu amended in 1978 to increase the minimum age to 18 years for females, and 21 years for men.
As per the act: Marriage Act. However, violation of this condition does not make the marriage void or The Prohibition of Child Marriage Act, 2006 replaced the 1929 Act, with the same minimum
 Only the biological father of a child has the authority to give him up for adoption; voidable. It means that it is valid though it may attract penalties. But it can become a valid age limits.
 The consent of the child’s biological mother is necessary. ground for repudiation of the marriage. The Hindu Marriage Act and the Child Marriage
A mother will have the capacity to give the child up for adoption if: Restraint Act provide for punishment for such marriage. Q.26. COLLUSION:
 The father is either dead; According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for Ans: It is an agreement arrangement or understanding express or implied between the parties
 Of unsound mind; himself or herself in contravention of Section 5(iii) may be punished with upto 15 days or their agents whereby matrimonial relief is ought to be obtained by deceiving the court by
misrepresentation, exaggeration or suspension of fact or by fabricating evidence where in fact
 Has renounced the world; or imprisonment or with a fine upto Rs. 1000 or with both. Under the Child Marriage Restraint
Act, 1929, a male above the age of 25 years marrying a girl below 15 years is punishable no ground or sufficient ground exist for the matrimonial relief. Collusion is a bar to the
 Converted to some other religion.
with upto 3 months imprisonment and is also liable to fine. The Child Marriage Restraint matrimonial relief is enacted under Section 23(1)© of he Hindu marriage Act/Section 34(1)
The section clearly mentions that the father and mother mean biological parents and not
(Amendment) Act 1978 has also raised the age of marriage of girl to eighteen. (d) of the Special Marriage Act.
adoptive parents. Adoptive father or mother cannot give the child up further for adoption.
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Q.27. CONDONATION Q.18. What amounts to CRUELTY? Q.7. DEPENDANTS under the Hindu Adoption and Maintenance Act, 1956.
Ans: Under Section 23(1)(b) of the HAM Act/34(1)(b) of the Special Marriage Act, condo Ans: There are no definite parameters available according to which we can determine Ans: Dependents may be defined under Section 21 – For the purpose of this chapter
nation applies to the matrimonial affiances of adultery and cruelty only. It means forgiveness cruelty. It always depends on the facts and circumstances of each case. There are certain “dependents” mean the following relations of the deceased:
of the matrimonial offence and the restoration of offending spouse to the same position as he conducts that re generally seen as cruelty: a. His or her father;
or she occupied before the offence was committed. To constitute condonation there must be a. Unsoundness of mind: If any party to the marriage is suffering from an incurable mental b. His or her mother;
forgiveness and the restoration (cohabitation). Forgiveness should be given after the full disease and if this fact gives rise to a reasonable apprehension in the mind of the other c. His widow, so long as she does not remarry
knowledge of all the material facts. At the same time mere forgiveness is not enough. The party that it will be injurious and harmful to live with that party, then it is generally d. His or her son or the son of his predeceased son or the son of a predeceased son of
guilty party must be restored back to her or his original place i.e. cohabitation must be considered as a sufficient ground of cruelty. In the case of Smt. Uma Wanti v Arjan Dev his predeceased son, so long as he is minor; provided and to the extent that he is
resumed full-fledged e.g. the respondent wife should her resplendence to the husband tells AIR 1995 P&H 312, it has been held that “although the wife is not an unsound person but unable to obtain maintenance, in the case of a great grandson, from the estate of his
her that he has forgiven her but they will sleep in different rooms. This is forgiveness but not her peculiar way of behavior towards him is sufficient to constitute legal cruelty”. father or mother or father’s father’s mother;
restoration and therefore there is no condonation. b. Attempt to commit suicide: It has been considered that several attempts to commit e. His or her unmarried daughter for the unmarried daughter of his predeceased son or
Q.28. Connivance suicide or even threat of it is sufficient to cause considerable mental pressure on the other the unmarried daughter of a predeceased son of his predeceased son, so long as she
Ans: Under the Hindu Marriage Act, Special Marriage Act and the Indian Divorce Act, party. In the case of Harbhajan Singh Monga v. Amarjeet Kaur, the Madhya Pradesh High remains unmarried; provided and to the extent that she is unable to obtain
connivance is a bar to the matrimonial offence of the adultery alone. On the other hand, Court held that “threats of committing suicide by one spouse constitutes cruelty to others maintenance, in the case of a granddaughter from the estate of her father or mother
under the Parsi Marriage and Divorce, it is a general bar. thus it is valid legal ground to seek divorce”. or father’s father or father’s mother;
The word “connivance” has been derived from “connive’ which means “to blink at”. c. Making false allegation: Making false allegations about the character of the other party f. His widowed daughter provided and to the extent that she is unable to obtain
“Accessory” and “Connivance” are of the same quality. The distinction between the two is proves to be personal grounds for seeking a divorce. In the case of Jay Dayal v. maintenance:
that in the former there is an active participation by the petitioner in the guilt of the Shakuntala Devi, the Court has said that “making a false allegation of physical and mental i. From the estate of her husband; or
respondent while in the latter there is no such participation. In “connivance” there is corrupt torture against husband amounts to mental cruelty”. ii. From her son or daughter, if any, or his or her estate; or
intention but not active corruption. To constitute connivance consent, express or implied, is d. Refusal to have sexual intercourse: Sexual intercourse plays a very important role in a iii. From her father-in-law or his father or the estate of neither of
necessary. If the petition ‘expressly consents, expressly or by implication, that she would like happy and harmonious marital relationship. In the case of Anil Bharadwaj v. Nirmlesh g. Any widow of his son or of a son of his predeceased son, so long as she does no
to make money by illicit intercourse, and the petitioner agree with the proposal, he is guilty Bharadwaj AIR 1987, the Court decided that if any party to the marriage having a healthy remarry, provided and to the extent that she is unable to obtain maintenance from
of connivance, though actively he had nothing. physical condition refuses to have sexual intercourse without any reason and especially her husband is estate or from her son or daughter, if any, or his or her estate, or in
Q.29. CONSANGUINITY when the parties are young and newly married, it would amount to cruelty and would the case of a grandson’s widow, also from her father-in-law’s estate.
Ans: On the basis of prohibition on the ground of consanguinity, a Muslim male cannot entitle the other party to a decree of divorce. h. His or her minor illegitimate son so long as he remains a minor;
marry the following: e. Defamation: Regularly disrupting and insulting the spouse in front of society which i. His or her illegitimate daughter, so long as she remains unmarried.
a. his mother or grandmother, how high-soever causes pain and mental agony to the other would amount to mental cruelty. In the case of
b. his daughter or granddaughter, how lowsoever, Vishwanath S/o Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal, 2012, the Court held Q.8. Is there any right that a DIVORCED WOMAN can claim against her former
c. his sister, full, consanguine or uterine, that “the motive was to demonise the reputation of the husband in the society by naming husband after divorce when she remains unmarried?
d. his aunt (both on father’s and mother’s side) how highsoever. him as a drunk womaniser and man of bad habit. This constitutes mental cruelty and this Ans: Yes, Alimony or maintenance.
Q.30. What are the legal effects of CONTRAVENTION of the essentials for a void conduct of the wife has frozen the emotion and snuffed out the bright candle of feeling of
MARRIAGE provided under the Hindu Law? the husband thus it is clear that with this mental agony, pain, and suffering the husband Q.9. Grounds for DIVORCE applicable only to WOMAN.
Ans: Section 5 of the Hindu Marriage Act lays down the conditions for a valid marriage and would not be able to live with the wife, therefore entitled to decree of divorce”. Ans: The following are the grounds for DIVORCE in India on which a petition can be
the contravention of each of the conditions results in different consequences FILED only by the WIFE.
Q.31. CONVERSION Q.19. CRUELTY: PHYSICAL cruelty, MENTAL cruelty. 1. If the husband has indulged in rape, bestiality and sodomy.
Ans: Conversion of one of the spouses to any other religion affords a ground to the other Ans: Cruelty refers to violent acts. However, a mere quarrel, petty outrageous behaviour or 2. If the marriage is solemnized before the Hindu Marriage Act and the husband has
spouse certain matrimonial reliefs. In this context, conversion means that the person has differences between the spouses does not come in the ambit of cruelty because this is again married another woman in spite of the first wife being alive, the first wife can
voluntarily relinquished his or her religion and adopted another religion after going through something that is common in a day to day married life. Conducts that would amount to seek for a divorce.
some formal ceremony. If a Hindu embraces a totally different religion, such as Christianity cruelty should be grave and severe in nature. Grave violence doesn’t always mean physical 3. A girl is entitled to file for a divorce if she was married before the age of fifteen and
or Islam, he or she may be stated to be a convert. violence. Though physical violence is an essential factor that constitutes cruelty but apart renounces the marriage before she attains eighteen years of age.
The party who ceases to be a Hindu by conversion cannot file a petition for divorce from that a continuous process of ill-treatment or mental or physical torture to either of the 4. If there is no co-habitation for one year and the husband neglects the judgment of
under this section. This ground can be claimed only by the other party. There is a strict rule spouse would also amount to cruelty. maintenance awarded to the wife by the court, the wife can contest for a divorce.
in Hindu law that a person who converts from Hinduism to another religion can never inherit Physical cruelty
anything from their Hindu relations. As a result of conversion, his/her right to inherit ends. Hereby under physical cruelty, we are not referring to any violence that takes place anywhere Q.10. DIVORCE by mutual consent
Muslims, too, are prohibited from inheriting property if they convert from Islam to another outside but the matrimonial physical violence resulting in cruelty. Any physical violence, Ans: Divorce by Mutual Consent or Mutual Divorce is when both husband and wife mutually
religion. bodily injuries, the threat to life, limb and health apparently causing apprehension in the agree that they cannot live together anymore and that the best solution is Divorce, they would
Q.32. What are the forms of Talak? mind of the woman would constitute physical cruelty on the spouse. present a Mutual Divorce petition jointly before the honourable court, without putting forth
Ans: Talak may take the following forms: Mental cruelty any allegations against each other. The requirements to be complied with for a Mutual
1. Express talak: When husband uses clear and unequivocal words such as “I have divorced Now it is not just about physical cruelty, mental cruelty has the same weightage compared Consent Divorce:
thee”, the divorce is express. The express talak falls into two categories: (a) talak-i-sunna with physical cruelty. Ascertaining mental cruelty is kind of more challenging than proving 1. Living Separately Under the Same Roof: The parties have been living separately
(approved divorce), and (b) talak-ul-badal or talak-un-biddat or talak-ul-bidda physical cruelty. Apart from the physical harm if any woman is inflicted with any kind of for a period of not less than one year.
(unapproved divorce). The basic distinction between the two is that in the former case, the mental stress or has to compromise her mental peace for her spouse or have to constantly go 2. No Reconciliation Possible: The parties have failed for any reason whatsoever to
pronouncement for divorce is revocable, that is why it is called approved divorce, while in through mental agony, then that amounts to mental cruelty. live together. In other words, no reconciliation or adjustment is possible between
the latter, it is irrevocable. Talak-i-sunna has two forms: (i) ahasan, and (ii) hasan. The them.
former is most approved and the latter is just approved. Talak-ul-badai alsho has two Q.20. DELAY 3. Freely Consented Agreement: The parties have freely consented to the agreement
forms: (i) triple divorce or three pronouncements at one time, and (ii) one irrevocable Ans: Improper or unnecessary delay is a bar to relief in respect of all matrimonial causes of dissolution of marriage.
pronouncement. under the Hindu Marriage Act, the Special Marriage Act and the Parsi Marriage Act and 4. Right to Withdraw the Petition: The parties are at liberty to withdraw the petition.
2. Implied or contingent talak: Sometimes the words used in the pronouncement of talak Divorce Act. Under the Indian Divorce Act unreasonable delay is a bar only to the It seems that the petition may be withdrawn even at the instance of one party in the
are not clear, in these cases, the divorce will be implied if intention to divorce is clearly matrimonial relief of divorce. course of six months from the date of presentation of the petition. But when a joint
expressed. motion is taken by the parties after the lapse of six months but before the expiry of
3. Delegated divorce, talak-i-tafweez: Muslim husband has the right to delegate his power eighteen months from the date of presentation of the petition for making an inquiry,
of talak on his wife or on any other person. He may delegate the power absolutely, the unilateral right of a party to withdraw the petition appears to be barred.
conditionally, temporarily or permanently. A permanent delegation of power is, but a
temporary delegation of power is not revocable. The words used and the person
designated in the delegation of power must be clear and certain.
4. Divorce by mutual consent: It may be oral or in writing. Sometimes consent of the
husband is obtained by making payment to the husband of the actual expenses of the
marriage; such a divorce is valid. But if the consent to divorce is obtained on payment of
some price in cash or kind, divorce is not valid.
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Q.33. Doctrine of FACTUM VALET. Q.40. FAIR TRIAL rule. Q.47. What is the meaning of FRAUD in matrimonial law?
Ans: It is a doctrine of the Hindu Law initiated by the dayabhaga school and recognize also Ans: That the framers of the Hindu Marriage Act were much influenced by the English law Ans: ‘Fraud’ means and includes any of the following acts committed by a party to a
by the Mitakshard school. The meaning of this doctrine is that “a fact cannot be alter by a of marriage and divorce becomes further clear from the provision of fair trial to every contract, or with his connivance, or by his agent1, with intent to deceive another party thereto
hundred texts” where an act is down an finally completed, though it may be in contravention marriage incorporated in the Act.lG The Act provides that no marriage shall be dissolved or his agent, or to induce him to enter into the contract:
of a hundred directly texts, the fact will stand and the act will be deemed to be legal and unless three years have elapsed since the date of the solemnization of the marriage, though in 1. the suggestion, as a fact, of that which is not true, by one who does not believe it to be
binding. The ‘text’ refer to here are text that are directory as distinguish from there that are cases of exceptional hardship, courts have been empowered to dissolve the marriage earlier.'' true;
mandatory. The test which prescribed the rules for the consent of guardian for the purpose of Three years have been considered as a reasonable period to give a fair trial to every marriage. 2. the active concealment of a fact by one having knowledge or belief of the fact;
marriage are merely directory hence a marriage one performs without the consent of the If parties fail to live together even after that, they are permitted to have recourse to divorce. 3. a promise made without any intention of performing it;
guardian is valid. But eh non observance of essential ceremonies cannot be overlooked by The principle is right, but it creates certain problems. For instance, if a party to the marriage 4. any other act fitted to deceive;
applying the doctrine unless it is shown that the ceremonies have been modified by custom. is guilty of adultery after a few months of his or her marriage or if she or he is converted to 5. any such act or omission as the law specially declares to be fraudulent.
Another application of this doctrine in case of the marriage of a minor is that the factum of some other religion, must the other party be asked to wait for three years? There also seems Section 496 defines the offence of fraud marriage. A person who with fraud or dishonest
marriage., which was solemnized cannot be undone by reason of a number of legal some inconsistency between a few provisions. A provision of the Act l8 provides that if the intention of knowing to the nature of marriage ceremony as invalid goes through such a
prohibitions to the contrary. Where a marriage has been brought about by force or fraud. The respondent has refused to comply with the decree of restitution of conjugal rights for two ceremony is liable to be convicted under Section 496. Such mock or fraud marriages are
validity of the marriage can be acted in the court and the marriage may be declared as void. years, the petitioner is entitled to obtain dissolution of marriage: suppose that a decree for punished under this Section.
In cases in which rules are merely directory and not mandatory and the adoption has restitution of conjugal rights is passed just after six months of the marriage and the Essential ingredients
been made in violation of such rules, the maxim of factum valet can be applied. In an respondent refuses to comply with it for a period of two years. Under that provision of the To constitute the offence of fraud marriage under Section 496 of the IPC, the following
adoption under Hindu Law the capacity to give, capacity to take & capacity to the subject of Act the petitioner is entitled to get a divorce after onlytwo years and six months of his essential elements must be fulfilled:
adoption by ceremony are the essential s to the validity of adoption. marriage, but the fair trial rule provides that no marriage can be dissolved unless three years  A man or a woman must have a fraud or dishonest intention on his or her part;
have elapsed since the solemnisation of the marriage. Only if this is considered to fall under  With such intention, he/she must go through a marriage ceremony;
Q.34. What is an ENDOWMENT? the exceptional hardship clause, can anomalous positions be avoided.''  He/she must have knowledge of his/her part that such a ceremony does not constitute a
Ans: An endowment is generally a dedication of property of any kind for particular valid marriage.
purposes, particularly charitable purposes. One may say that it is the dedication of property Q.41. FAMILY COURT  Mens rea is the essence of the offence of fraudulent marriage. It is very clear that this
for a well-defined religious or charitable purpose or for the benefit of the public or some Ans: Family court is a specialised court that handles legal matters arising from family offence may be committed by a man or a woman.
section of the public in the advancement of religion, knowledge, commerce, health, safety or interactions. The Family Courts Act of 1984 was enacted to provide for the establishment of
any other object beneficial to mankind. Family Courts.The main goal of family courts is to remove family and marital disputes from Q.48. FREE CONSENT.
Gifts for religious or charitable purposes had their source in charity and a desire to acquire overburdened and traditional courts of law and place them in a simple court where a Ans: For a valid marriage free consent of the parties is a must. If the consent is obtained by
religious merit. They fall into two divisions: Ishta or Purtta: the former meant sacrifices and layperson could understand the procedure. The two pillars upon which the entire structure of means of coercion, fraud or mistake of fact, it is considered as invalid and the marriage is
sacrificial gifts and the latter meant charities. The former led to heaven while the latter to family courts is built are counselling and conciliation. considered as void.
emancipation or Moksha. This shows that charity is placed on a higher footing than religious Family courts are specialised courts that were established with the goal of preserving It is very important to have a consent to a marriage. One cannot force or impose
ceremonies and sacrifices. the welfare of the family through the use of a multi-disciplinary approach to resolving family marriage on someone. There must be consent or agreement between the parties of the union
Temples and processions for deities, it must be noted, were considered as charitable acts problems within the framework of the law. to be married. For consent to exist, both parties must agree to the marriage and there must be
(i.e. Purtta), while hospitality was considered as a sacrificial gift (i.e. Ishta). These courts aim to protect individuals' legal rights on the one hand, and to serve as a no mistake as to the nature of the marriage; no force must be used upon either party to enter
As observed by the Supreme Court, “Endowment” is dedication of property for purposes guide, helper, and counsellor on the other, to help families deal with problems and restore into the union. Consent doesn’t necessarily have to be verbal, acting upon a particular
of religion or charity having both the subject and object certain and capable of ascertainment. family harmony. situation may also constitute to be a valid consent provided that it has been freely given.
A trust in the sense in which the expression is used in English law is unknown in the Hindu Family court procedures are less stringent than those utilised by civil or criminal courts. Consent by fraud, misrepresentation, coercion will not be free and valid consent.
system, pure and simple. Human piety found expression in gifts to idols and images The family court has intake procedures in place to screen new cases and exclude those In Babui Panmato Kuer Vs Ram Agya Singh {AIR 1968 PATNA 190}, it was held that
consecrated and installed in temples, to religious institutions of every kind and for all that do not require judicial intervention. when misrepresentation as to the age of the bridegroom made to the mother who acted as
purposes considered meritorious in the Hindu social and religious system. Under the Hindu Special legislation describes the sorts of issues that family courts handle, such as agent and the daughter consented for marriage believing the statement to be true, the consent
law the image of a deity of the Hindu pantheon is, as has been aptly called a “juristic entity”, guardianship, child maltreatment, juvenile delinquency, paternity, support, or family was held to be vitiated by fraud.
vested with capacity of receiving gifts and holding property. The Hindu law recognizes offences. In Rajinder Singh Vs Smt Pomilla {AIR 1987 DELHI 285}, the Division Bench of the
dedication for establishment of the image of a deity and for maintenance and worship thereof. Delhi High Court found the marriage to be 13 liable to be annulled when it was found that
The property so dedicated to a pious purpose is placed extra-commercium and is entitled to Q.42. FASID marriage the husband had not disclosed the factum of his previous marriage to the wife or her relatives
special protection at the hands of the sovereign whose duty it is to intervene to prevent fraud Ans: The marriages mentioned under the title of temporary prohibitions are mostly at the time of seeking her consent for marriage and thus the said consent was obtained by
and waste in dealing with religious endowments. the fasid marriages. Thus a marriage is treated fasid in the following circumstances: fraud as to the material fact or circumstance.
1. Marriage contracted during iddah. Therefore, a marriage becomes voidable, under the Hindu Marriage Act, when the
Q.35 Distinction between VOIDABLE and FASID marriage. 2. Marriage after irrevocable divorce to the divorced women. consent of the petitioner, or where the consent of the guardian in marriage of the petitioner,
Ans: Points of distinction between voidable and fasid marriage are: 3. Marriage wherein consents of either party is vitiated by coercion, fraud, the consent of such guardian was obtained by force or by fraud as to the nature of the
1. A voidable marriage is a perfectly valid marriage till it is avoided whereas a fasid isrepresentation. ceremony or as to any material fact or circumstance concerning the respondent.
marriage is neither void nor valid. 4. Marriage contracted in state of ihram- (irham is impediment to validity of nikah)
2. A voidable marriage can be declared as a void by a competent court at the option of 5. A marriage contracted in the absence of witnesses. Q.49. Who is certificated GUARDIAN?
the one of the parties to the marriage but a fasid marriage can be validated by an Act 6. A marriage with a fifth wife by a person having four wives. Ans: The guardian appointed by the Court is known as certificated guardian. Powers of
of the either of the parties to the marriage or by the lapse of the certain period of 7. Marriage with aunt and niece simultaneously. certificated guardians are controlled by the Guardians and Wards Act, 1890. There are a very
time. 8. Marriage contracted by adult virgin girl without the consent of guardian (Majority few acts which he can perform without the prior permission of the Court. In the ultimate
3. A voidable marriage is an effective marriage before consummation also whereas a view point). analysis his powers are co-intensive with the powers of the sovereign and he may do all those
fasid marriage is not an effective marriage before consummation. According to the Muslim law there are three kinds of marriages, namely things which the sovereign has power to do. A certificated guardian from the date of his
4. Before declaring a voidable marriage as void, a husband or wife his right to sue for a. sahih or valid marriage appointment is under the supervision, guidance and control of the Court.
restitution of conjugal rights whereas in a fasid marriage a husband or wife has no b. fasid or irregular marriage and
such right. c. batil or void marriage. Mahomedan law says that a marriage which is not
In a voidable marriage the status of the husband and wife ceases when their marriage is valid is either void or irregular
declared to be void whereas in a fasid marriage a husband or wife has no such right.
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Q.50. Natural GUARDIAN Q.43. Who is a testamentary GUARDIAN? Q.36. The INDIAN DIVORCE ACT, 1869
Ans: If we look to Section 4 of the Hindu Guardian and Maintenance Act, 1956 it says that a Ans: When, during the British period, testamentary powers were conferred on Hindus, Ans: The Indian Divorce Act, 1869, also known as the Divorce Act, 1869 was introduced to
natural guardian means any guardian mentioned in Section 6 and the Section lays down the testamentary guardians also came into existence. It was father’s prerogative to appoint govern the divorce laws for Christian couples in India. It deals with the dissolution of
certain rules for it. testamentary guardians. By appointing a testamentary guardian the father could exclude the marriage between a man and a woman in the Christian community. It is a codified Indian
Natural guardian is one who becomes so by reason of his natural relationship with the mother from her natural guardianship of the children after his death. Under the Hindu personal law. It states that when either the husband or the wife files a petition for divorce, the
minor. A natural guardian nurtures a child and he does not, in this matter require the support Minority and Guardianship Act, 1956, testamentary power of appointing a guardian has now court of law grants separation in accordance with the provisions of this Act. The provisions
of any court’s order for the purpose. The father and the mother are the natural guardian of a been conferred on both parents. The father may appoint a testamentary guardian but if mother of this Act deal with various rights after divorce, which include grounds for dissolution of
minor. Between the father and the mother the father has priority to act as a guardian. On the survives him, his testamentary appointment will be ineffective and the mother will be the marriage, custody of the child, alimony, distribution of property, visiting the child, and
father’s death (and not before) the mother steps in that position. If however the father, by his natural guardian. If mother appoints testamentary guardian, her appointee will become the likewise. It also specifies the power of the courts and situations that can nullify the decree.
will, appoints some other person as the guardian of a minor the mother cannot act as the testamentary guardian and father’s appointment will continue to be ineffective. If mother The Indian Divorce Act, 1869, amends the laws that govern the divorce of people who
minor’s guardian. does not appoint, father’s appointee will become the guardian. profess Christianity. The British had enforced this Act before independence. This Act came
During the father’s lifetime if he refuses or disables himself on account of his conduct It seems that a Hindu father cannot appoint a guardian of his minor illegitimate children into effect on 1st April, 1869, and is applicable to the whole of India, though the state of
to act as such guardian, the mother does not become entitled or is not regarded as a natural even when he is entitled to act as their natural guardian, as S.9(1) confers testamentary power Jammu and Kashmir is excluded. In India, the Hindus, Sikhs, Buddhists, and Jains are
guardian. It is only the order of the court, as held by the Patna High Court in Narain V. on him in respect of legitimate children. In respect of illegitimate children, Section 9(4) governed by the Hindu Marriage Act, 1955, the dissolution of Muslim marriages is governed
Sapurna, by reason of which she becomes a lawful guardian, Mother’s remarriage does not confers such power on the mother alone. by the Muslim Marriage Act, 1939, the Parsis are governed by the Parsi Marriage and
disentitle her to act as a natural guardian of her minor children. Similarly, a mother is the Under Section 9, Hindu Minority and Guardianship Act testamentary guardian can be Divorce Act, 1936, and inter-community by the Special Marriage Act, 1954. In the same
natural guardian of her illegitimate child except in cases where the father of a child is appointed only by a will. way, parties professing Christianity and residing in India are administered by the Indian
ascertained. The guardian of a minor girl will cease to be the guardian of her person on her Divorce Act, 1869.
marriage, and the guardianship cannot revive even if she becomes a widow while a minor.
Q.51. POWERS OF A NATURAL GUARDIAN It is necessary for the testamentary guardian to accept the guardianship. Acceptance Q.37. To whom the INDIAN DIVORCE ACT, 1869 is applicable?
Ans: Section 8 of the Hindu Adoption and Maintenance Act, 1956 provides that a natural may be express or implied. A testamentary guardian may refuse to accept the appointment or Ans: Section 2 prescribes about the extent of the Act. To put in simple terms, the Indian
guardian of a minor has powers to do all Acts: may disclaim it, but once he accepts, he cannot refuse to act or resign except with the Divorce Act, 1869 applies: (i) Where a petitioner or respondent professes the Christian
1. which are necessary or reasonable and proper (a)for the benefit of the minor, or (b) for permission of the court. religion, or (ii) The parties to the marriage are domiciled in India at the time when the
the realization, protection or benefit of the minor’s estate; petition is presented, to make decrees of dissolution of marriage, or (iii) Marriage has been
2. but the guardian in no case can bind the minor by a personal convenient- S.8, sub- Q.44. HIZANAT solemnized in India and the petitioner is resident in India at the time of presenting the
section (1). The natural guardian, as sub-section (2), provides shall not, without the Ans: Hizanat means the right of a mother over her children for bringing them up, for their petition, to make decrees of nullity of marriage, or (iv) Where the petitioner resides in India
previous permission of the court, do the following two things : education, and for the care of their property. Therefore, once a married woman becomes at the time of presenting the petition, to grant any relief under this Act, other than a decree of
a. he shall not mortgage or charge or transfer by sale, gift, exchange or otherwise, any independent in her marriage, her husband cannot interfere with her control over her children dissolution of marriage or of nullity of marriage.
part of the minor’s immovable property, or or their property. The custody of children is a controversial legal topic, due to the inherent
b. he shall not lease any part of such property for a term exceeding five years or for a term conflict between the biological rights of the mother and the natural rights of the child. Q.38. JUDICIAL SEPARATION
extending for more than one year beyond the date on which the minor would attain The right of Hizanat under Muslim law ensures that guardianship is vested in the Ans: Rights and obligations of parties are temporarily suspended. Marital relationship does
majority. mother during the period of suckling, this right is only lost if the mother is found guilty of not come to an end. Parties cannot remarry unless after a lapse of one year’s time a decree of
Any disposal of minor’s immovable property which contravenes the limits laid down in misconduct. divorce is obtained. Resumption of cohabitation by the parties during the course of a decree
sub-section (2) above will make the transaction voidable at the minor’s instance or at the Right of Hizanat gives overriding power to the mother over her son upon his birth. of judicial separation neutralizes the decree. In case of a petition for judicial separation a
instance of anyone claiming through him. One has to mark that such a transfer is voidable According to Muslim law, Hizanat terminates at an early age of the child. The child becomes single or solitary act of adultery committed after marriage would be sufficient to obtain the
and not void. The minor can choose to accept it or he may repudiate it. [sub-section (3)]. In a responsible for what he does at this young age. decree. Desertion of petitioner by respondent continuously for not less than two years
recent case, the specific performance of a contract for alienation of minor’s share of immediately preceding the presentation is sufficient.
immovable property by the mother was declined by the court because it was in violation of Q.45. Define IDDAT. Why is iddat observed by Muslim wife.
S.8(2) and (3). If the guardian seeks court’s permissions no court shall grant it except in case Ans: Iddat means the period during which the wife must wait after the dissolution of her Q.39. What are the grounds of Judicial Separation?
of necessity or for the evident advantage to the minor [sub-clause(4)]. marriage before she can marry again. It is nothing but a period of waiting for the next Ans: In all systems of law, judicial separation is granted on some specified grounds. In some
As sub-section (5) provides, so such an application made by a natural guardian, provisions marriage. After the lapse of the period of iddat, the marriage is valid. systems, grounds of judicial separation and divorce are the same, while in some they are
of Guardians and Wards Act, 1890 would apply and the court would protect the minor’s The duration of iddat on dissolution of marriage by divorce is the period of 3 different.
interest. menstruation courses in the case of a woman subject to menstruation. If the woman is not Under Section 10 of the Hindu Marriage Act, all the fault grounds, i.e. Adultery,
When property for a minor is to be purchased no such permission as contemplated by subject to menstruation, the period of iddat is 3 lunar months. Desertion, Cruelty, Insanity, Leprosy, Venereal Diseases, Conversion of apostasy,
Section 8 is necessary. Thus, contract to purchase a house entered on behalf of and for the If the marriage is dissolved by the death the duration of the iddat is 4 lunar months and presumption of death, etc. for divorce are also the grounds of judicial separation. This is also
benefit of minors by their mother as natural guardian is valid and binds the minor. It is not a 10 days from the date of the death of the husband. If the woman is pregnant at the time of the position under Section 23, Special Marriage Act. However, under the Special Marriage
personal convenant and therefore does not come within the ambit of sub-section (1) of dissolution of marriage, the period of iddat is till the delivery of the child. Act, there is an additional ground of judicial separation, viz., a decree for restitution of
Section 8. Consequently, payment of the purchase price is minor’s benefit, the contract may The object of iddat is to ascertain correctly the paternity of a possible child and to avoid conjugal rights has not been complied with. Under Section 34, Parsi Marriage and Divorce
be specifically enforced by the court. a confusion of parentage, Muslim law lays down that one should not marry a woman who is Act also, all grounds of divorce are grounds for judicial separation.
Application for sale etc. of property by a guardian should be made to the City Civil Court undergoing iddat. Under the Divorce Act, 1869, a decree of judicial separation may be obtained “on the
or the ground of adultery or cruelty or desertion (without reasonable excuse) for two years or
District Court within whose jurisdiction the immovable property is situated. If the application Q.46. What is the period of IDDAT in case of DIVORCE? upwards.
for permission is rejected an appeal lies against such an order, to the court to which appeals Ans: The duration of iddat on dissolution of marriage by divorce is the period of 3 Under Muslim law, there is no provision for a decree of judicial separation.
ordinarily lie from the decision of such a court. menstruation courses in the case of a woman subject to menstruation. If the woman is not
To do all acts which are necessary or reasonable and proper for the benefit of the minor. subject to menstruation, the period of iddat is 3 lunar months.
As decided by the Supreme Court in Manik Chand case, after passing of the Act of 1956
the natural guardian as laid down in Section 8(1), has been empowered to do all such acts
which are necessary for the welfare and benefit of the minor. Section 8(1) therefore has
connection with the person of a minor : that is to say, the natural guardian can place restraint
on the minor with regard to his upbringing, education, health, etc. and he can delegate his
authority in this regard to a tutor or a school-teacher. He can also revoke this authority. He
can protect the minor from bad company and may for this purpose decide the place of the
minor’s residence.
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Q.52. Write the difference between JUDICIAL SEPARATION and DIVORCE. Page 15 Page 17
Ans: Divorce Vs. Judicial Separation Q.60. MAINTENANCE Q.68. Ceremony of MARRIAGE under HINDU Law
Divorce Judicial Separaton Ans: According to s. 3(b) of HAMA, “maintenance” includes – Ans: A Hindu marriage may be solemnized in accordance with the customary rites and
1) Divorce is a dissolution of marriage. It 1) Rights and obligations of parties are 1. In all cases, provision for food, clothing, residence, education and medical ceremonies of either party thereto. (2) Where such rites and ceremonies include the saptapadi
puts an end to the marital rights and temporarily suspended. attendance and treatment. (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred
obligations between the parties. 2. In the case of an unmarried daughter also the reasonable express of an incident to fire), the marriage becomes complete and binding when the seventh step is taken. No
2) Marital relationship comes to an end. 2) Marital relationship does not come to her marriage. marriage is valid if it is made between parties who are related to each other as ‘sapindas’
3) Parties can remarry after one year from an end. S.3(b) provides an inclusive definition of the term “maintenance”. A plain reading of unless such marriage is sanctioned by usage or custom governing both parties. The custom
the date of the sub-section shows that does not mean things for bare subsistence rather if includes which permits of a marriage between person who are sapindas of each other must fulfil the
decree. 3) Parties cannot remarry unless after a minimum things or essentials for a decent and comfortable life. In “Gurupadayya V. requirements of a valid custom. The custom must be certain, reasonable and should not be
4) Act of resumption of cohabitation by lapse of one year’s time a decree of Ashalata”. Court held that question of adequacy is not to be tested by the fact that they were opposed to public policy. Punishment: A marriage in contravention of this clause is void.
the parties after the decree of divorce divorce is obtained. not subjected to abject starvation but the same has to be tested by the standard reflected in the Under Sec 18(b)A person contravening this provision are liable to be punished with simple
does not have any effect on the decree. definition or “maintenance”. In “Sivadasan V. Santha”, the Court held that claim for imprisonment which may be extend to Rs. 1000/- or with both.
5) In case of petition for divorce it must 4) Resumption of cohabitation by the maintenance includes claim for marriage expresses of unmarried daughter under S. 3(b).
be proved that the respondent was living parties during the course of a decree of The topic of maintenance has been discussed in detail under chapter XI titled “Right of Q.69. Kinds of MARRIAGE under Muslim Marriage:
in adultery at the time of making of the judicial separation neutralizes the decree maintenance and other ancillary proceedings” under discussion of S. 24 and 25 of Hindu Ans: Recognized four which are Muta Marriage, Sahih Marriage, Batil and Fasid marriage.
application. Marriage Act too, In Abhayolla M Subba Reddy V. Padmamma, the Court held that it is not 1. Muta marriage: Under the Ithana Ashari Law, male has capacity to contract any
6) It is to be shown that – 5) In case of a petition for judicial open to the Court to grant relief of maintenance under Section 25 of Hindu Marriage Act in no. of Muta marriage (he can cross the limit of four) with a woman who is Muslim,
(i) there was no resumption of separation a single or solitary act of the proceedings initiated under HAMA. Christian, Jew or a fir-worshipper, but none else. An ithana Ashari female on the
cohabitation for a period of one year after adultery committed after marriage would other hand can contract a Muta marriage only with a Muslim male. If the woman is
the decree of judicial separation; or be sufficient to obtain the decree. Q.61. MARRIAGE major, her wali (Guardian) cannot object o such a marriage, but if she is a minor, she
(ii)there was no restitution of conjugal Ans: Marriage as per law means a contract between man and woman united together to can do so only with the consent of her Wali, otherwise her marriage will be void. All
rights for oneyear after passing of the 6) Desertion of petitioner by respondent support each other in a shared household. Right to marry is recognized under article 21[1] of the requisite formalities of M/M must be performed.
decree for restitution of conjugal rights; continuously for not less than two years the Indian Constitution well as article 16[2] of Universal Declaration of Human Rights, 1948. 2. Sahih Marriage--- A marriage performed between the parties having full capacity
or immediately preceding the However, there is no single uniform code of law for marriage rather we have different laws to marry with all the necessary formalities is a valid marriage.
(iii) the respondent is unheard of for a presentation is sufficient. for different religions. For Hindu we have The Hindu marriage act, 1955[3], for Muslim the 3. Batil ( void marriage)--- when a marriage is performed in violation of absolute
period of seven Muslim Personal Law (Shariat) Application Act 1937[4], for Christian and Parsi: The Indian impediments or perpetual impediments, the marriage is Batil, null and void- Void
years or more, or Christian Marriage Act, 1872 [5]and The Parsi Marriage and Divorce Act, 1936[6] ab-anitio.
(iv) the respondent has renounced the respectively. For the one who don't profess any religion we have The Special Marriage Act, 4. Fasid (irregular Marriage)---If the impediment or prohibition to marriage is
world by entering any religious order. 1954[7] to govern their marriage. temporary or remedial, then a marriage performed in violation of such impediment
is not void, but as the Muslim law – gives call, irregular. A voidable marriage is a
Q.62. Can a HINDU MARRY with a CHRISTIAN under the Special Marriage Act, perfect valid marriage till it is avoided and it can be avoided only by either party to
Q.53. Who is a LEGALLY MARRIED wife? Can a second wife become legally married 1954? the marriage.
wife? Give reasons. Ans: The Special Marriage Act says that any two persons (whatever be their religion) can
Ans: Second marriage without divorce from the first one has no validation or value. It is null marry in accordance with its provisions. Yes, they can marry if they fulfill the condition for Q.70. Hindu MARRIAGE as a SACRAMENT
and void until it is proven that the first marriage is divorced or separated. marriage as provided under section 4 of the Special Marriage Act, 1954, all the procedures Ans: Hindu have always regarded marriage as sacramental union, a permanent union and a
The second wife holds no legal rights if the first wife is present and no divorce has and process required for such marriage are followed. special sanctity to this union is assigned only after the performance of sacred rights and
taken place. ceremonies. The children so born, out of such wedlock, are given the status of legitimacy.
However, the second wife’s children have rights over the property and wealth of their Q.63. How can a MUSLIM wife MARRY AGAIN after her divorce? The Manu Smriti says “I hold your hand for Saubahagya (Good Luck) that you may grow
biological father as per sections 11 and 16 of the Hindu Marriage Act, 1955. Ans: A Muslim wife can marry against after her divorce by observing the period of Iddat. old with your husband. You are given to me by the judge, the creator, the wise and the
Iddat means the period during which the wife must wait after the dissolution of her marriage learned people”.
Q.54. LIAN before she can marry again. It is nothing but a period of waiting for the next marriage. After The Courts have also opined that the marriage under the Hindu Law is a sacrament and
Ans: Literally means imprecation where a husband who has attained majority and is of sound the lapse of the period of iddat, the marriage is valid. The duration of iddat on dissolution of not a contract. Therefore, consent or competent of a person for marriage has not been the
mind makes a charge of adultery against his wife, the wife is entitled to claim a judicial marriage by divorce is the period of 3 menstruation courses in the case of a woman subject to criteria for the performance of the marriage. According to Smritatakars even death cannot
divorce on the ground that her husband has falsely charge her with adultery. The charge of menstruation. If the woman is not subject to menstruation, the period of iddat is 3 lunar break this relation of husband and wife which is not only sacred and religious but is a holy
adultery by itself does not lead to the dissolution of marriage, a decree of the Court months. union also. Once created this sacred tie cannot be untied. It is not a mere contract wherein a
dissolving the marriage is necessary. The Court will pass a decree if the charge of adultery is consenting mind is indispensable. The institution of marriage is a Sacrament and not a mere
found false. No decree will be passed if the charge is proved to be true. Q.64. Can a Muslim wife MARRY again during her iddat period? socio-legal contract.
The husband must, if he has once wronged his wife by charging her with adultery, be Ans: Iddat is the period during which it is incumbent upon a woman whose marriage has The object of marriage was to enable a man and a woman to perform religious duty and
prepared to take the consequences and the only way he can avoid them is by making on been dissolved by divorce or death, to remain in seclusion and to abstain from marrying to beget progeny. Moreover, the writers said that a man was incomplete without a woman;
honest admission. Only a frank withdrawal of the charge can constitute a valid and effective another man. A muslim marriage is not finally dissolved for all purposes immediately on Thus, marriage fortifies the concept of one-ness which is expressed by an adage, that “a
recantation in the absence of such recantation. In the absence of such recantation, the wife is death or divorce but even after such dissolution, it continues to be effective for certain woman is half of her husband (Ardhangini) and completes him”.
entitled to dissolution of marriage on the ground of the charge of adultery made by her purposes and one of the purposes being to ascertain whether she is pregnant by husband so as Every Hindu male or women have to marry. Where a person could not remain a
husband. to avoid confusion of the parentage of the child conceived in her womb. Iddat need not be perpetual celibate or student or where he did not desire to be an ascetic (Sanyasim). He was
observed when the marriage remains unconsummated except in case of valid marriage where enjoined by Sastras to marry. Marriage, therefore, was as good as compulsory and more so in
Q.55. LIEN OR IMPRICATION the dissolution has been caused by death. A widow who has been married must observe iddat case of a female. A girl might choose a husband for herself and marry. But with the change
Ans: It is testimony confirmed by oath and accompanied with imprecation. Under the pure for four months and ten days from the death of her husband. condition of life, as time passed, marriage became optional for both, a male and a female.
Mohomedan Law, if a man charges his wife with adultery, he may be called upon, on the Monogamy was recommended for both, a male and a female. It was compulsory for a
application of the wife, either to retract the charge or to confirm it with an imprecation in Q.65. Kinds of MARRIAGE under Hindu Law: female, but in course of time relaxations were carved out for males and a male could have
these terms. Ans: Under the Hindu Law there were two types of Marriage. They are: more than one wife at his pleasure unless Legislation prohibits it.
1. Customary (Sastric) and
2. Statutory
The Ancient Hindu Law recognized eight forms of Sastric marriage which are Brahma,
Daiva, Arsha, Prajapatioa, Ashura, Gandharva, Rakshacha and Paishacha.
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Q.71. Distinction between SAHIH marriage and BATIL marriage. Q.66. MINORS under Hindu & Muslim Laws. Q.56. NULLLITY of marriage.
Ans: Ans: Minors under Hindu Laws Ans: Nullity of marriage is a judicial declaration that marriage was not in existence. It refers
Sahih (Valid) Batil (Void) According to the Hindu Minority and Guardianship Act, 1956- 'minor' means a person to the validity of marriage according to law. It means that there was not a valid marriage has
sexual cohabitation between husband and sexual cohabitation between husband and who has not completed the age of eighteen years; minor children" means, in the case of sons performed between the parties. Nullity of marriage is a legal declaration by the court that
wife is valid. wife is not valid. of native fathers, boys who have not completed the age of sixteen years, and, in the case of there was no existence of marriage between two people and marriage was not valid. It is a
Children are legitimate Children are not legitimate daughters of native fathers, girls who have not completed the age of thirteen years. In other declaration that supposed that marriage was never happened.
right of restitution of conjugal rights arise right of restitution of conjugal rights does cases it means unmarried children who have not completed the age of eighteen years b) Nullity of marriage under Hindu law
not arise 'guardian' means a person having the case of the person of minor or of his property or of both After enforcement of Hindu Marriage Act, 1955 there are certain grounds on which
right of mutual inheritance between a right of mutual inheritance between a his person and property, and includes - i) a natural guardian, ii) a guardian appointed by Will marriage shall be declared null and void. These grounds are given under Clause (i), (iv) and
husband and a wife is applicable husband and a wife is not applicable. of the minor's father or mother, iii) a guardian appointed or declared by a court, and iv) a (v) of Section 5 of The Hindu Marriage Act, 1955. These grounds are as follow:
children inherit from father children cannot inherit from father person empowered to act as such by or under any enactment relating to any Court of Wards;  If either party has living spouse at the time of marriage i.e. bigamy
c) 'natural guardian' means any of the guardians mentioned in section 6. Section 6 : Natural  If marriage between prohibited degree relation unless customs and usage are allowed,
iddat is required to be followed iddat is not required to be followed
guardians of a Hindu minor - The natural guardian of a Hindu minor, in respect of the minor's  If marriage between sapindas unless customs and usage are allowed such marriage
dower is payable dower is not payable property (excluding his or her undivided interest in joint family property) are - a) in the case Nullity of marriage under Muslim Personal law
husband is bound to maintain his wife and husband is not bound to maintain his wife of a boy or any unmarried girl - the father, and after him, the mother; provided that the Under Dissolution of Muslim Marriage Act, 1939 and personal law marriage without valid
children. and children. custody of a minor who has not complete the age of five years shall ordinarily be with the consent by the parties or there guardian is void. There are some other grounds also on which
prohibited relationship arises prohibited relationship does not arise mother; b) in case of an illegitimate boy or an illegitimate unmarried girl - the mother, and marriage can be declared null and void. These grounds are as follow:
after her, the father; c) in the case of a married girl - the husband - provided that no person  Interreligious marriage by woman does not have religious status. A muslim male also
Q.72. Can two Hindu marry under the Special Marriage Act, 1954? shall be entitled to act as the natural guardian of a minor under the provisions of this section - cannot marry a female who does not follow Isalm.
Ans: The Special Marriage Act says that any two persons (whatever be their religion) can a) if he ceased to be Hindu or if he has completely and finally renounced the world by  Marriage between milk relation or ‘maharim’ close blood relatives.
marry in accordance with its provisions. Yes, they can marry if they fulfill the condition for becoming a hermit or ascetic.
marriage as provided under section 4 of the Special Marriage Act, 1954, all the procedures  Marriage with person who renounce Islam or not having faith in principle of Islam.
Minors under Muslim Laws.
and process required for such marriage are followed.  Temporary or conditional marriage is void in Sunni.
A minor is one who is not major. Puberty and majority are in the Muslim Law one and
Applicability of SM Act, 1954 - Any person, irrespective of religion. Hindus, Muslims,  Marriage to a woman during the period of iddat.
the same. Among the Sunnis and Shias puberty is presumed to have been attained on
Buddhists, Jains, Sikhs can also perform marriage under the Special Marriage Act, 1954. - completion of the fifteenth year. But now, the Muslims are governed by Indian Majority Act,  Where conditions of marriage are against the principle of Islam.
The Muslim, Christian, Parsi, or Jewish religions can also perform marriage under the 1875, except in matters relating to marriage, divorce and dower. The existing position Nullity of marriage under Special Marriage Act, 1954
Special Marriage Act, 1954. - Inter-caste marriages are performed under this Act. - This Act regarding the age of majority in such cases is given below: 15 years is the age of majority for Under section 24 of the Act on the petition of either of the party marriage can be
is applicable to the entire territory of India (excluding the states of Jammu and Kashmir) and purposes of marriage, dower and divorce. He or she is free to do anything in the sphere of declared null and void by the decree of nullity on following ground:
extends to intending spouses who are both Indian nationals living abroad. marriage, dower and divorce. 18 yrs is the age of majority in general. As regards other  Neither party has living spouse
matters of guardianship of person and property, a Muslim will be governed by Majority Act  Incapable to give valid consent due to unsoundness of mind or mental illness or unfit to
Q.73. Power of the court to DISSOLVE the MARRIAGE. which prescribed 18 years as the age of majority. Thus in case of wills, wafts, etc. minority procreation of children
Ans: Section 14 of Indian Divorce Act, 1869 grants power to court to pronounce decree for will terminate on completion of 18 years. 21 years is the age of majority if minor is under the  Parties are under aged
dissolving marriage. According to Section 10 of the Indian Divorce Act, 1869, it Courts of Wards or a guardian of him has been appointed by the court.  Parties are in relation of prohibited degree
encompasses various grounds for dissolution of marriage. The wife or husband has to present  Impotency of respondent
a petition to the district court for a divorce. It is also necessary to file that petition in the court Q.67. What is MUBARAAT?  There are some other grounds on which voidable marriage can be declared null and
under whose jurisdiction they have formalised their marriage or in which they reside or have Ans: It signifies mutual discharge from the marital tie. The most essential element is that the void.
last resided together. mutual consent of both the partners is required in regards to the dissolution of marriage. In  Marriage has not been consummated due to willful refusal of respondent.
The various grounds under which a court can grant a divorce are as follows: this mode of divorce-  If respondent was pregnant by some other person at the time of marriage.
 If either of the parties commits adultery; or  Offer can be made from either of the sides.  Consent of either party was obtained by fraud or coercion as defined in Indian Contract
 If either party ceases to be a Christian; or  Acceptance of offer makes divorce irrevocable. Act, 1872
 If either party is of unsound mind for a period of two years; or  Iddat is necessary
 In case any of the party is suffering from a disease like leprosy or a venereal disease Under Shia law, parties can dissolve their marriage, if it is not possible for them to
for a term of two years; or Q.57. PROTECTION orders.
continue their marriage by way of mubarat.
 If either of the parties willingly refuses to consummate the marriage; or Ans: Under Section 18 of DV Act, 2005 protection order may be passed to prohibit the
Supreme Court in the case of Mst. Zohara Khatoon v. Mohd. Ibrahim, (1981) 2 SCC
respondent from committing the domestic violence and to prevent from aiding or abetting the
 If either party desserts the other for a period of two years or more; or 509, submits that mubarat is a form of extra-judicial divorce based on mutual consent under
commission of acts of domestic violence against aggrieved person or the dependents, or other
 In case any of the party treats another cruelly. Islamic Law and same is valid, as it remains untouched by the Dissolution of Muslim
relatives or any person giving assistance to aggrieved person.
In addition to the above grounds, a wife is also allowed to file a petition for divorce if Marriages Act.
the husband is guilty of committing rape, bestiality, etc., after their marriage.
If the evidence presented by the petitioner is proved, and the court is satisfied with the Q.58. PUTRIKA PUTRA.
evidence, then the court will declare its judgement by stating that the marriage is dissolved. Ans: Putra means son, and putrika is the daughter who technically replaces a missing son.
Any decree or judgement for the dissolution of marriage awarded by the district court The "daughter herself is considered a son." "The dilemma in which the son-in-law [husband
needs to be confirmed by the high court. of the putrika] found himself could be resolved by having the putrika-putra [son of
the putrika] perform the shraddha [daily offering for the benefit of dead relatives] for both
Q.74. MUTA marriage. his own father and his maternal grandfather." The putrika-putra was "continuing two
Ans: It is a temporary marriage for a limited period, Muta implies enjoyment or use. It is a separate lineages" (SCHMIDT 39-40). -- For the putrika the construction had probably more
marriage for pleasure. It is recognized in Shia law. The duration of Muta Marriage is fixed by disadvantages than advantages. See SCHMIDT 33 on "the predicament faced by the
the agreement between the parties to the marriage and it may a day, a month or a member of brotherless daughter." SCHMIDT 38: "The aversion to marrying a brotherless maiden was
year. The contract comes to an end at the end of the fixed period. But it may be extended by motivated by the fear that the bride's father would claim the future son and leave the
renewal with the consent of both the parties. In a Muta marriage some dower must be fixed, bridegroom with the prospect of remaining without a son of his own who would continue his
if not void. All the requisite formality of marriage such as ijab and qubul has to be observed. lineage and offer the ancestor worship”.The putrika (putrika-putra) custom disappeared
In a Muta marriage, the parties have no right of mutual inheritance except when it is when the kalivarjya rules came out.
specifically agreed to the off springs of Muta marriage are legitimated and they are capable
of inheriting from both the parents. There is no limit to the number of wife’s of a muta Q.59. QURAN
marriage. If the marriage is consummated the wife is required to undergo iddat Ans: The fundamental and primary source of Musim Law is Koran.It is the holy/divine book
of Muslims. It contains 6000 verses divided into 30 parts and 114 chapters.200 verses deal
with the rules and principles of law. Of these 200, 80 verses relate to Family Law and the rest
deal with state and polity. Koran distinguishes truth from falsehood and shows right path to
human beings. The contents of Koran have spiritual value and hence Muslims proclaim that
their law cannot be changed/ modified by the Union Parliament or State Legislature.
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Q.75. REGISTRATION of Marriage under Hindu Law. Q.79. REPUDIATION of marriage Page 23
Ans: Registration of marriage under Section 8 of the Hindu Marriage Act, 1955 Ans: This provision provides a ground for divorce to the wife when the marriage was Q.88. Define RESTITUTION of conjugal rights.
It is important to have the marriage legally registered in our nation. This will result in a solemnized before she attained the age of fifteen years, and she has repudiated the marriage, Ans: Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as Act) provides the
marriage certificate, which will be required for all joint undertakings between the couple, but before the age of eighteen. remedy of restitution of conjugal rights. Restitution means “restoration” and conjugal rights
such as buying property or getting a spouse visa to travel abroad. If things do not go well and Such repudiation may be express (written or spoken words) or may be implied from the means “matrimonial rights”. Thus, the section exists the estranged spouses to resumes their
one considers opting for a divorce, a marriage certificate is required. Furthermore, if one of conduct of the wife (left husband & refused to come back). Moreover, this right (added by cohabitation. This provision has often been condemned to be infringing the fundamental right
the partners passes away, the certificate is quite helpful in obtaining an insurance claim. the 1976 amendment) has only a retrospective effect i.e. it can be invoked irrespective of the of privacy and human dignity as incorporated in Article 21 of the Constitution of India. The
Registering their marriage is the most important and responsible thing to do after one enters fact that the marriage was solemnized before or after such amendment. right of company and consortium of each after tying a matrimonial tie is inherent and inbuilt
into a marriage. No petition for Divorce within one year of Marriage As per Section 14, no Court will in the matrimonial relations and therefore the legislature has only acknowledged that pre-
A marriage certificate is a legal document that certifies the union of two people. Hindu entertain the petition of divorce within one year of the marriage. But can be entertained if the existing right and nothing new has been legislated.
marriages in India are governed by the Hindu Marriage Act of 1955 or the Special Marriage matter is related to bigamy, and where the consent of the spouse was taken through The necessary elements to be proved for getting the decree of restitution of conjugal rights
Act of 1954, respectively. The Honourable Supreme Court of India, in the year 2006, deemed misrepresentation, fraud, undue influence, etc. under Section 9 are:
it mandatory to register a marriage in order to legalise it through the case of Seema v. Remarriage of Divorced Person As per Section 15, after the marriage gets dissolved 1. Withdrawal of one spouse from the society of the other
Ashwani Kumar. and no further petition was filed by any of the spouses against the order of the court and the 2. Withdrawal should be without any reasonable excess
The legislations are The Hindu Marriage Act, 1955 and The Special Marriage Act, 1954. time for appeal has expired. At that time it is assumed that both the spouse are satisfied. 3. The aggrieved party has to move a petition under this section
If both husband and wife are Hindus, Buddhists, Jains, or Sikhs, or if they have converted 4. Court has to be satisfied about -
to any of these religions, the Hindu Marriage Act of 1955 governs marriage registration. Q.80. RESTRICTIVE condition of adoption a. Truth of the statements made in the petition
The Special Marriage Act of 1954, on the other hand, specifies the procedure for both Ans: Restrictive Conditions of Adoption: b. No legal ground why the petition should not be allowed
solemnization and registration of marriages in which either the husband or the wife are not 1. As per Section 11(i) of the Hindu Adoption and Maintenance Act, 1956 the Adopter The explanation to the section places the burden of proving reasonable excuse the on
Hindus, Buddhists, Jains, or Sikhs. or the person who is adopting must not have a Hindu son, son’s son or son’s son’s the person who has withdrawn from the society.
Q.76. What is Doctrine of RELATION BACK? son whether by legitimate birth or by adoption. If the son, son’s son or son’s son’s Thus, an aggrieved person has to prove that his or her spouse has withdrawn from his or
Ans: considered to have been born in the adoptive family on the date of adoption where the son has ceased to be a Hindu then the adoption will be valid. her society without any reasonable excuse. Who would be an aggrieved person is decided on
adoption had taken place during the adoptive father’s lifetime, and on the date of the adoptive 2. As per Section 11(ii) of the same Act, if a Hindu wants to adopt a daughter, it is the facts and circumstance of each case. If a wife leaves her husband’s spouse, it does not
father’s death where the adoption had been made after his death. Under old Hindu law necessary that he must not have a Hindu Daughter or son’s daughter. This is a new mean that her husband is necessarily the aggrieved person. If she leaves the spouse for
adoption was always to the male and therefore this corollary was necessary. This is then the provision as in old Hindu law adoption of a daughter was not allowed. If there is a instance, because of her husband causing her mental or physical torture or cruelty, then
doctrine of relation back. The consequences that arose from this line of proposition were that living adopted daughter or son’s adopted daughter, then this will bar the adopter although she has withdrawn from her husband’s society. Yet she may be the aggrieved
the properties of the adopter which had vested in someone else at the time of his death, could from adopting a daughter. But if she has ceased to be a Hindu, then the adoption can person in the facts of the case.
be recovered by the adoptee. Of course, the properties which the intermediate owner be validly made. In “Jagiro V. Sohan Singh” husband filed a petition under Section 9 for restitution. The
alienated for the purposes which were binding on the estate, could not be recovered by the 3. According to Section 11(iii) of the same Act, it states that if a Hindu male has to wife had left the house because the conduct of the husband was cruel to her. Wife was
adoptee. The doctrine had the effect of creating litigation, but it was necessary then. Now adopt a female, then the adoptive father must be at least twenty-one years older than willing to live with her husband provided her safety was guaranteed. The Court set aside the
Section 12 of the Act has changed the position and consequently the doctrine has been the person who is being adopted and as per Section 11(iv), if a Hindu female has to decree of restitution of conjugal rights passed by the trial Court.
abrogated and rejected. It has been rightly stated therefore that the divestiture of estate which adopt a male, the adoptive mother mandatorily be twenty-one years older than the Once the fact of withdrawal from the society by one of the spouses is proved, the
was on off-shoot of the doctrine is expressly destroyed by proviso(c) to Section 12. person who is being adopted. reasonable of the withdrawal has to be proved by the withdrawing spouse. If it can be proved
Though the language of proviso (c) is very clear the Supreme Court has, it seems, revived Section 11(v) of the same Act states that the same child cannot be adopted simultaneously by that the withdrawal is the result of swinging words, minor tempermental differences,
the doctrine. There are two judgments to this effect which run counter to the express law. two persons i.e. to say two sisters, two brothers or two friends etc. cannot adopt the same eccentricities or may be very petty matters, it may be presumed that withdrawal is without
Where a widow effects alienation of her husband’s property after her husband’s death, child. any reasonable excuse. The case of withdrawal should be grave and weight.
such alienation can be challenged by the adoptee and he has a right to set them aside if they On hearing both the parties, if the Court is satisfied about the truth of statements made
were unauthorized. However, this should not mean that the adoptee’s rights in all other Q.81. RESIDUARY CLAUSE, other legal grounds in the petition and that there is no legal ground why the petition should not be allowed, the
respects also relate back to the death of his adoptive father. For example, if a person under a Ans: Under the Hindu Marriage Act, the Special Marriage Act and Parsi Marriage Act and Court may decree restitution of conjugal right. Other grounds for why the petition should not
will, made him empowers his wife to make an adoption and under the same instrument he Divorce Act, there is residuary clause which lays down there should be no other legal ground be allowed are the grounds mentioned in Section 23 of the Act. If an aggrieved person
makes dispositions of certain property, the son subsequently adopted by the widow cannot for referring the petition. This is a general bar applicable to all matrimonial remedies. There satisfied the ingredients of Section 9 but is unable to satisfy the conditions of Section 23,
question the abovesaid dispositions. is no such clause under the Indian Divorce Act. such person does not get the relief under this Section. The examples of grounds mentioned
Similarly, when a sole surviving coparcener alienates family property, a son who is therein that there has not been any unnecessary or improper delay in instituting the
subsequently adopted by the widow of the predeceased coparcener has no right or capacity to Q.82. VALID RETIREMENT proceeding.
challenge that alienation. The Mysore High Court differs from the above view of the Bombay Ans: Definition: When the husband and wife are alone together under circumstances which
High Court. present no legal, moral and physical impediment to martial intercourse, they are said to be in Q.89. SAPINDA RELATIONSHIP
“valid retirement” (Khilwat- us-sahiha). A valid retirement under Sunni law has the same Ans: The definition of Sapinda relationship in the Hindu Marriage Act follows the rule. It
Q.77. DOCTRINE OF REPRESENTATION legal effect as actual consummation as regards dower, the establishment of paternity, the extends as far as the third generation on the mother’s side and upto the fifth generation on the
Ans: Hindu law recognizes representation in the matter of succession to a limited extent. If a observance of iddat, the bar of marriage with the wife’s sister, and the bar of subsequent father’s side and upto the fifth generation on the father’s side. That is to say, a person is in
Hindu dies leaving behind two sons and a grandson by a predeceased son, the grandson will marriage. However, it does not have the same effect as actual consummation as regards the Sapinda relationship with another if, when he is related through his mother, he is not more
take one-third share in the property left by his grandfather as the representative of his bar of marriage with the wife’s daughter or the bar of remarriage between divorcees. than three degrees from the common ancestor and when related through the father not more
deceased father. Sunni law recognizes the doctrine of valid retirement whereby the consummation of marriage than five degrees from the common ancestor, the degree being reckoned from and inclusive
In a case like this under the Mahomedan law, the grandson cannot claim anything as the is presumed of the husband and wife by a valid marriage retire together in the nuptial relationship will thus be very limited.
representative of his deceased father; the entire property will be inherited by his uncles. chamber under circumstances in which there is no impediment to sexual intercourse. The
But even in Hindu law, if a Hindu die leaving behind one brother and one nephew by his Shia law goes not recognized the doctrine of valid retirement. Q.90. SAPTAPATI
predeceased brother, the entire property will be taken by the surviving brother; the nephew If the parties to the marriage having no physical, or moral or legal bar retired into Ans: Saptapati is an essential ceremony of Hindu Marriage and without it marriage is not
will not get anything as the representative of the predeceased brother. privacy if raises a presumption of consummation of marriage. But when there is some legal, complete. Explain. The word ‘solemnize’, in section 7 of Hindu Marriage Act, 1955, in
The doctrine of representation in Hindu law is applicable only to the case of sons, moral or physical impediment to such intercourse, no presumption is raised and the connection with a marriage, means to celebrate the marriage with proper ceremonies and in
grandsons and great grandsons. It does not apply among brother’s sons and brother’s retirement is not valid e.g. when either husband or wife is suffering from on illness which due form. Unless the marriage is celebrated or performed with proper ceremonies and due
grandsons. A nephew (brother’s son) is therefore, entitled to succeed in preference to prevents connubial relationship or when the parties are observing the obligatory fast of form, it cannot be said to be ‘solemnized’. If the marriage is not a valid marriage, according
grandnephew. Thus, a son, a grandson whose father is dead and a great grandson whose ramzan, he retirement into the nuptial chamber does not give rise to the presumption of to the law applicable to the parties, it is not a marriage in the eyes of law. The ‘Saptapadi’
father and grandfather both are dead, succeed simultaneously as one heir and form a consummation. ceremony under the Hindu law is one of the essential factors to constitute a valid marriage
coparcenary. The reason why they succeed simultaneously is that the grandson represents his A valid retirement is equivalent to actual consummation for the fall purposes for but the said evidence is lacking in the present case. Such rites and ceremonies include the
father for a share, and the great grandson represents both his father and grandfather for a confirmation of dowers for establishment of paternity, for wife’s right of maintenance and for saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly around
share in the heritable property of the paternal ancestor. marriage with a 5th wife. Etc. the sacred fire), which makes the marriage complete and binding when the seventh step is
For example, A, a separated Hindu, dies leaving a brother B and two nephews C and D by taken.
another brother. Here the right of representation is confined to the lineal male descendants of
the deceased owner. C and D are not lineal descendants of A. They therefore cannot represent
their father, they being collaterals of A. Consequently, B is entitled to the whole estate as the
nearest heir of A.
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Q.91. SMRITIS Q.83. Who can pronounce TALAK? Is talak revocable? Q.78. Distinction between Void (Batil) and Irregular (Fasid) Marriage?
Ans: Smritis are also a source of Hindu law. Smriti is derived from “smri” which means to Ans: Any Muslim who is of sound mind and who has attained puberty, may divorce his wife Ans:
remember. Smrtis are those parts of shrutis which the sages forgot to tell in their original whenever he desires without assigning any reason, at his mere whim or caprice. Under Shia IRREGULAR MARRIAGE (FASID) VOID MARRIAGE (BATIL)
form and therefore wrote down in the language which they were familiar with, therefore LawAa`` free will and intention are essential for valid ‘Talaq’ which is not necessary under When a marriage is temporally outlawed A void agreement is one between a
shrutis are considered to be the basis of smritis. There are 2 kinds of smritis first is Sunni Law. The husband may give talaq by mere words without any talaqnama or deed of but not necessarily restricted, it is potential bride and groom that does not
Dharmasastras and the other is Dharmasutras. Dharmasastras contains the rules regarding the divorce and no particular form of words is necessary. If the words are express and well considered irregular or fasid rather than satisfy all of the essential elements of a
moral code of conduct for Hindus, whereas Dharmasutras contains the rules regarding understood as implying divorce, no proof of intention is required. Talak may be revocable or void.An irregular marriage occurs when a Muslim marriage, and any marriage that
government, caste, the relationship between people, economic affairs, eating habits, etc. irrevocable. Husband has the option to revoke the Talak by resuming sexual intercourse marriage is performed by breaching occurs in pursuance of a flawed
There are many smritis that one cannot count but the two famous smritis are Yajnavalkya before it becomes irrevocable. A Talak becomes irrevocable in the following circumstances: specific or partial prerequisites of a agreement is considered a void marriage.
smriti and manusmriti. Manusmriti is also considered to the first law book written by Manu. a. Talak ahsan becomes irrevocable and complete on the expiration of the period of Iddat. legitimate marriage.
b. Talak hasan becomes irrevocable and complete on the third pronouncement, irrespective Wider in scope as compared to void Narrower in scope as compared to
Q.92. SPOUSE of the iddat. marriage. irregular marriage.
Ans: A spouse is a partner in a marriage, civil union, domestic partnership or common-law c. Talak-ul- bidaat or talak-i-badai becomes irrevocable immediately it is pronounced, Sunni law takes into account the existence Shia law considers an irregular marriage
marriage .The term is gender neutral, whereas a male spouse is a husband and a female irrespective of the iddat. As the talak becomes irrevocable at once, it is also called talak – of an irregular marriage. Thus, the to be a void marriage. Thus, the concept
spouse is a wife. The legal status of a spouse, and the specific rights and obligations i-bain, that is, irrevocable talak. But the talak in writing becomes irrevocable, in the concept of irregular marriage is accepted of void marriage is accepted and
associated with that status, varies by region and culture. Historically, many societies have absence of words showing a different intention, and takes effect as soon as it is executed. and followed by Sunni Muslims. followed by Shia Muslims.
given sets of rights and obligations to male marital partners that have been very different The marriage with a woman who is If a man marries his own daughter, then
from the sets of rights and obligations given to female marital partners. In particular, the Q.84. What is TUHR period? undergoing Iddat is an example of an that marriage is considered to be void.
control of marital property, inheritance rights, and the right to dictate the activities of Ans: Tuhr is the period of wife’s parity i.e. a period between two menstruations. As such, the irregular marriage.
children of the marriage, have typically been given to the male partner. However, this period of Tuhr is the period during which cohabitation is possible. In case of irregular marriage, the children Children born from a void relationship
practice was curtailed to a great deal in many countries in the twentieth century, and more born will be deemed legitimate and will are deemed illegitimate and have no right
modern statutes tend to define the rights and duties of a spouse without reference to gender. Q.85. What is the legal effect of UNDERAGE MARRIAGE under the Hindu Law? have full inheritance rights. to succession or inheritance.
Ans: By the Child Marriage Restraint (Amendment) Act, 1978, for 18years and 15 years the
Period of Iddat needs to be followed in In case of void marriage, the period of
Q.93. STRIDHAN figures and words 21 years for the groom and 18 years for the bridegroom were substituted
case of irregular marriage. Iddat need not be followed.
Ans: The word ‘’Streedhan’ has been derived from the words ‘Stri’ meaning a woman and respectively. Or
the word ‘dhana’ means property. Therefore, on combining these two words we get ‘property The ancient Hindu law did not prescribe any age for marriage but it is now a condition
of woman’ her ‘Streedhan’. Any kind of movable and immovable property such as cash, of marriage that the bridegroom must have completed 21 years and the bride must have
ornaments, deposits, investments, receivables and immovable property in any form may completed the age of 18 years (Section 5). Thus, a child marriage is prohibited under Hindu
constitute Streedhan. In the case of Pratibha Rani V. Suraj Kumar the Honble Supreme Court Marriage Act. However, violation of this condition does not make the marriage void or
enlisted the following to constitute StreedhanGifts made before the nuptial fire, Gifts made at voidable. It means that it is valid though it may attract penalties. But it can become a valid
the bridal procession, i.e. while the bride is being led from her residence of her parents to that ground for repudiation of the marriage. The Hindu Marriage Act and the Child Marriage
of her husband, Gifts made in token of love, that is, those made by her father-in-law and Restraint Act provide for punishment for such marriage.
mother-in-law and those made at the time of the bride making obeisance at the feet of elders, According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for
Gifts made by the father of the bride, Gifts made by the mother of the bride, Gifts made by himself or herself in contravention of Section 5(iii) may be punished with upto 15 days
the brother of the bride. imprisonment or with a fine upto Rs. 1000 or with both. Under the Child Marriage Restraint
According to Section 14 of the Hindu Succession Act, 1956 property obtained by a woman Act, 1929, a male above the age of 25 years marrying a girl below 15 years is punishable
from the following sources is her absolute property (unless contrary is mentioned in the terms with upto 3 months imprisonment and is also liable to fine. The Child Marriage Restraint
of device, gift, decree, order or award). Thus, the sources of acquisition of such property may (Amendment) Act 1978 has also raised the age of marriage of girl to eighteen.
be any, all and combination of the following:
1. Gift (immovable and movable both). It might have been received before her marriage, Q.86. What is UNLAWFUL CONJUGATION?
during marriage and after marriage Ans: A Muslim is prohibited to have two wives at the same time so related to each other by
2. Property received as her exclusive share during partition of family property consanguinity, affinity or fosterage, that if either of them had been a male they could not
3. Property received by her as a consideration for any compromise. have been legally married. This impediment is known as unlawful conjugation. And it can be
4. Property earned and accumulated by service, profession, business etc. removed by death or divorce of one of the wife. e.g. marriage of two sister by a single male.
5. Property received in lieu of maintenance
6. Property purchased from her own Streedhan Q.87. Distinction between VOID and VOIDABLE marriage.
7. Property inherited by a woman. Ans:
8. Acquired in any other manner- property received under a decree or award, or through VOID (Section 11) VOIDABLE (Section 12)
adverse possession A void marriage is no marriage. It is A voidable marriage is a perfectly valid
called a marriage because two persons marriage so long as it is not voided. A
Q.94. Under what circumstances TALAK may be revoked? have undergone the ceremonies of voidable marriage can be avoided only on
Ans: Talak may be revocable or irrevocable. Husband has the option to revoke the Talak by marriage. Since they absolutely lack the petition of one of the parties to the
resuming sexual intercourse before it becomes irrevocable. A Talak becomes irrevocable in capacity to marry, they cannot, by just marriage, if one of the parties does not
the following circumstances: undergoing ceremonies because spouses file petition for annulment of marriage,
a. Talak ahsan becomes irrevocable and complete on the expiration of the period of Iddat. in the eyes of the law. the marriage will remain valid.
b. Talak hasan becomes irrevocable and complete on the third pronouncement, irrespective A wife does not have the right to claim A wife has the right to claim maintenance
of the iddat. maintenance in the void marriage. in the voidable marriage.
c. Talak-ul- bidaat or talak-i-badai becomes irrevocable immediately it is pronounced, In a void marriage, the parties do not Husband and wife have the status in the
irrespective of the iddat. have the status of husband and wife. voidable marriage.
As the talak becomes irrevocable at once, it is also called talak –i-bain, that is, In a void marriage, no decree of nullity is In a voidable marriage decree of nullity is
irrevocable talak. But the talak in writing becomes irrevocable, in the absence of words required. required.
showing a different intention, and takes effect as soon as it is executed. A void marriage is none in the eyes of A void marriage is to be declared void by
law. a competent court.
The children in a void marriage are The children in a voidable marriage are
treated as legitimate. treated as illegitimate but this distinction
is deleted by the Supreme Court and said
a child cannot be said termed as
illegitimate.
 Page 1 Page 3
Q. 1. Explain the CONCEPT of MARRIAGE under the HINDU Law. Is it similar to Q.2. Discuss the GROUNDS OF DIVORCE under the dissolution of MUSLIM Marriage Act,
that of Muslim Law? 1939.
Q. What is Hindu Concept of Marriage? Is it differing from Muslim marriage? Give Ans: As per Muslim law, there are two methods for dissolving a marriage:
your answer by differentiating the two marriages. 1. Divorce Page 5
Ans: Marriage as per law means a contract between man and woman united together to 2. Talaq Q. 3. Who are DEPENDANTS according to the HINDU Adoption and Maintenance
In ordinary life, the above two words are identical and it’s used alternatively; but under
support each other in a shared household. Right to marry is recognized under article 21[1] of Act, 1956? Explain the legal provisions relating to their maintenance under the Act.
Muslim law, an individual who seeks “divorce” is bound by the provisions of the Dissolution of
the Indian Constitution well as article 16[2] of Universal Declaration of Human Rights, 1948. Muslim Marriage Act, of 1939. Muslim personal laws, on the other contrary, implement “Talaq” Ans: Dependents may be defined under Section 21 – For the purpose of this chapter
However, there is no single uniform code of law for marriage rather we have different laws proceedings. “dependents” mean the following relations of the deceased –
for different religions. For Hindu we have The Hindu marriage act, 1955[3], for Muslim the Dissolutions of Marriage by Husband 1. His or her father;
Muslim Personal Law (Shariat) Application Act 1937[4], for Christian and Parsi: The Indian A husband has four options for ending the marriage: 2. His or her mother;
Christian Marriage Act, 1872 [5]and The Parsi Marriage and Divorce Act, 1936[6] 1. Talaq ul Sunnat: This form of talaq is efficient and effective, as per the Prophet’s traditions. It is 3. His widow, so long as she does not remarry
respectively. For the one who don't profess any religion we have The Special Marriage Act, additionally divided into two sections: 4. His or her son or the son of his predeceased son or the son of a predeceased son of his
1954[7] to govern their marriage. i. Ahsan: It is widely regarded as the finest form of talaq, as the name implies. The procedure predeceased son, so long as he is minor; provided and to the extent that he is unable to
Concept Of Hindu Marriage: that the husband follows is as under: obtain maintenance, in the case of a great grandson, from the estate of his father or
Hindu have always regarded marriage as sacramental union, a permanent union and a a. He must proclaim a talaq in a single phrase, and he should do it while his wife is free of her mother or father’s father’s mother;
special sanctity to this union is assigned only after the performance of sacred rights and menstrual period). 5. His or her unmarried daughter for the unmarried daughter of his predeceased son or the
b. If a husband participates in any form of sexual intercourse during the iddat period, it is
ceremonies. The children so born, out of such wedlock, are given the status of legitimacy. unmarried daughter of a predeceased son of his predeceased son, so long as she
considered an indication of talaq revocation. It is significant to mention that once the iddat
The Manu Smriti says “I hold your hand for Saubahagya (Good Luck) that you may grow old period has ended, the divorce is effective.
remains unmarried; provided and to the extent that she is unable to obtain maintenance,
with your husband. You are given to me by the judge, the creator, the wise and the learned c. Even if the couples haven’t yet consummated their relationship, talaq-e-Ahsan can be in the case of a granddaughter from the estate of her father or mother or father’s father
people”. pronounced even when the wife is menstruating. or father’s mother;
The Courts have also opined that the marriage under the Hindu Law is a sacrament and ii. Hasan: Divorces pronounced in Hasan form are acceptable but also less valued than those 6. His widowed daughter provided and to the extent that she is unable to obtain
not a contract. Therefore, consent or competent of a person for marriage has not been the uttered in Ahsan form since the Arabic context Hasan is good. The husband must make 3 maintenance –
criteria for the performance of the marriage. According to Smritatakars even death cannot successive pronouncements for divorce. Such three utterances must be delivered in three a. From the estate of her husband; or
break this relation of husband and wife which is not only sacred and religious but is a holy successive states of purity (tuhrs) in the circumstance of a menstruating wife. In the situation of b. From her son or daughter, if any, or his or her estate; or
union also. Once created this sacred tie cannot be untied. It is not a mere contract wherein a a non-menstruating, the declaration should be given at three successive 30-day intervals. No c. From her father-in-law or his father or the estate of neither of
consenting mind is indispensable. The institution of marriage is a Sacrament and not a mere sexual relations must take occur throughout these three pronouncements, and if it does, the 7. Any widow of his son or of a son of his predeceased son, so long as she does no
socio-legal contract. dissolution procedure will be terminated. Talaq Hasan becomes irreversible on the third remarry, provided and to the extent that she is unable to obtain maintenance from her
The object of marriage was to enable a man and a woman to perform religious duty and to pronouncement, regardless of the iddat term. husband is estate or from her son or daughter, if any, or his or her estate, or in the case
2. Talaq-ul- Biddat: This form of talaq was established by the “Umayyads” in order to avoid the
beget progeny. Moreover, the writers said that a man was incomplete without a woman; of a grandson’s widow, also from her father-in-law’s estate.
rigidity of the legislation. As per the Hanafis, this is a sinful kind of talaq. Sunni law recognizes
Thus, marriage fortifies the concept of one-ness which is expressed by an adage, that “a this manner of talaq, although it is also recognized as immoral. Shias and Malikis, on the other 8. His or her minor illegitimate son so long as he remains a minor;
woman is half of her husband (Ardhangini) and completes him”. hand, do not accept this method. “Talaq, talaq, talaq” is a tuhr consisting of three pronouncements 9. His or her illegitimate daughter, so long as she remains unmarried.
Every Hindu male or women have to marry. Where a person could not remain a perpetual uttered in a single utterance or in consecutive sentences. A single pronouncement obviously Any of relations mentioned in sub-section (i) to (xi) can move an applicable under
celibate or student or where he did not desire to be an ascetic (Sanyasim). He was enjoined reveals an intention to terminate a marriage and considers it irrevocable. It is generally section 22 for claiming maintenance. The person enumerated in these sections are entitled to
by Sastras to marry. Marriage, therefore, was as good as compulsory and more so in case of a pronounced, “I divorce thee permanently.” Couples who have been divorced by triple talaq are not claim maintenance against the property of the deceased in the hands of the heirs. Section 22
female. A girl might choose a husband for herself and marry. But with the change condition able to remarry without the woman marrying another person and divorcing him, a practice known reads as:
of life, as time passed, marriage became optional for both, a male and a female. as Nikah Halala. What is maintenance?
Monogamy was recommended for both, a male and a female. It was compulsory for a 3. Ila: Ila is the situation where a mentally capable and mature husband promises in God’s name not Maintenance has been described in the definition clause of the act i.e, Section 3(b) as
female, but in course of time relaxations were carved out for males and a male could have to have sexual intercourse with his wife and then leaves her to perform iddat. If the partner something that can provide for food, clothing, shelter, education and medical expenses.
more than one wife at his pleasure unless Legislation prohibits it. continues sexual relations during the iddat period, the Ila will be terminated. Ila isn’t really Basically, it is financial support paid by a husband or a father that covers all basic
prevalent in India.
Essential Of A Valid Marriage: necessities of life.
4. Zihar (injurious Assimilation): To be competent to use this procedure of divorce, a husband
Requirements of a valid Marriage have been laid down by S.5 of the Hindu Marriage Act, should be mentally competent and above the age of 18. The wife has the choice to deny sexual
The section also says that if the maintenance is to be provided to an unmarried
1955. This Section has got its connection with S.11, 12, 17 and 18. These Sections lay down relations with him if her husband compares her to his mother or any of the women within daughter, it shall also cover all the reasonable expenses required in her day-to-day life till the
the effect of the absence or non-fulfilment of the condition laid down in S.5 of the Act. These prohibited degrees. Such a rejection might be tolerated till he has expiated himself from the day she gets married.
conditions are: penance mandated by law. Muta marriages (common among Shias) that allow for no other type of Maintenance of dependants
Monogamy: divorce may be ended through zihar. This type of divorce is no longer in practice. Dependents of a deceased must be maintained if they do not have the capacity to do so
1. Neither parties should have a spouse living at the time of marriage; Talaq By Wife by themselves. Section 21 of the act defines dependents and Section 22 states that such
2. at the time of marriage, neither party Divorce is granted by the wife, using the husband’s conferred authority. persons shall be entitled to maintenance. Section 22 of the act states:
(a) is incapable of giving a valid consent due to unsoundness of mind: or 1. Talaq-e-tafweez: It’s the only method for a woman to divorce her husband; nevertheless, such  That dependents of a deceased Hindu must be maintained by his heirs with the aid of
(b) though capable of giving a valid consent has been suffering from mental disorder authority must be delegated solely by the husband. It is a form of arrangement made before or after the estate that they inherited from the deceased.
of such a kind or to such an extent, as to be unfit for marriage & for procreation a wedding that stipulates that the wife has the option to divorce her partner if the following
 When the dependents have not been left with any share in the property or estate by way
of children; or conditions are met:
2. If the man marries a second time: For a specific period of time, the husband is not able to
of will or succession, they are still entitled to be maintained by whoever takes over the
(c) is subject to recurrent of insanity or epilepsy; estate.
support her financially, or any other requirement that is not adverse to social policy. If the husband
3. at the time of Marriage, the age of the bridegroom should be 21 years complete and follows the conditions of the arrangement, the wife may end her marital ties without violating the  If multiple persons have taken over the property of the deceased, each one of them will
bride’s age should be 18 years complete. law. be liable to maintain the dependents.
4. the parties are not within the degrees of prohibited relationship unless the custom 3. The mere fact that the man delegated power to the wife doesn’t really deprive him of his power to  The amount of maintenance to be paid will be divided among them depending on the
permit such a Marriage. pronounce talaq. value of the share they hold in that property.
5. the parties are not Sapindas of each other, unless the customs permit their Marriage. 4. Divorce (Talaq) By Mutual Consent: Although the practice of obtaining separation and divorce  In case a dependent has obtained some part of share in the property of the deceased,
Condition No. 1 implies Monogamy and prohibits polygamy. Before this Act, came into by mutual agreement/consent was not recognized in Muslim law, Muslim women were able to do they will not be liable to maintain other dependents.
force polygamy was permitted; now it is prohibited. Before 1995, under Ancient Hindu Law, so after the enactment of the Dissolution of Muslim Marriages Act in 1939.
 Others who have taken over the property will still have to maintain other dependents
Polyandry was prohibited. This Act also prohibits the same. 5. Khula: Khula literally means “to lay down” before the court. The husband asserts his right over
his spouse. It denotes a mutual decision to cease a conjugal relation in consideration for but the dependent holding a share shall be excluded and maintenance will now be paid
Absence of Idiocy, Lunacy & unsoundness of mind: Condition no. 2 says neither party from the remaining property.
should be an idiot, a lunatic or suffering from recurrent attacks of insanity or epilepsy. The compensation given by the woman to her husband from her assets, including all that can be offered
as dower. Khula is a mutually agreed-upon divorce in which the wife decides to offer her partner Amount of Maintenance
onus of proof about Lunacy or Idiocy lies on him who makes a petition to annul the There is no fixed amount for maintenance that shall be paid. It is at the discretion of the court
certain consideration. It’s essentially a “redeemer” of the marriage contract. The essential elements
Marriage. The presumption is in favour of validity of Marriage and in favour of mental to determine the amount of maintenance. Section 23 of the act states that while deciding the
of Khula are:
capacity of the spouse entering into ceremony. …contd… a. There has to be some sort of offer from the wife’s perspective. amount of maintenance to be awarded to a wife, children, or old and infirm parents – the
b. In exchange for a monetary benefit, the husband should accept the offers. court must do so considering the following: …contd…
c. The iddat period should be observed.
The husband can’t rescind the divorce once it is granted as per Shia law, however, the wife has the
opportunity to retrieve the consideration within the iddat period. …contd…
 Page 6 Page 4 Page 2
 Status of parties and their current position; 6. Mubarat: It denotes the mutual dissolution of the marital ties. The most important factor Age of parties. Condition No. 3 is regarding age of persons entering into Marriage. The
 The claims of the parties within reasonable limits; is that both couples must agree to the dissolution of the marriage. In this form of divorce: bride groom should have completed the age of 21 years and the bride, the age of 18 years at
 If the claimant living separately have justified grounds in doing do; a. Either party can make an offer. the time of Marriage. However, breach of this condition does not make the Marriage void or
 All sources of income of the claimant and the value of their property; b. Accepting the offer makes the divorce final. voidable that means it is valid though it may attract penalties.
 The number of people that are entitled to be maintained. c. It is important to have an iddat period. Parties not to be within the degrees of prohibited relationship. Condition no. 4, The
Section 23(3) further simplifies the process of deciding the amount of maintenance payable d. Parties can dissolve their marriages under Shia law if they are unable to continue their expression, degree of prohibited relationship is defined in S.3 of the Act. This is a mandatory
to other dependents. It says that the amount of payment to be made should be with regard to: marriage through Mubarat. requirement for a valid Marriage, violation whereof would render the Marriage void unless
 The net value of the deceased’s property after clearing off all his debts; e. The last possibility for dissolution of marriage is judicial separation. sanctioned by custom or usage of both the parties.
Furthermore, there are two options for divorce under Dissolution of Muslim Marriage Act, Parties not to be Sapindas of each other. The expression Sapindas is explained in S.3 of
 Will of the deceased if any;
1939: the Act. The net of Sapindas relationship extends: -
 Degree of the relationship between the claimant and the deceased and their past
1. Lian: It is basically when the man accuses his partner of adultery. When a husband a. as far as the third generation (inclusive) in the line ascent through the mother,
relationship;
wrongly accuses his wife of adultery, she has the right under the Act to prosecute him b. as far as the fifth generation (inclusive) in the line ascent through the father.
 What the dependents want within reasonable limits; and obtain a dissolution of marriage decree on the same reasons, by filing a regular Marriage between Sapindas would be valid if the custom or usage governing each of
 All sources of income of the dependent and the total value of all their properties; dissolution of marriage suit. The essentials of Lian are: them permits such a marriage.
 The number of dependents that can be entitled to maintenance.  A husband has to be mature and sensible. Concept Of Muslim Marriage
Alteration of the amount due to change in circumstances  He falsely accuses his wife of adultery. Muslim have from the very beginning regarded their marriage as a contract. M/M has
The amount of maintenance to be paid can be decided by the court or by an agreement been defined as a civil contract for the purpose of legalizing sexual intercourse and
 Such an allegation should be erroneous.
between the parties. Maintenance is paid to provide aids for the basic needs of everyday life procreation of children. It is not a sacrament but a contract though solemnized generally with
 False allegations do not end the marriage ipso facto; instead, they act as a
in case a person does not have the source or ability to provide for themselves. Section 25 of a recitation of certain verses from the Kuran. Muslim Law does not prescribe any religious
framework for the woman to seek divorce from the husband.
the act states that the amount of maintenance may be altered with the change in service essential for its solemnization. In the words of Shama Charan Sircar, “Marriage
circumstances. But, the section is vague. It does not say on what changes in circumstances  Until the court executes a decree of divorce, the marriage shall continue.
 The separation of the judiciary through the mechanism of lian is irreversible. among the Muslim is not a sacrament but purely a civil contract”.
can the alteration be sought and how the alteration can be done. Despite the observation of a modern judge, that the impression that a Muslim marriage
In the case of Binda Prasad Singh v. Mundrika Devi, the High Court of Patna observed that  This form is only relevant to Sahih weddings, not fasid weddings.
is a mere contract and not a solemn union is another Fallacy of the Hindu and western
there was no set procedure mentioned in Section 25 as to how the amount can be altered.  Before the conclusion of the trial, the husband may retract his accusation of adultery
Students, in its legal commutation. Muslim Marriage is essentially a contract, though
The court stated that: against her, confessing that he made the charge but that it was erroneous.
marriage is a social institution is regarded solemn all over the civilized world, including the
 The amount of maintenance is fixed either by an agreement or by way of a decree. 2. Faskh: According to the Quran, married couples have an obligation to respect each
Muslims.
 The only way to alter an agreement is by way of another agreement, and the decree can other, treat each other politely and respectfully, and follow all authorized directions of
According to Fyzee, Nikah is an institution legalized for manifold objects such as the
be altered by amendment of degree. each other. If they both realize they can’t live as a married couple any longer, they can
preservation of species, the fixing of decent, restraining man from debauchery, the
 So, another suit must be filed for altering the amount of maintenance and a new decree approach a qazi, who may dissolve their marriage after a thorough evaluation.
encouragement of chastity, the promotion of love and union between the husband and the
that supersedes the older one must be granted if the court thinks fit. Section 2 of the Act, mentions grounds on which a Muslim woman can obtain a (divorce)
wife and developing of mutual help in earning livelihood that M/M is essentially a contract is
The claimant of Maintenance should be a Hindu dissolution of marriage decree.
evident from the nature of Marriage and the mode by which it is performed. Thus, only a
The Hindu Adoption and Maintenance Act has been legislated for the Hindus and has the 1. Husband’s Absence: For the previous 4 years, the husband’s whereabouts have been
civil ceremony that is an offer made by one party and accepted by another in one and the
power and authority to govern only people that belong to the Hindu religion. If any of the not known. The divorce decree for this reason will enter into force 6 months after it is
same meeting in the presence of two witnesses (not among Shias) is sufficient for entering
party is not a Hindu or has ceased to be one, they cannot claim maintenance as per this act. delivered, and if the husband presents in person or through a legal representative during
into the contract of marriage. Whatever religious ceremonies are appended to the civil
Section 24 of the Act says: No one will be entitled to claim maintenance under the Hindu that period, the decree will be null and void. If the court is satisfied, the ruling may be
ceremony is merely to give it sanctity; their performance or non-performance does not affect
Adoption and Maintenance Act if they have ceased to be a Hindu by converting themselves set aside.
its legality. M/M is a polygamous marriage limited to four wives. A Muslim male has
to some other religion. 2. Inability to maintain: If a husband refuses to fulfill his wife’s maintenance for 2
capacity to keep four wives simultaneously but of Sunni male takes five or more wife, his
Effect of transfer of property on rights to maintenance years. There is no justification available to spouses based on poverty, deteriorating
marriage with the fifth wife or subsequent wife is not void but merely irregular.
A dependent who is entitled to receive maintenance from a property or an estate and health, or unemployment.
Kinds Of Marriage Under Hindu Law:
the very estate gets transferred, it becomes the obligation of the transferee to maintain the 3. Husband’s Incarceration: If the husband is imprisoned for at least seven years.
Under the Hindu Law there were two types of Marriage. They are
dependent if the transferee has received a notice regarding that right or if the transfer is 4. Failure to fulfill marital responsibilities: If the partner has been unable to perform
(a) Customary (Sastric) and
without any reasonable grounds. Section 28 of the Hindu Adoption and Maintenance Act his marital commitments for 3 years without sufficient excuse.
(b) Statutory
states that: The transferee has to maintain the dependent out of the property he received if he 5. Impotency: At the time of the wedding, the husband was and still is impotent. If the
The Ancient Hindu Law recognized eight forms of Sastric marriage which are Brahma,
has the notice of the right or the transfer is gratuitous. spouse establishes to the Court that he is no longer impotency within 1 year of the date
Daiva, Arsha, Prajapatioa, Ashura, Gandharva, Rakshacha and Paishacha.
This idea flows from Section 39 of the Transfer of Property Act, 1882 which says that: of the decree for dissolution of marriage which is obtained by the wife on the reasons
Kinds Of Marriage Under Muslim Marriage:
of impotency on a petition. If the husband complies with the court’s requirements, no
 If a third person is entitled to be maintained from the profit made out of immovable Recognized four which are Muta Marriage, Sahih Marriage, Batil and Fasid marriage.
order will be made on these grounds.
property and such property is transferred, the transferee will be liable for the payment 1. Muta marriage: Under the Ithana Ashari Law, male has capacity to contract any no. of
6. Venereal Disease, Insanity or Leprosy: The woman may seek judicial divorce if her
of such maintenance if there was a notice or if the transfer is gratuitous. Muta marriage (he can cross the limit of four) with a woman who is Muslim, Christian,
man has been insane or has had leprosy or any other venereal ailment for more than 2
 But, if the property was transferred for consideration and notice was not provided Jew or a fir-worshipper, but none else. An ithana Ashari female on the other hand can
years.
regarding the maintenance then the transferee will not be liable to make any payments contract a Muta marriage only with a Muslim male. If the woman is major, her wali
7. The wife’s repudiation of the marriage: If a girl gets married before the age of 15 by
for maintenance. (Guardian) cannot object o such a marriage, but if she is a minor, she can do so only
her parents or guardianship, she has the power under Muslim law to dissolve the
 The maintenance can only be recovered from the property transferred by the person with the consent of her Wali, otherwise her marriage will be void. All the requisite
wedding once she attains the age of 18. For the same reason, she is legally entitled to
who was originally liable to pay maintenance and cannot be recovered from any other formalities of M/M must be performed.
separation and divorce.
property that the transferee holds. 2. Sahih Marriage--- A marriage performed between the parties having full capacity to
A married woman is also entitled to a divorce on the basis of legal grounds recognized by
This act is one of the most important acts that protect the rights of children during the marry with all the necessary formalities is a valid marriage.
Muslim personal law.
course of adoption. It protects women, children, old & infirm from living on the streets 3. Batil (void marriage) --- when a marriage is performed in violation of absolute
Husband’s Cruelty: If her partner abuses her, she has the right to file a petition in the court
and starving to death. It ensures they are maintained by someone and the judicial impediments or perpetual impediments, the marriage is Batil, null and void- Void ab-
for a judicial separation solely on the aforementioned grounds. The grounds for cruelty are as
pronouncements have further strengthened the act in order to make our rights stronger initio.
follows:
and sections much clearer. 4. Fasid (irregular Marriage) ---If the impediment or prohibition to marriage is
1. Physical assault.
temporary or remedial, then a marriage performed in violation of such impediment is
2. Making false and defamatory statements about her that seriously harm her status.
not void, but as the Muslim law – gives call, irregular. A voidable marriage is a perfect
3. She is forced to live a socially repugnant life.
valid marriage till it is avoided and it can be avoided only by either party to the
4. prohibiting her from practicing her faith.
marriage.
When a husband has multiple wives, he doesn’t really treat them similarly.
 Page 7  No consent of another spouse.
Q.4. What is the TIME PRESCRIBED FOR FILING A DIVORCE PETITION? Discuss the Page 9 Page 11
various GROUNDS OF DIVORCE under Hindu Marriage Act, 1955. Q.5. Define MAHR. Discuss the IMPORTANCE of Mahr under the Muslim Law. Q.6 Define TESTAMENTARY GUARDIAN. What are the POWERS which can be
Q. What are the GROUNDS of SEPARATION available to both husband and wife under the Q. DOWER exercised by such guardian under the Hindu Minority and guardianship Act, 1956.
Hindu Marriage Act, 1955? How does it differ from judicial divorce? Ans: In the literal sense, the Arabic term ‘mahr’ means dower. It is a sum of money that Ans:
Ans: According to Section 14, a divorce petition cannot be filed within the first year of marriage. A Testamentary Guardian is one who is appointed by the will of the natural
becomes payable by the husband to the wife on marriage. The mahr is executed either by
Therefore, one year might be seen as the time allotted by the law for resolving, classifying,
agreement between the parties or by operation of law. Various jurists have tried to define guardians of the minor. The testamentary guardian becomes entitled to act as the guardian of
comprehending, and communicating problems with one another. Therefore, until a year has passed,
no court may hear a divorce petition. The Court may permit the petition to be presented after mahr. the minor after the death of the natural guardian. He can exercise all the rights and powers of
receiving an application in accordance with the rules of the High Court in cases of exceptional According to Wilson, mahr or dower was a form of consideration for the surrender of a a natural guardian to such extent and subject to such restrictions as are specified in the Act
hardship to the petitioner or great depravity on the part of the respondent. However, the court may person by the wife. and in the will. It is necessary for the testamentary guardian to accept ‘the guardianship.
decide to dismiss the petition without prejudice if it finds that there has been a misrepresentation of According to Mulla, a dower is either a sum of money or property which the wife is Acceptance may be express or implied. A testamentary guardian may refuse to accept the
facts or concealment of the nature of the matter after hearing the petition. entitled to receive in the consideration of marriage from the husband. appointment or may disclaim it, but once he accepts, he cannot refuse to act or resign except
The requirement in Section 14 that there must be a year between the date of marriage and the filing of According to Ameer Ali, a dower is a kind of consideration that belongs to the wife. with the permission of the court.
a divorce petition is only a directory, not mandatory. Section 14 opens the door to reconsideration and In the case of Abdul Kadir v. Salima,(1886), honourable Justice Mahmood held that Who may appoint a testamentary guardian?
reconciliation. It acknowledges that temperamental differences between the parties can be addressed dower under Muslim law is a sum of money or property which is promised by the husband to A testamentary guardian is a guardian appointed by the way of will. As per Section 9
over time and should not be used to end a marriage. The mandatory one-year period provided by the be paid or delivered to the wife in consideration of marriage and even if the dower is not (1) of HMGA, the Hindu Father (Natural Guardian of the minor child as per Section 6 of
Section encourages couples to calm down and reconsider their marriage in order to save it. HMGA) can appoint a guardian by will for the person and separate property.
expressly mentioned at the time of marriage, the wife still has the right of dower.
Grounds of Divorce as per The Hindu Marriage Act: Section 13(1) provides grounds on which
The dower may be classified into: Who can appoint a testamentary guardian in case of an illegitimate child?
divorce can be sought by either of the partners in a marriage. After the amendment of 1976, grounds
for divorce specified under Section 13 of the Act and judicial separation under Section 10 are similar. 1. Specified dower: In this kind of dower, the amount of dower is stated in the Section 9 (4) states that a Hindu Mother, who is entitled to be the natural guardian, can
The parties also have the option of judicial separation instead of divorce, where they can rethink their marriage contract. The dower may be settled between the parties either before the by will appoint a testamentary guardian for any minor illegitimate child to take care of him
decision. The objective is to save the sacred institution of marriage and make efforts for marriage or at the time of marriage or after the marriage. If the marriage takes place and his property
reconciliation. In the case of Ishwar Singh v. Smt. Hukam Kaur (1965), the Allahabad High Court of a minor or lunatic boy then the amount of dower can be fixed by the guardian. Testamentary guardians and their powers
held that if the husband permitted his wife to marry someone else of her choice because of his ill The husband can settle any amount of dower. However, he cannot settle the amount A testamentary guardian assumes all powers of a natural guardian subject to limitations
health, it does not amount to divorce because no such petition or application had been filed in the of dower less than ten Dirhams according to Hanafi law and three Dirhams described in this act and to the limitations contained in the will. A testamentary guardian is
court and so the second marriage solemnised is illegal as the first marriage still subsists. It was also according to Maliki law. Shia law does not state any minimum amount of dower. In not liable personally for the expenses and he can ask the guardian of the property of the
observed that a marriage subsists until a decree of divorce has been passed by the court. the case of those husbands who are very poor and are not in a position to pay ten minor to meet the expenses through the property. The rights of the guardian appointed by
1. Adultery: The concept of Adultery may not be considered as an offence in many countries. But as Dirhams, then according to the Prophet, they are directed to teach the Quran to the will cease upon the marriage of the girl. The powers of a Testamentary guardian are listed in
per the Hindu Marriage Act, in the matrimonial offence, the adultery is considered as one of the wife instead of the dower. There is no maximum limit on the amount of dower. The Section 9: The Hindu Minority and Guardianship Act, 1956:
most important ground for seeking divorce. Adultery means the consensual and voluntary 1. A Hindu father entitled to act as the natural guardian of his minor legitimate children may,
specified dower can be classified into:
intercourse between a married person with another person, married or unmarried, of the opposite
a. Prompt dower: It is payable immediately after marriage on demand. by will appoint a guardian for any of them in respect of the minor’s person or in respect of
sex. Even the intercourse between the husband and his second wife i.e. if their marriage is
considered under bigamy, the person is liable for the Adultery. The concept of Adultery was b. Deferred dower: It is paid after the dissolution of marriage either by death or the minor’s property (other than the undivided interest referred to in section 12) or in
inserted under the Hindu Marriage Act by the Marriage Laws Amendment Act, 1976. divorce. respect of both.
In Sachindranath Chatterjee vs Sm. Nilima Chatterjee case, the petitioner and the defendant were 2. Proper or customary dower: If a marriage is completed without the amount of 2. An appointment made under sub-section (1) shall have no effect if the father predeceases
married. After marriage, the husband leaves the wife in his home town so that she can complete her dower fixed in the marriage contract or marriage is completed on the condition that the mother, but shall revive if the mother dies without appointing, by will, any person as
studies and go to another city for work. He visited twice or thrice a month to meet her. Later he found the wife should not claim any dower, then the wife is entitled to proper dower. The guardian.
that his wife commits the adultery i.e. to involve in sexual intercourse with his own nephew, amount of proper dower is decided by taking into consideration the amount of dower 3. A Hindu widow entitled to act as the natural guardian of her minor legitimate children,
watchman etc. The plaintiff approaches the court to demand divorce on the ground of adultery and his settled upon other female members of the father’s family. The proper dower is and a Hindu mother entitled to act as the natural guardian of her minor legitimate children
petition was accepted and the marriage gets dissolved. regulated with reference to the following factors: by reason of the fact that the father has become disentitled to act as such, may, by will,
Essentials of Adultery a. Personal qualifications of the wife. Like her age, beauty, virtue, fortune, etc. appoint a guardian for any of them in respect of the minor’s person or in respect of the
 One of the spouses involved in the intercourse with another person, married or unmarried, of b. Social position of her father’s family. minor’s property (other than the undivided interest referred to in section 12) or in respect
the opposite sex. of both.
c. Dower given to her female paternal relations.
 Intercourse should be voluntary and consensual. 4. A Hindu mother entitled to act as the natural guardian of her minor illegitimate children
d. Economic conditions of husband.
 At the time of the act, the marriage was subsisting.
e. Circumstances of time. may; by will, appoint a guardian for any of them in respect of the minor’s person or in
 There must be sufficient circumstantial evidence to prove the liability of another spouse.
Under Sunni law, there is no maximum limit for a proper dower but under Shia law, the respect of the minor’s property or in respect of both.
2. Cruelty: The concept of cruelty includes mental as well as physical cruelty. The physical cruelty
means when one spouse beats or causes any bodily injury to the other spouse. But the concept of proper dower should not exceed 500 Dirhams. 5. The guardian so appointed by will has the right to act as the minor’s guardian after the
mental cruelty was added as the spouse can also be mentally tortured by the other spouse. Mental What to do if the amount of dower is intentionally given low and the wife cannot death of the minor’s father or mother, as the case may be, and to exercise all the rights of a
Cruelty is lack of kindness which adversely affects the health of the person. Well it is easy to maintain herself natural guardian under this Act to such extent and subject to such restrictions, if any, as
determine the nature of physical cruelty but difficult to say about mental cruelty. The following At times, it has been observed that few husbands intentionally give a low amount of dower, are specified in this Act and in the will.
may be considered as Mental Cruelty against Husband by wife: even when their economic condition is well. The amount of the dower is observed to be so 6. The right of the guardian so appointed by will shall, where the minor is a girl, cease on her
 Humiliating the husband in front of his family and friends. low. that the woman becomes unable to maintain herself. This problem was eventually marriage.
 Undertaking the termination of pregnancy without husband consent. making the object of dower futile. To overcome this problem, legislation was made so that a Under the old Hindu law, a Hindu father alone and no other had the power to appoint a
 Making false allegation against him. reasonable dower is given. Therefore, the legislature was given full power to maintain the testamentary guardian of his minor children. A husband had no power to appoint his minor
 Denial for Martial Physical Relationship without a valid reason. amount of dower providing that the court will not be bound to award the amount of dower wife’s father as her testamentary guardian under his Will. Kapila Annapumamma v.
 Wife having affair. according to the marriage deed. Ramanujeya Ratnam AIR 1959 AP 40. A father was entitled to appoint by will a guardian of
 Wife living an immoral life. Rights of wife when dower is not paid to her the person of his minor children even to the exclusion of their mother. – Alagappa v.
 The constant demand for money. Every woman under Muslim law has the right to claim a dower on the commission of Mangatrai IL 40 Mad 672. A Hindu mother cannot appoint by Will a guardian even for the
 Aggressive and uncontrollable behaviour of Wife. marriage. Like any other law, if such a right is violated, then the woman has some remedies. person of a minor. Under Mitakshara law, the management of the whole property including
 Ill-treatment to the husband parents and family. Muslim law confers upon a wife or a widow to some rights to compel to get the payment of the minor’s share in joint family property would be vested not in the mother but in the eldest
In Balram Prajapati vs Susheela Bai case, the petitioner filed the divorce petition against his wife dower: male member. It would be otherwise where the family is divided or where the minor has
on the ground of mental cruelty. He proved that his wife that behaviour with him and his parents was a. Refusal to cohabit: If the marriage has not been consummated then the wife has a separate property.-Anusitavathi v. Siromani 1938 ILR 40 (Mad) A Hindu father or another
Aggressive and uncontrollable and many times she filed the false complaint against her husband. The senior coparcener of a Mitakshara family has no power to appoint, by will or otherwise,
right to refuse to cohabit with her husband as long as the prompt dower is not paid.
court accepts the petition and grants the divorce on the ground of cruelty.
If the wife is minor or insane, then the guardian has a right to refuse to send her to testamentary guardians for the coparcenary property of the minor- Chidambaram Pillai
3. Desertion: Desertion means the permanent abandonment of one spouse by the other spouse
without any reasonable justification and without his consent. In General, the rejection of the her husband’s house until the payment of a prompt dower is given. During the v.Rangaswami AIR 1941 Mad 561. The present Act preserves the old law insofar as it
obligations of marriage by one party. period, the wife stays in her guardian’s house, the husband is bound to maintain her. excludes the undivided interest of the minor in joint family property from the operation of
Before the 1976 Amendment, desertion was only a ground for judicial separation and not divorce. But …contd… Section 9. A father cannot appoint a testamentary guardian in respect of the undivided
now, desertion of any of the spouses by the other for a continuous period of two years immediately interest of a minor in joint family property- Pattayee v. Subbaraya 1980 HLR 500 (Mad).
before filing the petition is a valid ground to seek divorce as well as judicial separation. Desertion as
the ground of divorce is mentioned under Section 13(1)(i)(ib) of the Act. The Essentials are:
 Permanent abandonment of the other spouse.
 Rejection of the obligation of marriage.
 Without any reasonable justification.
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Q.7 Write a note on MAINTENANCE of MUSLIM WIFE by highlighting the However, if consummation has taken place after marriage, then the wife loses 4. Conversion: If one of the spouses converts his religion to any other religion without the consent
applicability of the provision of Section 125 of Cr.P.C and leading cases. the absolute right to insist on the payment of prompt dower. This is because the of the other spouse, then the other spouse can approach the court and seek the remedy of divorce.
Ans: The Muslim husband’s obligation to maintain his wife arises in the following two husband can file a suit for restitution of conjugal rights. If the wife still refuses to 5. Unsoundness of mind: Insanity means when the person is of unsound mind. Insanity as a ground
circumstances: cohabit with her husband, then she is only entitled to a decree conditional payment of divorce has the following two requirement:
a. on account of status arising out of a valid marriage, and on dower. In the case of Rabia Khatoon v. Mukhtar Ahmed, (1966), it was held that  The respondent has been incurably of unsound mind.
b. on account of a pre-nuptial agreement entered into between the parties to the marriage, if the suit is brought after sexual intercourse has taken place with her free consent,  The respondent has been suffering continuously or intermittently from mental disorder of such
a kind and to such an extent that the petitioner cannot reasonably be expected to live with the
or between the parents in case both the parties or one of them is a minor. the proper decree to pass is not a decree of dismissal, but a decree for restitution,
respondent.
Obligations Arising Out of Status: conditional on payment of prompt dower. If one of the parties, i.e., either husband or wife, is of unsound mind (continuous or intermittent or
A Muslim husband is bound to maintain his wife even if she is rich, i.e. has means of In deferred dower, the payment of dower is a contingent event. Therefore, the incurable), then it is a valid ground for divorce. It is given under Section 13(1)(iii) of the Act.
her own, and notwithstanding that the husband is without any means. question which arises is whether the wife can refuse to the husband is conjugal 6. Leprosy: Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc.
In other words of Schacht, ‘The maintenance of the wife comprises of food, clothing rights or not. There has been a difference of opinion regarding this. Famous jurist, this disease is transmitted from one person to another. Thus, it is considered as the valid ground
and lodging, i.e. a separate house or at least a separate room which can be locked, for the Abu Yusuf is of the opinion that she can refuse to cohabit if a deferred dower is not for divorce.
well-to-do also a servant; she is not obliged to bear any part of the expenses of the paid. However, famous jurist Imam Mahmood, Shia Law is of the opinion that the In Swarajya Lakshmi vs G. G. Padma Rao, the husband filed the case for granting the divorce on
matrimonial establishment. Under Muslim law wife’s right of maintenance is a debt against wife cannot refuse to cohabit in cases of deferred dower. the ground of leprosy. He claimed that his wife is suffering from incurable leprosy with the expert’s
the husband and has priority over the right of all other persons to receive maintenance b. Right to dower as a debt: According to the lordships of Privy Council, it was held reports. Here he succeeds in getting the divorce on the ground of leprosy.
A Muslim husband is bound to maintain his wife of a valid (sahih) marriage, and not that the dower ranks as a debt and the widow is entitled along with other creditors to 7. Venereal Disease: Under this concept, if the disease is in communicable form and it can be
the wife of a void or irregular marriage. Only in one case, he is bound to maintain the wife of have it satisfied on the death of the husband, out of his estate. If the husband is alive, transmitted to the other spouse, then this can be considered as the valid ground for divorce.
an irregular marriage, viz., when the marriage is irregular for want of witnesses. According to then the wife can recover the dower by instituting a suit against him. In cases where 8. Renunciation: It means when one of the spouses decides to renunciate the world and walk on the
path of the God, then the other spouse can approach the court and demand the divorce. In this
the Durr-ul-Muhtar, maintenance is due only to the wife who has been regularly married (i.e. the dower debt is remaining unpaid, the widow can enforce her claim for the dower
concept the party who renunciates the world is considered as civilly dead. It is a typical Hindu
when the marriage is Sahih), and if the marriage is found irregular, such as when he had debt by filing a suit against the husband’s heirs. However, the heirs are only liable to practice and is considered as a valid ground for divorce.
married her while in idda for another husband, or if the marriage is void, such as when he had the extent to which and in proportion to which they inherit the property of the 9. Presumption of Death: In this case, the person is presumed to have died, if the family or the
married his father’s wife, then the man may demand back any money that he might have deceased husband. friends of that person does not hear any news about the person alive or dead for seven years. It is
given to her for her maintenance. In the case of Syed David Hussain v Farzand Hussain (1937), it was held that considered as the valid ground for divorce, but the burden of proof is on the person who demands
However, it is immaterial that the wife is rich or poor, Muslim or non-Muslims, young a Shia Muslim stood surety for the payment of the dower by his minor son. After his the divorce.
or old, enjoyed or unenjoyed. The wife has also the right to pledge the credit of her husband death, his estate was held liable for the payment of his son’s mahr and each heir was 10.Concept of Divorce with Mutual Consent: As per Section 13B, the person can file the petition
for providing herself with maintenance. made responsible for a portion of the wife’s claim in proportion to his share in the for divorce by mutual consent of both the parties. If the parties want to dissolve their marriage as a
In Muslim law, the obligation to maintain a wife does not commence on marriage, if the estate of the deceased. mutual consent are required to wait for one year from date of marriage. They have to show that
wife has not attained puberty. It commences on the attainment of puberty by the wife. Imam c. Right to retain possession in lieu of unpaid dower: Dower ranks as a debt and the they are living separately for one or more year and not able to live with one another. The
Shafi took a different view and opined that the wife is entitled to maintenance immediately wife is entitled along with the other creditors to have it satisfied on the death of her ingredients, or essential conditions, to seek divorce by mutual consent are:
on marriage, even though she has not attained puberty. husband out of his estate. Her right is however no greater than that of any other  The petition must be filed jointly by the husband and wife.
The husband’s obligation to maintain his wife exists only so long as the wife remains unsecured creditor except that if she lawfully obtains the position of the whole or  They must be living separately for a year or more.
 They have mutually agreed to bring their married life to an end.
faithful to him and obeys all his reasonable orders. A wife does not lose her right to part of his estate, to satisfy her claim with the rents and issues accruing therefrom
 There is no possibility of resuming married life.
maintenance, if: she is entitled to retain such position until it is satisfied. The right to retention does
11. Failure to obey decree of restitution of conjugal rights: Another ground of divorce is the
a. she refuses access to him on some lawful grounds, such as when the husband keeps a not give her any title to the property. Therefore, she cannot alienate the property. failure of the parties to a marriage to comply with the decree of restitution of conjugal rights. If
concubine, or is guilty of cruelty towards her (wife), or A widow’s right to retain possession of her husband’s estate in lieu of a dower such a decree has been passed by the court but the husband and wife failed to comply with it
b. marriage cannot be consummated owing to is a photo special purpose. It is by a way of compulsion to obtain speedy payment of within one year from the date the decree was passed then they can seek divorce. This is given
i. husband having not attained puberty, the dower which is an unsecured debt. under Section 13(1A)(ii) of the Act.
ii. his absence from her without her prior permission, or d. Effect of apostasy on dower: Apostasy has a huge impact on Muslim personal law. Grounds available only for Wife: The following are the grounds for DIVORCE in India on which a
iii. his illness, or It is believed that the apostasy of man from Islam denotes immediate dissolution of petition can be FILED only by the WIFE.
iv. malformation. marriage. On the other hand, apostasy by the wife from Islam does not denote 1. If the husband has indulged in rape, bestiality and sodomy.
A wife cannot release her right of maintenance except after it has become due. immediate dissolution of marriage. As per Section 5 of the Dissolution of Muslim 2. If the marriage is solemnized before the Hindu Marriage Act and the husband has again
Maintenance of Muslim Women under Section 125 of the code of criminal procedure, Marriage Act 1939, a married Muslim woman shall have the same rights in the married another woman in spite of the first wife being alive, the first wife can seek for a
1973 respect of the dower under the dissolution of marriage under this Act. The divorce.
The provision of under the code of criminal procedure secular in nature. They also deal dissolution of marriage under the Act, even though made after the apostasy of the 3. A girl is entitled to file for a divorce if she was married before the age of fifteen and renounces
the marriage before she attains eighteen years of age.
with the matter related to maintenance by a Muslim married woman. If a Muslim woman wife does not take away her right to dower.
If there is no co-habitation for one year and the husband neglects the judgment of maintenance
demands the maintenance under Section 125 of the code of criminal procedure, she can be e. Suit for dower and limitation: If the dower is not paid to the wife while she is awarded to the wife by the court, the wife can contest for a divorce.
entitled to get the maintenance only if she is not remarried. alive, then after her death, her heirs can claim it. The period of limitation as per the Divorce Judicial Separaton
In Mohd. Ahmed Khan v. Shah Bano Begum Case, the husband gives divorce to his wife, Limitation Act, 1963, for a suit to recover prompt dower is three years from the date 1) Divorce is a dissolution of marriage. It 1) Rights and obligations of parties are
she was 68 years old and has five children. Under Muslim law, divorced women do not have when the dower is demanded, or refused. In the case of deferred dower, the period puts an end to the marital rights and temporarily suspended.
the right to claim maintenance after the period of iddat and gets the amount of mehr only. the of limitation is 3 years, from the date when the marriage is dissolved by death or obligations between the parties.
Shah Bano Begum files a case and claims the maintenance under the Section 125 of the Code divorce. 2) Marital relationship comes to an end. 2) Marital relationship does not come to an
of Criminal Procedure where she gets successful and gets the maintenance from her husband The concept of mahr in Islamic law is beneficial for the woman. It ensures financial 3) Parties can remarry after one year from the end.
on reasonable ground and from the family of the husband after his death. security so that she is not left helpless after the death of the husband or after the termination date of
After this historical judgment of Shah Bano Begum, the Muslim Community started of the marriage. It also places a check on the capricious use of divorce by the husband. It is decree. 3) Parties cannot remarry unless after a lapse
criticizing the court of law as according to them the judgment directly affects the provision of also believed that the mahr is a pivotal custom in the marriages of Muslims. 4) Act of resumption of cohabitation by the of one year’s time a decree of divorce is
their personal law. According to their law, divorced women do not have the right to claim parties after the decree of divorce does not obtained.
maintenance after the period of iddat and gets the amount of mehr only. have any effect on the decree.
5) In case of petition for divorce it must be 4) Resumption of cohabitation by the parties
But the government on that time under the pressure of the Muslim community bring a law
proved that the respondent was living in during the course of a decree of judicial
which directly overrules the judgment. The government enacted The Muslim Women adultery at the time of making of the separation neutralizes the decree
(Protection of Rights on Divorce) Act, 1986. By the virtue of this Act, the old traditional law application.
which was followed by the Muslim community gets the authority. In this Act, divorced 6) It is to be shown that – 5) In case of a petition for judicial separation
women do not have the right to claim maintenance after the period of iddat and gets the (i) there was no resumption of cohabitation a single or solitary act of adultery committed
amount of meher only. Finally, all the case which are pending in court related to Muslim for a period of one year after the decree of after marriage would be sufficient to obtain
women and their right to Maintenance under Section 125 of Code of Criminal Procedure judicial separation; or the decree.
were disposed of. (ii)there was no restitution of conjugal rights
In Rahamathulla vs Piyare case, the Muslim woman files a case against her Husband for oneyear after passing of the decree for 6) Desertion of petitioner by respondent
claiming Maintenance under Section 125 of Code of Criminal Procedure. The Court rejected restitution of conjugal rights; or continuously for not less than two years
the petition on the similar ground that she is entitled to get the Maintenance as per The (iii) the respondent is unheard of for a period immediately preceding the
Muslim Women (Protection of Rights on Divorce) Act, 1986. of seven presentation is sufficient.
years or more, or
(iv) the respondent has renounced the world
 by entering any religious order.
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Q.6. Explain different SCHOOLS OF HINDU LAW and examine the fundamental Q.7. Distinguish between VOID and VOIDABLE marriage. Under what condition and Q.8. Discuss ‘ADULTERY AND CRUELTY’ as a ground of Divorce under Hindu law,
differences between them. what grounds can they be annulled? Are the children of such marriage legitimate? pointing to legal provisions and referring to decided cases.
Ans: School means rules and principles of Hindu Law which are divided into opinion. It is Discuss. Ans: Marriage is considered one of the oldest institutions and has a religious sacrament
not codified. There are two Schools of Hindu Law: Ans: attached to it. Marriage, according to Hindu law, is one of the most important sanskaras
1. Mitakshara VOID (Section 11) VOIDABLE (Section 12) (duties). It is considered a ‘dharma’ (religious duty under Hindu law) by which men and
2. Dayabhaga. A void marriage is no marriage. It is A voidable marriage is a perfectly valid women are united in wedlock to achieve the ends of life, namely, dharma, progeny, kama,
Mitakshara School prevails throughout India except in Bengal. It is a running commentary on called a marriage because two persons marriage so long as it is not voided. A and moksha.
the code of Yajnavalkya (Yajnavalkya Smriti). Mitakshara is an orthodox School whereas the have undergone the ceremonies of voidable marriage can be avoided only on In Hinduism, a marriage is seen as an inseparable bond between husband and wife, but with
Dayabhaga is Reformist School. marriage. Since they absolutely lack the petition of one of the parties to the the changing times, there has been the introduction of the concept of divorce, which means
The Mitakshara and Dayabhaga Schools differed on important issues as regards the rules of capacity to marry, they cannot, by just marriage, if one of the parties does not that on certain grounds, the parties to a marriage can seek permanent separation.
inheritance. However, this branch of the law is now codified by the Hindu Succession Act, undergoing ceremonies because spouses file petition for annulment of marriage, The modern law on divorce, on the other hand, brought many changes to the way marriage
1956, which has dissolved the differences between the two. Now, the main difference in the eyes of the law. the marriage will remain valid. was perceived. Section 13 of the Hindu Marriage Act, 1955 deals with divorce and its
between them is on joint family system. Mitakshara- Rights in the joint family property is A wife does not have the right to claim A wife has the right to claim maintenance grounds. Divorce is no longer unknown to people, and couples can seek divorce on any of the
acquired by birth, and as a rule, females have no right of succession to the family property. maintenance in the void marriage. in the voidable marriage. grounds enumerated in the Act. However, the objective of the court and legislature has
The right to property passes by survivorship to the other male members of the family. In a void marriage, the parties do not Husband and wife have the status in the always been to preserve the institution of marriage, so Section 14 of the Act provides that no
Dayabhaga- Rights in the joint family property are acquired by inheritance or by will, and the have the status of husband and wife. voidable marriage. petition for divorce can be filed by either of the parties to a marriage within one year of their
share of a deceased male member goes to his widow in default of a closed heir. In a void marriage, no decree of nullity is In a voidable marriage decree of nullity is marriage. The relationship or bond between a husband and a wife, which was once
MITAKSHARA SCHOOL required. required. considered unbreakable, has changed with time, they can now be separated by way of
The Mitakshara School exists throughout India except in the State of Bengal. The divorce. Moreover, the introduction of remarriage has also led to a lot of changes.
A void marriage is none in the eyes of A void marriage is to be declared void by
Yagnavalkya Smriti was commented on by Vijnaneshwara under the title Mitakshara. The Section 13(1) provides grounds on which divorce can be sought by either of the partners in a
law. a competent court.
followers of Mitakshara are grouped together under the Mitakshara School. Mitakshara marriage. After the amendment of 1976, grounds for divorce specified under Section 13 of
The children in a void marriage are The children in a voidable marriage are
school is based on the code of Yagnavalkya commented by Vijnaneshwara, a great thinker the Act and judicial separation under Section 10 are similar.
treated as legitimate. treated as illegitimate but this distinction
and a law maker from Gulbarga, Karnataka. The Inheritance is based on the principle or Adultery
is deleted by the Supreme Court and said
propinquity i.e. the nearest in blood relationship will get the property. Sapinda relationship is The concept of Adultery may not be considered as an offence in many countries. But as
a child cannot be said termed as
of blood. The right to Hindu joint family property is by birth. So, a son immediately after per the Hindu Marriage Act, in the matrimonial offence, the adultery is considered as one of
illegitimate.
birth gets a right to the property. The system of devolution of property is by survivorship the most important ground for seeking divorce. Adultery means the consensual and voluntary
Annulment of Void Marriage intercourse between a married person with another person, married or unmarried, of the
(But now it has been amended by 2005 Amendment
As per Section 11 of Hindu Marriage Act, 1955, which deals with void marriages opposite sex. Even the intercourse between the husband and his second wife i.e. if their
Act). The share of co-parcener in the joint family property is not definite or ascertainable,
described as the marriage solemnized after the commencement of the Act shall be null and marriage is considered under bigamy, the person is liable for the Adultery.
as their shares are fluctuating with births and deaths of the coparceners. The co-parcener has
void and become null and void by presenting a petition through any of the party. The concept of Adultery was inserted under the Hindu Marriage Act by the Marriage
no absolute right to transfer his share in the joint family property, as his share is not definite
In case any of the spouse was still legally married to another person at the time of the Laws Amendment Act, 1976.
or ascertainable. The widow of a deceased co-parcener cannot enforce partition of her
marriage to the other spouse then the marriage is considered to be void and no requirement In Swapna Ghose v. Sadanand Ghose case, the wife found her husband with other girl
husband’s share against his brothers.
for applying the annulment before the court is mandatory. In M.M. Malhotra v. Union of lying on the same bed and the neighbour also confirmed that the husband has committed an
A woman could never become a co-parcener. But, the Hindu Succession (amendment) Act
India, the court held that husband married a woman during subsistence of his first marriage. offence. Here the wife gets the divorce.
of 2005 empowered the women to become a co-parcener like a male in ancestral property. A
Such marriage being null and void, his subsequent marriage to another woman would not be In Sachindranath Chatterjee vs Sm. Nilima Chatterjee case, the petitioner and the
major change enacted due to western influence.
case of plural marriage. defendant were married. After marriage, the husband leaves the wife in his home town so that
Sub-Schools under the Mitakshara School
Any party to the marriage can file an application for the annulment for declaration of the she can complete her studies and go to another city for work. He visited twice or thrice a
These are the Sub-Schools under the Mitakshara School:
marriage as null and void. However, this is just a procedure to be brought on record before month to meet her. Later he found that his wife commits the adultery i.e. to involve in sexual
1. Dravidian School of thought: (Madras school) It exists in South India. In the case of
the court and is done as the precaution so that in future, no question of void marriage can be intercourse with his own nephew, watchman etc. The plaintiff approaches the court to
adoption by a widow it has a peculiar custom that the consent of the sapindas was
called. demand divorce on the ground of adultery and his petition was accepted and the marriage
necessary for a valid adoption. (Sapindas – blood relation). The main authority accepted
Annulment of Voidable Marriage gets dissolved.
by this school is Smriti Chandrika authored by Devananda Bhatta.
A voidable marriage is basically a legal marriage which can be cancelled by any one of the Prior to the 1976 amendment, in order to seek divorce on the ground of adultery, a
2. Maharashtra School: (Bombay School of Thought): It exists in Bombay (Mumbai) and
parties to the marriage and is contested in the court on the basis of the below mentioned person had to prove that, on the date of the petition, his/her spouse was living in an
Gujarat. The Bombay school has got an entire work of religious and Civil laws. The main
follows: adulterous relationship. However, after the amendment, even a single voluntary sexual
authority accepted by this school is Vyavahara Mayukha authored by Nilakantha.
3. Banaras School of Thought: It extends of whole of northern India except in Punjab  No consummation of marriage because of incapacity of the partner intercourse with a person other than the spouse is a valid ground for divorce. It is given under
where its authority is modified by customary law in rural areas. The main authority  Any of the spouse did not provide the free consent to it or in the consequence of mistake, Section 13(1)(i) of the Act. The burden to prove that the spouse committed the offence of
accepted by this school is Viramitrodaya authored by Mitra Mishra. unsoundness etc. adultery is on the person who made such allegations, and the standard of proof is by
4. Mithila School of Thought: It exists in Tirhut, North Bihar and Uttar Pradesh near the  Any of the spouses is mentally disordered person but has given the valid consent for preponderance of probabilities and not proof beyond reasonable doubt.
Jamuna (Yamuna) river areas. The main authority accepted by this school is Vivad marriage and that person falls under the ambit of the Mental Disorders Ordinance 1952 It is correct that there can be no direct evidence to prove the act of adultery, so
Chintamani authored by Vachaspati Mishra and Vivad Ratnakara authored by Act.; circumstantial evidence plays an important role. The Madhya Pradesh High Court in the case
Chandeshwar Thakur.  Any of the spouse is suffering from the venereal disease which is in a communicable of Samuel Bahadur Singh v. Smt. Roshini Singh (1960), rightly pointed out that in India, if a
5. Punjab School: It prevails in the part of the country called East Punjab. This School is form; male and female are living together under the same roof without any connections or relations,
chiefly governed by local customs. The main authority accepted by this school is  The wife is pregnant with some other person at the time of marriage. it is not considered normal, and so adultery can be inferred from the following circumstances:
Viramitrodaya authored by Mitra Mishra and local customs of Punjab. Below are the parties who can file the petition before the concerned court for the annulment  A male and female lived together in the same house for a long time.
DAYABHAGA SCHOOL OF THOUGHT of the marriage:  They are not related to each other by way of marriage or any other relationship.
It exists in Bengal and Assam only. The Yagna Valkya smriti and some other Smrities are  In case the petitioner gives any consent for more than an year after the fraud committed by  They refused to return to their spouse.
commented on by Jimutavahana under the title Dayabhaga. It has no sub-school. It differs the other person.  Both the parties cannot deny adultery because of circumstantial evidence.
from Mistakshara School in many respects. Dayabhaga School is based mainly on the code of In case, the wife is pregnant with some other person at the time of marriage and the person to They had the opportunity to commit adultery. …contd…
yagnavalkya commented by Jimutuvahana, Inheritance is based on the principle of spiritual the marriage is not aware about the happening. …contd…
benefit. It arises by pinda offering i.e. rice ball offering to deceased ancestors. This school is
followed in Bengal and some parts of Assam only.
The main features of this School are as follows:
 Sapinda relation is by pinda offerings.
 The right to Hindu joint family property is not by birth but only on the death of the father.
The system of devolution of property is by inheritance. The legal heirs (sons) have definite
shares after the death of the father. …contd…
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In the case of Chetan Dass v. Kamla Devi (2001), appellant and respondent were Grounds Seeking Nullity of Marriage  Each brother has ownership over a definite fraction of the joint family property and so can
married to each other according to Hindu ceremonies. After marriage, the appellant had an There are different grounds under which one can seek nullity of marriage in the court. Those transfer his share.
extramarital affair with one of the nurses in the hospital where he was working, and so his grounds are:  The widow has a right to succeed to husband’s share and enforce partition if there are no
wife left him. He appealed, claiming that the allegations made by the respondent and her act 1. If any of the spouses were married at the time of marriage. male descendants.
of deserting him without any reasonable cause amount to mental torture. The Hon’ble 2. If either of the spouses was not of a sound mind at the time of marriage.  On the death of the husband the widow becomes a co-parcener with other brothers of the
Supreme Court observed that a man cannot take advantage of his own wrong. However, the 3. If either of the spouses was under the influence of any drug and not in a position to give husband. She can enforce partition of her share.
decree for divorce was not passed because the wife, or respondent in this case, was ready to his/her consent. Differences between the two Schools in Coparcenary
continue her marriage and live with him only on the condition that he must leave the other 4. If the consent to the marriage was based on fraud or force. Mitakshara Coparcenary Dayabhaga Coparcenary
woman and end his adulterous relationship. 5. If either of the partners is incapable of a physical relationship in a marriage. Right of a son by birth in the ancestral A son is entitled to his ancestral property
It must be noted that adultery as an offence has been decriminalised by the Hon’ble 6. Prisoners sentenced to a term of life imprisonment may not marry. property equal to the interest of his father. only on the death of his father. The father
Supreme Court in the case of Joseph Shine v. Union of India (2018). However, it is still a Legitimacy of Children under Void and Voidable Marriages is the absolute owner of his property in
ground of divorce under the Hindu Marriage Act, 1955, which means that if a person  Legitimacy of children under void and voidable marriages are specified under his lifetime.
commits adultery, he/she would not be punished but the spouse can seek divorce. Section 16 of Hindu Marriage Act, 1955. A son becomes coparcener right after his A son becomes coparcener by death of his
Essentials of Adultery  In a void marriage, any children born out shall be treated as legitimate. birth. His right is applicable to the father. This right is not available within
1. One of the spouses involved in the intercourse with another person, married or  In a voidable marriage, any child born of a marital relationship subsequently property of his grandfather and grand- the property of his father, grandfather or
unmarried, of the opposite sex. declared as nullity by court shall also be termed as legitimate. grandfather. grand grandfather.
2. Intercourse should be voluntary and consensual.  Even if the marriage under Section 11(void marriage) or Section 12 which is Everyone is entitled to the property as a Everyone’s share is defined. There is
3. At the time of the act, the marriage was subsisting. declared as null and void, notwithstanding such circumstances the child born out of unit. Their shares are not defined. They tenancy-in-common.
4. There must be sufficient circumstantial evidence to prove the liability of another such marriage is held to be legitimate. have only the commodity of ownership.
spouse.  If prior to the marriage, the bride was pregnant and gave birth to the child after the There is joint-tenancy.
Cruelty marriage, such a child cannot be treated as legitimate because that child was not One cannot transfer his share to the third One can transfer his share.
The concept of cruelty includes mental as well as physical cruelty. The physical cruelty born out of the marital relationship of the present marriage and therefore, the child party.
means when one spouse beats or causes any bodily injury to the other spouse. But the born after the marriage having been conceived prior to the marriage is to be held
concept of mental cruelty was added as the spouse can also be mentally tortured by the other The joint-property can be partitioned. In As the shares are defined, one can easily
illegitimate. Illustration: If there are two parties ‘A’ and ‘B’ where, ‘A’ is the that case, it will be partitioned as it was in partition with his share
spouse. Mental Cruelty is lack of kindness which adversely affects the health of the person. husband and ‘B’ is his wife. During the time of the marriage ‘B’ is pregnant through
The following may be considered Mental Cruelty against Husband by wife: case of the father.
another. After the marriage of ‘A’ and ‘B’, the child born does not come from the Differences between the two Schools in Succession
 Humiliating the husband in front of his family and friends. marital relationship of ‘A’ and ‘B’. That child will be termed as illegitimate.
 Undertaking the termination of pregnancy without husband consent. Mitakshara Coparcenary Dayabhaga Coparcenary
 Making false allegation against him. Property of a deceased Hindu is partitioned Property is of two types- (a) Joint, (b)
 Denial for Martial Physical Relationship without a valid reason. into two ways as the property is of two Separate. The descendants inherit the
types: property whatever type it is.
 Wife having affair.
1. Ancestor’s property,
 Wife living an immoral life.
2. Separate property.
 The constant demand for money. Ancestor’s property is partitioned in
 Aggressive and uncontrollable behavior of Wife. accordance to the Rules of Survivorship.
 Ill-treatment to the husband parents and family. But a Separate property is partitioned to the
In Balram Prajapati vs Susheela Bai case, the petitioner filed the divorce petition descendants.
against his wife on the ground of mental cruelty. He proved that his wife that behaviour with In default of close heir, brother and If coparcener dies, his widow will get
him and his parents was Aggressive and uncontrollable and many times she filed the false immediate survivors inherit, the wife does the property in default of a close heir
complaint against her husband. The court accepts the petition and grants the divorce on the not inherit. but she cannot alienate.
ground of cruelty. The order of heirs is decided by mereness The order of heirs is decided by the
The following are considered as Mental Cruelty against wife by Husband: of blood. competence to offer Pinda and Sraddho
 False accusation of adultery. to the deceased
 The demand for dowry. Effect of migration
 Impotency of Husband. When a Hindu family migrates from one State to another, the law draws a presumption
 Force to abort the child. that it carries with it its personal law, i.e., the laws and customs prevailing in the State from
 The problem of drunkenness of husband. which it came. The presumption can, however, be rebutted, by showing that such a family
 Husband having affairs. has adopted the law and usages of the new province where it has settled down.
 The husband lives an immoral life. Thus, for instance, where a Hindu family migrates say, from Maharashtra (where the
 Aggressive and uncontrollable behavior of the husband. Mitakshara law prevails), to Bengal (where the Dayabhaga law prevails), the presumption is
Humiliating the wife in front of family and friends that the family continues to be governed by the Mitakshara Law. This presumption may be
rebutted by showing that the family has abandoned the law of the province of its origin (i.e.
Maharashtra), and adopted the law of the province where it has settled (i.e. Bengal).
So also, if a Hindu governed by the Mitakshara migrates from Bombay to Calcutta, he is
still presumed to be governed by the Mitakshara, unless he displaces such a presumption in
the manner stated above. It is for this reason that it has rightly been said that Hindu Law is
not a lex loci, i.e., a local law, but it is, in every sense, a personal law.
In Abdurahim v. Halimabai, the Court observed: “Where a Hindu family migrates from
one part of India to another, prima facie, they carry with them their personal law, and if they
are alleged to have become subject to a new local custom, this new custom must be
affirmatively proved to have been adopted.” It is also to be noted that it is the law as it
existed at the time of the migration that continues to govern the migrated members. Thus,
such persons are affected by decisions of the Courts of their State of origin which declare the
law as it existed at the time of the migration, but not by customs incorporated in its law after
the date of migration.
When such migration takes place to a country outside India, the Court may presume that
such a family has adopted the law of that country, if it is shown that the family has so acted
as to raise an inference that they have cut off all the ties of their earlier environment.
 Page 19  Foster-brother’s sister. …contd…
Q.9. What are the essentials of a VALID (SAHIH) marriage and differentiate between the Page 21 Page 23
irregular (FASID) and void (BATIL) marriage. Q.10. Discuss the concept of LEGITIMACY under Muslim law. Is adoption of child Q.11. What are the essentials of a VALID MARRIAGE under the Hindu Marriage Act, 1955.
Q. What are requisites of a VALID marriage under the muslim law? recognized under Islamic law? Discuss the legal effects in the contravention of these provisions.
Ans: In the landmark case of Abdul Kadir v. Salima And Anr.[i], (J) Mahmood observed nature of Ans: Parentage is exclusively established with the real father and mother of a child, and only Ans: Essentials of Valid Marriage under Hindu Law
Muslim marriage purely as a civil contract rather than a sacrament. Based on his observations, we can The essential conditions of valid Marriage are given and discussed below:
if they beget the child in a lawful matrimony. Muslim Law is devoted to the notion that an
conclude that the objective of Muslim marriage is to legalize sexual relationship of male and female 1. Monogamous Relationship
and also procreation of child. Thus, a valid contract is necessary for Muslim marriage. The essentials illegitimate child is a child of nobody. In Hanafi law, parentage is established in every case
According to section 5(i) of HMA, 'neither party has a spouse living at the time of the marriage'.
of Muslim marriage are very much similar to that of a Civil Contract. by the mother but in Shiite Law, parentage is established only if the child is begotten in Either party should not have a living spouse at the time of the marriage. It implies a monogamous
Essentials of a valid Muslim Marriage lawful wedlock, which means that an illegitimate child will not belong to either of the act and makes a barrier on the bigamous or polygamous act. it should be read with the section 11 and
The essentials of a valid Muslim Marriage (Sahih) are as follows: parents. They (Sunnis or the Hanafis) adopt a view that an illegitimate child, for some section 17 of Hindu Marriage Act, according to section 11, bigamy or polygamy is a null and void act
1. Proposal and Acceptance: In a Muslim Marriage, proposal is referred to as ‘ijab’ and acceptance purposes, such as for feeding and nourishment, belongs to the mother. For these purposes, the and apart from this, section 17 of HMA, makes this a punishable offence under section 494 and
of the same as ‘qubul’. A proposal should be made by or on behalf of one party and the same Hanafi Law confers some rights on the mother. section 495 of Indian Penal Code, 1860. Therefore, the parties to the marriage can be unmarried,
should be accepted by the other party. For a valid Muslim marriage, proposal and acceptance In Muslim law, a son is legitimate only if the offspring is begot by a man and his wife or a widowed, or divorced. The Scheduled Tribes are exempted from the application of the Act but the
should be carried out at the same meeting. If a proposal is made at one meeting and the acceptance man and his respective slave; any other offspring is known as ‘Zina,’ which means a condition is that there must be a proved custom to this effect.
of the proposal is done in the second meeting, it is not considered as valid. clandestine connection, and hence is not legitimate. The term ‘wife’ essentially means In cases like Dr A.N. Mukerji vs State and Santi Deb Berma vs Smt. Kanchan Prava Devi it was
2. Competency of Parties:The parties to the contract must be: marriage but marriage may be entered into without any ceremony; the presence of marriage held that the offence of Bigamy would be constituted only when the first marriage is solemnized
a. Major: For the purpose of Muslim marriage, the age when a person reaches puberty is according to proper ceremonies and rituals.
therefore in any particular case may be an open question. Direct proof is needed to prove a
considered as the age of puberty. According to Hedaya, the age of Puberty for female is 9 years 2. Free Consent
marriage valid, but if there be no such proof, indirect proof shall suffice. Now, one of the
and for male, it is 12 years. It can also be said that in absence of any contrary, a Muslim is According to section 5(ii) of this Act: ‘at the time of the marriage, neither party:
considered to have attained the age of puberty at 15 years. After attaining the age of 15, parties ways for indirect proof is by the acknowledgment of legitimacy in favor of a son. This (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
can give their own consent and there is no need of consent of guardians. acknowledgment must not be merely of sonship, but must be made in such a manner that it (b) though capable of giving a valid consent, has been suffering from mental disorder of such a
If a person is a minor, i.e, not attained the age of puberty, the consent of the guardian is shows that the acknowledger’s intention is to accept the child as his legitimate son. kind or to such an extent as to be unfit for marriage and the procreation of children; or
required to make the marriage lawful. The persons recognized as guardian under Muslim law Privy Council in Sadiq Hussain v. Hashim Ali[3]said that ‘No statement made by one man (c) has been subject to recurrent attacks of insanity.
are: (a) Father, (b) Paternal Grandfather, (c) Brother or any other male member of father’s that another (proved to be illegitimate) as his son can make the other legitimate, but where no This clause was not there when this Act was enacted but it was inserted in the Act through the
family, (d) Mother, (e) Members of Maternal Relation. The right passes from one guardian to proof of that kind has been given, such a statement or acknowledgement is substantive Marriage Laws (Amendment) Act, 1976. Under this clause of HMA at the time of marriage neither
other, in absence of the previous one, in order of priority. In absence of any of these guardians, evidence that the person so acknowledged is the legitimate son of the person who makes the party shall be incapable of giving free valid consent based on unsoundness of mind, mental disorder
marriage may be contracted by Qazi or any other Government Authority. statement, provided his legitimacy is possible.’ and insanity (unfit for marriage and procreation of children) hence, free consent is a necessary part of
b. Of Sound Mind: At the time of marriage, both the parties should be of sound mind. Person of Again in Habibur Rehman Chowdhury v. Altaf Ali Chowdhury[4], ‘the Court has said that a Hindu Marriage. In a case in this regard, Allahabad High Court held that the validity of marriage
unsound mind has no capacity to enter into a contract and in the eyes of law his consent will be there is no process recognized under Muslim law by which a status of legitimacy may be will be nullified or said void only if one party can’t remain in the marriage due to the unsoundness of
considered as no consent. Unsoundness is of two types: (a) Idiocy: It refers to a complete the other party.
conferred on an illegitimate child. But, it seems that one of the reasons for permitting
abnormal state of mind. Person belonging to this category are incompetent to contract, and (b) In R. Laxmi Narayan v. Santhi, it was held that a person would be deemed to be unfit for marriage
Lunacy: It refers to a curable mental disease. A lunatic person can enter into a contract in the polygamy and temporary forms of marriages under Muslim law is that under no
and procreation of children if he is suffering from mental disorder of such a kind that he can’t lead a
time interval in which he behaves like sane person. circumstances the child born to them shall be illegitimate.’ normal married life.
c. Muslims: The parties to enter into marriage must be a Muslim irrespective of their sect or sub- Right to property of illegitimate child 3. Condition of marriageable age
sect. A Marriage is considered to be as inter-sect marriage is both the parties are Muslim In Muslim law, the illegitimate child has no right to inherit property from the father in the According to the Section 5(iii) of HMA, 'the bridegroom has completed the age of 21 years and the
belonging to different sect but the marriage is valid. classical law, as well as in some of the modern Islamic jurisdictions.The mother of an bride, the age of 18 years at the time of the marriage'
3. Free Consent: For a valid marriage free consent of the parties is a must. If the consent is obtained illegitimate child may find herself subject to harsh punishments for having Zina. Thus, the When this Act was enacted, the legal age for the marriage of boy and girl was 18 years and 15
by means of coercion, fraud or mistake of fact, it is considered as invalid and the marriage is crucial status of legitimacy in Islamic law has a huge impact on the lives of children and their years respectively. However, after the Marriage Laws (Amendment) Act, 1976, it was changed and
considered as void. In the case of Mohiuddin v. Khatijabibi [iii], the Court held that a marriage is parents, especially mothers. Thus, it is difficult for an illegitimate child to claim property the minimum age became 21 years and 18 years respectively.
invalid if it is held without free consent of the parties. from his or her parent/s. However, violation of this condition mentioned in clause (iii) of section 5 of this Act does not
4. Dower: It is referred to as ‘mahr’. It refers to the amount of money or other property which a bride In no school of Muslim law, an illegitimate child has any right of inheritance in the make the marriage void or voidable. It means that it is valid but it may attract penalties and may have
groom has to give to bride as a consideration of marriage. Its object is to offer the bride a sense of consequences. But it can become a legal ground for repudiation of the marriage. The Hindu Marriage
ownership of his putative father. Under the Hanafi law, the mother and her illegitimate
financial security within and after the termination of marriage. Act and the Child Marriage Restraint Act provide for punishment for such marriage.
children have mutual rights to inherit property. The illegitimate child inherits not only the
5. Free From Legal Disability: Under Muslim law, marriage is not permitted under certain The punishment is provided in Section 18 of this Act itself; it states that anyone who procures a
circumstances. The restrictions/prohibition can be divided into two parts: property of his/her mother but also the property of all other relations with whom he/she is
marriage in violation of the condition is liable to be punished with simple imprisonment which may
a. Absolute Prohibition: A Muslim marriage cannot take place if the parties are within the within related through their mother. extend up to 15 days or with fine which may extend up to Rs. 1000. or can be penalised with both.
blood relationship or prohibited degree of relationship of each other and the Marriage turns to be Thus, when a Hanafi female dies to leave behind her husband and an illegitimate son of The Section 10 of the Prohibition of Child Marriage Act, 2006, provides that any person who is
void. The absolute prohibited degrees of relationship are as follows: her sister, the husband will take one-half of the total property and the remaining will go to the performing, conducting, directing or abetting a child marriage shall be punished with rigorous
i. Consanguinity: It refers to blood relationship in which a man is barred from marrying the sister’s son. Since the illegitimate child cannot inherit from the father, he/she cannot inherit imprisonment up to two years and fine of one lakh rupees.
following females. They are as follows: from any other relations through the putative father. 4. Degree of Prohibited Relationship
 His mother or Grand-mother (how high so ever), A reciprocal right of inheritance exists between an illegitimate child and the maternal According to Section(iv) of HMA, 'The parties are not within the degrees of prohibited
 His daughter or Grand-daughter (how low so ever), relations. They are also his residuary heirs. Of course, his other inheritors are his/her spouses relationship unless the custom or usage governing each of them permits of a marriage between the
 His sister (irrespective of full blood/ half-blood/ uterine blood), and his descendants, with an exception of his father and his relations. Thus if an illegitimate two'
 His niece or Great-niece (how low so ever), and person leaves a mother, a daughter, and father, the daughter would get ½ and the mother the Act prohibits solemnization of marriage of those persons who are within the prohibited degree
 His aunt or great aunt, whether paternal or maternal (how high so ever). 1/6th; the remainder would revert to them. The father would be excluded. Similarly, an of relationship. If any marriage is solemnized in violation of this condition, then the marriage would
A marriage with woman prohibited under consanguinity is void. Also, children born out of that be void under section 11 of the act. And also, if a violation of this clause happens, then it would
illegitimate brother and illegitimate uncle are not entitled to inherit. But a twin brother will
wedlock are considered as illegitimate. amount to simple imprisonment up to 1 month or a fine of Rs. 1000/- or both under section 18(b) of
inherit as his uterine brother (the twin brother is regarded as the son of only the mother and the Hindu Marriage Act, 1955.
ii. Affinity: A marriage with certain close relatives is also prohibited in Muslims due to not that of the father, hence the term- uterine brother)[5].
closeness of relationship. The prohibited relationship are as follows: Section 3(g) of HMA defines those relationships which fall within the prohibited degree of
Under the Shia law, the illegitimate child does not inherit even from the mother. In Shia law, relationships.
 His wife’s mother or Grand-mother (how high so ever),
illegitimacy acts as the factor for complete exclusion, and the illegitimate child is not allowed In the case of Shakuntala Devi v. Amar Nath, Punjab and Haryana High Court held that two
 His wife’s daughter or Grand-daughter (how low so ever),
to inherit from either of the parents. …contd… persons can marry within the prohibited relationship but there should be a proof of traditional,
 His father’s wife or paternal Grand-father’s wife (how high so ever), and
established and well-known custom which should be very old and beyond human memory.
 His son’s wife or son’s son’s wife or daughter’s son’s wife (how low so ever).
5. Avoidance of Sapinda relationship
A marriage with woman prohibited under affinity is void.
According to the Section 5(v) of HMA 'the parties are not Sapindas of each other unless the
iii. Fosterage: It refers to milk relationship. It is a condition when a lady other than the mother
custom or usage governing each of them permits of a marriage between the two'
of the wife, breastfed/ suckled the child under the age of two years, the lady turns to be
A marriage between those persons, who are having sapinda relationship with each other, is
foster-mother of the child. A man is restricted from marrying the persons who come under
prohibited unless there is a recognised custom or tradition which allows them to do so. Any marriage
foster relationship. The restrictions are as follows:
solemnized under violation of this condition would be resulted into a void marriage and under section
 His foster mother or foster grandmother (how high so ever), and
11 of the Act and violation of this clause would amount to simple imprisonment up to 1 month or a
 Daughter of foster mother (Foster sister).
fine of Rs. 1000/- or both under section 18(b) of the Act. ….contd……….
Under the Sunni law has a few exceptions with respect to prohibition on ground of fosterage
and the following Marriage is considered as valid:
 Sister’s foster mother, or
 Foster’s-sister’s mother, or
 Foster-son’s sister, or
 Page 24 Page 22 Page 20
Section 3(f) defines the Sapinda Relationship and according to this, it extends to the third Right to maintenance of illegitimate child The Shia jurists consider Consanguinity and fosterage at same footing and deny the exception
generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of Tyabgi says ‘Mohammadan law appears to impose no burden upon the natural father of allowed by Sunnis.
ascent through the father, the line being traced upwards in each case from the person concerned, who the child’[6]. Muslim laws, it seems, does not confer any kind obligation of maintenance of b. Relative Prohibition: Under Muslim law, certain prohibitions are relative and not absolute. If
is to be counted as the first generation. The person who is concerned is considered as the first illegitimate children on either parent, though the Hanafis recognize the obligation of nurture marriage takes place in violation of such prohibition, it is only irregular and it can’t be declared as
generation. a child till the age of seven; the Shias do not even recognize this obligation. void. The marriage becomes valid as soon as the irregularities are removed. Relative prohibitions
6. Marriage Ceremonies are as follows:
Under Muslim law, the father is not bound to maintain his illegitimate child, but
Section 7 of HMA states about necessary ceremonial rites, according to this the solemnization of a i. Unlawful Conjunction: A Muslim man is prohibited to marry two different women if they are
Hindu Marriage may be performed by all the ceremonies and rituals of both the parties or either of Section 125 of the Criminal Procedure Code, 1973, (which ensures that all such unfortunate related to each other by means of consanguinity, affinity or fosterage as if they would have
them and these rituals are mainly concerned with; invocation before the sacred fire and Saptapadi children are maintained by their fathers except a married daughter) however binds the father been of opposite sexes their marriage would have been void (batil). After the termination of
which means taking seven rounds around the fire with the partner in the North-East direction; after to pay for the maintenance of the child. The father would be held liable to pay a certain marriage/ death of his wife, marriage can take place with the other. Under Sunni law, Marriage
the completion of these rites the marriage becomes binding and complete for both the parties. amount even if the mother refuses to give up the illegitimate child to him. in violation of unlawful conjunction is irregular (fasid) and not void but under Shia law, a
7. Registration of Marriage Guardianship under Muslim Law marriage violating the rule of unlawful conjunction is void (batil).
Section 8 of this Act provides that the Hindu Marriage may be registered within 15 days of In the schools of both the Sunnis and the Shias, the father is recognized as guardian and ii. Polygamy: Muslim laws allow polygamy but it is restricted to a maximum of four wives. A
solemnization of marriage as the state government prescribes. Registration provides written proof of the mother in all Muslim schools of law is not recognized as a guardian, natural or otherwise, Muslim man can have four wives at a time, but if he marries the fifth one despite of having four
marriage. However, if such rules violated then the marriage will not be held void but the party can be even after the demise of the father. The father’s right of guardianship exists even when the wives, the marriage turns to be irregular and not void. The fifth marriage can be valid after
made liable to pay the fine. mother, or any other female, is entitled to the custody of the minor. The father has the death/ termination of marriage of one of the four wives. However, the Shia law considers
Legal Effects for Contravention of Essentials of Valid Marriage absolute right to control the education and religion of minor children. So long as the father is marriage with the fifth wife as void. In India, a Muslim marriage can’t have a second marriage
If there are any impediments (obstructions), then the parties cannot marry each other. If someone if his marriage is registered under The Special Marriage Act, 1954.
alive, he is the exclusive and supreme guardian of his minor children.
marries and there are any obstructions in the marriage process then it is not a valid marriage. iii. Absence of Proper Witness: Contracting of marriage must be done in the presence of proper
Impediments are divided into two types which are: absolute impediments and relative impediments.
In Muslim Law, an illegitimate child is considered as ‘a child of nobody. ‘The Father’s and competent witnesses. Under the Shia law, presence of witness is not essential and marriage
In absolute impediments, a fact that disqualifies a person from lawful marriage exists and the right of guardianship extends only to his minor legitimate children. He is not entitled to the without witnesses is considered as valid. Marriage is contracted by the parties themselves (if
marriage is void i.e an invalid marriage from the beginning. guardianship or the custody of his illegitimate minor children. The mother is also not a major) or by their guardians itself. Under Sunni law, presence of witness is essential else the
In relative impediments, an impediment that forbids marriage with a certain person exists and the natural guardian, even of her illegitimate minor children but she is entitled to their custody. marriage would be irregular. At least two male or one male and two female witnesses should be
marriage is voidable i.e one party can avoid the marriage. These impediments gave rise to the Adoption under Muslim Law present and the witness should be a major, of sound mind and a Muslim.
classification of marriage which are: Adoption is not permitted in the personal laws of Muslims in India, and hence they iv. Difference of religion: Under the Sunni law, a Muslim male is allowed to marry a female who
a. Void Marriages usually go for guardianship of a child through the Guardians and Wards Act, 1890. In shows respect for same scriptures, such as Christain, Parsi and Jews, but if he marries with an
b. Voidable Marriages Mohammed Allahabad Khan v. Mohammad Ismail it was held that there is nothing in the idol/ fire worshipper, the same is considered as irregular. A Muslim woman is not allowed to
Void marriages Mohammedan Law similar to adoption as recognized in the Hindu System. marry a non-Muslim man and if it happens, the same is considered as irregular. Under the Shia
A marriage is considered void under the Hindu Marriage Act if it doesn’t fulfil the following ‘Acknowledgement of Paternity’ under Muslim Law is the nearest approach to adoption. It is Law, a marriage with non-Muslim is considered as void. According to Fyzee, such marriage is
conditions of Section 5 of the Hindu Marriage Act: the principle which establishes legitimacy of the child. Where a Muslim acknowledges a void, but According to Mulla, such a marriage is irregular.
 Bigamy: If any of the parties have another spouse living at the time of marriage. It shall be v. Marriage during Iddat: It is referred to as a period of waiting after the death of her husband
child to be his legitimate child, the paternity of that child is established upon him. It cannot
considered as null and void. or after termination of marriage during which she cannot remarry. The purpose of the iddat is to
be availed of to legitimise a child known to be illegitimate. check whether the woman is pregnant or not to clear doubts of paternity of any child born. A
 Prohibited Degree: If the parties are within a prohibited relationship unless the customs allow it.
However recently, the Supreme Court in a landmark judgment extended the right of adoption divorced woman has to observe for a period of three months whereas a widow observes it for
 Sapindas: A marriage between the parties who are sapindas or in other words a marriage between
the parties who are of his or her relations or of the same family. to Muslims also. In the Case titled as Shabnam Hashmi v Union of India, (2014) 4 SCC 1, the four lunar months and ten days after the death of husband. If the woman is pregnant then if
Consequences of a Void Marriage Supreme Court declared that the right to adopt a child by a person as per the provisions of extends up to her delivery. Under Sunni law, marriage during iddat is considered as irregular
The consequences of void marriage are: Juvenile Justice Act would prevail over all personal laws and religious codes in the country. whereas, under Shia law, it is considered as void.
 The parties don’t have the position of husband and wife in a void marriage. c. Miscellaneous Prohibition:
 Childrens are called legitimate in a void marriage (Section 16 of Hindu Marriage Act, 1955). i. Marriage during pilgrimage is considered as void in Shia law.
 Mutual rights and obligations are not present in a void marriage. ii. Re-marriage between Divorced Couple: A certain procedure needs to be followed in which a
Voidable Marriages (Section 12) Muslim lady has to perform a valid marriage with another man. Then her husband needs to
A marriage is voidable on either side of the party is known as voidable marriage. It will be valid voluntarily divorce her. Then the lady needs to perform iddat. Now she can marry her previous
unless the petition for invalidating the marriage is made. This marriage is to be declared void by a husband. If this procedure is not followed the marriage is considered as irregular.
competent court under the Hindu Marriage Act, 1955. The parties of such marriage have to decide iii. Polyandry: It refers to a condition in which a woman can have more than one husband. It is not
whether they want to go with such marriage or make it invalid. permitted under Muslim law.
The grounds where marriage can be termed as voidable: 6. Registration: Registration of Marriage is not necessary according to Muslim Law. However, few
states like Assam, Punjab, Bengal, Bihar and Orissa have enacted laws for registration of Muslim
 The party to the marriage is not capable of giving consent due to the unsoundness of mind.
Marriage. The registration is not an essential part for a Valid Muslim marriage but it acts as an
 The party is suffering from mental disorder which makes her unfit for reproduction of children.
authentic proof. The apex court in the Case of Seema v. Ashwani Kumar[v], held that marriage of
 If the party has been suffering from repeated attacks of insanity. Indian citizens irrespective of their religion should be registered in their states where the marriage
 The consent of marriage by either of the parties is done by force or by fraud. has been solemnized. Also, in the case of M. Jainoon v. Amanullah Khan[vi], Madras High court
 If either of the parties are under-aged, bridegroom under 21 years of age and bride under 18 years observed that although registration of Marriage is not necessary, it cannot be said that registration
of age. of Marriage is prohibited under Muslim personal Law.
 If the respondent is pregnant with a child of someone other than the bridegroom while marrying. IRREGULAR MARRIAGE (FASID) VOID MARRIAGE (BATIL)
Necessary conditions to be fulfilled by a petition under Section 12 for nullity of a Voidable Marriage When a marriage is temporally outlawed but A void agreement is one between a potential
 On the plea of fraud or application of force on marriage, a petition can be filed before the court not necessarily restricted, it is considered bride and groom that does not satisfy all of
within one year of discovery of such fraud or application of force. irregular or fasid rather than void.An irregular the essential elements of a Muslim marriage,
 The allegation based upon which the petition is filed was beyond the knowledge of the petitioner marriage occurs when a marriage is and any marriage that occurs in pursuance of
at the time of solemnization of marriage. performed by breaching specific or partial a flawed agreement is considered a void
 The petition on such an allegation must be presented in the court within one year of knowledge of prerequisites of a legitimate marriage. marriage.
such facts. Wider in scope as compared to void marriage. Narrower in scope as compared to irregular
 No sexual relationship is established after knowing about alleged facts. marriage.
Legitimacy of Children under Void and Voidable Marriages Sunni law takes into account the existence of Shia law considers an irregular marriage to
 Legitimacy of children under void and voidable marriages are specified under Section 16 of Hindu an irregular marriage. Thus, the concept of be a void marriage. Thus, the concept of void
Marriage Act, 1955. irregular marriage is accepted and followed marriage is accepted and followed by Shia
 In a void marriage, any children born out shall be treated as legitimate. by Sunni Muslims. Muslims.
 In a voidable marriage, any child born of a marital relationship subsequently declared as nullity by The marriage with a woman who is If a man marries his own daughter, then that
court shall also be termed as legitimate. undergoing Iddat is an example of an irregular marriage is considered to be void.
 Even if the marriage under Section 11(void marriage) or Section 12 which is declared as null and marriage.
void, notwithstanding such circumstances the child born out of such marriage is held to be In case of irregular marriage, the children Children born from a void relationship are
legitimate. born will be deemed legitimate and will have deemed illegitimate and have no right to
 If prior to the marriage, the bride was pregnant and gave birth to the child after the marriage, such full inheritance rights. succession or inheritance.
a child cannot be treated as legitimate because that child was not born out of the marital Period of Iddat needs to be followed in case In case of void marriage, the period of Iddat
relationship of the present marriage and therefore, the child born after the marriage having been of irregular marriage. need not be followed.
conceived prior to the marriage is to be held illegitimate.
 Page 25
Q.12. What do you understands by BARS TO MATRIMONIAL RELIEF? Explain Page 27
these bars as provided under the Hindu Marriage Act, 1955. Q.13. Describe the NATURE of law relating to ADOPTION under the Hindu Adoption and Page 29
Ans: The guilt or fault theory of divorce establish dichotomy of guilt and innocence. Even Maintenance Act, 1956. Write and ACKNOWLEDGEMENT OF PATERNITY UNDER THE Q.14. What are the various GROUNDS available to HUSBAND for obtaining a decree
when the respondent is guilty of a matrimonial offence, the petitioner will not be granted MUSLIM LAW. of DIVORCE under the Hindu Marriage Act, 1955?
Ans: Adoption was considered as a sacramental act. There has been an acute controversy not only among
divorced if it established that he is not an innocent party or on his part he had done something Ans: Grounds of Divorce as per The Hindu Marriage Act
writers, but also among judges, whether in adoption the secular motive predominates. Some judges still insist
disentitling him from the relief. The burden to proof is on the petitioner. This aspect of fault that the object of adoption is twofold: to secure performance of one’s funeral rites and to preserve the Section 13(1) provides grounds on which divorce can be sought by either of the
theory is designated as “bars to matrimonial relief”. Some of the bars, such as collusion and continuance of one’s lineage. Under Hindu Adoption and Maintenance Act, there can be two types of adoption, partners in a marriage. After the amendment of 1976, grounds for divorce specified under
delay apply to all matrimonial relief”, while some apply only to divorce. Most of the bars are one purely secular, and the other the sacramental. All adoptions after 1956 are secular, and to be valid, must Section 13 of the Act and judicial separation under Section 10 are similar. The parties also
based on the maxim, “one who comes to equity must come with clean hands.” Thus, it has conform to the requirement of the Act. Adoption has a significant impact on a child’s right to information we have the option of judicial separation instead of divorce, where they can rethink their
have your consent. It is clear when the child was born. we cannot accept the consent of the child in infancy, but
been laid down that the petitioner cannot be allowed to take advantage connived at, the decision. The objective is to save the sacred institution of marriage and make efforts for
when the child is of such age he can also say that he wants the child to get involved.
offence of the respondent. The other bars are : condonation, uneasonble delay and collusion. Under this Act if adoption is made in consideration of some pecuniary benefit the adoption is valid. Both reconciliation. In the case of Ishwar Singh v. Smt. Hukam Kaur (1965), the Allahabad High
Under all the Indian personal laws (except Muslim matrimonial law) these bars have Hindu male and a female can make adoption and it is not necessary to enquire into the motive of adoption. Court held that if the husband permitted his wife to marry someone else of her choice
been enacted, though not uniformly. Not all bars apply to all the matrimonial causes. Section 7 states that a male Hindu who is willing to adopt a child must fulfil the following conditions- must because of his ill health, it does not amount to divorce because no such petition or application
The bars are almost the same under the Hindu Marriage Act, and the Special Marriage be sound mind and ‘all the condition of insanity including epilepsy, idiocy and lunacy will come under the had been filed in the court and so the second marriage solemnised is illegal as the first
unsoundness of mind’, must be major and has the ability to have a son or a daughter. The consent of wife is
Act. Under the Parsi Marriage and Divorce Act and the Indian Divorce Act, the main bars are marriage still subsists. It was also observed that a marriage subsists until a decree of divorce
necessary for the valid adoption ‘An adoption made without the consent of wife is void’. ‘In case he have more
the same but under the latter bars apply only to all the matrimonial relief of divorce. than one wife then consent of all wives is necessary’. has been passed by the court.
Under the Indian personal laws all bars are absolute bars; we have not adopted the Section 8 of the act states that a Hindu Female willing to adopt a child must: must attained the age of Further, in the case of Niru Sarmah v. Jatin Chandra Sarmah (2014), the Gauhati High
English law distinction between the absolute bars and discretionary bars – minority, must be of sound mind, be a widow Divorced, or Unmarried in order to adopt. Court observed that if a marriage is broken to the extent that it is irretrievable and there are
The bars to matrimonial relief are the follows: If the woman has converted to another religion or has renounced the world, consent is not required for no possibilities that the bond can be recovered and the marriage can be saved in near future,
adoption. But the presence of a living woman was a necessary requirement for Indian men to adopt children. If
1. Doctrine of strict proof decree of divorce can be passed by the court.
she has a husband who is alive, she will not have the capacity to adopt a child.
2. Taking advantage of one’s own wrong or disability The parents and guardian of the child can give them up for adoption as per sec.9According to act: The 1. Adultery
3. Accessory biological father of a child has the authority to give him up for adoption and the consent of the child’s biological The concept of Adultery may not be considered as an offence in many countries. But as
4. Connivance mother is necessary. In some circumstances a mother will have the right to give the child up for adoption if: per the Hindu Marriage Act, in the matrimonial offence, the adultery is considered as one of
5. Condonation The father is dead, if he is unsound mind, renounced the world; or he Converted to some other religion. the most important ground for seeking divorce. Adultery means the consensual and voluntary
Guardian right to give children – ‘Guardian include both de jure and de facto guardians. A manager,
6. Collusion intercourse between a married person with another person, married or unmarried, of the
secretary or any person in charge of an orphanage or a person who has brought up the child, or under whose
7. Delay and care the child is, can give the child in adoption If adoption is for the welfare of the child and no payment has opposite sex. Even the intercourse between the husband and his second wife i.e. if their
8. Any other legal ground. been made in any form in exchange for the child’. of the Hindu Adoption and Maintenance Act. marriage is considered under bigamy, the person is liable for the Adultery. The concept of
A decree passed in disregard of the Bars is a nullity. Under the Hindu law of adoption, only a Hindu can adopt a child if he/she abides by the essentials Adultery was inserted under the Hindu Marriage Act by the Marriage Laws Amendment Act,
Section 5 of the Hindu Marriage Act lays down the conditions for a valid marriage and the prescribed in Section 6 of the act: The adoptive parent/s have the capacity and rights to adopt. The person/s 1976.
giving up the child for adoption has the capacity to do so, person being adopted has the capacity to be taken in
contravention of each of the conditions results in different consequences. In Sachindranath Chatterjee vs Sm. Nilima Chatterjee case, the petitioner and the
adoption, adoption is made in according with the act. If these requirements are fulfilled, then adoption be valid.
Doctrine of Strict proof - Burden and standard of proof: The doctrine of strict proof is The Hindu Adoption and Maintenance Act prescribes a set of rules for a valid adoption, which must be defendant were married. After marriage, the husband leaves the wife in his home town so that
recognized in all matrimonial laws. In England, such has been the development in the law of complied with: she can complete her studies and go to another city for work. He visited twice or thrice a
divorce that though divorce proceedings are civil proceedings, the standard or proof is that of  Adoption of a son: A person has capacity to adopt, it is not necessary that he has also the right to make an month to meet her. Later he found that his wife commits the adultery i.e. to involve in sexual
the criminal law. In an ordinary civil case, three situations usually arise: adoption. The act states that if someone desires to adopt a son, they must not have a living son, grandson, or intercourse with his own nephew, watchman etc. The plaintiff approaches the court to
a. The defendant appears in the Courts and contests the claim of the plaintiff, even a great-grandson at the time of adoption. It is not valid whether the son is legitimate, illegitimate, or demand divorce on the ground of adultery and his petition was accepted and the marriage
adoptive.
b. the defendant, even after the service of the summons, does not appear before the  Adoption of a daughter: As same to the conditions of adopting a daughter –It spells that someone desire to
gets dissolved.
Court and therefore, proceeds in his absence, i.e. the case is heard ex parte or adopt a daughter must not have a hindu daughter or a son’s daughter. But if daughter or son’s daughter has Essentials of Adultery
c. the defendant puts up appearance in the Court and admits the claim of the ceased to be a Hindu, adoption of a daughter can be valid. These conditions were challenged in the case of  One of the spouses involved in the intercourse with another person, married or
plaintiff. Sandhya Supriya Kulkarni v. Union of India. unmarried, of the opposite sex.
Taking advantage of one’s own wrong or disability: This bar, which should or ordinarily  Adoption of a female child by a male: A Hindu male who wants to adopt a daughter must have the right to  Intercourse should be voluntary and consensual.
adopt a daughter as provided for in Section 7 of the Act and Section 11 (iii) must be at least 21 years older
apply to all matrimonial causes, has not been enacted in all the Indian personal laws. It has  At the time of the act, the marriage was subsisting.
than the girl to be adopted.
been enacted only in the Hindu Marriage Act. “Other statutes do not mention it. But it is  Adoption of a male child by a female: If a Hindu female who desire to adopt a boy, she must first meet the  There must be sufficient circumstantial evidence to prove the liability of another
submitted will be covered under the residuary clause which these statutes (except the Indian requirements set out in Section 8 of the Act and have the right to adopt a child. Also, she must be at least 21 spouse.
Divorce Act) contain viz. “there is no legal ground why relief should not be granted”. years older than the child she wishes to adopt. 2. Cruelty
Under the Hindu Marriage Age, the bar applies to all matrimonial cases, except to a petition  Two persons cannot adopt the same child: Here the person does not mean husband and wife, as in such case, The concept of cruelty includes mental as well as physical cruelty. The physical cruelty
for annulment of marriage on the ground of incapability to give consent. both adoptive parents of the child.
 Age difference between parent and child: If a Hindu desire to adopt a child of the opposite sex he/she must
means when one spouse beats or causes any bodily injury to the other spouse. But the
Accessory: “Accessory” is a bar only when petition is filed on the ground of respondent’s concept of mental cruelty was added as the spouse can also be mentally tortured by the other
be older to the child by at least 21 years.
adultery under the Hindu Marriage Act, the Special Marriage Act and the Indian Divorce Adoption will change a child’s life in many ways. Become part of a new family and will have property spouse. Mental Cruelty is lack of kindness which adversely affects the health of the person.
Act. Under the Parsi Marriage and Divorce Act, it is a general bar, in any suit for any rights. When a child is adopted, are considered the children of all adoptive parents. Adopting parents will have Well it is easy to determine the nature of physical cruelty but difficult to say about mental
matrimonial case the plaintiff has to show that he has not connived at or been accessory to all the rights and responsibilities and the child must have all the rights and responsibilities. However, there are cruelty. The following may be considered as Mental Cruelty against Husband by wife:
the said act or omission, constituting the ground for matrimonial relief. certain conditions that must be met after the child is adopted:
1. He should not have close contact with anyone from his biological family and should not marry anyone from  Humiliating the husband in front of his family and friends.
his birth family.  Undertaking the termination of pregnancy without husband consent.
2. If the child has property before he or she is adopted, they will continue to own it later. However, such  Making false allegation against him.
ownership may impose certain obligations on him and he must support all of these obligations, including his
 Denial for Martial Physical Relationship without a valid reason.
biological family if necessary.
3. An adopted child should not deprive any member of his or her family of ownership before he or she is  Wife having affair.
adopted.  Wife living an immoral life.
Section 15 of the law makes it clear that no parent can cancel the actual adoption or that the child has no  The constant demand for money.
right to refuse adoption and return to his or her biological family. Adoption cannot be abolished if a person
chooses to adopt and is properly executed. You cannot go back after you have been adopted properly. That is  Aggressive and uncontrollable behaviour of Wife.
the decent thing to do, and it should end there. Prohibition of payments.  Ill-treatment to the husband parents and family.
In Balram Prajapati vs Susheela Bai case, the petitioner filed the divorce petition against
Acknowledgement of Paternity under Muslim Law his wife on the ground of mental cruelty. He proved that his wife that behaviour with him and
Acknowledgement is the process of recognising a child legally, thereby creating legal rights. One of the
his parents was Aggressive and uncontrollable and many times she filed the false complaint
landmark cases that holds immense significance on the study of Acknowledgement of a child under Muslim law
is Muhammad Allahabad v. Muhammad Ismail, wherein it was held that adoption is not recognised in Islam. against her husband. The court accepts the petition and grants the divorce on the ground of
The case is validated by the Privy Council and relied upon by Indian Courts. …..contd….. cruelty.
3. Desertion
Desertion means the permanent abandonment of one spouse by the other spouse without
any reasonable justification and without his consent. In General, the rejection of the
obligations of marriage by one party.
Before the 1976 Amendment, desertion was only a ground for judicial separation and not
divorce. But now, desertion of any of the spouses by the other for a continuous period of two
years immediately before filing the petition is a valid ground to seek …contd.
 Page 30 Page 28
divorce as well as judicial separation. Desertion as the ground of divorce is mentioned under Adoption is not recognised under the Mahomedan law and acknowledgement is the closest to the concept of Page 26
Section 13(1)(i)(ib) of the Act. adoption. Paternity, by a common general practice is established by way of marriage but in cases where the Connivance: Under the Hindu Marriage Act, Special Marriage Act and the Indian Divorce
paternity of a child is not feasible to be proven by way of a wedlock entered into, by the parents, Mahomedan
Essentials of Desertion: Law recognises acknowledgement as a valid method to establish the marriage and a legitimate descent for the Act, connivance is a bar to the matrimonial offence of the adultery alone. On the other hand,
 Permanent abandonment of the other spouse. motive of inheritance. under the Parsi Marriage and Divorce is a general bar.
 Rejection of the obligation of marriage. Limits To This Doctrine The word “connivance” has been derived from “connive’ which means “to blink at”.
 Without any reasonable justification. Certain conditions that hinder the applicability of this doctrine to a case are: “Accessory” and “Connivance” are of the same quality. The distinction between the two is
 If an association validated by the law is not possible between the parents of a child. that in the former there is an active participation by the petitioner in the guilt of the
 No consent of another spouse.  If the marriage between the parents is disproved.
4. Conversion respondent while in the latter there is no such participation. In “connivance” there is corrupt
In other words, this rule can be applicable to a case where the marriage between the parents is not
If one of the spouses converts his religion to any other religion without the consent of the proven, but not if it is explicitly disproved. There is a significant line of distinction between the two. intention but not active corruption. To constitute connivance consent, express or implied, is
other spouse, then the other spouse can approach the court and seek the remedy of divorce. Basically, the rule can be substantiated to hold relevance in a case of uncertainty. necessary. If the petition ‘expressly consents, expressly or by implication, that she would like
5. Unsoundness of mind Who is Competent to Acknowledge? to make money by illicit intercourse, and the petitioner agree with the proposal, he is guilty
Any person who is of sane mind, has reached the age of majority as per the law and is not prohibited under of connivance, though actively he had nothing.
Insanity means when the person is of unsound mind. Insanity as a ground of divorce law to enter into such a contract can acknowledge a child. If the person acknowledging a child is either dumb or
has the following two requirement: Condonation: Under the Hindu Marriage Act and the Special Marriage Act, condonation
deaf, it can do the same in sign language. In the case of acknowledgement of twins, the process to acknowledge
 The respondent has been incurably of unsound mind. one will be parallel to acknowledge both because both the twins have stemmed from the same source. applies to the matrimonial offences of adultery and cruelty. Under the Indian Divorce Act,
 The respondent has been suffering continuously or intermittently from mental Acknowledgement by its nature is an irrevocable process. condonation applies only to adultery. Under the Parsi Marriage Act condonation is a general
disorder of such a kind and to such an extent that the petitioner cannot reasonably be Conditions of a Valid Acknowledgement bar and applies to al the matrimonial offences.
The conditions that must be fulfilled to validate an acknowledgement are: Condonation has not been defined statutory, though the Indian Divorce Act lays down that
expected to live with the respondent.  The persons must be capable of contracting.
If one of the parties, i.e., either husband or wife, is of unsound mind, then it is a valid “no adultery shall be deemed to have been condoned within the meaning of this act unless
 The acknowledgement must mean to accept the other not only as his son, but his legitimate son.
ground for divorce. It is given under Section 13(1)(iii) of the Act. The unsoundness may be where conjugal cohabitation has been resumed or continued. It seems that the following is a
 The ages of the parties must be such as to admit of the acknowledger being the father and the person
continuous or intermittent and incurable to the extent that it is not possible for the petitioner acknowledged. The minimum age difference between the two parties must be twelve and a half years. good definition of condonation.
to continue married life with the respondent. This was also mentioned in the Amendment Act (Baillie, 411). Condonation is the reinstatement of a spouse who has committed a matrimonial offence in
of 1976.  The child being acknowledged should not be born of zina, i.e. adultery, incest or fornication. The case of a his or her former matrimonial position in the knowledge of all the material facts of that
6. Leprosy
disproved marriage would be the issue of fornication. offence with intention of remitting it. That is to say, with the intention of not enforcing the
 The person acknowledged must not be the child of another man. rights which accrue to the wronged spouse in consequence of the offence.
Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this  The acknowledgement should be accepted by the person being acknowledged.
disease is transmitted from one person to another. Thus it is considered as the valid ground Collusion: Collusion is an agreement, arrangement or understanding, express or implied
 Once acknowledgment is made, it cannot be revoked.
for divorce. between the parties or the agents whereby matrimonial relief is sought to be obtained by
 Acknowledgement may be expressed or implied.
In Swarajya Lakshmi vs G. G. Padma Rao, the husband filed the case for granting the Acknowledgement by a Mother deceiving the Court by misrepresentation, exaggeration or suppression of fact or by
divorce on the ground of leprosy. He claimed that his wife is suffering from incurable leprosy If a woman acknowledges a child, it does not hold any value if her husband does not validate the same. In fabricating evidence where in fact no ground or sufficient ground exists for the matrimonial
with the expert’s reports. Here he succeeds in getting the divorce on the ground of leprosy.
other words, acknowledgement by a mother is subject to the discretion of her husband. This rule holds value, relief sought. In a case under the Indian Divorce Act, “Collusion” was defined or a secret
regardless of the fact that the child is a boy or a girl. understanding by which parties who are jointly furthering a common purpose, assume the
7. Venereal Disease Rights Created by Acknowledgement:
Under this concept, if the disease is in communicable form and it can be transmitted to semblance of hostility.
Once a valid acknowledgement is done, there are certain rights that it creates, for the child, the father, as well as
the other spouse, then this can be considered as the valid ground for divorce. the mother. The rights thus created are discussed herein, The burden of proof that the petition has not been prosecuted in collusion with the spouse is
8. Renunciation a. For The Child: on the petitioner. It is also the duty of the Court to satisfy itself that there is no collusion
It means when one of the spouses decides to renunciate the world and walk on the path of  Identity of both the parents is known on legal records. between the parties.
 Rights of inheritance. Originally under the Hindu Marriage Act and the Special Marriage Act, collusion was a bar
the God, then the other spouse can approach the court and demand the divorce. In this  Social Security.
concept the party who renunciates the world is considered as civilly dead. It is a typical to all matrimonial reliefs, but the Marriage Laws (Amendment) Act has abolished collusion
b. For The Father:
Hindu practice and is considered as a valid ground for divorce. on a bar to the petition for a declaration that a marriage is null and void under the Special
 Parental rights get recognition in law.
9. Presumption of Death  Custody of the child.
Marriage Act, but curiously, such amendment has not been made under the Special Marriage
In this case, the person is presumed to have died, if the family or the friends of that person  Right to address adoption proceedings, if any. Act. It may be interesting to note that the English statute, nullity of Marriage Act, 1971 has
does not hear any news about the person alive or dead for seven years. It is considered as the Acknowledgement and Burden of Proof abolished collusion as a bar to relief in nullity cases. Collusion is also a bar to all matrimonial
valid ground for divorce, but the burden of proof is on the person who demands the divorce. When a marriage between two persons takes place under the Mahomedan law, it may have been constituted reliefs under the Parsi Marriage and Divorce Act, 1936. Under the Indian Divorce Act,
in the absence of any ceremony and direct proof of marriage is not always available. In the absence of direct collusion is a bar to relief of dissolution of marriage.
10. Concept of Divorce with Mutual Consent proof, an indirect proof can be considered good to validate a marriage. Acknowledging a child can be regarded
As per Section 13B, the person can file the petition for divorce by mutual consent of both Delay: Improper or unnecessary delay is a bar to relief in respect of all matrimonial causes
as one of the proofs of a valid marriage, as mentioned above. Such an acknowledgement should not be
the parties. If the parties want to dissolve their marriage as a mutual consent are required to impossible to prove to be true. under the Hindu Marriage Act, the Special Marriage Act and the Parsi Marriage Act and
wait for one year from date of marriage. They have to show that they are living separately for In that case, a wife and a son can unjustly avail from that if there is no contradictory proof. When a good Divorce Act. Under the Indian Divorce Act unreasonable delay is a bar only to the
one or more year and not able to live with one another. acknowledgement takes place, the marriage will be considered valid and the acknowledgement of the child matrimonial relief of divorce.
legitimate unless the marriage is disproved. Residuary clause, other legal grounds: Under the Hindu Marriage Act, the Special
The Section also provides that when the petition has been filed, parties would have to wait Until claimant establishes his acknowledgement, the burden of proof lies on him to prove a marriage. Once
for six months, after which they can bring the motion again in the court for dissolution of Marriage Act and Parsi Marriage Act and Divorce Act, there is residuary clause which lays
he establishes an acknowledgement, the onus is on those who deny a marriage to negative in fact.
marriage. If the parties do not come to court after six months and within eighteen months Legal Aspects of an Acknowledgement down there should be no other legal ground for referring the petition. This is a general bar
from the date the petition was filed, it would be presumed that they have withdrawn the Once a valid acknowledgement of a child takes place and it is proved to be legitimate, there are certain applicable to all matrimonial remedies. There is no such clause under the Indian Divorce Act.
effects of that acknowledgement in the sphere of law. The outcome of a valid acknowledgement is valid on the
petition. If the petition is not withdrawn, the court would hear the parties and after necessary condition that the legitimacy is also valid. If in future the acknowledgement is declared invalid and the child is
inquiry presume that the averments made are true and pass a decree of divorce. rendered illegitimate the legal aspect of such an acknowledgement does not exist anymore.
Essentials of Divorce with Mutual Consent As per the Mahomedan Law, a child can be considered as a legitimate child if either of the two conditions
The ingredients, or essential conditions, to seek divorce by mutual consent are: are fulfilled. One, when a child is born as an outcome of a valid marriage and the birth does not take place in the
 The petition must be filed jointly by the husband and wife. prohibited period defined differently in different schools of Islamic law. In such a case, a formal
acknowledgement is not required and the other is when the paternity of a child is not established so the father
 They must be living separately for a year or more. can acknowledge a child in compliance with the conditions of a valid acknowledgement mentioned above. This
 They have mutually agreed to bring their married life to an end. doctrine holds validity for both, daughters as well as sons.
 There is no possibility of resuming married life. If a child is born out of a wedlock, or in other words, if the issue is raised through ziha, even if the biological
parents to that child marry in the future, the child cannot be said to be legitimised even if the father decided to
11. Failure to obey decree of restitution of conjugal rights
acknowledge it. The acknowledgement by a mother is valid, in Hanafi school of law but holds less significance.
Another ground of divorce is the failure of the parties to a marriage to comply with the If a child is acknowledged by way of acknowledging the mother of that child, she must be acknowledged by the
decree of restitution of conjugal rights. If such a decree has been passed by the court but the husband or his heirs. An acknowledgement can be said to be implied by conduct; mere expression of
husband and wife failed to comply with it within one year from the date the decree was acknowledgement is not an essential prerequisite to legitimise a child.
passed then they can seek divorce. This is given under Section 13(1A)(ii) of the Act. A valid acknowledgement, once ultimate cannot be revoked by the person acknowledging. Once the child
has been legitimised, he can inherit the father's property and can also demand maintenance. Apart from the
rights that the child gets after being validly acknowledge, the status of the mother of that child is also
legitimised and she gains the status of the wife of the father of the child acknowledged.
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Q.15 Define MAINTENANCE. Write the legal provisions of maintenance of a HINDU Q.17 Who is CERTIFICATE GUARDIAN? Who can be appointed as a certificate Q.19. Who are TESTAMENTARY GUARDIANS? Who can appoint them under the
WIFE under the Hindu Adoption and Maintenance Act, 1956. guardian under the Hindu Minority and Guardianship Act, 1956? What considerations Hindu Minority and Guardianship Act, 1956? Can a non-Hindu be appointed as a
Ans: According to S.3(b) of HAMA, “maintenance” includes – should be taken into account while appointing a certificate guardian? testamentary guardian for a Hindu M…under this Act?
a. in all cases, provision for food, clothing, residents, education and medical attendance and Ans: The courts are empowered to appoint guardians under the Guardians and Wards Act, Ans: Testamentary Guardian is a guardian who is appointed by way of will. It is done to
treatment; 1890. The High Courts also have inherent jurisdiction to appoint guardians but this power is ensure that the child will have a guardian even after the death of the natural guardian who
b. in the case of an unmarried daughter also the reasonable expenses of and incident to her exercised in a limited manner. The Hindu Minority and Guardianship Act is supplementary may require supervision over themselves or their estate. A testamentary guardian cannot act
marriage; to Guardians and Wards Act. Under the Guardians and Wards Act, 1890, the jurisdiction is as a guardian if the natural guardians are alive.
Section 3(b) provides an inclusive definition of the term “maintenance”. A plain reading conferred on the District Court: The District Court may appoint any person as the guardian During the British period, testamentary powers were conferred upon the Hindus and then,
of the sub-section shows that maintenance does not mean things to bare subsistence rather it whenever it finds that it is necessary for the welfare of the child. While appointing, court take this was a way for a father to exclude the mother of her right of being the natural guardian of
includes minimum things or essentials for a decent and comfortable life. In Gurupadaya V. into consideration various factors like age of child, sex, parent’s wish, and personal law of the child.
Ashalata, Court held that question of adequancy is not be tested by the fact that they were not child. The welfare of the child is of paramount consideration. The District Court has the After the enactment of Hindu Minorities and Guardianship Act of 1956, it is clear that natural
subjected to abject starvation but the same has to be tested by the standard reflected in the power to appoint or declare a guardian in respect of the person as well as separate property of guardians will have the preference over any other guardian. If the father appoints a
definition of ‘maintenance’. the minor or for both. This power extends to the undivided interest of a coparcener. The Testamentary guardian and mother outlives him, she will be the natural guardian. The
Maintenance of Wife : Section 18 provides the right of maintenance to a Hindu wife. The guardian appointed by the court is known as a certificated guardian. testamentary guardian can only exercise his rights and power after the passing of the mother.
section has a retrospective effect and therefore right to maintenance is available to a wife, In Mohini v. Virendra, the court held that while appointing or declaring a person as the Who may appoint a Testamentary Guardian?
whether married before or after the commencement of HAMA. Divorced wife is entitled to guardian of the minor, welfare of the minor shall be the paramount consideration. Following persons have the power and authority to appoint a Testamentary Guardian:
claim maintenance under Section 18 of HAMA. In Suresh Khullar V. Vijay Khullar, the In Bimla v. Subhash, court held that under the guardian and ward act, 1890,the 1. A Hindu Father, either natural or adoptive
Court held that second wife is not entitled to file maintenance application under Section 18, jurisdiction of appointing guardian is conferred on the District court. The court may appoint 2. A Hindu Mother, either Natural or Adoptive.
HAMA as she is not a Hindu ‘wife’. or declare any person as the guardian whenever it considers it necessary in the welfare of the 3. A Hindu Widowed Mother, either natural or adoptive.
In patrilineal families, maintaining the household is primarily the wife's domain. Under child. Powers of Testamentary Guardian
modern Hindu law, a wife still depends on her husband to support her financially. Most Who can be Appointed as Certificate Guardian Section 9 of the Hindu Minorities and Guardianship Act of 1956 states about Testamentary
systems of law recognize that there is a direct obligation of the husband to maintain his wife Such a person can apply for appointment as guardian: guardian and its powers.
properly during marriage and that applies even after the marriage has been dissolved by 1. Any person who is desirous of being or claiming to be the guardian of the minor, or Section 9 (1) states that a Hindu father, who is the natural guardian of a minor legitimate
divorce. 2. Any relative or friend of the minor, or child, has the authority and power to appoint any person to be the guardian of that child by
Thus, a wife is entitled to maintenance in the following three cases: 3. The collector of the district or other local area in which including it into his will. He will be the guardian to take care of the person and his/her
1. When the wife lives with her husband a. the minor ordinarily resides, property.
2. When the wife lives separately from her husband b. the minor hods property, or Will the appointment made by Father prevail over appointment made by Mother
3. When the wife lives separately under the decision of the court (judicial separation) or 4. if the minor belongs to a class, the collector who has authority with respect to that As mentioned in Section 9 (2), if the mother appoints any Testamentary guardian in her will,
when the marriage is dissolved class. the appointment made by Father will be rendered ineffective. The Testamentary guardian
Section 18(1): When the wife lives with her husband. Matters to be Considered by the Court appointed by Mother will have a preference. But if Mother fails to mention anyone in her
Under this sub-section, the husband is obligated to maintain his wife during her lifetime. It is Section 17 of the Guardian and Wards Act, 1890 deals with the matter to be considered by will, the Testamentary Guardian appointed by father will become the guardian.
the husband's personal obligation to maintain his wife which begins with the marriage and court while appointing the guardian: In case of a minor legitimate child, Section 9 (3) states that a Hindu Widow and a Hindu
continues throughout the marital relationship. It is the imperative duty of the husband to 1. In appointing or declaring the guardian of a minor, the Court shall, subject to the Mother both can appoint a guardian by will to manage the child and his property. Provided
maintain a wife who resides with him. The husband's obligation of maintenance comes to an provision of this section, be guided by what, consistently with the law to which the that the Father of the child is legally disqualified to be the natural guardian.
end only when she leaves him without any justifiable cause or his consent. minor is subject, appears in the circumstances to be for the welfare of the minor. Section 9 (4) states that a Hindu Mother, who is entitled to be the natural guardian, can by
Section 18(2): When the wife lives separately from her husband 2. In considering what will be for the welfare of the minor, the Court shall have regard will appoint a testamentary guardian for any minor illegitimate child to take care of him and
Under this sub-section, a wife who lives separately from her husband with a justifiable cause to the age, sex and religion of the minor, the character and capacity of the proposed his property.
or his consent is entitled to maintenance. It provides a list of grounds stating when a wife can guardian and his nearness of kin to the minor, the wishes, if any, of a deceased Who is disqualified from becoming a testamentary guardian?
live separately and still claim maintenance from her husband which includes desertion, parent, and any existing or previous relations of the proposed guardian with the In the case of Smt. Vinod Kumari v. Smt. Draupadi Devi, Hindu female approached the court
cruelty, leprosy, another wife is living, keeps a concubine, conversion and any other minor or his property. for the guardianship of two of her sons. One was born out of her wedlock with the deceased
justifiable cause. 3. If minor is old enough to form an intelligent preference, the Court may consider that husband and one was born to her husband in another wedlock. It was considered by the court
Quantum of Maintenance: The Hindu Adoptions and Maintenance Act, 1956, provides preference. that she is the step-mother of the one born out of the previous wedlock and hence court held
certain considerations which the court will take into account while fixing the amount of 4. The Court shall not appoint or declare any person to be a guardian against his will. that a step-mother can never be a testamentary guardian and in this case, the grandmother
maintenance. Section 23(1) lays down that there is no fixed amount for maintenance that was made the testamentary guardian of the step-son.
shall be paid and it is to be determined, after considering the facts and circumstances of the Does testamentary guardian have the same powers as a natural guardian
case, by the Court. Section 23(2) of the Act states that while awarding maintenance to the According to Section 9 (5), a Testamentary guardian has the same powers as the natural
wife, the court must do so after considering the following factors: guardian and can exercise all the powers that were vested in the Natural Guardian. Only
1. Position and status of parties: The phrase 'position and status of parties' is used in a restrictions on his exercise of power will be derived from the will made by the natural
wider context here. It will include the financial position and social status of the parties. In guardian and by what is prescribed in the Act. Although it is to be noticed that the powers of
all the cases, the court must evaluate the income of the parties and the standard of living to Testamentary Guardian are not more than that of a Natural Guardian.
which they were used to. Guardianship of a minor girl will end on the marriage of the girl as the natural guardian of
2. Reasonable wants of the claimant: The wants of the claimant should be reasonable and the girl will be the Husband after the marriage. This is mentioned in Section 9 (6) of the
should be according to the standard necessities of their life. In Kiran Bala Saha v Bankim Hindu Minorities and Guardianship Act, 1956.
Chandra Saha, the wife claimed Rs. 200/month as the amount of maintenance. The court Can a Testamentary Guardian alienate a minor’s property?
after examining the reasonable wants of the wife for food, clothing, residence, and Testamentary Guardian can alienate any minor’s property that is for the benefit of the minor.
medical care decided that Rs.75 per month will be a sufficient amount for the satisfaction But, Testamentary Guardian has to seek the permission of the court before doing so. Court
of her wants. will inquire whether the alienation is for the welfare of the minor or not. He can only do so if
3. Claimant living separately: The wife is entitled to maintenance even if she is living there is a situation where the property had to be sold.
separately but the essential condition is that she should be justified in doing so. In Kiran
Bala Saha v. Bankim Chandra Saha, the court said that wife was living separately from
her husband as the latter had another wife living with him. Under such circumstances, she
is entitled to live separately without forfeiting her claim of maintenance.
4. Value of the claimant's property and separate earnings of the claimant: The court,
while fixing the amount of maintenance, shall consider the value of the claimant's property
or any income derived from such property. It will also take into account the separate
earnings of the claimant.
5. Number of persons entitled to be maintained: In fixing the amount of maintenance, the
court has to take into consideration the number of persons who are entitled to be
maintained by the non-claimant.
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Q.20. What are the REQUISITES of a VALID MARRIAGE under the Muslim Law? Q.18. Analyse the right of MAINTENANCE of a divorced MUSLIM WIFE under the Q.16. Guardianship
Ans: Muslims have, from the very beginning regarded their marriage as a contract. Muslim Woman (Protection of rights on Divorce) Act, 1986. Ans: The Hindu Minority and Guardianship Act, 1956 contains 13 sections. This act of 1956
Muslim marriage has been defined as a contract legalising sexual intercourse and progression Ans: Section-3, 4 & 5 of The Muslim Women (Protection of Rights on Divorce) Act, 1986, was established to empower Guardian & Wards Act, 1890 and provides better right and
of children. It is not a sacramental but a contract, though solemnised generally with recitation deal with the captioned subject as to how to secure maintenance for the Muslim wife & protection to children instead of acting as a replacement of already prevalent act. This act
of certain verses from the Quran. Muslim marriage does not prescribe any religious service children through the Court of law. The gist of these provisions of law is as follows: includes both adopted son & daughter within the scope of natural guardianship. Before
essential for its solemnisation. The only essential requirement form is that a contract of Mahr or other properties of Muslim woman to be given to her at the time of divorce: commencement of this act, the adoption was allowed only under custom not under qualified
marriage must come into existence. A divorced woman shall be entitled to- law.
In other words of Chacht, this contract is the only legally relevant act in concluding 1. a reasonable and fair provision and maintenance to be made and paid to her within the iddat period 1. Natural Guardian: Section 6 of India’s Hindu Minority and Guardianship Act,
marriage, privacy (KHALWA) between husband and wife and consummation (DUKHUL) by her former husband; 1956 provides that the natural guardian of a Hindu minor boy or unmarried girl is
are facts which may have legal effects when the marriage is dissolved, but are not essential 2. where she herself maintains the children born to her before or after her divorce, a reasonable and the father, and only after him, the mother. It also provides that the guardian of a
for its conclusion. fair provision and maintenance to be made and paid by her former husband for a period of two married minor girl is her husband.
All that is necessary for the conclusion of a Muslim marriage is that there should be a years from the respective dates of birth of such children; With respect to the law on guardianship, the Hindus are governed by the Hindu
3. an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage
proposal (IJAB) of marriage made by one or on behalf of, one of the parties and acceptance Minority and Guardianship Act, 19563 (hereinafter referred to as “the 1956 Act”).
or at any time thereafter according to Muslim law; and
(QUBUL) by or on behalf of the other at one and the same meeting. If the proposal is made 4. all the properties given to her before or at the time of marriage or after her marriage by her Under the Act, a guardian is someone who looks after the person, or property, or
at one meeting and is accepted at another then, it does not result in a valid marriage. relatives or friends or the husband or any relatives of the husband or his friends. both of a minor (a person below eighteen years of age) and the natural guardian of a
Among the Sunis the proposals and acceptance should be made in the presence and Where a reasonable and fair provision and maintenance or the amount of mahr or dower minor is the father and after him, the mother. This provision has been reinterpreted
hearing of two adult male witnesses (or one male and two female witnesses). The Sias do not due has not been made or paid or the properties have not been delivered to a divorced woman to reflect changes in the law’s functioning and the same will be discussed later in the
insist on the presence of witnesses. on her divorce, she or any one duly authorised by her may, on her behalf, make an paper. The father is the natural guardian of an adopted son and after him the mother.
Muslim law does not prescribe any specific words to be uttered on the occasion though application to the Magistrate for an order for payment of such provision and maintenance, The mother has guardianship rights over her illegitimate child and after her it is the
the words used in the proposal and the acceptance must clearly and unequivocally convey the mahr or dower or the delivery of properties, as the case may be. father. Therefore, for a legitimate child and an adopted son, the father is the natural
instruction to be married. The Rudd-ul-Muhtar says that marriage does not depend on the use Where an application has been made by a divorced woman, the Magistrate may, if he is guardian and for an illegitimate child it is the mother. As a natural guardian under
of any express terms so long as the purpose is distinctly understood. The usual (though not satisfied that – the Hindu law, the father, or the mother exercise the power to do all acts which are
prescribe) form is: “I have married myself to you”, and the other says “I ……. have 1. her husband having sufficient means, has failed or neglected to make or pay her within the iddat advantageous for the minor and necessary for the protection or benefit of the
consented myself to you”. When the proposal is made by the bridegroom to the father of the period a reasonable and fair provision and maintenance for her and the children; or minor’s estate, provided that they take permission from the court before mortgaging,
bride, the usual form is: the bridegroom addresses the father of bride thus: “Marry your 2. the amount equal to the sum of mahr or dower has not been paid or that the properties have not charging, transferring, selling, gifting, exchanging, or otherwise any part of the
daughter to me” and the bride’s father reply “I have consented.” The Ithana Ashari Law been delivered to her, make an order, within one month of the date of filing of the application, immovable property of the minor.
requires the use of the following Arabic words: ‘Tawiz’ or ‘Nikah’. But, even if proper words directing her former husband to pay such reasonable and fair provision and maintenance to the Under the Muslim customary law too, the natural guardian of a minor is the father,
are not used, consummation on marriage cures the deficiency and all incidents of a valid divorced woman as he may determine as fit and proper having regard to the needs of the divorced and the mother only has rights to custody of the minor till they attain a certain age.
marriage flow from it. If parties are unable to utter the Arabic words, the equivalent words in woman, the standard of life enjoyed by her during her marriage and the means of her former During the lifetime of the father and even after his death, for both legitimate and
the language they understand may be spoken. The Hanifi law requires that the contract of husband or, as the case may be for the payment of such mahr or dower or the delivery of such to illegitimate children, it is only the male relatives on the paternal side that enjoy the
the divorced woman :
marriage must be expressed in words implying sale bay) or gift (hiba) or transfer of rights of natural guardianship. Mother only enjoys custody over the illegitimate
If any person against whom an order has been made fails without sufficient cause to
ownership (Tamlik) or any other expression is implying permanent union. Use of words children. The father has exclusive powers to make decisions regarding the person,
comply with the order, the Magistrate may issue a warrant for levying the amount of
implying higher or pledge is not proper. property, or marriage of the minor and can take any decision on their behalf which
maintenance or mahr or dower due in the manner provided for levying fines under the Code
Ordinarily, in Indian marriage among all sects are solemnised by a person convergent are beneficial to the minor’s person or estate.
of Criminal Procedure, and may sentence such person, for the whole or part of any amount
with the requirements of law who is designated for the occasion by the Kazi or Mulla. Two 2. Testamentary: Before the statutory recognition of will by the Hindu Wills Act,
remaining unpaid after the execution of the warrant, to imprisonment for a term which may
other persons formally appointed for the purpose, act on behalf of the contracting parties with 1870, Wills were practically unknown to Hindus. But the father’s power of
extend to one year or until payment if sooner made, subject to such person being heard in
certain member of witnesses and the terms are usually embodied in a deed of marriage called appointing the testamentary guardian was recognized and he could even exclude the
defence and the said sentence being imposed according to the provisions of the said Code.
Kabil Namah. In the deed of marriage all the conditions of marriage such as the amount of mother from the guardianship. [Case law: Jagannath Vs Ramayamva
Order for payment of maintenance
dower, mode of its payment, questions relating to custody of children or any other conditions AIR/92/Mad,32.
Where a Magistrate is satisfied that a divorced woman has not re-married and is not able
which the contracting party desire to lay down are incorporated. In India, ordinarily and 3. De-facto Guardian: When a minor has no legal guardian or legal guardian is absent
to maintain herself after the iddat period, he may make an order directing such of her
usually, Muslim marriages are celebrated at the bride’s father or guardian’s residence in the or is not discharging his responsibilities as a guardian, a stranger or near relatives
relatives as would be entitled to inherit her property on her death according to Muslim law to
presence of agents (vakils) and guests some of which acts as witnesses. It is also usual that takes up responsibilities of taking care of the minor state.
pay such reasonable and fair maintenance to her as he may determine fit and proper, having
kazi or mullah is present on the occasion that recites certain Quran verse and confers The property of Hindu Minor referred to Section 11 includes all his properties
regard to the needs of the divorced woman, the standard of life enjoyed by her during her
benediction on the parties. including his undivided interest in the joint family property. [Case law the Federal
marriage and the means of such relatives and such maintenance shall be payable by such
Thus, the offer and the acceptance of the offer in one and the same meeting are the only Court on Sriramulu v. Pundarikakshayya, AIR 1949 FC 218 (221), para. 13.
relatives in the proportions in which they would inherit her property and at such period as he
essential element of formality of marriage. It may be oral or it may be in writing. But Muslim AIR/1949/FC/218] : "There can only be a de facto manager, although the expression
may specify in his order.
law does not insist on any type of writing or any religious ceremony. Even mullah is not 'de facto guardian' has been used in text books and some judgments of Courts. If that
Where a divorced woman is unable to maintain herself and she has no relatives or such
needed nor is the presence of kazi mandatory. description is adopted (and I consider it to be the correct description of a person
relatives or any one of them have not enough means to pay the maintenance ordered by the generally managing the estate of a minor without having any legal title to do so) the
Magistrate or the other relatives, have not the means to pay the share of those relatives whose powers of a natural guardian are not brought into consideration in defining the
shares have been ordered by the Magistrate to be paid by such, other relatives , the position of such a manager."
Magistrate may, by order, direct the State Wakf Board established under section 9 of the Section 11 of the Act provides that after the commencement of … no person is
Wakf Act, 1954 or under any other law for the time being in force in a State, functioning in entitled of disposed of..”
the area in which the woman resides, to pay such maintenance as, determined by him, as the Mother as Natural Guardian is not a de-facto guardian. [Case law: Madhegowda vs
case may be, to pay the shares of such of the relatives who are unable to pay, at such periods Ankegowda AIR/2002/SC/215.
as he may specify in his order.
Option to be governed by the provisions of section 125 to 128 of Code of Criminal Procedure,
1973
If on the date of the first hearing of the application, a divorced woman and her former husband
declare, by affidavit or any other declaration in writing in such form as may be prescribed, either
jointly or separately, that they would prefer to be governed by the provisions of sections 125 to 128 of
the Code of Criminal Procedure, 1973, and file such affidavit or declaration in the court hearing the
application, the Magistrate shall dispose of such application accordingly.
Amount of maintenance
The amount of the maintenance shall be purely the discretion of the Court. In determining the
amount of the maintenance the court shall have due regard to the following considerations, namely,
1. the position and status of the parties;
2. the reasonable wants of the claimant;
3. if the claimant is living separately, whether the claimant is justified in doing so;
4. the value of the claimant’s property and any income derived from such property, or from the
claimant’s own earnings or from any other source;
Any other relevant fact and circumstance.
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Q.21. Who can ADOPT A CHILD under the Hindu Adoption and Maintenance Act, Q.22. Define MAINTENANCE. Discuss the provision for maintenance of Muslim Q.23. Who can PRONOUNCE talak? Discuss the KINDS OF TALAK.
1956? Write the legal position of an adopted child in his adoptive and natural families. children and parents under Muslim law. Ans: Talaq is an Arabic word and its literal meaning is to release’, Under Muslim law, Talaq
Ans: Adoption is a mode of taking up of a child by a person as his daughter or son, who is Ans: In Arabic, the word “maintenance” is equal to the word “Nafaqah”, which literally means repudiation of marriage by the husband. In Pre-Islamic Arabia, divorce was used as an
not or her daughter or son as a fact. On adoption, such a child is de-rooted from his natural means ‘an amount spent by a person over his family’. According to many Muslim legal instrument of torture. The power of divorce possessed by the husband was unlimited. Such
family and thus all his or her ties to the natural family are severed. The adopted child is scholars, maintenance include all those things which are essential to lead a life such as food, social and moral ills and injustices engaged the attention of Prophet of Islam for removal of
transplanted in the new family of the adopting parents. Hindu law had always recognized clothing and residence. They conclude this by relying on the concept of Kinship. A person is prevailing evils and to ensure permanence of marriage without impairing individual freedom.
adoption even before the passing Hindu Adoption and Maintenance Act (HAMA). duty-bound to provide the basic necessities of life to his family members. Islam prescribes Conditions for a valid talaq are Capacity, Free Consent and Express Words.
Requisites of a valid adoption under HAMA: Section 6 mentions the essential of a valid the three grounds based on which one can claim maintenance from a person. And these Every Muslim husband of sound mind, who has attained the age of puberty is
adoption. It reads as follows: grounds are marriage, children and ownership of slaves. competent to pronounce talaq even without assigning any cause. Guardian of a husband of
1. The person adopting has the capacity and also the right to take in adoption; Under the Muslim Law, one is entitled to claim ‘nafaqah’ or ‘maintenance’ if he or she is a unsound mind, may pronounce Talaq on behalf of such insane husband if such Talaq is in the
2. The person giving in adoption has the capacity to do so; person’s: interest of the husband. When husband has no guardian, the Kazi or a Judge has right to
3. The person adopted is capable of being taken in adoption and 1. Wife dissolve the marriage in the interest of such husband
4. The adoption is made up in compliance with the other conditions mentioned in this 2. Children Except under Hanafi Law (pronounced under compulsion, coercion, undue influence,
chapter. 3. Relatives such as parents, grandparents and others fraud and voluntary intoxication, etc. is valid and dissolves the marriage), the consent of the
Conditions mentioned in S. 6 have to be read cumulatively and thus, all the conditions have 4. Slave husband in pronouncing Talaq must be a free consent.
to be fulfilled for a valid adoption. The husband is under the obligation to provide maintenance to his wife despite the fact The words of Talaq must clearly indicate the husband’s intention to dissolve the
Capacity of male taking in adoption whether she is capable of taking care of herself or not. But he is not duty-bound to provide marriage. Therefore, the pronouncement must be express. If Talaq is in express terms, proof
It provides under S. 7 that any male Hindu who is of sound mind and is not a minor has maintenance to his children and parents if they are financially sound to take care of regarding the husband’s motive or intention is not necessary.
the capacity to take a son or daughter in adoptioin.j themselves. Where the husband clearly uses the word Talaq he cannot say that he did not mean
Provided that, if he has a wife living, he shall not adopt except with the consent of his As the Muslim Law is completely uncodified, there is no specific provision that deals divorce. But, if the pronouncement is not express and is ambiguous and confusing then it is
wife unless his wife has completely and finally renounced the world or has ceased to be a with the maintenance of children. Under Muslim Law, the term maintenance is denoted by necessary to prove that husband actually intends to dissolve the marriage.
Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind. the term ‘Nafaqah’. Under Islam, it is the moral duty of a person to take care of his wife. According to Sunni law a Talaq may be oral or in writing (Talaqnama). No specific
Section 11 attaches other conditions for a valid adoption. The relevant portion of S. 11 Along with his wife, he is also duty-bound to take care of his children until they become formula or use of any particular word is required to constitute a valid Talaq. Any expression
which deals with adoption by a male and Hindu has been referred to herein. According to independent. He also has a moral duty to take care of his brother, sister, parents and other which clearly indicates the husbands desire to break the marriage is sufficient to dissolve the
sub-section (i) of S. 11, if the adoption is of a son, the adoptive father must not have a Hindu relatives, if they are in need. The conditions of a person providing such maintenance should marriage through Talaq. A Talaq whether oral or in writing, need not be made in presence of
son, son’s or son’s son (whether by legitimate blood relationship or by adoption) living at the also be considered. If a person is not financially sound, then no question of proving the witnesses. Under Sunni Law, Talaq without witnesses is valid.
time of adoption, similarly S. 11(ii) places a condition that in case of adoption of daughter, maintenance can arise. According to Shia law, the Talaq must be pronounced orally, except where the husband
the adoptive father is at least 21 years older than the person to be adopted. Thus, the essential Maintenance of children is unable to speak. If the husband has capacity to utter the words but gives it in writing, the
conditions for a male Hindu to take a son or daughter in adoption are: Children are the responsibility of their parents and they should be taken care of. They Talaq is void and ineffective under Shia law. Shia law provides that Talaq must be
1. The male Hindu should be of sound mind and not a minor, that is he has to be of the are entitled to proper and adequate maintenance from their parents and specially the father. pronounced in the presence of two competent witnesses. Every male Muslim of sound mind,
age of 18 years of more. As under Muslim law men are considered as superior and are in the obligation to maintain his who has attained the age of puberty, is competent to act as witness. However, in place of one
2. If he has a wife living, he shall not adopt except with the consent of his wife. family, and maintenance of the child is his primary responsibility. male, two adult female Muslims of sound mind may be substituted to act as witnesses. A
Consent of the wife is not required if his wife has completely and finally renounced Father’s duty to maintain his children Talaq without witnesses or in presence of incompetent witnesses, is void under Shia law.
the world or has ceased to be a Hindu or has been declared by a Court of competent Under Muslim law, the father’s liability is fixed to maintain his children. A father is Shia law requires the use of specific Arabic words in the specific formulae in the
jurisdiction to be of unsound mind. duty-bound to provide maintenance to the following persons: pronouncement of Talaq.
3. If the adoption is of a son, he must not have a Hindu son, son’s or son’s son’s son 1. His son until he hits adolescence; Dissolutions of Marriage by Husband
(whether by legitimate blood relationship of by adoption) living at the time of 2. His unmarried daughter; A husband has four options for ending the marriage:
adoption. 3. His married daughter, if her husband is not in a position to maintain her; 1. Talaq ul Sunnat: This form of talaq is efficient and effective, as per the Prophet’s
4. In case of adoption of daughter, the adoptive father must not have a Hindu daughter 4. His major son, if he is disabled, lunatic or not in a position to maintain himself. traditions. It is additionally divided into two sections:
or son’s daughter (whether by legitimate blood relationship by adoption) living at As per Muslim law, a father has no liability to take care of his children if they deny i. Ahsan: It is widely regarded as the finest form of talaq, as the name implies. The
the time of adoption. living with him without any logical cause. A daughter doesn’t have an unlimited right to procedure that the husband follows is as under:
5. If the person to be adopted is a female, he has to be at least 21 years older than the claim maintenance from her father, she can only claim it under special circumstances. a. He must proclaim a talaq in a single phrase, and he should do it while his wife is
person to be adopted. Mother’s duty to maintain her children free of her menstrual period).
6. If a person has more than one wife living at the time of adoption, the consent of all The position of maintenance of children by a mother is different under different schools b. If a husband participates in any form of sexual intercourse during the iddat period, it
the wives is necessary unless the consent of any one of them is unnecessary for any of Muslim law. According to Hanafi Law, the liability to maintain children gets transferred is considered an indication of talaq revocation. It is significant to mention that once
of the reasons specified in event (iii) above. from father to mother, if the father is not financially sound to take care of his children. But the iddat period has ended, the divorce is effective.
Capacity of a female taking in adoption under Shefai Law, the liability to maintain children gets transferred from father to c. Even if the couples haven’t yet consummated their relationship, talaq-e-Ahsan can
Any female Hindu – grandfather, if the father is not in a position to take care of his children, even though the be pronounced even when the wife is menstruating.
1. Who is of sound mind, mother is financially sound and capable of taking care of her children. ii. Hasan: Divorces pronounced in Hasan form are acceptable but also less valued than
2. Who is not a minor; and When children are in the custody of their mother those uttered in Ahsan form since the Arabic context Hasan is good. The husband must
3. Who is not married, or if married, whose marriage has been dissolved or whose If a child is residing with his mother, then the mother can claim maintenance from the make 3 successive pronouncements for divorce. Such three utterances must be
husband is dead or has completely and finally renounced the world or has ceased to father till her son hits adolescence and her daughter gets married to someone legally. The delivered in three successive states of purity (tuhrs) in the circumstance of a
be a Hindu or has been declared by a Court of competent jurisdiction to be of same has been held in the case of Akhtari Begum v. Abdul Rashid, where a four-year-old menstruating wife. In the situation of a non-menstruating, the declaration should be
unsound mind. child was living with his mother. The court made his father liable to pay for his maintenance. given at three successive 30-day intervals. No sexual relations must take occur
has the capacity to take a son or daughter in adoption. Thus, a married female cannot adopt …contd……… throughout these three pronouncements, and if it does, the dissolution procedure will be
except in situation mentioned in clause 9c) of the S. 8. If a man leaves behind more than one terminated. Talaq Hasan becomes irreversible on the third pronouncement, regardless
widow and the senior widow adopts a son absence of consent of junior widow will not of the iddat term.
invalidate the adoption. 2. Talaq-ul- Biddat: This form of talaq was established by the “Umayyads” in order to
S. 11 regulates adoption made be a Hindu female. The relevant of S. 11 which deals avoid the rigidity of the legislation. As per the Hanafis, this is a sinful kind of talaq. Sunni
with adoption by a female Hindu has been referred to herein. S. 11(i) states that if any law recognizes this manner of talaq, although it is also recognized as immoral. Shias and
adoption is of a son, the adoptive mother by whom the adoption is made must not have a Malikis, on the other hand, do not accept this method. “Talaq, talaq, talaq” is a tuhr
Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by consisting of three pronouncements uttered in a single utterance or in consecutive
adoption) living at the time of adoption and of S. 11(ii) states that if the adoption is of a sentences. A single pronouncement obviously reveals an intention to terminate a marriage
daughter the adoptive mother by whom his adoption is made must not have a Hindu daughter and considers it irrevocable. It is generally pronounced, “I divorce thee permanently.”
or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time Couples who have been divorced by triple talaq are not able to remarry without the
of adoption. ….contd……. woman marrying another person and divorcing him, a practice known as Nikah Halala.
…contd………
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3. Ila: Ila is the situation where a mentally capable and mature husband promises in God’s Page 40 Page 38
name not to have sexual intercourse with his wife and then leaves her to perform iddat. If Divorce of parents According to S. 11(iv), if the adoption is by a female and the person to be adopted is male,
the partner continues sexual relations during the iddat period, the Ila will be terminated. According to Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) the adoptive mother has to be at least 21 years older than the person to be adopted. When the
Ila isn’t really prevalent in India. Act, 1986, a Muslim woman can claim a reasonable maintenance amount from her husband, adoptive mother was 48 years and 6 months old and the son was 30 years old, the Court held
4. Zihar (injurious Assimilation): To be competent to use this procedure of divorce, a if she maintains children born to her, before or after divorce, for two years from the date of the adoption to be involved as their age difference less than 21 years thus violation of S.
husband should be mentally competent and above the age of 18. The wife has the choice birth of such children. It should be noted that this right of a woman has no relation with the 11(iv).
to deny sexual relations with him if her husband compares her to his mother or any of the independent right of the children. It does not matter whether the children were born before or Essential conditions for a female Hindu to take a son or daughter in adoption are:
women within prohibited degrees. Such a rejection might be tolerated till he has expiated after the divorce, the wife can compel her former husband to provide maintenance to the 1. The female Hindu should be of sound mind and a minor that is she has to be of the age of
himself from the penance mandated by law. Muta marriages (common among Shias) that children. This right of a divorced wife (mother) is separate from the right of children to claim 18 years or more.
allow for no other type of divorce may be ended through zihar. This type of divorce is no maintenance from their father. 2. She is not married.
longer in practice. 3. If she is married and her husband is dead.
Talaq By Wife Muslim law considers the maintenance of a legitimate child only. It is silent on the 4. If she is married and has a husband living her marriage has been dissolved or her husband
Divorce is granted by the wife, using the husband’s conferred authority. maintenance of an illegitimate child as there is no such provision on this issue. However, it has completely and finally renounced the world or has ceased to be a Hindu or has been
1. Talaq-e-tafweez: It’s the only method for a woman to divorce her husband; nevertheless, does not impose any duty on the parents to take care of the illegitimate child. The two declared by a Court of competent jurisdiction to be of unsound mind.
such authority must be delegated solely by the husband. It is a form of arrangement made schools of Muslim law i.e. the Hanafi and Shia school of Muslim Law have a different 5. If the adoption is of a son, she must not have a Hindu son, son’s son or son’s son’s son
before or after a wedding that stipulates that the wife has the option to divorce her partner opinion on this issue. (whether by legitimate blood relationship or by adoption) living at the time of adoption.
if the following conditions are met: According to the provisions of Muslim Law, the right of children for their maintenance 6. In case of adoption of daughter, the adoptive mother must not have a Hindu daughter or
2. If the man marries a second time: For a specific period of time, the husband is not able ceases when they hit adolescence. After this, they cannot claim any money for their son’s daughter (whether by legitimate relationship or by adoption) living at the time of
to support her financially, or any other requirement that is not adverse to social policy. If maintenance except under some circumstances. The children can claim maintenance after adoption.
the husband follows the conditions of the arrangement, the wife may end her marital ties adolescence if they are suffering from any physical or mental illness or they are not in a 7. If the person to be adopted is a male, she has to be at least 21 years older than the person
without violating the law. position to maintain themselves. Under Muslim Law, a person becomes major as soon as he to be adopted.
3. The mere fact that the man delegated power to the wife doesn’t really deprive him of his hits adolescence but as per the Indian Majority Act, 1875, a person is said to be a major when Position of adopted child in his Natural Family
power to pronounce talaq. eighteen years of age is attained. Under Hindu Law, both old and new, the adoption of a child means that the child is
4. Divorce (Talaq) By Mutual Consent: Although the practice of obtaining separation and Maintenance of Parents uprooted from the natural family and transplanted in the new family.
divorce by mutual agreement/consent was not recognized in Muslim law, Muslim women It is obligatory upon a man to provide maintenance for his father, mother and The effects of adoption took in the natural family is that there will be no relationship
were able to do so after the enactment of the Dissolution of Muslim Marriages Act in grandfather and grandmother if they happen to be in circumstances necessitating it. The fact remain with that family. His natural mother and father will no more be considered his
1939. that they may belong to different religions makes no difference. Except his wife, children, parents. After the adoption, the child will not be entitled to any share in the property of his
5. Khula: Khula literally means “to lay down” before the court. The husband asserts his parents, grand-children and grandparents, a man is not obliged to maintain other relations natural parents. Only the relation remains with natural family is that he cannot marry in his
right over his spouse. It denotes a mutual decision to cease a conjugal relation in belonging to other religions Sapinda relationship or the prohibited degrees of relationship in that family.
consideration for compensation given by the woman to her husband from her assets, The parents have the next position in the right of maintenance after the children. The A person is considered as the guardian of a person when he has control over that person.
including all that can be offered as dower. Khula is a mutually agreed-upon divorce in liability to maintain parents rest only on the children and is not shared by anyone else. As The regular guardians’ privilege of guardianship stops with impact from the date of
which the wife decides to offer her partner certain consideration. It’s essentially a between the parents the mother is entitled to preference over the father. Shia Law – the right guardianship, whatever is the age of the child. Even if the child is below 5 years, its natural
“redeemer” of the marriage contract. The essential elements of Khula are: of the two parents is equal. So also, the right of the parents and children are equal. mother cannot claim the custody of the child (which she would be entitled to otherwise under
a. There has to be some sort of offer from the wife’s perspective. Maintenance must in each case be divided equally. But the parents are preferred to Proviso to Section 6(a), Hindu Minority and Guardianship Act, 1956).
b. In exchange for a monetary benefit, the husband should accept the offers. grandparents. When the adoption of a married person is permitted, that person cannot give in adoption
c. The iddat period should be observed. Parents and children are jointly liable for a person’s maintenance. Thus, if a man has his child born to him before adoption, though a contrary opinion was expressed in a case
d. The husband can’t rescind the divorce once it is granted as per Shia law, however, the both father and a son who are not poor, the liability falls equally upon them. The grand- under the old law.
wife has the opportunity to retrieve the consideration within the iddat period. children of a person would not be liable to maintain if there is a husband, children or parents Section 12(b) of the Act says that “any property which vested in the adoptive child before
6. Mubarat: It denotes the mutual dissolution of the marital ties. The most important factor who would be under a duty to maintain, even though they may be entitled to daughter or the the adoption will keep on vesting in such child subject to the commitments, and the
is that both couples must agree to the dissolution of the marriage. In this form of divorce: father must maintain. Thus, if a man has a daughter or father and a son’s son, the daughter or responsibility and the obligation will be remain attached with him even after the adoption.
a. Either party can make an offer. the father must maintain. The son’s son would not be bound to maintain even though he is A son has an interest in birth in the Mitakshara joint family property. If such a child is
b. Accepting the offer makes the divorce final. entitled to inherit. As in the case of sons, the liability of all grand-children would be equal. given to adoption, his advantage together with any liabilities appended thereto stop on his
c. It is important to have an iddat period. law – maintenance is due from all the descendants together but they are not equal in all adoption. His position is as though he passed on at the hour of the reception. Under the
d. Parties can dissolve their marriages under Shia law if they are unable to continue their respects. Dayabhaga School, this isn’t the law.
marriage through Mubarat. The obligation is on the nearest. If there is equality in the degree of relationship, the Position of adopted child in his Adopted Family
e. The last possibility for dissolution of marriage is judicial separation. obligation is in the person who will be heirs. There is, however, a difference in opinion as to Share of Dayabhaga coparcener in the coparcenary is not a mere interest. It is a property
Furthermore, there are two options for divorce under Dissolution of Muslim Marriage Act, whether the liability is joint or only in proportion to shares in inheritance. If both the vested in him. That’s why if a Dayabhaga coparcener is given away in adoption, he would
1939: ascendants and descendants are alive, the latter would be primarily liable irrespective of the continue to retain his share in the property of the natural family. Adopted son cannot divest a
1. Lian: It is basically when the man accuses his partner of adultery. When a husband distance of degree of relationship. person in whom property vested before adoption. The adopted child is considered to be the
wrongly accuses his wife of adultery, she has the right under the Act to prosecute him and The quantum of maintenance is not prescribed under any personal law. The court born child of the adopted family for all reasons. His position is that of the natural-born son
obtain a dissolution of marriage decree on the same reasons, by filing a regular dissolution decides the quantum on the basis of the financial condition of husband and wife and any and has the same rights, privileges, and the same obligations in the adoptive family.
of marriage suit. The essentials of Lian are: other circumstances relevant to the case. The Shia Law decides the quantum of maintenance The adoption in the Hindu law means complete transplantation of the child in the adoptive
 A husband has to be mature and sensible. by taking into consideration the requirements of the wife. The Shafei Law determines the family. This means that he is not merely the child of the adoptive parents but he also related
 He falsely accuses his wife of adultery. quantum of maintenance by the post of the husband. Thus, the basis of determination of to all relationships on the mother’s side as well as father’s side as if he is the natural child of
 Such an allegation should be erroneous. quantum of maintenance is different for different sub-castes of Muslims. the family. Thus, the father’s and mother’s parents are his grandparents. His adopted parent’s
 False allegations do not end the marriage ipso facto; instead, they act as a framework daughter is his sister and so on. The adoptive parents are the natural guardians of their
for the woman to seek divorce from the husband. adoptive minor child, first the father, then the mother. If the adoptive child is less than five
 Until the court executes a decree of divorce, the marriage shall continue. years, then the adoptive mother will have a preferential claim to the custody of the child.
 The separation of the judiciary through the mechanism of lian is irreversible. Section 13 of the sets down the guidelines that: “subject to any understanding of the
opposite; reception doesn’t deny the supportive father or mother of the ability to discard their
 This form is only relevant to Sahih weddings, not fasid weddings.
property by move or by will”. Thus, an adoptive parent cannot restrain in the disposal of
 Before the conclusion of the trial, the husband may retract his accusation of adultery
his/her properties because of adoption.
against her, confessing that he made the charge but that it was erroneous.
The adoptive child cannot demand any property or his enjoyment during the lifetime of his
Faskh: According to the Quran, married couples have an obligation to respect each other,
father even if there is an agreement that the adoptive father will not deprive him of
treat each other politely and respectfully, and follow all authorized directions of each other. If
inheritance; as the question of inheritance will arise only on the death of the father; till then
they both realize they can’t live as a married couple any longer, they can approach a qazi,
the father has full right to hold and enjoy the properties.
who may dissolve their marriage after a thorough evaluation.
Section 12(C) says that ‘the adopted child will not strip any individual of any [bequest]
which vested in the person in question before the appropriation’. Under the modern Hindu
law, this source of litigations has been done away with by writing down that the adopted
child cannot [divest] any person of the properties vested in him or her before adoption.
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Q.24. Discuss the DEGREES of PROHIBITED RELATIONSHIP under the MUSLIM Q.25. Who are the NATURAL GUARDIANS of a minor under the Hindu Minority and Q.27 Write a short note on Hindu Maintenance.
Law. Guardianship Act, 1956? Write the power of natural guardian under this Act. Ans: Maintenance has been described in the definition clause of the act i.e., Section 3(b) as
Ans: Under Muslim law, marriage is not permitted under certain circumstances. The Ans: If we look to Section 4 of the Hindu Guardian and Maintenance Act, 1956 it says that a something that can provide for food, clothing, shelter, education and medical expenses.
restrictions/prohibition can be divided into two parts: natural guardian means any guardian mentioned in Section 6 and the Section lays down Basically, it is financial support paid by a husband or a father that covers all basic necessities
a. Absolute Prohibition: A Muslim marriage cannot take place if the parties are within the certain rules for it. of life. The section also says that if the maintenance is to be provided to an unmarried
within blood relationship or prohibited degree of relationship of each other and the Natural guardian is one who becomes so by reason of his natural relationship with the daughter, it shall also cover all the reasonable expenses required in her day-to-day life till the
Marriage turns to be void. The absolute prohibited degrees of relationship are as follows: minor. A natural guardian nurtures a child and he does not, in this matter require the support day she gets married.
i. Consanguinity: It refers to blood relationship in which a man is barred from of any court’s order for the purpose. The father and the mother are the natural guardian of a The liability to maintain arises out of the nature of a relationship with a certain category
marrying the following females. They are as follows: minor. Between the father and the mother, the father has priority to act as a guardian. On the of persons and under certain circumstances, which has nothing to do with owning or not
 His mother or Grand-mother (how high so ever), father’s death (and not before) the mother steps in that position. If, however the father, by his owning a property. In certain other conditions, the liability is dependent only on owning the
 His daughter or Grand-daughter (how low so ever), will, appoints some other person as the guardian of a minor the mother cannot act as the property. The liability in the former case is absolute and personal, arising out of a
 His sister (irrespective of full blood/ half-blood/ uterine blood), minor’s guardian. relationship while in the latter case, it is known as liability arising from an ancestral property
 His niece or Great-niece (how low so ever), and During the father’s lifetime if he refuses or disables himself on account of his conduct which is limited.
 His aunt or great aunt, whether paternal or maternal (how high so ever). to act as such guardian, the mother does not become entitled or is not regarded as a natural The following relations were entitled to claim maintenance
A marriage with woman prohibited under consanguinity is void. Also, children born guardian. It is only the order of the court, as held by the Patna High Court in Narain V. 1. Wife: Either the wife or the husband may request interim maintenance under
out of that wedlock are considered as illegitimate. Sapurna, by reason of which she becomes a lawful guardian, Mother’s remarriage does not Section 24 of the Hindu Marriage Act of 1955 (hence referred to as the HM Act).
ii. Affinity: A marriage with certain close relatives is also prohibited in Muslims due to disentitle her to act as a natural guardian of her minor children. Similarly, a mother is the The absence of an independent source of income for self-support is the foundation
closeness of relationship. The prohibited relationship are as follows: natural guardian of her illegitimate child except in cases where the father of a child is of the claim for interim maintenance. The amount of maintenance is not specified in
 His wife’s mother or Grand-mother (how high so ever), ascertained. the clause, and the court will use its discretion to calculate it. The claimant who does
Powers of a Natural Guardian not have an independent source of income must also receive support pendente lite,
 His wife’s daughter or Grand-daughter (how low so ever),
Section 8 of the Hindu Adoption and Maintenance Act, 1956 provides that a natural guardian and the other spouse must cover the claimant’s financial requirement for court costs.
 His father’s wife or paternal Grand-father’s wife (how high so ever), and
of a minor has powers to do all Acts- 2. Minor children: According to Section 20 of the HAM Act, both the mother and the
 His son’s wife or son’s son’s wife or daughter’s son’s wife (how low so ever). (i) which are necessary or reasonable and proper (a)for the benefit of the minor, or (b) for the father are equally obligated to support all children, both biological and adopted. The
A marriage with woman prohibited under affinity is void. realization, protection or benefit of the minor’s estate; Hindu legal system is unique in that both parents are equally liable for raising the
iii. Fosterage: It refers to milk relationship. It is a condition when a lady other than the (ii) but the guardian in no case can bind the minor by a personal convenient- S.8, sub-section children. According to Section 20(2) of the HAM Act, minor children have a right to
mother of the wife, breastfed/ suckled the child under the age of two years, the lady (1). maintenance.
turns to be foster-mother of the child. A man is restricted from marrying the persons The natural guardian, as sub-section (2), provides shall not, without the previous 3. Unmarried daughters: Until the daughter gets married, she is still entitled to
who come under foster relationship. The restrictions are as follows: permission of the court, do the following two things: maintenance.
 His foster mother or foster grandmother (how high so ever), and (a) he shall not mortgage or charge or transfer by sale, gift, exchange or otherwise, any part Aged parents/Dependents: S. 20 of the HAM Act establishes a maintenance responsibility
 Daughter of foster mother (Foster sister). of the minor’s immovable property, or for elderly and disabled parents who are unable to care for themselves using their own
Under the Sunni law has a few exceptions with respect to prohibition on ground of (b) he shall not lease any part of such property for a term exceeding five years or for a term resources, including property and earnings. The first law in India to require children to
fosterage and the following Marriage is considered as valid: extending for more than one year beyond the date on which the minor would attain majority. support their parents is known as the “HAM ACT.” Daughters are likewise subject to the
 Sister’s foster mother, or Any disposal of minor’s immovable property which contravenes the limits laid down in need to maintain, in addition to sons. Both the mother and the father are entitled to
 Foster’s-sister’s mother, or sub-section (2) above will make the transaction voidable at the minor’s instance or at the maintenance claims under the HAM Act. The explanation to this section also includes
 Foster-son’s sister, or instance of anyone claiming through him. One has to mark that such a transfer is voidable stepmother in the term parent. However, it is important to note that the section imposes an
 Foster-brother’s sister. and not void. The minor can choose to accept it or he may repudiate it. [sub-section (3)]. In a obligation to maintain only those parents, who are unable to maintain themselves and
The Shia jurists consider Consanguinity and fosterage at same footing and deny the recent case, the specific performance of a contract for alienation of minor’s share of therefore the obligation to maintain the parents other than those infirm and unable, is only
exception allowed by Sunnis. immovable property by the mother was declined by the court because it was in violation of moral.
…..contd.,, S.8(2) and (3). If the guardian seeks court’s permissions no court shall grant it except in case
of necessity or for the evident advantage to the minor [sub-clause (4)]. ….contd….
As sub-section (5) provides, so such an application made by a natural guardian,
provisions of Guardians and Wards Act, 1890 would apply and the court would protect the
minor’s interest.
When property for a minor is to be purchased no such permission as contemplated by
Section 8 is necessary. Thus, contract to purchase a house entered on behalf of and for the
benefit of minors by their mother as natural guardian is valid and binds the minor. It is not a
personal covenant and therefore does not come within the ambit of sub-section (1) of Section
8. Consequently, payment of the purchase price is minor’s benefit, the contract may be
specifically enforced by the court.
Application for sale etc. of property by a guardian should be made to the City Civil
Court or the
District Court within whose jurisdiction the immovable property is situated. If the application
for permission is rejected an appeal lies against such an order, to the court to which appeals
ordinarily lie from the decision of such a court.
To do all acts which are necessary or reasonable and proper for the benefit of the minor.
As decided by the Supreme Court in Manik Chand case, after passing of the Act of
1956 the natural guardian as laid down in Section 8(1), has been empowered to do all such
acts which are necessary for the welfare and benefit of the minor. Section 8(1) therefore has
connection with the person of a minor: that is to say, the natural guardian can place restraint
on the minor with regard to his upbringing, education, health, etc. and he can delegate his
authority in this regard to a tutor or a school-teacher. He can also revoke this authority. He
can protect the minor from bad company and may for this purpose decide the place of the
minor’s residence.
….contd….
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Q.28. Write a short note on Muslim Maintenance. Guardianship of Minor’s Property b. Relative Prohibition: Under Muslim law, certain prohibitions are relative and not
Ans: The persons who are eligible for maintenance are: The natural guardian of the person of a child is also the guardian of minor’s property. But a absolute. If marriage takes place in violation of such prohibition, it is only irregular and it
1. Wife natural guardian, father or mother is not the guardian of minor’s undivided interest in the can’t be declared as void. The marriage becomes valid as soon as the irregularities are
2. Children- Both boy and girl joint family property. removed. Relative prohibitions are as follows:
3. Parents and Grandparents and Neither the natural guardian nor the court can appoint a guardian of the minor’s i. Unlawful Conjunction: A Muslim man is prohibited to marry two different women
4. Any other relatives undivided interest in the joint property. However, most of the High Courts and all the if they are related to each other by means of consanguinity, affinity or fosterage as if
Maintenance for Wife chartered High Courts have inherent jurisdiction, or jurisdiction under special enactments, to they would have been of opposite sexes their marriage would have been void (batil).
Under Muslim law in India, maintenance is known as ‘Nafqah’. ‘Nafqah’ is the amount appoint a guardian of minor’s undivided interest in the joint family property. After the termination of marriage/ death of his wife, marriage can take place with
that a man spends on his family. The right to maintenance of a Muslim woman is absolute the other. Under Sunni law, Marriage in violation of unlawful conjunction is
and not conditional on whether she can maintain herself or not. Natural Guardian’s Power Over Minor’s Property irregular (fasid) and not void but under Shia law, a marriage violating the rule of
Hence all the Muslim women earning or not earning are eligible for the right to Section 8(1), Hindu Minority and Guardianship Act, lays down the general powers of unlawful conjunction is void (batil).
maintenance which is contrary to most of the other religious acts where only dependent natural guardians. A guardian may do all acts which are necessary or reasonable and proper ii. Polygamy: Muslim laws allow polygamy but it is restricted to a maximum of four
women are eligible for the maintenance. for the benefit of the minor or for the realization, protection or benefit of minor’s estate. The wives. A Muslim man can have four wives at a time, but if he marries the fifth one
It is the duty and liability of the husband to provide adequate maintenance to his wife in generality of the power will exclude fraudulent, collusive, colourable, speculative, despite of having four wives, the marriage turns to be irregular and not void. The
all the circumstances irrespective of his financial condition. However, a Muslim woman unnecessary or unreasonable transactions. These are fairly wide powers and constitute a fifth marriage can be valid after death/ termination of marriage of one of the four
cannot claim maintenance from her husband in the following cases: character of guardian’s powers whereby the guardian is empowered to act, safely in the wives. However, the Shia law considers marriage with the fifth wife as void. In
 She has not attained puberty. welfare of the minor, and the third parties can also deal safely with the guardian within the India, a Muslim marriage can’t have a second marriage if his marriage is registered
 She has abandoned her husband and marital duties with sufficient reason. ambit of these powers. under The Special Marriage Act, 1954.
 Where she elopes with some other man. Sub-section (2) provides that natural guardian cannot, without the previous permission iii. Absence of Proper Witness: Contracting of marriage must be done in the presence
 In a case where she disobeys the reasonable commands of her husband of the court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of of proper and competent witnesses. Under the Shia law, presence of witness is not
Maintenance of the Children immovable property, or lease out any part of such property for a term exceeding five years or essential and marriage without witnesses is considered as valid. Marriage is
Muslim Father is under the obligation to maintain his legitimate child until he attains for a term exceedingly more than one year beyond the date on which the minor would attain contracted by the parties themselves (if major) or by their guardians itself. Under
the puberty age. Under Muslim Law, the father has to maintain his son only until he attains property. Sub-section (4) lays down that the court shall not grant permission to the natural Sunni law, presence of witness is essential else the marriage would be irregular. At
majority. guardian to do any act mentioned in sub-section (2) except in case of necessity or for the least two male or one male and two female witnesses should be present and the
While he has to maintain his daughter until her marriage and till the time she goes to her evident advantage of the minor. Sub-section (3) lays down that any disposal of immovable witness should be a major, of sound mind and a Muslim.
husband’s home. Under the law, the father is not under a duty to maintain the property by natural guardian in contravention of sub-section (1) or sub-section (2) is voidable iv. Difference of religion: Under the Sunni law, a Muslim male is allowed to marry a
illegitimate child. at the instance of the minor or any person claiming under him. The procedure for obtaining female who shows respect for same scriptures, such as Christian, Parsi and Jews, but
the permission of the court is regulated by the Guardians and Wards Act, 1890. if he marries with an idol/ fire worshipper, the same is considered as irregular. A
In respect of alienation of minor’s immovable, the touchstone of guardian’s power Muslim woman is not allowed to marry a non-Muslim man and if it happens, the
continues to be necessity or benefit, though it would seem that expression “necessity” and same is considered as irregular. Under the Shia Law, a marriage with non-Muslim is
“evident advantage” used in sub-section (4) of Section 8 are wider than their counterparts in considered as void. According to Fyzee, such marriage is void, but According to
the pre-1956 Hindu Law, viz., legal necessity and benefit of estate. Since it is for the courts Mulla, such a marriage is irregular.
to consider what these expressions mean before according permission in a given case. It is v. Marriage during Iddat: It is referred to as a period of waiting after the death of her
submitted that courts are free to give them a wider meaning. Section 8(5) makes the husband or after termination of marriage during which she cannot remarry. The
provision for Guardians and Wards Act applicable to application for alienation of minor’s purpose of the iddat is to check whether the woman is pregnant or not to clear
property made under Section 8(2) an alienation of property without the permission of the doubts of paternity of any child born. A divorced woman has to observe for a period
Court is voidable at the option of the minor. A transferee of the minor can also avoid an of three months whereas a widow observes it for four lunar months and ten days
improper alienation made by the guardian. Where the guardian acquires property for the after the death of husband. If the woman is pregnant then if extends up to her
benefit of the minor, no permission of court is necessary. delivery. Under Sunni law, marriage during iddat is considered as irregular whereas,
In two areas the guardian’s powers are not fettered by Section 8, and he continues to have under Shia law, it is considered as void.
the same powers as under the old Hindu law. These are: (a) alienation of movable c. Miscellaneous Prohibition:
property, and (b) contracts. i. Marriage during pilgrimage is considered as void in Shia law.
ii. Re-marriage between Divorced Couple: A certain procedure needs to be followed in
which a Muslim lady has to perform a valid marriage with another man. Then her
husband needs to voluntarily divorce her. Then the lady needs to perform iddat. Now
she can marry her previous husband. If this procedure is not followed the marriage is
considered as irregular.
iii. Polyandry: It refers to a condition in which a woman can have more than one husband.
It is not permitted under Muslim law.
 Page 49 Page 51 requirement for a valid Marriage, violation whereof would render the Marriage void unless
Q.29. Hindu Adoption & Maintenance Act, 1956. [10 marks] Q.30. Define Marriage. Differentiate between Muslims Marriage Law and Hindu sanctioned by custom or usage of both the parties. …contd…..
Ans: The Hindu Adoptions and Maintenance Act (HAMA) was enacted in India in 1956 as Marriage Law. [10 marks]
part of the Hindu Code Bills. The other legislations enacted during this time include the Ans: Marriage as per law means a contract between man and woman united together to
Hindu Marriage Act (1955), the Hindu Succession Act (1956), and the Hindu Minority and support each other in a shared household. Right to marry is recognized under article 21[1] of
Guardianship Act (1956). All of these acts were put forth under the leadership of Jawaharlal the Indian Constitution well as article 16[2] of Universal Declaration of Human Rights, 1948.
Nehru, and were meant to codify and standardise the current Hindu legal tradition. The However, there is no single uniform code of law for marriage rather we have different laws
Adoptions and Maintenance Act of 1956 dealt specifically with the legal process of adopting for different religions. For Hindu we have The Hindu marriage act, 1955[3], for Muslim the
children by a Hindu adult, and with the legal obligations of a Hindu to provide "maintenance" Muslim Personal Law (Shariat) Application Act 1937[4], for Christian and Parsi: The Indian
to various family members including their wife or parents, and in-laws. Christian Marriage Act, 1872 [5]and The Parsi Marriage and Divorce Act, 1936[6]
Application respectively. For the one who don't profess any religion we have The Special Marriage Act,
This act applies to Hindus and all those considered under the umbrella term of Hindus, which 1954[7] to govern their marriage.
includes: Concept of Hindu Marriage:
1. A Hindu by religion in any of its forms or development; Hindu have always regarded marriage as sacramental union, a permanent union and a
2. A Buddhist, Jain or Sikh; special sanctity to this union is assigned only after the performance of sacred rights and
3. A child legitimate or illegitimate whose parents are Hindus, Buddhists, Jains or Sikhs; ceremonies. The children so born, out of such wedlock, are given the status of legitimacy.
4. A child legitimate or illegitimate one of whose parents are Hindus, Buddhists, Jains or The Manu Smriti says “I hold your hand for Saubahagya (Good Luck) that you may grow old
Sikhs and has been so brought up; with your husband. You are given to me by the judge, the creator, the wise and the learned
5. An abandoned child, legitimate or illegitimate of unknown parentage brought up as a people”.
Hindu, Buddhist, etc.; and The Courts have also opined that the marriage under the Hindu Law is a sacrament and
6. A convert to the Hindu, Buddhist, Jain or Sikh religion. not a contract. Therefore, consent or competent of a person for marriage has not been the
7. Persons who are Muslims, Christians, Parsis or Jews are excluded from this definition. criteria for the performance of the marriage. According to Smritatakars even death cannot
The act does not also apply to adoptions that took place prior to the date of enactment. break this relation of husband and wife which is not only sacred and religious but is a holy
However, it does apply to any marriage that has taken place before or after the Act had come union also. Once created this sacred tie cannot be untied. It is not a mere contract wherein a
into force and moreover, if the wife is not a Hindu, then the husband is not bound to provide consenting mind is indispensable. The institution of marriage is a Sacrament and not a mere
maintenance for her under this Act under modern Hindu Law. socio-legal contract.
Adoption The object of marriage was to enable a man and a woman to perform religious duty and to
1. Who can Adopt: Under this act only Hindus may adopt subject to their fulfilment of beget progeny. Moreover, the writers said that a man was incomplete without a woman;
certain criteria. The first of these asserts that the adopter has the legal right to (under Thus, marriage fortifies the concept of one-ness which is expressed by an adage, that “a
this Act that would mean they are a Hindu). Next, they have to have the capacity to be woman is half of her husband (Ardhangini) and completes him”.
able to provide for the adopted child. Thirdly the child must be capable of being Every Hindu male or women have to marry. Where a person could not remain a perpetual
adopted. Lastly, compliance with all other specifications (as outlined below) must be celibate or student or where he did not desire to be an ascetic (Sanyasim). He was enjoined
met to make the adoption valid. by Sastras to marry. Marriage, therefore, was as good as compulsory and more so in case of a
Men can adopt if they have the consent of their wife or of all of their wives. The female. A girl might choose a husband for herself and marry. But with the change condition
only way of getting around obtaining the permission of the wife or of the wives is if she of life, as time passed, marriage became optional for both, a male and a female.
or if they are unsound, if they have died, if they have completely and finally renounced Monogamy was recommended for both, a male and a female. It was compulsory for a
the world, and if they have ceased to be a Hindu. Men who are unmarried can adopt as female, but in course of time relaxations were carved out for males and a male could have
well as long as they are not a minor. However, if a man were to adopt a daughter, the more than one wife at his pleasure unless Legislation prohibits it.
man must be twenty-one years of age or older. Essential of a Valid Marriage:
Only unmarried Hindu women can legally adopt a child. A married woman can Requirements of a valid Marriage have been laid down by S.5 of the Hindu Marriage Act,
only give her consent to adoption by her husband. A married woman whose husband 1955. This Section has got its connection with S.11, 12, 17 and 18. These Sections lay down
adopts a child is to be considered the mother. If the child is adopted and there are more the effect of the absence or non-fulfilment of the condition laid down in S.5 of the Act. These
than one wife living in the household, then the senior wife is classified as the legal conditions are:
mother of the adopted child. ….. contd………. Monogamy:
1. Neither parties should have a spouse living at the time of marriage;
2. at the time of marriage, neither party
a. is incapable of giving a valid consent due to 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 & for procreation of
children; or
c. is subject to recurrent of insanity or epilepsy;
3. at the time of Marriage, the age of the bridegroom should be 21 years complete and bride’s
age should be 18 years complete.
4. the parties are not within the degrees of prohibited relationship unless the custom permit
such a Marriage.
5. the parties are not Sapindas of each other, unless the customs permit their Marriage.
Condition No. 1 implies Monogamy and prohibits polygamy. Before this Act, came into
force polygamy was permitted; now it is prohibited. Before 1995, under Ancient Hindu Law,
Polyandry was prohibited. This Act also prohibits the same.
Absence of Idiocy, Lunacy & unsoundness of mind. Condition no. 2 says neither party
should be an idiot, a lunatic or suffering from recurrent attacks of insanity or epilepsy. The
onus of proof about Lunacy or Idiocy lies on him who makes a petition to annul the
Marriage. The presumption is in favour of validity of Marriage and in favour of mental
capacity of the spouse entering into ceremony.
Age of parties. Condition No. 3 is regarding age of persons entering into Marriage. The
bride groom should have completed the age of 21 years and the bride, the age of 18 years at
the time of Marriage. However, breach of this condition does not make the Marriage void or
voidable that means it is valid though it may attract penalties.
Parties not to be within the degrees of prohibited relationship. Condition no. 4, The
expression, degree of prohibited relationship is defined in S.3 of the Act. This is a mandatory
 placed, irrespective of the fact whether the marriage is void or valid. The prohibition arises
Page 52 from an adulterous connection also.
Parties not to be Sapindas of each other. The expression Sapindas is explained in S.3 of
the Act. The net of Sapindas relationship extends: - Page 50
(a) as far as the third generation (inclusive) in the line ascent through the mother, 2. Who can be adopted: The adopted child can be either male or female. The adopted
(b) as far as the fifth generation (inclusive) in the line ascent through the father. child must fall under the Hindu category. The adoptee also needs to be unmarried;
Marriage between Sapindas would be valid if the custom or usage governing each of however, if the particular custom or usage is applicable to the involved parties then the
them permits such a marriage. adoptee can be married. The child cannot be the age of fifteen or older, unless again it
Concept of Muslim Marriage: is custom or the usage is applicable to the involved parties. An adoption can only occur
Muslim have from the very beginning regarded their marriage as a contract. M/M has if there is not a child of the same sex of the adopted child still residing in the home. In
been defined as a civil contract for the purpose of legalizing sexual intercourse and particular, if a son were to be adopted then the adoptive father or mother must not have
procreation of children. It is not a sacrament but a contract though solemnized generally with a legitimate or adopted son still living in the house.
a recitation of certain verses from the Kuran. Muslim Law does not prescribe any religious 3. Legal implications for an adopted child: From the date of the adoption, the child is
service essential for its solemnization. In the words of Shama Charan Sircar, “Marriage under the legal guardianship of the new adopted parent(s) and thus should enjoy all the
among the Muslim is not a sacrament but purely a civil contract”. benefits from those family ties. This also means that this child, therefore, is cut off
Despite the observation of a modern judge, that the impression that a Muslim marriage from all legal benefits.
is a mere contract and not a solemn union is another Fallacy of the Hindu and western
Students, in its legal commutation. Muslim Marriage is essentially a contract, though Maintenance
marriage is a social institution is regarded solemn all over the civilized world, including the 1. Maintenance of a wife: A Hindu wife is entitled to be provided for by her husband
Muslims. throughout the duration of her lifetime per Section 18 of HAMA '56. Regardless of
According to Fyzee, Nikah is an institution legalized for manifold objects such as the whether the marriage was formed before this Act was instated or after, the Act is still
preservation of species, the fixing of decent, restraining man from debauchery, the applicable. The only way the wife can null her maintenance is if she renounces being a
encouragement of chastity, the promotion of love and union between the husband and the Hindu and converts to a different religion, or if she commits adultery.
wife and developing of mutual help in earning livelihood that M/M is essentially a contract is The wife is allowed to live separately from her husband and still be provided for
evident from the nature of Marriage and the mode by which it is performed. Thus, only a by him. This separation can be justified through a number of different reasons,
civil ceremony that is an offer made by one party and accepted by another in one and the including if he has another wife living, if he has converted to a different religion other
same meeting in the presence of two witnesses (not among Shias) is sufficient for entering than Hinduism, if he has treated her cruelly, or even has a violent case of leprosy.
into the contract of marriage. Whatever religious ceremonies are appended to the civil If the wife is widowed by her late husband, then it is the duty of the father-in-law
ceremony is merely to give it sanctity; their performance or non-performance does not affect to provide for her. This legal obligation only comes into effect if the widowed wife has
its legality. M/M is a polygamous marriage limited to four wife. A Muslim male has capacity no other means of providing for herself. If she has land of her own, or means of an
to keep four wives simultaneously but of Sunni male takes five or more wife, his marriage income and can maintain herself then the father-in-law is free from obligation to her.
with the fifth wife or subsequent wife is not void but merely irregular. *** Additionally, if the widow remarries then her late husband's father-in-law is not legally
Kinds of Marriage Under Hindu Law: bound by this Act anymore as well.
Under the Hindu Law there were two types of Marriage. They are 2. Maintenance of a child or of aged parents: Under this Act, a child is guaranteed
(a) Customary (Sastric) and maintenance from his or her parents until the child ceases to be a minor. This is in
(b) Statutory effect for both legitimate and illegitimate children who are claimed by the parent or
The Ancient Hindu Law recognized eight forms of Sastric marriage which are Brahma, parents. Parents or infirmed daughters, on the other hand, must be maintained so long
Daiva, Arsha, Prajapatioa, Ashura, Gandharva, Rakshacha and Paishacha. as they are unable to maintain for themselves. Sections 20-22 of the Act cover the
Kinds of Marriage Under Muslim Marriage: same, and provide for the maintenance of any dependents of an individual.
Recognized four which are Muta Marriage, Sahih Marriage, Batil and Fasid marriage. Amount of maintenance provided: The amount of maintenance awarded, if any, is
1. Muta marriage: Under the Ithana Ashari Law, male has capacity to contract any dependent on the discretion of the courts. Particular factors included in the decision process
no. of Muta marriage (he can cross the limit of four) with a woman who is Muslim, include the position or status of the parties, the number of persons entitled to maintenance,
Christian, Jew or a fir-worshipper, but none else. An ithana Ashari female on the the reasonable wants of the claimants, if the claimant is living separately and if the claimant
other hand can contract a Muta marriage only with a Muslim male. If the woman is is justified in doing so, and the value of the claimant's estate and income. If any debts are
major, her wali (Guardian) cannot object o such a marriage, but if she is a minor, she owed by the deceased, then those are to be paid before the amount of maintenance is awarded
can do so only with the consent of her Wali, otherwise her marriage will be void. All or even considered.
the requisite formalities of M/M must be performed.
2. Sahih Marriage--- A marriage performed between the parties having full capacity
to marry with all the necessary formalities is a valid marriage.
3. Batil (void marriage) --- when a marriage is performed in violation of absolute
impediments or perpetual impediments, the marriage is Batil, null and void- Void
ab-initio.
4. Fasid (irregular Marriage) ---If the impediment or prohibition to marriage is
temporary or remedial, then a marriage performed in violation of such impediment
is not void, but as the Muslim law – gives call, irregular. A voidable marriage is a
perfect valid marriage till it is avoided and it can be avoided only by either party to
the marriage.
Lien or Imprecation: It is testimony confirmed by oath and accompanied with imprecation.
Under the pure Mohamedan Law, if a man charges his wife with adultery, he may be called
upon, on the application of the wife, either to retract the charge or to confirm it with an
imprecation in these terms.
Consanguinity
On the basis of prohibition on the ground of consanguinity, a Muslim male cannot marry the
following:
(i) his mother or grandmother, how high-soever
(ii) his daughter or granddaughter, how low-soever,
(iii) his sister, full, consanguine or uterine, (iv) his aunt (both on father’s and mother’s
side) how high-soever.
Affinity: Prohibition of Affinity is based in the relationship arising out of marriage. The
peculiarity of the doctrine is that prohibition of affinity arises once a marriage has taken
1 13 Q. 1. Explain the CONCEPT of MARRIAGE under the HINDU Law. Is it similar to that of
Q.1. ADOPTION Q.52. Write the difference between JUDICIAL SEPARATION and DIVORCE. Muslim Law?............................................................................................................................ 1
Q.2. Under what circumstances a female Hindu may adopt a child in ADOPTION? Q.53. Who is a LEGALLY MARRIED wife? Can a second wife become legally married Q. What is Hindu Concept of Marriage? Is it DIFFERING from MUSLIM marriage? Give
Q.3. Can a married HINDU woman ADOPT a CHILD during the time of her husband? wife? Give reasons. your answer by differentiating the two marriages.
Q.4. Can a child be ADOPTED without PERFORMING CEREMONY of adoption Q.54. LIAN Q.2. Discuss the GROUNDS OF DIVORCE under the dissolution of MUSLIM Marriage
under the Hindu Adoption and Maintenance of 1956? Q.55. LIEN OR IMPRICATION Act, 1939…………………………………………..…………………………………………..3
Q.5. Person who may be ADOPTED? 14 Q. 3. Who are DEPENDANTS according to the HINDU Adoption and Maintenance Act,
Q.6. Who are capable of giving a child in ADOPTION? Q.56. NULLLITY of marriage. 1956? Explain the legal provisions relating to their maintenance under the Act…………..…5
2 Q.57. PROTECTION orders. Q.4. What is the TIME PRESCRIBED FOR FILING A DIVORCE PETITION? Discuss
Q.7. DEPENDANTS under the Hindu Adoption and Maintenance Act, 1956. Q.58. PUTRIKA PUTRA. the various GROUNDS OF DIVORCE under Hindu Marriage Act, 1955……………….7.
Q.8. Is there any right that a DIVORCED WOMAN can claim against her former Q.59. QURAN Q. What are the GROUNDS of SEPARATION available to both husband and wife under
husband after divorce when she remains unmarried? 15 the Hindu Marriage Act, 1955? How does it differ from judicial divorce?
Q.9. Grounds for DIVORCE applicable only to WOMAN Q.60. MAINTENANCE Q.5. Define MAHR. Discuss the IMPORTANCE of Mahr under the Muslim Law……….9
Q.10. DIVORCE by mutual consent Q.61. MARRIAGE Q. DOWER
3 Q.62. Can a HINDU MARRY with a CHRISTIAN under the Special Marriage Act, Q.6 Define TESTAMENTARY GUARDIAN. What are the POWERS which can be
Q.11. Can a Hindu ADOPT a child whose PARENTAGE is UNKNOWN? 1954? exercised by such guardian under the Hindu Minority and guardianship Act, 1956….……..11
Q.12. Is CEREMONY of ADOPTION COMPULSORY for a valid adoption? Q.63. How can a MUSLIM wife MARRY AGAIN after her divorce? Q.7 Write a note on MAINTENANCE of MUSLIM WIFE by highlighting the applicability
Q.13. What is the main objective of LAW OF ADOPTION? Q.64. Can a Muslim wife MARRY again during her IDDAT period? of the provision of Section 125 of CR.P.C and leading cases………………………………12
Q.14. AFFINITY: Q.65. Kinds of MARRIAGE under Hindu Law Q.6. Explain different SCHOOLS OF HINDU LAW and examine the fundamental
Q.15. AGE OF MUSLIM marriage 16 differences between them…………………………………………………………..……….13
Q.16. What is the MINIMUM AGE of a Muslim male for pronouncing talak? Q.66. MINORS under Hindu & Muslim Laws. Q.7. Distinguish between VOID and VOIDABLE MARRIAGE. Under what condition and
Q.17. What is the importance of AGE of MARRIAGE under Hindu law? Q.67. What is MUBARAAT? what grounds can they be annulled? Are the children of such marriage legitimate?
4 17 Discuss……………………………………………………………………………………...15
Q.18. What amounts to CRUELTY? Q.68. Ceremony of MARRIAGE under HINDU Law Q.8. Discuss ‘ADULTERY AND CRUELTY’ as a ground of Divorce under Hindu law,
Q.19. CRUELTY: PHYSICAL cruelty, MENTAL cruelty. Q.69. Kinds of MARRIAGE under Muslim Marriage pointing to legal provisions and referring to decided cases………………………..………..17
Q.20. DELAY Q.70. Hindu MARRIAGE as a SACRAMENT Q.9. What are the essentials of a VALID (SAHIH) marriage and differentiate between the
5 18 IRREGULAR (FASID) and VOID (BATIL) marriage.
Q.21. APOSTACY Q.71. Distinction between SAHIH marriage and BATIL marriage. Q. What are requisites of a VALID marriage under the muslim law?..................................19
Q.22. What is BETROTHAL? Q.72. Can TWO HINDU marry under the Special Marriage Act, 1954? Q.10. Discuss the concept of LEGITIMACY under Muslim law. Is adoption of child
Q.23. What may be BEQUEATHED? Q.73. Power of the court to DISSOLVE the MARRIAGE. recognized under Islamic law?...............................................................................................21
Q.24. What is BIGAMY? Q.74. MUTA marriage Q.11. What are the essentials of a VALID MARRIAGE under the Hindu Marriage Act,
Q.25. CHILD MARRIAGE 19 1955. Discuss the legal effects in the contravention of these provisions…………………23
Q.26. COLLUSION: Q.75. REGISTRATION of Marriage under Hindu Law. Q.12. What do you understands by BARS TO MATRIMONIAL RELIEF? Explain these
6 Q.76. What is DOCTRINE of RELATION BACK? bars as provided under the Hindu Marriage Act, 1955…………………………………….25
Q.27. CONDONATION Q.77. DOCTRINE OF REPRESENTATION Q.13. Describe the NATURE of LAW relating to ADOPTION under the Hindu Adoption
Q.28. CONNIVANCE 20 and Maintenance Act, 1956. Write and ACKNOWLEDGEMENT OF PATERNITY
Q.29. CONSANGUINITY Q.78. Distinction between VOID (BATIL) and IRREGULAR (FASID) Marriage? UNDER THE MUSLIM LAW……………..……………………………………………..27
Q.30. What are the legal effects of CONTRAVENTION of the essentials for a void 21 Q.14. What are the various GROUNDS available to HUSBAND for obtaining a decree of
MARRIAGE provided under the Hindu Law? Q.79. REPUDIATION of marriage DIVORCE under the Hindu Marriage Act, 1955?..............................................................29
Q.31. CONVERSION Q.80. RESTRICTIVE condition of adoption Q.15 Define MAINTENANCE. Write the legal provisions of maintenance of a HINDU
Q.32. What are the FORMS of TALAK? Q.81. RESIDUARY CLAUSE, other legal grounds WIFE under the Hindu Adoption and Maintenance Act, 1956………….……………….31
7 Q.82. VALID RETIREMENT Q.16. GUARDIANSHIP…………………………………………………………………32
Q.33. Doctrine of FACTUM VALET. 22 Q.17 Who is CERTIFICATE GUARDIAN? Who can be appointed as a certificate guardian
Q.34. What is an ENDOWMENT? Q.83. Who can pronounce TALAK? Is talak revocable? under the Hindu Minority and Guardianship Act, 1956? What CONSIDERATIONS should
Q.35 Distinction between VOIDABLE and FASID marriage. Q.84. What is TUHR period? be taken into account while APPOINTING a CERTIFICATE guardian?..........................33
8 Q.85. What is the legal effect of UNDERAGE MARRIAGE under the Hindu Law? Q.18. Analyse the right of MAINTENANCE of a divorced MUSLIM WIFE under the
Q.36. The INDIAN DIVORCE ACT, 1869 Q.86. What is UNLAWFUL CONJUGATION? Muslim Woman (Protection of rights on Divorce) Act, 1986……………………………34
Q.37. To whom the INDIAN DIVORCE ACT, 1869 is applicable? Q.87. Distinction between VOID and VOIDABLE marriage. Q.19. Who are TESTAMENTARY GUARDIANS? Who can appoint them under the Hindu
Q.38. JUDICIAL SEPARATION 23 Minority and Guardianship Act, 1956? Can a non-Hindu be appointed as a testamentary
Q.39. What are the grounds of JUDICIAL SEPARATION? Q.88. Define RESTITUTION of conjugal rights. guardian for a Hindu M…under this Act?..........................................................................35
9 Q.89. SAPINDA RELATIONSHIP Q.20. What are the REQUISITES of a VALID MARRIAGE under the Muslim Law?...36
Q.40. FAIR TRIAL rule. Q.90. SAPTAPATI Q.21. Who can ADOPT A CHILD under the Hindu Adoption and Maintenance Act, 1956?
Q.41. FAMILY COURT 24 Write the legal position of an adopted child in his adoptive and natural families…………37
Q.42. FASID marriage Q.91. SMRITIS Q.22. Define MAINTENANCE. Discuss the provision for maintenance of Muslim children
10 Q.92. SPOUSE and parents under Muslim law……………………………………………………………..39
Q.43. Who is a testamentary GUARDIAN? Q.93. STRIDHAN Q.23. Who can PRONOUNCE talak? Discuss the KINDS OF TALAK…………………..41
Q.44. HIZANAT Q.94. Under what circumstances TALAK may be revoked? Q.24. Discuss the DEGREES of PROHIBITED RELATIONSHIP under the MUSLIM
Q.45. Define IDDAT. Why is iddat observed by Muslim wife. Law………………………………………………………………….………………………43
Q.46. What is the period of IDDAT in case of DIVORCE? Q.25. Who are the NATURAL GUARDIANS of a minor under the Hindu Minority and
11 Guardianship Act, 1956? Write the power of natural guardian under this Act…….……….45
Q.47. What is the meaning of FRAUD in matrimonial law? Q.27 Write a short note on HINDU MAINTENANCE……………………………………47
Q.48. FREE CONSENT. Q.28. Write a short note on MUSLIM MAINTENANCE…………….………………….48
Q.49. Who is certificated GUARDIAN? Q.29. HINDU ADOPTION & MAINTENANCE ACT, 1956…………………………..49
12 Q.30. Define MARRIAGE. Differentiate between MUSLIMS Marriage Law and HINDU
Q.50. NATURAL GUARDIAN Marriage Law……………..……………………………………………………………….51
Q.51. POWERS OF A NATURAL GUARDIAN