Personal Laws – I

The Hindu Marriage Act, 1955

s.2- Application of Act

• s.2(1)(a): definition of a Hindu

- The Hindu religion is marvellously catholic and elastic.
- Its social code is much more stringent but amongst its different
castes and sections it exhibits wide diversity of practice.

• s.2(1)(b): Persons governed by the act

- Persons who profess any of these four religions are included in
the wide category of persons governed by this act.
• s.2(1)(c): Persons not governed by the act.
- The sub-section adopts the negative form and in effect lays
down that it is to be presumed, until the contrary is proved, that
any person who is not a Muslim, Christian, Parsi or Jew by
religion is governed by this act.
• Explanation:
- Any child – legitimate or illegitimate
- Brought up
- Converted or Re-converted
 • s.2(2)
- For scheduled tribes: the marriage between the members of
Schedule tribes is not governed by the Hindu Marriage Act.
- The persons belonging to such notified tribes will in matter of
marriage, continue to be governed by the personal law, which was
hitherto applied to them.

Text
s.3. Definitions
• s.(3)(a): Custom and Usage
- Custom must be ancient, certain and reasonable.
- To prove: custom or usage has been acted upon in practice for such a
long period and with such invariability and continuity as to show that it
has been by common consent been submitted to as the established
governing rule in any local area, tribe, community, group or family.
- The determination of what is opposed to the so-called public policy
or policy of the law had necessarily varied from time to time.
- While the principles underlying the rule do not vary, the application
of the rule must in a large measure depend upon the public opinion and
current notions of what is good for the public.
• s.3(f): sapindas relationship and sapinda
- General rule: No valid marriage can take place between two persons who are
sapindas of each other.
- Term ‘Sapinda’ has been explained by Vijananeshwara.
- Pinda means body and Sapinda are those persons who are particles of the same
body.
- Two persons are said to be Sapinda of each other if one is lineal ascendant of the
other within the limits of Sapinda relationship, or if both are sapindas to the
common ancestor.
- 3 generation rule – through mother – inclusive
- 5 generation rule – through father – inclusive
- Trace upwards
• s.3(g): Degrees of prohibited relationship
• s.3(c)
- Full Blood – Mother (same) and Father (same)
- Half Blood – Mother (different) and Father (same)

• s.3(d)
- Uterine Blood - Mother (same) and Father (different)
PERUMAL NADAR (DEAD) BY L.R.S Vs PONNUSWAMI

FACTS- Perumal Nadar and Annapazham entered into a.The marriage took place in accordance with Hindu
rites. The wedlock gave birth to two children to two children. The elder one died shortly after its birth whereas
the younger one named Ponnuswami filed an action for separate possession. Permual contented that the
marriage was not a valid marriage performed with proper rituals and ceremony and therefore the child so
begotten was an illegitimate child having no right of claim in the share of the estate.
Text
Text
ISSUE- Whether the marriage between a Hindu and a Christian was valid? Whether the plaintiff-child could be
held to be legitimate child.

HELD-Neither a bare declaration gives validity to conversion into Hinduism. For a bona fide conversion an
unequivocal expression or intention to follow Hinduism is sine quo nine. No formal ceremony of purification or
expiation is necessary to effectuate conversion. the marriage was held to be valid
Surajmani Stela Kujur v. Durga Charan
Hansdah (AIR 2001 SC)

Facts:
• Surajmani Stela Kujur- Appellant (Oraon tribe)
• Durga Charan Hansdah - Respondent (Santhal tribe)
• The parties are admitedly tribals.
• They got married according to Hindu rites and customs.
• The appellant has relied upon an alleged custom in the tribe which
mandates monogamy as a rule. However, she failed to prove the custom.
• The respondent has solemnised a second mariage during the subsistence of
the first marriage with the appellant.
• Issues:
1. Is the second marriage void?
2. Is the respondent liable to be prosecuted for the offence punishable under section 494 of IPC ?

• Observations:
1. custom and usage under section 3(a) – ancient, reasonable and certain.
2. Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar case:-the party relying upon a custom is
obliged to establish it by clear and unambiguous evidence.
3. For accused to be convicted under s.494 of IPC, the second marriage is to be proved void but the
respondent could not prove the alleged custom making the second marriage void.
4. s.29(2)
5. s.2(2)

• Decision:
Appeal dismissed.
S Nagalingam v. Sivagami (2001)

• Facts :-
Appellant and Respondent got married in 1970 and had 3 children.
Respondent left home due to ill treatment by the Appellant.
Appellant married Kasturi in 1984. They were residents of Tamil Nadu and got
married in Thiruthani temple. There was no Saptapadi.
Respondent argued for Appellant to be convicted under section 494 of Indian Penal
Code.
There were evidences that the garlands were exchanged between the Appellant and
Kasturi in the presence of parents according to the custom of Tamil Nadu residents.
Appellant argues that since Saptapadi was not performed, the second marriage is
invalid but respondent counters this saying that the second marriage is valid via
section 7A(1)(b), HMA 1955.
• Observations:
Section 494 of Indian Penal Code 1860 has three components :-
a. First marriage should be valid
b. Solemnised subsequent marriage
c. Second marriage should also be validly performed but by the virtue of the
provision, it becomes void.
Here,
i. I marriage – valid
ii. II marriage – solemnised during the subsistence of the I marriage.
• Decision:
The appeal was dismissed on the ground that it was proved that the appellant had
committed the offence of bigamy as the II marriage was solemnized during the
subsistence of his earlier marriage
Bhaurao Shankar Lokhande v. State of
Maharashtra (1965)
• Facts:
The appellant was married to complainant Indubai in 1956. He married Kamlabai in
February 1962 during the lifetime of Indubai. He has been convicted under section
494 of IPC by the Trial court. The appeal was then made appeal in Session court
but it was dismissed. This appeal to the Supreme Court is by Special Leave Petition.
The appellant and Kamlabai got married according to Gandharva form of marriage
in the presence of others.
It is argued by the Appellant that since some essential rituals were not performed,
the marriage has not been solemnised. Since conditions of 3(a) have not been
fulfilled, marriage is not solemnised. For anyone to be convicted under section 494
of IPC, the person should have a valid second marriage
The Respondent however contended that the marriage solemnized in Gandharva
form is a valid marriage. Also, s.494, IPC does not require the second marriage to
be valid.
• Observations:
There is no evidence on record to establish that the performance of the
essential ceremonies has been abrogated by the custom prevalent in the given
community. In fact, the prosecution led no evidence as to what the custom
was.
Since the essential rituals did not take place, second marriage has not been
solemnised and hence consequently appellant can't be booked under s.494 of
IPC.

• Decision:
Conviction was not sustained and the appellants acquitted.
S4 OF HMA- overriding effect of HMU
The validity of HMU depdends on 4 facts- both should be hindus, it should be a heterosexual union, it should be solemnised as per hindu rites and
culture and there should be condition of a legal hindu marriage

MARGARET PALAI VS SAVITRI PALAI-

The wife was christian and the husband was hindu at the time of marriage. after husbands death, the question of succession arose. since no proof that
wife did convert to hinud and she isnt hindu so there is no legal marriage so no property should be given
the court held that the marriage was not valid as she adopted hindu after marriage. hindu rites and ceremony doesnt alone make marriage valid. oone
needs to be hindu at the time of marriage

MADHU CHOUDHARY VS RAJENDRA KUMAR

FACTS- Nikhil Chaudhary claimed to be the legitimate son of Sushil Chaudhary and Rekha Chaudhary and asserted that his parents were married. The
trial court found the marriage to be invalid due to the lack of evidence of Rekha Chaudhary's conversion to Hinduism before the marriage.
ISSUE- Whether the marriage of a Roman Catholic (Christian) with a Hindu is valid under the Hindu Marriage Act, 1955?
HELD- The court foundText that Rekha Chaudhary had indeed converted to Hinduism before her marriage to Sushil Chaudhary. Several pieces of evidence
Text
supported this conclusion, including Rekha's testimony, the fact that they cohabited as husband and wife, and various religious ceremonies that took
place. Thus, the court upheld the validity of the marriage.

ARUN KUMAR VS INSPECTOR GENERAL

FACTS- Arunkumar got married to Sreeja, a transwoman, on 31 October 2018 at a temple in Tuticorin, as per Hindu rites and customs. When they
submitted a memorandum for registration of marriage to the Joint Registrar No. II of Tuticorin, the Registrar refused to register the same. The petitioners
challenged this decision before the District Registrar of Tuticorin vide proceedings dated 16 November 2018, who in turn confirmed the Joint Registrar’s
decision on 28 December 2018. This decision was challenged before theMadras High Court.
ISSUES- Whether the term ‘bride’, as mentioned in Section 5 of the Hindu Marriage Act (HMA) meant only women, or included transgender persons as
well, given that Sreeja was a transwoman.
The Court stated that a marriage solemnized between a male and a transwoman, both professing Hindu religion, was a valid marriage. The Court
stated that transgender persons had the right to decide their self-identified gender, as upheld by the Supreme Court in NALSA v Union of India, which
has been reiterated in Justice K. Puttaswamy v Union of India and again in Navtej Singh Johar v Union of India.
The Court also held that the expression ‘bride’ in the HMA cannot have a static meaning and must be interpreted in light of the legal system as it exists
today. The Court, therefore, held that refusal to register the marriage of Ms. Sreeja would amount to a violation of her fundamental rights under Articles
14, 19(1)(a), 21 and 25 of the Constitution of India
Condition for a Hindu Marriage

• s.5(i)
• Monogamy: voluntary union for life of one man with one
woman to the exclusion of all others spouse- lawfully
married husband or wife.
• Any contravention to the condition laid down in clause (i) is
void ab initio.
• The spouse of a null and void union, entered into the
pendency of an earlier marriage is entitled to maintenance,
on the passing of a decree of nullity. (Ramesh Chandra
Daga v. Rameshwari Daga), s.25.
• s.5 must be read with s.7.
In A. Asuvathaman vs. Union of India (2015), the Madras High Court in the year 2015 upheld the validity of Section 7-A of HMA.
In the present case, the petitioner challenged the validity of the state’s amendment, terming it to be ultra-vires to Section 7 and
completely against the principles of the Hindu religion. He also further submitted that the amendment has proved to be in
violation of Article 14 of the Indian Constitution. The Court dismissed the petition, saying the amendment is just regarding two
marriages, i.e., Suyamariyathai and Seerthiruththa, and thus it is not discriminatory in nature. The Court further held that there
exists a presumption in favour of the constitutionality of the act unless the petitioner proves any grounds that are proven to be
against any principle of the Constitution.

Surajmani Stella Kujur v. Durga Charan Hansdah

Dr Surajmani Stella Kujur, petitioner, from Oraona tribe was married to the respondent Durga Charan Hansdah, a member of
Santhal tribe. Respondent committed the offence of second marriage in the presence of first marriage i.e., Bigamy. The appellant
has submitted before the hon’ble court that respondent shall be prosecuted under the section 494 of the Indian Penal Code.
Appellant has also submitted that the marriage was done according to the Hindu rites and customs. First accused did not had the
divorce with his wife instead, he solemnized the marriage with the second accused and it contravenes the provisions of Section
494 of the IPC.
Issue:Who qualifies as a "Hindu" for the purposes of the Hindu Marriage Act of 1955?
held- Decision was passed that section 2 of the Hindu Marriage Act, 1955 says who are the people that will come under the word
“Hindu.” The act is appropriate to all the Hindus (together with Virashaiva, Lingayat, Brahmo, Prarthana Samajists and the Arya
Samajists), Jain, Buddhist and Sikh and any other person who is a citizen of India or domiciled in any other states under the
territory of India and is not a Christian, Muslim, Parsi, or a Jew.he court said that in the absenteeism of the announcement by the
under Article 342 of the Indian Constitution, they are considered to be Hindus by religion. Even if the announcement is passed
that the act is still applicable on the Scheduled Tribe and Scheduled Castes under sub section of the same act and same section.
It is considered by the court that even if the two possess Hinduism, the Hindu Marriage Act is not applicable to them. The
appellant had approached the court under the laws of their personal customs and it is nowhere mentioned in their laws that the
second marriage is illegal. It is only mentioned in their laws that monogamy has to be practiced but only as a mere thought that
single marriage can be practiced but is not sufficient and it must be codified that the second wedding is void in the subsistence of
their primary wedding only then, the appellant will get what it has come fourth in the court. The case was dismissed
sarla mugdal vs uoi
The petitions were filed in the Supreme Court of India under Article 32 of the Indian Constitution. Initially, there were two petitioners .
Sarla Mudgal, the first petitioner,Meena Mathur, the second petitioner, was married to Jitendra Mathur since 1978 and the mother of
three children who were not her biological offspring. Once they both embraced Islam, petitioner 2 learned that her spouse had wed
Sunita Narula, also known as Fathima. She claims that her husband merely converted to Islam in order to wed Sunita and evade
Section 494 of the IPC. Sunita Narula alias Fathima filed a different case in which she claimed that she and the respondent had
converted to islam before being married and had given birth to a kid out of wedlock. But, under the influence of Meena Mathur, the
respondent pledged in 1988 that he would preserve his first wife and their three children while reverting to Hinduism. She was not
being supported by her husband and had no legal protection because she continued to practice Islam. According to Hindu customs,
Geeta Rani, the petitioner, wed Pradeep Kumar in 1988. Last but not the least, Sushmita Ghosh, the petitioner, wed G. C. Ghosh in
1984 using Hindu rituals. Her husband, the respondent, requested a divorce from her by mutual consent in 1992 because he no
longer wanted to live with her. As the petitioner further questioned him after being surprised, he confessed that he had converted to
islam and intended to wed Vinita Gupta. She sought in the writ suit that her husband be prevented from getting remarried
issues- Whether a Hindu husband married under the Hindu law, by embracing Islam can solemnize a second marriage?
Whether such a marriage without having the first marriage dissolved under law, would be valid marriage qua the first wife who
continues to be Hindu?
Whether the apostate husband would be guilty of the offence under Section 494 of the Indian Penal Code, 1960?
held- A marriage can be dissolved under the provision of the Divorce Act. A marriage can also be dissolved on the death of either of
the spouses. According to Hindu Marriage Act, a marriage cannot be dissolved except on the grounds of section 13 of the Hindu
Marriage Act, 1954. The second marriage of an apostate husband under Muslim law would be a marriage in violation of the
provision of the Act by which he would be continuing his first marriage.
As a result, a second marriage is illegal in the eyes of law. The second marriage of an apostate husband is against natural justice. It
is arbitrary to allow individuals to solemnize their marriage after conversion to Islam. It is a clear way out to circumvent the provision
of section 494 of the Indian Penal Code.
The Supreme Court of India emphasizes the enforcement and implementation of Uniform Civil Code in India to regulate matters
related to marriage, divorce, adoption, inheritance, custody of the child, and other matters related to matrimonial disputes under
uniform law applicable to all religious communities uniformly. The objective of the Uniform Civil Code is to govern all the religious
communities in India uniformly.
Lily Thomas v. Union of India (2000)

• I Writ Petition – filed by Lily Thomas

Sushmita Ghosh + G. C Ghosh were married according to Hindu rites.
The husband converted to Islam and married another woman during the subsistence
of the first marriage. He asked the first wife to give divorce by mutual consent.
The appellant argues that her husband has no faith in Islam and got converted only
to remarry.
She argued that Provision of Muslim Personal Law (Shariat) 1937, is
unconstitutional as it violates article 15(1) of the Constitution of India.
To prove her arguments, she resorted to the following evidences.
1. Birth certificate of the child born out of second wedlock.
2. Bangladesh visa application was also in Hindu name i.e. G. C Ghosh
3. Name in the electoral roll was the same Hindu name
• II Writ petition :- Kalyani Organisation
This dealt with desertion of legally wedded wives and when there is no
ground of divorce, people resort to conversion.
• Review Petition:
In Sarla Mudgal case, the court held that any marriage entered into with
first marriage subsisting, second marriage is void.
• Justice Kuldip Singh requested the Government of India to have a fresh
look at Article 44 of the Constitution of India which deals with Uniform
Civil Code. It should be implemented to remove contradictions arising
from differences between religious ideologies.
Observations:
1.Section 5,7, 11, 17 of HMA, 1955
2. Gopal Lal v. State of Rajasthan - section 17 makes second marriage void and
conviction of accused under section 494 of IPC
3. Conversion or Apostasy - ground for judicial separation (s.10) and s.13
(divorce)
4. Section 17 of HMA is applicable only to Hindus but section 494 of IPC is
secular.
5. In Sayeda Khatoon v. M Obadiah it was held that marriage solemnised in India
according to one personal law cannot be dissolved according to another personal
law simply because one of the parties has changed its religion.
6 .In Government of Bombay v. Ganga, the court observed that mere conversion
does not lead to the end of first marriage.
7. The court refused to accept the arguments raised against the judgement in the Sarla
Mudgal case that it violates article 25 of the Constitution of India.
8. In Bhaurao Shankar Lokhande v State of Maharashtra, the court held that a marriage
is not proved unless the essential ceremonies required for its solemnisation are proved to
have been performed.
9. Section 494 of IPC requires valid and subsisting first marriage and second marriage also
to be valid to book the accused.
10. Article 44: since living in a secular country, not possible at this point of time. It needs
legislature which is beyond the domain of the judiciary.

• Decision:
In view of the concurring but separate judgements the Review and the Writ petition are
disposed of finally with the clarifications and interpretation set out therein.
Mental capacity

• s.5(ii)
• Mental capacity – at the time of marriage
• Medical examination in cases of mental illness can be
ordered suo moto or at the instance of a party to the
proceedings
• Such an examination is not violative of Article 21 –
provision in harmony with article 21 – the fit person is
under danger if without reason lives with that other person
• Voidable as per s.12
Age of the parties

• s.(5)(iii)
• Age of the parties
• A marriage solemnised in violation of the requirement as to the age laid
down in clause (iii) is not void or even voidable but the contravention
of the condition is punishable as an offence under section 18 of the Act.
• The provisions of section 3 of the Prohibition of Child Marriage Act,
2006 (every child marriage, whether solemnised before or after from
the commencement of this act, shall be voidable at the option of
contracting party who was a child above the age of 16 years but below
the age of 18 years at the time of marriage) will have overriding effect
over the provisions of this act.
• Special Marriage Act, 1954 - Void
it is void in 4 circumstances- if the minor is kidnapped, if the minor is forced or compelled, if the minor is sold for marriage, if the
minor is mained and then sold for unlawful purposes
minor age under muslim law is puberty
Pinninti Venkatramana & Anr. v. State of Andhra Pradesh- wife filed a complaint against her husband and ten others, alleging
that the husband committed the offence under section 494 of the Indian Penal Code and that the other ten were involved.
Husband stated that he was 13 years old at the time of the marriage, in 1949, and the wife was nine years of age.
Thus, the marriage between him and 1st respondent i.e., wife was void ab initio
ISSUE- Whether the marriage was void ab initio or not?
The Court of Appeal has ruled that according to the Section 5(iii) and 11 of Hindu Marriage Act, 1976 and the marriage between
husband and wife is legal and was not void ab initio and they shall be liable under Section 18 as well as under Section 13(2)(iv)
of Hindu Marriage Act.
Sapinda and Prohibited relationship

• s.5(iv)
- Custom or usage must fulfil the requirements of a valid
custom as defined in s.3 (a).
- The rules relating to ‘degrees of prohibited relationship’
are described in the definition clause s.3 (g).
• s.5(v)
- The rules relating to ‘sapinda relationship’ are
prescribed in definition clause s.3 (f).
• Void as per s.11
s.11: Void Marriages
• Parties to a marriage solemnised before the act came into force are not affected by this rule.
• The phrase ‘either party thereto’ means only the two actual parties to the marriage and no third
party.
• A wife and husband can not jointly file a petition asking for a decree of nullity against the wife of
the subsequent marriage of the husband and it is only either party to a marriage who can initiate
such proceedings. The first of legally wedded wife can take up separate proceedings by the way of a
civil suit.
• The words ‘against the other party’, make it clear that the petition may be presented only during the
lifetime of the other party.
• A marriage which is void ab initio does not alter or affect the status of parties, nor does it create
between them any rights and obligations which must normally arise from a valid marriage, except
such rights are expressly recognised by the act e.g. Section 24 and section 25, applies to parties to
such marriage.
• Section 11 to be read with section 17, 18 of Hindu Marriage Act and 494, 495 of IPC.
s.12: Voidable Marriages
Shantabai v.
• s.12(1)(a) Tarachand(: in this case,
• Impotency: Incapacity to consummate the marriage i.e. incapacity to have conjugal the parties were married
intercourse which is one of the objects of marriage. in Indore on November
1960. The husband had
• The mere fact that the wife is infertile despite normal sexual activity is no ground for the alleged that the wife
annulment of marriage (Sameer Adhikari v. Krishna Adhikari 2009). refused to have any
• A question as to the impotence of either party cannot be raised by a third person, becausesexual contact despite
it is solely a personal matter for the spouse, nor it can be raised after the death of one of both of them being
them. healthy (examined by
the doctors). The court
• Consummation: in common parlance- ordinary and complete intercourse held that this case
• The first thing to be considered in a case under this clause would be whether there has in belonged to the rare
fact been ‘consummation’ or not and where there has been no ‘consummation’, the variety of frigidity. quoad
enquiry must be whether it was due to impotency of the respondent. hanc. The wish to not
perform sexual
• It is for the petitioner to prove that consummation of marriage has not taken place on intercourse doesn't
account of respondent’s impotency. mean a person is
impotent.
Mental Capacity

• s.12(1)(b)
• Marriage with a person of unsound mind or one suffering from
mental disorder.
• Either spouse must have the requisite mental capacity to enter
into matrimony.
• Mental conditions in this clause relate to pre-marriage
conditions and not to post-marriage mental conditions for which
other reliefs like divorce is available.
Force or Fraud

• s.12(1)(c)
- s.12(2)(a) – Condonation
- Force: where consent of a party is obtained by force, coercion (to restrain or dominate by force) or duress
(compulsion/ forcible restraint), it is obvious that there is absence of a consenting will to marry.
- Test- whether there was any real consent to the solemnisation of marriage?
- Mere pressure, strong advice, persuasion etc do not amount to force.
- Fraud: the section does not speak of fraud in any general way or of every misrepresentation or concealment
which may be fraudulent, but fraud as to nature of ceremony or as to any material fact or circumstance
concerning the respondent.
- Example: where a party is kept under the impression that what is being performed in only a betrothal
(promise to marry) or a conversion to Hindu religion.
- The petitioner must show that for such false representation or statement or concealment, he or she would
not have married the respondent.
- Example: Fraud as to nature of ceremony, identity of party, concealment of disease, religion or caste, age,
concealment of previous marriage.
- A solitary act of intercourse after knowledge of fraud may not amount to condonation (pardon) of fraud.
BIKHAR SINGH VS MAHINDER KAUR The appellant-husband married the respondent-wife on June 19, 1977. The husband alleged
that he was shown a different girl before the marriage, one who was literate and beautiful, and he had consented to marry her.
However, after the marriage, he found that the girl brought to his home was not the same as the one he had been shown. The
husband claimed that the wife was illiterate, unattractive, around 40 years old, of small stature, had gray hair, artificial teeth, a
venereal disease, weak eyesight, and certain eye defects. The wife contested the application, claiming that she had stayed with the
husband for nearly 20 days but was later expelled from the house because her parents couldn't meet the husband's financial
demands.
The trial court found that fraud had been committed on the husband and granted him a decree of nullity of the marriage.
issue- whether the husband's marriage was voidable due to fraud.
Whether the husband was entitled to a decree of nullity.
HELD- The learned single Judge held that even a single act of cohabitation after discovering fraud could be a ground for dismissal of
the nullity petition, based on the principle of condonation.
The appellate court disagreed with this interpretation, stating that a solitary act of sexual intercourse did not conclusively establish
total condonation of the fraud.
The appeal was allowed, the judgment under appeal was set aside, and the trial court's decision was restored.
BABUI VS RAM AGYA SINGH-NPetitioner (hereinafter eferred to as P), a Girl above 18yrs of age at the time of marriage,
appeals to the court for the dissolution of marriage on the grounds that the Consent was obtained by Fraud and Visual
misrepresentation.
2. The Petitioner overheard her father talking to her mother that he had fixed their daughter's marriage to a man of age
between 25-30 who is financially well. On hearing this, the girl impliedly consented the marriage.
3. At the time of Marriage, and after a few days, P found out that, the man she married to was 60yrs old and that her consent
was fraudulently obtained by her parents. Later her father took her away and denied to sent her back
4. The petitioner again tried escaping and went to Nanihal, She then filed for Dissolution of Marriage with the respondent on
the ground of fraud in the matter of procurement of her consent whereby her marriage was solemnized
1. Whether the said issue falls under the Sec 12 of the Hindu Marriage Act?
Yes, the said issue falls under Sec 12 (1) (c) of the Act which states that
the consent of the petitioner, or where the consent of the guardian in the marriage of the petitioner, the consent of such
guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance
concerning the respondent), Also scheme of Sec.12 of Act leaves no room for doubt that in a case falling u/s 12 (1) (c) of the
Act, it is not necessary to prove that consent was obtained by force or fraud at the time of marriage.
2. Whether the Appellant was entitled to Dissolution of Marriage with the Respondent?
The trial court stated that
• That there was no misrepresentation to the petitioner herself inasmuch as the particulars of the bridegroom were not
conveyed to the petitioner directly and had been merely overheard by the petitioner while Her father was mentioning them to
her mother; and
• That fraudulent misrepresentation within the meaning of Section 12(1)(c) must be made at the time of the solemnization of
the marriage and not earlier, that is to say, at the time of settling the marriage.
However, High court, on the other hand, set aside the above view It is to manifest that the impression, which was created in
the mind of the petitioner by the talks between her father and her mother, continued even at the time of solemnization of the
marriage, because upon the evidence it must be held that the petitioner, being under a heavy veil, at the time of the marriage,
could have no opportunity to have a look at her husband so as to be in a position to withdraw her consent even at that stage.
Pre-marriage pregnancy

• s.12(1)(d)
• Pre-marriage pregnancy (pregnancy per alium): the basis of the rule is
suppression veri (suppression of the truth) by a woman who was pregnant
at the time of marriage.
• The condition laid down in sub-section 2 (b) (ii) is absolute and a petition
will not lie under this clause after that period had lapsed, even if fraud has
been practiced on the petitioner in the matter of pregnancy by concealment
of truth.
• A special case of fraud.
• Wife’s admission of pre-marriage pregnancy and that fact that husband had
no access to her before marriage is sufficient to establish pregnancy per
alium, also medical evidence by doctor.
 Void marriage Voidable marriage
Void ab initio Not void till one of the party has
approached the court
Contravenes clauses (i), (iv), (v) of s.5 Contravenes clauses (ii) of s.5

No condonation Subject to Condonation

No Rights and Obligations towards each Rights and Obligations

other except some, like providing
maintenance
Void v. Voidable Marriage
Void Voidable
Void ab initio Voidable at the instance of the other party

Not husband and wife– no change of status Husband and wife – change of status

s.11, HMA 1955 s.12, HMA 1955

Prospective in nature Retrospective in nature

No relief except maintenance Reliefs like inheritance, maintenance, etc.

available
Grounds: Grounds:
i. Monogamy i. Impotency
ii. Degrees of Prohibited Relationship ii. Mental Capacity
iii. Sapinda Relationship iii. Force or Fraud
iv. Pre-marriage pregnancy
Asha Qureshi v. Afaq Qureshi (AIR 2002)

• s.25(iii) of Special Marriage Act and Section 17 of Indian Contract Act

• s.25(iii), SMA 1954 is analogous to s.12(1)(c) of HMA, 1955

• Facts:-
Appellant, Smt. Asha Qureshi and the respondent, Afaq Qureshi were married on
23.01.1990 at Jabalpur and lived together for about an year. Subsequently the relations
became strained and the husband applied for a decree of nullity of the marriage. He alleged
that the wife was widow of Motilal Vishwakarma and this fact was suppressed by the
appellant. As a result, he married the appellant believing her to be a virgin.
The wife denied the above allegations i.e. suppression of material fact and argued that the
respondent knew about her marriage and if not directly from her then at least from the
neighbours. During the cross examination, she told that they had known each other since 8
years and he knew that she was a widow from childhood.
The respondent told that he got to know about the first marriage only after the marriage. He
said that he was told by his wife about her late marriage because there was no responsible
person in the family so she could not enter into a wedlock earlier.
• Issue:- whether there was suppression of material fact?
• Observation.
The court interpreted section 17 of the Indian Contract Act - Mere silence as to facts likely to affect the
willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are
such that it is the duty of the person keeping silence to speak.
The court found the fact that the appellant had been married earlier is a material fact and the
suppression of the same has amounted to exercise of fraud. Under section 17(4) of ICA,
misrepresentation of words is not essential. It is sufficient if it appears that the party deceiving
knowingly induced the defendant to enter into a contract by leading him to believe that which the party
deceiving knew to be false.
It was the duty of the appellant to intimidate the respondent about the earlier marriage and the failure
on her part to do so amounted to material suppression because if the respondent had known this, he
would not have entered into the wedlock.

Decision: The appeal was dismissed and the trial court's judgement granting decree of nullity under
section 25(iii) was held right.
MUSLIM MARRIAGE
NATURE:
• Not a sacrament but civil contract
• For procreation and legalisation of children
• Proposal and acceptance
• Rights and Obligations
• Attracts all incidents of Contract Act e.g., free consent
• s.64, ICA – Return the benefits if marriage rescinded unilaterally
• Ibadat (Worship) + Maulamat (Wordly affairs)
• Therefore, it is both sacramental and a civil contract.
ESSENTIALS:
I. Capacity of Marriage:
i. Mohammedan
ii. Age of Puberty (Baligh) – 15 years
Under Indian Majority Act, 1875, age of majority = 18 years
But this Act only applicable in case of Will, Custody, Maintenance and Guardianship
But not applicable to Marriage, Divorce, Dower
iii. Sound Mind
iv. Lunatics – valid consent of Guardian
Apostate – earlier had no right to give consent
But by the virtue of Freedom of Religions Act, 1850 – Apostate can also give a valid consent
v. Free Consent
II. Ijab (Offer) and Qubul (Acceptance)

III. Ijab + Qubul in one meeting

IV. Witnesses:
• In case of Sunni,
- 2 males
- 1 male + 2 females
• In case of Shia, no requirement of witnesses.
V. No religious ceremony
Though Qazi is usually present.

VI. No specific words but the intention to marry – clear and unequivocal words

• Nikah Nama:
Contract of Marriage
Conditions like amount of dower, custody, maintenance, right to divorce, etc. to be present.
But the following cannot be laid down as valid conditions:
Husband shall be divested of power of divorce
Agreement to future separation
Wife at liberty to live as separate permanently
PROOF OF MARRIAGE:
• To proof Marriage is a question of fact

i. Direct way:
• Calling Witnesses; Nikah nama

ii. Indirect way:

• Raise presumption of marriage
• Prolonged and continuous cohabitation
• Intention to give status of wife
• Acknowledgment of legitimacy of children
MARRIAGES:
• Valid (Sahih)
Under Sunni and Shia

• Void (Batil)
Under Sunni and Shia
Unlawful in foundation
Perpetual and absolute bars

• Irregular (Fasid)
Under Sunni only
Good in foundation but unlawful in attributes
Temporary and relative bars
BARS TO MUSLIM MARRIAGE:
• Absolute Bars
- To marry prohibited relationship

i. Consanguinity:
- Nearness in relation
- Being descendant from the same ancestor
- A Muslim male cannot marry:
(Ascendants/ Descendants of any degree),
a. His mother or grandmother how high so ever
b. His daughter or granddaughter how low so ever
c. His sister – full, half, uterine
d. Niece or grand niece
e. Aunt or Great aunt
• However, a muslim male can marry his cousin (parallel/ cross)
ii. Affinity:
- On account of marriage
- A Muslim male cannot marry:
a. Wife’s mother
b. Wife’s daughter (if consummated)
c. Wife of his father
d. Wife of his son
iii. Fosterage:
- The action of bringing up a child that is not one’s own by birth
- When a woman has suckled a child under the age of 2 years, the woman becomes the foster
mother of the child
- Bars under Affinity + Consanguinity, applicable
- Exceptions:
• Sister’s foster mother
• Foster sister’s mother
• Foster son’s sister
• Foster’s brother’s sister
iv. Marrying another wife:
- Whose husband is alive
- not yet divorced
- offspring illegitimate
- s.494, IPC
• Relative Bars:

i. Unlawful Conjunction (Jamabain – al - Maharmain):

- A Muslim male
- May not have 2 wives
- Related to each other by consanguinity, affinity or fosterage
- If either would have been male, they could not have intermarriage
ii. Number of Wives:
- No polyandry for Muslim females
- 4 wives allowed
- In Muta marriage – more than 4 allowed

iii. Absence of Witnesses:

- Shia – Valid
- Sunni – Irregular
iv. Marrying with a woman undergoing Iddat
- In case of:
a. Divorce
b. Husband predeceased
- Period during which a woman has to remain in seclusion and to abstain from marrying another
a. Divorce:
- Subject to menstruation – 3 courses
- No menstruation – 3 lunar months
- Pregnant – terminates upon delivery
- No consummation – No Iddat
b. Death:
- 4 months 10 days
- If pregnant – until delivery or 4 months 10 days (whichever is longer)
- Consummation – Immaterial
• In case of divorce, husband also prohibited from marrying
• Iddat starts from the date of divorce/ death
• If a woman is going under Iddat due to divorce and her husband dies, she has
to start a fresh iddat after the death
• Under Shias, Iddat is not required if woman falls under any of the following
categories:
- If the woman has past the age of child bearing
- If irregular or no mensturation
- If she has not attained puberty
v. Difference of a religion
• Under Sunni:
- Male can marry,
A Muslim, Kitabia,
Not a fire worshiper, not an idolatress
- Female can marry,
Only a Muslim
• Under Shia:
- Marriage can happen only between 2 Muslims except Muta

• If a Muslim is marrying a Christian, then have to marry under Christian Marriage Act, 1872.
- Indian Divorce Act, 1869 governs marriages done under Christian Marriage Act, 1872.

• Under Special Marriage Act, any 2 persons can marry, irrespective of their religions.
vi. Re-marriage with divorced Woman
- Follow Halala, i.e.,
- Marry another man
- Consummation
- Divorce
- Re-marry
EFFECTS:
• SAHIH
- Iddat
- Maintenance
- Mutual rights
- Residence
- Dower
- Husband – no right in wife’s property
- Degree of prohibited relationship
- Inheritance
• BATIL
- No rights and obligations
- Illegitimate offspring

• FASID
i. No Consummation
- Will have the effects of Batil
ii. Consummation
- Iddat – only 3 months in every case
- Will have the effects of Sahih except Inheritance
MUTA MARRIAGE (ONLY UNDER
SHIAS):
• Temporary Marriage – Recognised in Ithana Asharia Shia School
• Muta – Enjoyment or Use
• Male – Muslim, Kitabia, Fire Worshipper
• Female – only Muslims

• Essentials:
- Duration – Fixed
- Dower – Specified
- If fixed duration and specified dower = Valid contract
- If fixed duration and dower not specified = void
- If duration not fixed but specified dower = Valid as nikah but void as muta

• No mutual rights of inheritance

• Legitimate children – can inherit
• Dissolved ipso-facto on the expiry of term or by mutual consent or death
• No right of divorce but allowed to make the gift of the term (Hiba – i - mudai)
• No Consummation – half dower
- Consummation – full dower
• No maintenance
• Maintenance under s.125, CrPC
• Can have more than 4 wives
• Iddat – 3 Courses (if consummated) – only in case of death
DOWER: MAHR
• sum of money or property, wife entitled to
• Consideration – not in full sense
• Not a form of dowry
• Fixed – before/ at/ after marriage
• Contract of dower by father binding on minor son
• No maximum limit – may be beyond the means of husband
• Expressed – by parties/ Court
• Implied – by court
KINDS OF DOWER:

1. On the basis of mode of Determination:

a. Specified (Mahr – i - Musamma) – Determined by parties
b. Proper (Mahr – i - Misl) – Fixed by the Court

2. On the basis of time of payment:

a. Prompt (Muajjal)
b. Deferred (Muwajjal)
SPECIFIED DOWER:

- fixed by mutual agreement

- before/ at/ after
- no maximum limit – beyond capacity
- can be increased by husband
- unless any legislation, Court to award entire sum
- Sunni – Minimum fixed
Shia – no minimum
PROPER DOWER:
- unspecified/ customary
- operation of law
- proper – even if dower not in contract
- status, capacity, health, wealth, personal qualification considered
- under Shia – should not exceed 500 dirhams (around ₹10,100)
- Confirmation of dower:
i. by Consummation
ii. by death of either husband or wife
iii. by valid retirement (khilwat – i- sahiha)
valid retirement – parties are alone and there is no legal, moral, physical impediment to marital intercourse
under Shia – valid retirement is not equal to cohabitation
under Sunni – valid retirement is equal to cohabitation
• Prompt dower:
- immediately on marriage taking place
- unless delay stipulated
- raised by wife – before consummation – half dower
- raised by wife – after consummation – full dower
- prompt dower – passport for conjugal rights to husband

• Deferred dower:
- on dissolution
- an agreement prior to dissolution – valid and binding
- vested interest – heirs can claim
- wife cannot demand its payment but husband can provide as prompt
• if at the time of marriage, it is not clear whether it is prompt or deferred dower,
then:
- under Shia – whole as prompt
- under Sunni – prompt + deferred

• if consummation – whole of unpaid dower

if no consummation – half dower
OBJECT OF DOWER:

• To impose an obligation on the husband as a mark of respect of the

wife.
• To place a check on the capricious use of divorce on the part of
husband.
• To provide for her subsistence after the dissolution of her marriage
either by death or divorce.
CHAND PATEL V. BISMILLAH BEGUM

Facts:
• Appellant’s contention: Denied second marriage with sister of his wife. Also, the law
prohibits unlawful conjunction. There was no sexual relationship. The parentage of
Respondent's child is also disputed. Marriage is void even if solemnised.
• Respondent’s contention: Asked for maintenance under Cr.P.C. 125. Her marriage with the
appellant was a valid one for 8 years. They had been living together along with her elder sister
under one roof. Second marriage was with consent but nikahnama lost. With passage of time,
relation deteriorated. She has no means to support and needs ₹1000 as maintenance for herself
and her daughter.
Legal issue: a) is the marriage which is an unlawful conjunction - void, valid or irregular?
b) can maintenance be granted under Cr.P.C. 125 ?
Trial Court: maintenance granted
Observation:
• In Nanak Chand v Chanda Kishore, the court observed that CrPC 125 is a secular
legislation – applicable irrespective of religion.
• In Hussain Saheb case, it was held that CrPC 125 can't be struck down in case of
inconsistency between secular and personal law.
• In case, a marriage is void, CrPC 125 is not applicable but in case of valid and irregular
marriages, it is.
• Marriages under Section 12 of Hindu Marriage Act, are valid till decree of nullity is taken
from court.
• As far as status of courts on Unlawful conjunction is concerned, according to Calcutta High
Court, it is null and void and offspring are illegitimate.
• But as per Bombay, Oudh, Madras and Lahore High Court, it is not void.
The Bombay High Court placing reliance on the views expressed in
Fatawa-i-Alamgiri held that a marriage with the sister of an existing wife
was not void (batil) but irregular (fasid).
• The reasoning adopted was that marriage with a permanently prohibited
woman had always been considered by the exponents of Muslim law to
be void and has no legal consequence, but marriage with a temporarily
prohibited woman if consummated may have legal consequences. The
logic behind the aforesaid reasoning was that a marriage with the sister
of an existing wife could always become lawful by the death of the first
wife or by the husband divorcing his earlier wife and thereby making the
marriage with the second sister lawful to himself.
• Effect of an irregular (fasid) marriage:
(1) An irregular marriage may be terminated by either party, either before or after consummation, by words
showing an intention to separate, as where either party says to the other "I have relinquished you". An
irregular marriage has no legal effect before consummation.
(2) If consummation has taken place
(i) the wife is entitled to dower, proper or specified, whichever is less;
(ii) she is bound to observe the iddat, but the duration of the iddat both on divorce and death is three
courses;
(iii) the issue of the marriage is legitimate. But an irregular marriage, though consummated, does not create
mutual rights of inheritance between husband and wife.
Decision: The court held it as an irregular marriage and not void ab initio. Maintenance under CrPC 125
was granted. Appeal dismissed.