This page contains Family Law 1 Notes of the 5 Year BALLB Hons Course in Law Schools.
These notes briefly deal with various aspects of the Personal Laws of different communities in India concerning marriage and divorce, adoption and maintenance, guardianship and surrogacy, etc as described in the syllabus outline below.
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Kindly note, that these notes might not be covering all topics of Family Law I. We do not take any guarantee of their exhaustiveness. So, don’t take these notes as a substitute for your law school classes.
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HINDU MARRIAGE ACT 1955
S.2- 1) Application of the Act-
1. Who are Hindu by religion in any of its forms and development including Vaishnava, lingayat or the follower of Brahma, Prarthana or Arya Samaj.
2. Who is buddhist, Sikh or Jain by religion
3. Any other person domiciled in the territories to which this act extend who is not a muslim, christian, Parsi or jew by religion, unless it is proved that he is not governed by Hindu law by any custom and usage
Explanation- following persons are Hindu, Buddhist, Jain or Sikh by religion
1. Any child legitimate or illegitimate both of whose parents were Hindus
2. Any child legitimate or illegitimate, one of whose parents were Hindus
3. Convert or reconvert to to the Hindu, Buddhist, Jain or Sikh religion
S.3 Definitions-
1. CUSTOM AND USAGES- any rule that has been continuously and uniformly observed for a long time and has obtained the force of law among Hindus in any local area, tribe, community, group or family. Provided that it must be-
1. Certain
2. Reasonable
3. Not opposed to public policy
4. If applied to a family, it has not been discontinued by the family.
c) Full blood- same father but different wives
d) Uterine blood- same mother but different fathers
f) Sapind relation extends to third-generation (including him) in the line of ascent through mother and fifth-generation through father.
S.5 CONDITIONS FOR HINDU MARRIAGES
1. Neither party has living spouse at the time of the marriage
2. Not incapable of consent in consequence of unsoundness of mind
3. Unfit for procreation because of some mental disorder
4. Insane or subject to the recurrent attack of insanity
5. Attained the age of marriage as proscribed by the law
6. Parties are not within the degrees of prohibited relationship unless their custom/usage permits such relationship
7. They are not sapindas of each other unless custom/usage permits
For a valid marriage, all the conditions above must be satisfied and complied with and solemnized as per section 7.- Ravinder Kumar v Kamal Kanta
S.7 CEREMONIES FOR A HINDU MARRIAGE
In accordance with customary rites and ceremonies of either party
Where such rites include saptapadi, marriage becomes complete only after the seventh step of the saptapadi.
Kanwal Ram v Himachal Pradesh
Marriage is not proved unless the essential ceremonies required are proved to have performed-
S.8 prescribes for the registration of the Hindu marriages for the purpose of the proof of the marriage but any omission in registering the marriage will not affect the validity of the marriage.
Krishna Paul v Ashok Paul
Also merely because the marriage is registered does not necessarily mean the existence of complete and lawful marriage
S.9 RESTITUTION OF THE CONJUGAL RIGHTS
When either party without any reasonable excuse has withdrawn from the society of another party, the aggrieved party may apply for the decree of restitution of conjugal rights in District court.
The burden of proving a reasonable excuse for withdrawing shall be on the party that has withdrawn.
S.9 is not violative of 19 of the Indian constitution- Sumitra Devi v Narender Singh.
S.10 JUDICIAL SEPARATION
Either party can apply for judicial separation on the following grounds- In judicial separation, it is no longer for a party to cohabit with the other party.
1. Sub-section 1 of S.13 which are
2. Other party had voluntary sexual intercourse with any other person
3. Treated the petitioner with cruelty
4. Has deserted the petitioner for not less than two years (without reasonable cause and wish and consent of petitioner and includes willful neglect)
5. Has ceased to be Hindu by conversion to other religion (has to be read with 23(1)(a)
6. Incurable unsound mind or mental disorder of such kind that the petitioner can not be reasonably be expected to live with the respondent.
7. Suffering from a virulent and incurable form of leprosy
8. Suffering from venereal disease in a communicable form
9. Has renounced the world by entering into any religious order
10. Has not been heard of living for a period of seven years
11. That there has been no resumption of cohabitation for one year after the passing of the decree of judicial separation
12. There has been no restitution of conjugal rights for one year even after the passing of such decree.
A wife has following other grounds for judicial separation or divorce-
1. That the husband married again when the other spouse was living
2. Husband has been guilty of rape, sodomy or bestiality
3. He has not resumed cohabitation with her after the passage of any decree by any court for maintenance under the Hindu Adoption and Maintenance Act, section 125 of Cr.PC, or S.488 of Cr.PC for a period of one year after the passage of such decree.
4. That her marriage was solemnized before she attained the age of fifteen years (whether consummated or not) and she repudiated it before attaining 18 years.
S.11 VOID MARRIAGES
Any marriage shall be null and void on a petition of either party if it contravenes any of the conditions mentioned in clauses 1, 4 and 5 of S.5 which are-
1. Bigamy- Has a living spouse at the time of the marriage
2. Not within the degree of prohibited relationship unless permitted by their customs/usages
3. Parties are not sapindas of each other unless permitted by their customs/usages
S.12 VOIDABLE MARRIAGES-
Voidable marriages may be annulled by the decree of nullity on the following grounds-
1. Not consummated due to impotency of the respondent
2. Marriage is in contravention of conditions specified in clause ii of S.5 which is-
1. Incapable of giving valid consent at the time of marriage due to unsoundness of mind
2. Suffering from a mental disorder which renders him/her unfit for procreation
3. Subject to recurrent attacks of insanity.
3. That the consent for marriage was obtained by force or fraud
4. That the respondent at the time of marriage was pregnant by some other person other than the petitioner provided that
1. Petitioner was ignorant of this fact
2. Not more than one year has passed since the discovery of this fact
3. There has been no marital intercourse by the petitioner after the discovery of the said fact
This conditions for annulment of marriage shall not be entertained if –
1. More than one year has elapsed since the application of that force or fraud.
2. The party on her own continued to live with the respondent even after discovering such fraud or continued to live with the respondent after the force had ceased to operate.
S.13 DIVORCE
Conditions for Judicial separation and divorce are same.
There are various theories of Divorce-
Divorce at will theory
Frustration of Marriage Theory
Offense/Guilt/Fault Theory
Mutual Consent Theory
Irretrievable breakdown Theory
Cases–
Conversion to other religion
Sarla Mudgal
Lilly Thomas
Insanity
Ramnarain Gupta
Desertion
Bhagwat v Bhagwat
Leprosy
Swaraja Laxmi v Jeetji Padma Rao
Deadly disease
Mr. X v Mrs. Z
Cruelty
D Bhagat v Bhagat
Dastani v Dastani
Neelu Kohli v Naveen Kohli
Hirachand Srinivas v Sunanda
Renouncing the world
Sital Das v Sant Ram
S.13A- Alternative relief in Divorce Proceedings- But court has no discretion in cases of-
conversion to other religion
Renonciation
Unheard of 7 years or more
S.13B- DIVORCE BY MUTUAL CONSENT
Both parties can together file a petition for divorce by mutual consent. Then they have to file a motion for the not before 6 months and not later than 18 months affirming their desire for the dissolution of marriage and the court if satisfied of the following condition can grant the decree of divorce-
1. The marriage was solemnized between the parties
2. Parties have lived separately for more than one year before filing this petition
3. They are not able to live together and continue to live apart
4. They have mutually agreed to dissolve the marriage without any force, fraud, undue influence, and collusion.
5. Averments made in the petition are true and conditions under S.25 are fulfilled
(Krishna Khetrapal v Satish Lal 1987)
There cannot be any written agreement between the parties for divorce contrary to the provisions contained in this Act.- Malayaiah v GS Vasantha Lakshmi 1997
Nikhil Kumar v Rupali Kumari
6 Months interregnum period was waived off.
Sureshta Devi v Omprakash
Whether a party can unilaterally withdraw his/her consent after jointly presenting petition of divorce under 13B of the Hindu Marriage Act?
A couple was married in 1968 but they did not live together for more than 6-7 months and on 9 January 1985 they jointly moved a petition for divorce. But one week later the wife another application stating that her consent was obtained under pressure. The court said that the parties must be separately living for one year or more immediately preceding the filing of petition and living separately does not necessarily mean separate residence but not living like a husband and wife. The court said that there is nothing in the section that stops a party from revoking his/her consent and the interregnum period of 6 to 18 months have been provided for same reason facilitate change of heart if any or to inquire about the issue of pressure force or coercion in the consent.
Anil Kumar v Maya Jain
This case dealt with a very important issue relating to divorce by mutual consent as to what will happen in case one party withdraws his consent before the passing of court decree of dissolution of marriage or one party refuses to present the second motion. As per the facts when difference arose between a couple and they could not live together, they filed a petition for divorce under mutual consent under section 13B of the HMA. But after the passing of 6 months, the wife refused to present the second motion along with the husband but reiterating that she will not live with the husband and will also not dissolve the marriage. When matter reached to the Supreme Court, the honorable court did not agree with the contention of the wife of not living together with the husband without giving substantial reason and also not agreeing to divorce by mutual consent. The court therefore granted husband divorce under 13-B of the Hindu Marriage Act but exercising its extraordinary power under Article 142 of the Constitution of India in line with cases like Ashok Hurra and Roopa Hurra.
Manish Goyal v Rohini Goyal
A highly educated couple was married in 2008 but soon differences arose between them and their marriage ran into rough weather. The husband filed a petition for divorce under S.12 of the Hindu Marriage Act while the wife filed several cases under Domestic violence Act against the Husband. But somehow their relatives intervened and convinced them to settle all their disputes amicably and peacefully dissolve their marriage by mutual consent.Then they moved to Supreme court for the waiving of these periods by exercising its extraordinary jurisdiction under Article 142 of the Indian Constitution. Supreme Court said that power under 142 which had been given to it under utmost trust is to be exercised only under exceptional circumstances to do complete justice. In the words of court- ‘Thus, this is not a case where there has been any obstruction to the stream of justice or there has been injustice to the parties, which is required to be eradicated, and this Court may grant equitable relief. Petition does not raise any question of general public importance. None of contingencies, which may require this Court to exercise its extraordinary jurisdiction under Article 142 of the Constitution, has been brought to our notice in the case at hand.’
Poonam v Sumit Tanwar
This case again dealt with the same issue as in the Manish Goyal case. A couple separated just two days after their marriage. When the lower courts refused to entertain this plea. They appealed to the Supreme Court under Article 32 of the Indian Constitution. Supreme Court said that Article 32 has to be exercised when parties can prove the violation of their fundamental rights to the satisfaction of the court. Supreme court, therefore, dismissed the petition citing the same reasons as in Manish Goyal case and also reprimanded the parties for doing a disservice to the family courts that obliged with statutory requirements of the Hindu Marriage Act by alleging that they violated the fundamental rights of the parties by not granting them divorce.
S.14 NO PETITION FOR DIVORCE TO BE PRESENTED WITHIN ONE YEAR OF MARRIAGE, except in exceptional circumstances and hardships or exceptional depravity on part of respondent.
Meghnath v Sushila
S.15 When divorced persons may marry again?
When marriage has been dissolved by decree of divorce and there is no pending appeal against the decree by virtue of appealing period being expired (90 days) or dismissed by appellate court.
S.16 Legitimacy of Children born out of void/voidable wedlock
Any child of such marriage will be legitimate but he will not inherit the ancestral property
Revanasidappa v Malikarjuna
S.17 Punishment for Bigamy (494-495 of CrPC)
S.18- a person procuring marriage in contravention of sub- section 3, 4, 5 of section 5 shall be punishable by rigorous punishment extending unto two years or fine unto 1 lakh or both
S.19-23 Procedures and Jurisdiction of courts. All proceedings to be held in camera.
S.23(2)- Object of the Hindu Marriage Act- parties should not be found conniving under S.13 or have condoned the act of cruelty.
When divorce is sought by mutual consent, consent should not have obtained by fore, fraud or coercion.
The court will try to preserve the marriage
S.24- Maintenance. Ancillary relief. Maintenance pendent lite and expense of proceedings.
S.25- Permanent Alimony and Maintenance. Such gross sum or monthly income of the spouse till she gets remarried. Can be altered with change in circumstances. It will stop on remarriage of the party getting such maintenance.
Varsha v Urmila
Chand Dhawan v Jawaharlal Dhawan
Maintenance under this section is incidental or ancillary remedy to the strained marital status due passing of a decree for restitution of conjugal rights or judicial separation etc. If there is no intervention by court under HMA, a person is entitled to maintenance under S.18 HAMA(Hindu Adoption and Maintenance Act)
Savita Bahen case
S.26- Custody of Children- keeping in mind the wishes of the child and his best interest. Custody can be altered from time to time.
S.27- Disposal of property- court may make any decree which is just and proper with respect to property jointly belonging to both parties.
Title of Stridhan always remains with the wife. Breach of trust under S.406 of IPC
Rameshchandra v Rameshwari
Yamunabai v Anant Rao
Pratibharani v Sure Kumar
SURROGACY
Statutory provisions-
Constitution of India, Article 21
right to bodily autonomy
Right to reproductive autonomy from perspective to right to privacy
Finding a family
As many children
Right to adopt and give in adoption a child
UDHR- Article- 3, 16
Article 141 of Indian constitution
Indian contract Act
ICMR Guidelines 2005
VISA Regulations-
MEA
Stop gap arrangements for foreigners in India
CARA (Central Adoption Resource Agency) guidelines- single person cannot adopt a child.
http://cara.nic.in/parents/Guideline_RI.html
Pre 2015 position
No transit permit visa
Permit from home country necessary
Had to be married
No homosexual
Indian origins
Post 2015
only PIOs, OCIs, NRIs
No foreigners except those who have contracted before the date of notification
Case to case basis approach
Only heterosexual and married.
2016 Bill
Specific to surrogacy
Ban on commercial surrogacy
In line with 228th LCI Report
Altruistic motive
Surrogate should be a close relatives, child of her own and Married
Indian only
Married for at least 5 years
One of the couple must be clinically infertile
Types of surrogacy-
Traditional– the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female.
Gestational– the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother.
Altruistic– where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses).
Commercial– form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents
Kirtikant D Vadoria v State of Gujarat
the expression ‘mother’, in Clause (d) of Section 125(1) of the Code, means and is referable only to the real or natural mother, who has actually given birth to the child.
R Rajagopala v State of TN
(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. None can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical.
Baby Manji Yamada v UOI
Court said that the commission constituted under commissions For Protection of Child Rights Act, 2005 will look into the matter and decide accordingly on the basis of its broad objective of child welfare.
Johnson v Calvert
After Johnson (Defendant) served as a surrogate mother for the Calverts (Plaintiffs), she refused to give up the child, who was not related to her genetically since the child was developed from reproductive cells donated by each of the Plaintiffs.
When a fertilized egg is formed from the reproductive cells of a husband and wife and is then implanted into the uterus of another woman, resulting in a child that is unrelated to her genetically, the natural parents are the husband and wife.
Re Buzzanca
Luanne and John had an embryo genetically unrelated to either of them implanted in a surrogate. The couple separated, and John disclaimed any parental responsibility for the child.
When a married couple consent to in vitro fertilization by unknown donors and subsequent implantation into a surrogate, the couple are the legal parents of the offspring.
Approaches
Intent based approach (mother who intended to ave the child)
Genetic contribution test
Best interest of the Child
Gestation based approach
John v Calvert- But for the commissioning couple, the child would not have come into being, therefore the commissioning mother has more natural claim.
SPECIAL MARRIAGE ACT 1954
- Conditions for a valid marriage-
No living spouse
Capable of giving consent
Completed 21 years of age in case of male and 18 years in case of female
Not within prohibited relationship unless permitted by a custom of either party recognized by state. Custom should have following characteristics-
Continuously and uniformity observed for a long period of time
Certain
Reasonable
Not against public policy
Not discontinued by family - Notice of intended marriage– to be given to marriage registrar of the district where at least one party must have been residing for at least 30 days immediately preceding the date on which such notice is given.
Nirmal Das v Mamta Gulati- the requirement is not by itself fatal. - Such notice shall be displayed in the marriage notice book open for inspection by any person free of cost. Same shall also be published in the district of permanent address of the parties.
- Objections to Marriage- has to be raised within the 30 days of publication of intended marriage.
- Procedure on receipt of registration- Marriage officer shall inquire accordingly to ascertain the veracity and validity of objection within 30 days of such receipt of objection. In case officer refuse to solemnize the marriage parties have 30 days to appeal in HC decision of which shall be final.
- Marriage registrar has following powers-
1) All powers vested in a civil court
2) summoning and enforcing attendance of witnesses
3) compelling the production of witnesses
4) discovery and inspection etc
4) impose compensation unto 1000/- if he finds objection male fide and unreasonable. - If objection to marriage is received from abroad, he shall after inquiry notify the Central government and follow its advice.
- Declaration of marriage by parties in the presence of 3 witnesses and marriage officer and signed and countersigned by the officer.
- Place and form of solemnization- at the office of marriage offer or at any reasonable distance from it. It can be solemnized in any form the parties may desire provided that it shall not be binding unless they say to each other in the presence of officer and three witnesses that- ‘I AB take thee(CD) to be my lawful wife/husband.
- Certificate of marriage- to be given after solemnization shall be conclusive proof of marriage.
- If marriage is not solemnized within 3 months of notice due to objection, inquiry, appeal, or under section 10, that notice and all other proceedings arising therefrom shall be deemed to have been lapsed.
- REGISTRATION OF MARRIAGES SOLEMNISED IN OTHER FORMS
This is for the registration of marriages solemnized under any other law/personal law on fulfillment of following conditions-
valid ceremony and parties have lived together
Not more than one spouse living at the time of registration
Parties are not lunatic or idiot
Have completed the age of 21 years
Not within prohibited relationship in absence of any custom to the contrary
Parties have been residing in the district for at least 30 days mediately preceding the date of registration. - Procedure of registration- same procedure of publication of notice, objection and inquiry to be followed. Appeal to be made in district court whose decision shall be final.
- Effect of registration under this act- all such marriages shall be deemed to be solemnized under this act and all children born after the date of ceremony shall be considered legitimate.
CONSEQUENCES OF MARRIAGE UNDER THIS ACT
19- a Hindu, Buddhist, Sikh or Jain shall be deemed to to effect his severance from his undivided family.
20- same rights and disabilities in matters of succession as person to whom Caste and disabilities removal Act 1850 applies.
21- Succession of persons married under this act to be made according to this at.
21A- if both parties are Hindu then S.19 and 21 shall not apply and the disability created by S.20 shall also not apply.
Meneka Gandhi v Indira Gandhi- where marriage of Hindus are solemnized according to this act, Hindu succession act shall apply in place of this act for matters of succession.
RESTITUTION OF CONJUGAL RIGHTS
- Restitution of conjugal rights (S.9 HMA)
- Judicial Separation (S.10 HMA)
INDIAN CHRISTIAN MARRIAGE ACT
Lakshmi Sanyal v Sanchit Kumar Dhar
The conversion to Christianity as also the performance of the ceremony of marriage was all attributed to fraud, coercion, and undue influence practiced by the respondent. It was claimed that the appellant was a minor at the time the marriage was solemnized and the consent of her father or her guardian was not taken nor did she give her own consent freely to the marriage.
Supreme Court observed that marriage of parties governed by Cannon law and not by Hindu Marriage Act – as per Cannon law marriage between persons so related is valid – age of majority under said law is 16 years for male and 14 years for female – marriage held valid and appeal dismissed.
On the question of the marriage being within the prohibited degree of consanguinity, it was found that since the consanguinity between the parties was of the second degree it was certainly all impediment in the way of marriage under the Roman Catholic Law. But the impediment could be removed by dispensation which was granted by the competent authorities of the Church. For that reason, the marriage could not be held to be invalid or null and void.
Molly Joseph v George Sebastian
after Divorce Act is in force dissolution granted under personal law cannot have any legal impact – Section 3 confers exclusive jurisdiction on District and High Courts in matrimonial matters of persons professing Christian religion.
HINDU ADOPTION AND MAINTENANCE ACT 1956
S.1 Application-
Hindu by religion in any of its form including Vaishnava, Lingayat, Brahms, Prarthana or Arya Samaj
Buddhist, Jain, Sikh
Not Muslim, Christian, Parsi
Any child legitimate or illegitimate both of whose parents Hindus
One of parents Hindu but brought up as Hindu
Convert to Hindu
S.3. Definitions
Maintenance includes- provisions of food, clothing, residence, education, and medical treatment, reasonable expense of marriage in case of unmarried daughter
S.4. Overriding effect of this act notwithstanding with any custom or usage
S.5. All adoptions of Hindus to be made according to this act only
S.6. Conditions for a valid Adoption
Should be a Hindu
Capacity and right of both parties who are adopting and giving in adoption
Sound mind
Giver or adaptor not a minor
Consent of both spouses except in case of complete renunciation of world, conversion, declared incompetent by a court or unsound mind.
S.9. Persons capable of giving in adoption
Only the mother, father, or guardian can give in adoption. (Guardian to give in adoption only with permission of the court)
Guardian–
A person having the care of the child or both of his person and property
Guardian can be appointed by the will of parents of a child or by the court (civil or district court)
The court shall look into the following matters before giving permission-
Welfare of child
Wishes of the child
No reward or consideration for adoption except as the court may sanction
- Person who can be adopted
Hindu
Not already been adopted
Unmarried unless there is some custom or usage
Not completed the age of 15 years unless a custom/usage permitting them. - Other conditions-
In case unmarried person the child of opposite sex the child should be 21 older than that person
In case of adoption of son, the adoptive parents must not have son, son’s son or son’s son’s son. (whether by legitimate blood relation or adoption)
In case of daughter adoption, the couple must not have daughter, or son’s daughter (whether by legitimate blood relation or adoption)
Same child may not be adopted by two or more persons
Intention of adoption and giving in adoption to transfer the child from the family of his/her birth to adoptive parents. (guardian in case of abandoned child) - Effects of Adoption
The child shall be deemed to be the child of adoptive parents for all purposes and its ties from the family of birth shall be deemed to have been severed. Provided-
it cannot marry a person whom he could not have married had there been no adoption
Property that vested in the child before the adoption shall continue to vest subject to any obligations if attached.
The adopted child shall not divest any person of any estate which vested in him/her before the adoption.
THEORY OF RELATION BACK
The date of the death of his adoptive father shall be considered the date of adoption of a child for the purpose of succession in coparcenary property. An adopted son is entitled to take in defeasance of the rights acquired prior to his adoption was that, in the eye of the law, his adoption-related back, by a legal fiction, to the date of death of his adoptive father.
Sawan Ram v Kalawanti
S. 5(1) of the Act which lays down : “No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void. ” It is significant that, in this section, the adoption to be made is mentioned as “by or to a Hindu”. Thus, adoption is envisaged as being of two kinds. One is adoption by a Hindu, and the other adoption to a Hindu. If the view canvassed on behalf of the appellant be accepted, the consequence will be that there will be only adoptions by Hindus and not to Hindus. On the face of it, adoption to a Hindu was intended to cover cases where an adoption is by one person, while the child adopted becomes the adopted son of another person also.
Sitabai v Ramchandra-
Affirmed the theory of relation back. An adopted child can claim his share in his deceased father’s property.
- Right of adoptive parents to dispose their property
Except the coparcenary property, parents can dispose their property accordingly. - Adoptive parents cannot annul the adoption, nor can the adopted child return to their natural parents.
- Prohibition of certain Payments-
Any kind of reward, payment or consideration is prohibited in adoption. Violation is a punishable offense but sanction of state government is necessary for such prosecution.
MAINTENANCE
- Wife is entitled to maintenance during her lifetime. A Hindu wife is entitled to live separately in following cases-
in cases her husband has deserted, neglected or abandoned her without reasonable cause without her consent.
Treated her with cruelty so as to cause reasonable apprehension in her mind of any injury.
If he is suffering from virulent disease or leprosy.
Any other wife living.
If he keeps concubine either in the same house or somewhere else.
Converted to other religion.
Any other cause justifying her living separately.
Provided she shall not be entitled such maintenance if she is unchaste or ceases to be Hindu
Avtar Singh v Jasbir Singh - Maintenance of widowed daughter in law-
She is entitled to be maintained by her father in law if he has the means to maintain her to the extent she is unable to. Maintain herself. - Maintenance of children and ages parents-
Subject to the provision of this section, a Hindu is bound to maintain during his/her lifetime his/her children legitimate/illegitimate (even from void marriages) and aged and infirm parents.
a child can claim maintenance from his father/mother (includes childless stepmother as well) as long as he is a minor
Obligation to maintain aged/infirm parents and unmarried daughter extends in so far as they are unable to maintain themselves - Dependents defined are defined as the following relatives of the deceased-
his/her father/mother
Widow as long as she does not marry
Son or son of predeceased son or son of a predeceased son of a predeceased son so long as they are minor to the extent they are unable to maintain themselves from their father/mother’s estate.
Unmarried daughters or his predeceased son’s unmarried daughters or his predeceased son’s predeceased son’s unmarried daughter so long as they remain unmarried and to the extent they are unable to maintain themselves from the inherited estate.
widowed daughters to the extent she is unable to maintain themselves from the inherited estate.
Widowed daughter in laws to the extent they are unable to maintain themselves from the inherited estate.
Illegitimate son/daughter as long as they are minor - Maintenance of dependents- hires of deceased Hindu are bound to maintain the dependents of the deceased Hindu from the estate inherited by them from the deceased. (it is not a personal liability)
Liability shall be in proportion of inheritance
23- Amount of maintenance to be determined by-
position and status of parties
Reasonable wants of the claimant
Number of persons entitled to maintenance
Net value of the estate of deceased after providing for the payment of debt
Degree of relationship
Past relations between them
Number of dependents
24- Claimant to maintenance should be a Hindu
24- Amount of maintenance may be altered with changing circumstances
28- Where a dependent has right to receive maintenance from a person holding an estate and that is estate is transferred, right to maintenance can be enforced against the transferee.
HINDU MINORITY AND GUARDIANSHIP ACT 1956
S.4- minor is a person not completed the age of 18
Guardian means a person having the care of the person or property or both of a minor and includes-Natural Guardian
Guardian appointed by the will of minor’s parents
A guardian appointed by the court
Any person empowers to act as such
S.5- This act to have overriding effect over any other law, custom or usage
S.6- Natural guardian of Hindu minor (boy or unmarried girl)are-
father and after him mother but custody of a child less than 5 years of age shall ordinarily be with the mother
In case illegitimate child mother and after her the father
A person will cease to be a guardian
If he ceases to be a Hindu
Completely and finally renounced the world
Father and Mother do not mean step-father or mother for the purpose of this section.
Geeta Hariharan v RBI
Gayatri Bajaj
S.7- for an adopted son, the adoptive father and then adoptive mother
S.8- Powers of natural guardian
to do all acts necessary, reasonable and proper for the benefit of the child, his person, and property but cannot
bind him in a personal covenant (voidable)
Mortgage or put any charge on his property
Lease any property for more than 5 years
Contravention of above condition shall render such transaction voidable at the instance of the minor
But the court can permit such things in the necessity or for an evident advantage of the minor
Hunoman Prasad Pandey v Babooee Muenaraj Koonweree
S.9 Testamentary guardian
Hindu father or Hindu widow may by will appoint such guardian and their powers shall be-
but this will have no effect if father predeceases the mother but will revive if mother dies without any will
Such guardian will have all powers of the natural guardian
Ceases with marriage in case of girl
S.10- minor cannot be guardian of another minor
S.11- De-facto guardian cannot deal with minor’s property
S.12. Guardian not be appointed for minor’s undivided interest in joint family property but nothing in this shall affect the jurisdiction of HC
S.13- Welfare of the minor to be of paramount consideration
MUSLIM PERSONAL LAW
KP Chandshekharappa v Mysore
Defined Muslim– not necessary by birth
Abdul Kadir v Salim
A Muslim marriage is purely a civil contract and not a sacrament
MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT 1937
S.2- Notwithstanding any custom or usage to the contrary, in all questions (save in agricultural land) regarding intestate succession, special property of females, personal law, marriage, dissolution of marriage including Talaq, Ila, Lian, Jihar, Khula and Mubarat, maintenance, dower, guardianship, gifts, trusts, wakfs ( other than charitable institutions and religious endowments) the rule of decision in cases where the parties are Muslims shall be Muslim personal Law/Shariat
DISSOLUTION OF MUSLIM MARRIAGE ACT 1939
S.2 Grounds on which Muslim women can seek a divorce-
Whereabouts of the husband not known for a period of four years provided that such decree shall not take effect for a period of 6 months from the date of decree and the husband can in this period come and resume conjugal duties with the permission of court
Failed to maintain her for 2 years
7 or more years imprisonment provided sentence has become final
Failed to perform his marital obligation for 3 years
Impotent at the time of marriage and continues be so
Insane for 2 years, suffering from leprosy, virulent venereal disease
Marriage was conducted when she was below 15 years but she have to repudiate the marriage in before attaining 18 years of age in case she was aware of this right. (KHYAR-UL-BULUGH) provided the marriage has not been consummated,
Cruelty (illustrations given in section 2(viii)
Habitual mental or physical assault
Accuses her of adultery or women of evil repute
Force her to a led an immoral life
Misappropriate her property
Obstructs her religious observances
If he has more than one wife, then does not treat them equally/equitably in accordance with the injunctions of the Quran
Automatic dissolution in case of Rida/apostasy (husband leaving Islamic fold)
Any other grounds under Muslim law.
Nawab Sadik v Jai Kishori
Majority in case go girl is 9 years
Allah Diwayah v Kammon Bai
Pre-pubescent marriage is not a marriage in the eyes of the law
Bahram Khan v Akhtar Begum
A pre-Pubescent married girl can dissolve marriage even when it has been consummated
S.4 Effect of conversion to another faith-
Renunciation of Islam by wife will not automatically dissolve the marriage provided she she had not converted to Islam then re-embraces her original faith. But in case of Husband renunciation Islam, there will be automatic dissolution of marriage.
MUSLIM WOMEN(PROTECTION OF RIGHTS ON DIVORCE ACT 1986
S.2 Definitions
Iddat period means-
Three menstrual courses after the divorce if she is subject to menstruation
Three lunar months after divorce if she is not subject to menstruation
If she is pregnant, till the delivery or termination, whichever is earlier.
S.3- Mahr or other properties of Muslim to be given to her at the time of divorce
Divorced women shall be entitled to-
A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.
Where she herself maintains the children born before or after the divorce, a reasonable and fair provision for a period of two years from the date of birth of such children
An amount equal to the sum of Mahr or dower agreed to be paid at the time of marriage
All the properties were given to her before, at the time, or after the marriage by relatives and friends.
If the woman is not paid the above provisions, she or anyone authorized by her on her behalf can file a complaint to the magistrate. Non-compliance with these provisions is a punishable offense.
What if the Husband does not has sufficient means for maintenance?
S.4- In cases Husband does not have sufficient means magistrate may direct if satisfied that the women is unable to maintain herself after the iddat period and has not remarried-
direct her relatives who would inherit her property to pay a reasonable and fair maintenance Keeping in mind needs of the woman and the standard of life enjoyed by her during the marriage
Then the court may ask her children if they are able to and are major to maintain her
In the even of Children also unable to maintain, her parents will be directed to maintain her
If the parents are also unable to maintain her, then other such relatives the magistrate may deem fit
When even other relatives are unable to maintain her, the Waqf board shall be liable to maintain her. (Wakf act 1954)
S.5- Option to be governed by provisions of section 125 to 128 of CrPC.
The parties may declare this by affidavit either jointly or separately.
Shamim Banu v Ashraf Khatoon
Whether the appellant’s application for grant of maintenance under Section 125 of the Code is to be restricted to the date of divorce and, as an ancillary to it because of filing of an application under Section 3 of the Act after the divorce for grant of mahr and return of gifts would disentitle the appellant to sustain the application under Section 125 of the Code? and second,
Whether regard being had to the present fact situation, as observed by the High Court, the consent under Section 5 of the Act was an imperative to maintain the application?
Held, No. Even an application has been filed under the provisions of the Act, the Magistrate under the Act has the power to grant maintenance in favor of a divorced Muslim woman and the parameters and the considerations are the same as stipulated in Section 125 of the Code.
Mohammed Ahmad Khan v Shah Bano Begum
The wife filed for maintenance under S.125 CrPC after driven out of home by Husband. The husband gave triple talaq, thereby returning the Mahr amount along with maintenance for the iddat period.
Observations of SC-
CrPC being a secular provision is applicable to all communities and Muslim women are not excluded from it.
Even though Muslim personal law of Shariat cast no obligation on the husband to maintain the wife after the iddat period, it also does not prohibit such maintenance. Whether 125 will prevail over personal law presumes that there is a conflict between them.
But there is no conflict between them as Shariat does not contemplate the situation mentioned in 125 which provides maintenance for wife even after divorce if she is unable to maintain herself.
Shariat if looked in totality also provides the same. Quran in chapter 2 verse 241 says- For divorced women also there shall be provided according to what is fair. This is an obligation binding on the righteous. Thus does Allah make His commandments clear to you that you may understand.
No maintenance after iddat in Shariat is based on situations where the wife can maintain herself. Though the divorced wife’s right to maintenance ceased on the expiration of the iddat period this Court proceeded to observe that the general propositions reflected in those statements did not deal with the special situation where the divorced wife was unable to maintain herself.
Although the Muslim Law limits the husband’s liability to provide for the maintenance of the divorced wife to the period of iddat, it does not contemplate or countenance the situation envisaged by Section 125 of the Code of Criminal Procedure, 1973.
Danial Latifi v Union of India
Constitutionality of S. 3(a) of the Muslim women(protection of rights on Divorce) Act 1986 was challenged and also the option given to husband under this act to choose to give maintenance to wife either under this act or under S.125 CrPC? As the wordings of this act contemplates maintenance only till iddat period while 125 ensures it for life.
Though there was an ulterior motive of government behind the enactment of the act to appease the Muslim Patriarchy by limiting the maintenance only till the iddat period nowhere did it explicitly mentioned in the act that maintenance shall be only till iddat period.
Supreme Court upheld the constitutionality of the Act by giving a beautiful and erudite interpretation
Courts reflected upon the wordings of S.3- ‘Provision for maintenance to be made and paid within the iddat period’ and interpreted as to be maintained for entire life but to be paid and given within the iddat period itself.
The crux of the matter is that the divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.
The emphasis of this section is not on the nature or duration of any such ‘provision’ or ‘maintenance’, but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, ‘within the iddat period’.
WHETHER FAMILY COURTS CAN HEAR CASES ON 1986 ACT?
IQBAL BANU V UP
Proceedings under Section 125 Cr.P.C. are civil in nature. Even if the Court notices that there was a divorced woman in the case in question, it was open to him to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings under Section 125 Cr.P.C.
A Muslim husband is liable to make reasonable and fair provisions for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(i)(a) of the Act.
Liability of the Muslim husband to his divorced wife arising under Section 3(i)(a) of the Act to pay maintenance is not confined to the iddat period.
A divorced Muslim woman who is not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relative who is liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law for such divorced woman including her children and parents.
If any of her relatives being unable to pay maintenance, the Magistrate may direct the State Waqf Board established under the Act to pay maintenance.
The provisions of the Act do not offend Article 14, 15 and 21 of the Indian Constitution.
SHABANA BANU
Family Courts Act is applicable even in case of a petition under S.125 of CrPC by virtue of S.7, 20 of the Act. A bare perusal of Section 20 (overriding effect over any other law) of the Family Act makes it crystal clear that the provisions of this Act shall have an overriding effect on all other enactments in force dealing with this issue.
The objective behind 125 is to prevent vagrancy/destitution amongst females after divorce or separation who are unable to maintain themselves. Even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women.
JOINT HINDU FAMILY
Hindu Joint Family and Coparcenary
Every Hindu family is assumed to be a joint family-
After marriage, a daughter ceases to be a member of the joint family. She will join again if returns after getting widowed or divorced
Gur Narain Das v Gur Tahal Das, AIR 1952 SC 225.
Sitabai v Ramchandra AIR 1970 SC 343
Gowli Buddanna v CIT Mysore AIR 1966 SC 1523
Rights of the members of the Joint Hindu Family-
Right to maintenance and residence
Understanding the Tantra
Sociological Perspective
Legal perspective
Read more| Family Law II notes
