201 Family Law - I

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LL.B. Semester - III

CORE COURSE 201 Family LAW - I
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Refer (not in any particular order) :
Bare acts are a good source, in any subject of law.
http://www.hrln.org/hrln/images/stories/pdf/TrainingModuleRightsOfWomenUnderThe
PersonalLawsInIndia.pdf
http://14.139.60.114:8080/jspui/bitstream/123456789/738/23/Family%20Law.pdf
http://kuklawnotes.blogspot.in/p/family-law.html
Family Law II Notes by Mohit Diwan -
https://www.scribd.com/document/262979857/Family-Law-II-Notes
http://cbseacademic.in/web_material/doc/Legal_Studies/XI_U5_Legal_Studies.pdf
https://www.studynama.com/community/threads/251-Family-law-pdf-lecture-notes-
ebook-download-for-LLB-students
https://www.facebook.com/groups/LLB.GujUni/ http://duralex.bhatt.net.in/
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CONTENTS
Module-1) General
Module-2) MARRIAGE
Module-3) MATRIMONIAL DISPUTES AND REMEDIES
Module-4) GUARDIANSHIP ADOPTION ALIMONY AND MAINTENANCE
OBJECTIVE OF THE COURSE : The course structure is designed mainly with three
objectives in view.
One is to provide adequate sociological perspectives so that the basic concepts relating
to family are expounded in their social setting.
The next objective is to give as overview of some of the current problem assign out of
the foundational inequalities writ large in the various family concepts.
The third objective is to view family law not merely as a separate system of personal law
based upon religions but as the one cutting across the religious lines and eventually
enabling us to fulfill the constitutional directive of uniform civil code. Such a restricting
would make the study of familial relations more meaningful.
Module-1) General :
1.1) Concept of Family and Development of Family System, Types of Family
1.2) Sources of Family Law
1.3) Schools of Family Law
1.4) Uniform Civil Code : Concept, reasons, Need to enact, problems, relevant
Constitutional provisions, Judicial pronouncements
Go To Contents
MODULE-1 QUESTIONS :
Explain in detail the concept of family and family laws and state its nature and
development. (Dec-2015)
Explain in detail the concept and development of Family and family system in
India. (Dec-2016)
Explain : Types of Family.
Explain in detail the concept of family and family laws and state its nature in detail.
(Oct-2013)
Explain the concept, importance, development and nature of families. (Nov-2011,
Nov-2014)
Explain in detail the sources of various family laws in India. (Dec-2015)
Discuss fully the source of Hindu and Muslim Law. (Nov-2011, Nov-2012)
Discuss briefly the sources of Hindu and Muslim Laws. (Oct-2013)
Explain in detail the sources of Family Law. (Dec-2016)
Explain in detail various schools and sub-schools of Hindu and Muslim law. (Nov-2014)
Discuss in detail the branches and sub-branches of the Hindu Law. (Dec-2016)
Discuss in detail the branches and sub-branches of the Muslim Law. (Dec-2016)
Enumerate principal school of Hindu law and Muslim law and write short note on
them. (Nov-2011)
Explain in detail the main schools of the Hindu as well as Muslim Laws. (Oct-2013)
Explain : Jurisdiction / application of personal laws :
Explain in detail : Concept of Wakf under the Muslim Law. (Oct-2013, Dec-2015)
Explain : Mutawalli (Nov-2011, Nov-2012)
Explain in detail : Ijamma. (Oct-2013)
Explain : Ijamma (Nov-2011, Nov-2012, Nov-2014)
Explain in detail : Parsi Court and its jurisdiction under the Parsi Marriage & Divorce
Act, 1935. (Oct-2013)

Explain : Parsi Court (Nov-2011, Nov-2012, Nov-2014)
Discuss in detail : Uniform Civil Code : Concept, reasons, Need to enact, problems,
relevant Constitutional provisions, Judicial pronouncements.
Go To Contents
MODULE-1 ANSWERS :
Explain in detail the concept of family and family laws and state its nature and
development. (Dec-2015)
Explain in detail the concept and development of Family and family system in
India. (Dec-2016)
Explain : Types of Family.
Explain in detail the concept of family and family laws and state its nature in detail.
(Oct-2013)
Explain the concept, importance, development and nature of families. (Nov-2011,
Nov-2014)
ANSWER :
Refer :
http://www.eolss.net/sample-chapters/c11/e1-11-02-04.pdf
http://cbseacademic.in/web_material/doc/Legal_Studies/XI_U5_Legal_Studies.p
df
What is 'family' ? :
There are many definitions of term family.
'Family' is a biological Unit comprising a married couple and their children.
'Family' is the oldest and most fundamental of human institutions,
consisting of at least a man and a woman who are generally expected to
produce children. And members of family share residence, co-operate
economically and socially.
'Family' is a domestic group of human beings who habitually share a
common dwelling and a common food supply.
Family is a social group and has been defined as the smallest identifiable
social unit which is an aggregate of individuals in which definite relations
exist between the members.
Family can also be defined as a group of individuals united by the ties of
marriage, blood, or adoption constituting a single household, interacting with
each other in their respective social positions, which may include husband
and wife, mother and father, son and daughter, brother and sister.
'Family' is formed and extended by an institution called marriage and holds its
members by bonds of kinship. Marriage gives mating a reliable basis and grants
to each spouse special, though not always exclusive, sexual rights in the other.
Families established outside marriages are often considered illegitimate in
many societies.
The family plays a crucial role for personality formation and socialization
of every individual. A family can be categorized as matriarchal, patriarchal, or
egalitarian according to the power distribution in the family.
What is 'family law' ? :
Family law is a practice area that encompasses the many legal issues that
families may face. These issues include :
marriage
divorce
spousal support
child support
custody
division of assets and liabilities due to divorce
adoption
termination of parental rights
paternity
dependency and child neglect
protection from abuse
In India each community has its own family law. Hindus, the majority
community, have their separate family laws; so have the Muslims, the biggest
minority community. Smaller minorities, like Christians, Parsis, and Jews, whose
number, in the context of the population of India, is insignificant, too have their
own separate family laws. Hindus and Muslims have all along
Apart from law, in personal matters custom still plays an important role. Some
communities are wholly or partly governed by custom. The Jewish family law in
India is entirely customary law.
In Punjab and Haryana the concept of ancestral property in the rural areas is
different from the Mitakshara concept of joint family property and is still
recognized in these states by virtue of custom; Hindu law to that extent
stands modified.
Importance of Family Law :

Nature of Family Law :

Family law or personal law consists of family or personal matters like marriage,
dowry, dissolution of marriage, guardianship, adoption, maintenance, gifts, wills,
inheritance, succession, and so on.
Unlike other laws in force in India, such as criminal and civil laws, family laws
are not uniform. However, the Constitution of India, in Article 44, provides for a
goal or aspiration for achieving a uniform civil code in family and personal
matters. This provision is merely a directive or aspirational and is not
enforceable by a court of law.
In India, religion and personal law are largely interlinked. So Hindus, Sikhs,
Jains and Buddhists follow Hindu family law (Sikhs have their own marriage law
but are covered under Hindu law for other family matters); Muslims, Christians,
and Parsees have their own laws; and other traditional communities, like the
tribal groups, follow their own customary practices or customary laws.
The Hindu law, the Sikh marriage law, the Parsee law, and the Christian law are
codified or passed by the Indian Parliament as acts or laws. The Muslim law is
uncodified and is based on the Sharia, which is the moral and religious law
primarily grounded on the principles of the Islamic religious text the holy Quran
and examples laid down in the Sunnah by the Islamic prophet Muhammad.
Development of Family System in India :

Development of Family Law :
History :
Medieval Period : Hindu legal system was based on the smriti literature and
the Dharmashastra as well other later digests. Since the medieval period,
starting from the 8th century, two major schools of personal laws have been
followed. First, the eleventh century digest Mitakshara by Vijnaneshvara, an
authority on issues of family law, was widely followed both in south and north
India. It had further sub-schools in four areas, Dravida (south India), Mithila,
Bombay, and Benaras. Second, in the region of Bengal, personal law of
Dayabhaga was used. Dayabhaga was the personal law, a part of the
thirteenth or fourteenth-century digest Dharmaratna written by
Jimutavahana.
The Muslims largely followed the Sunni (sectarian sect) and the Hanafite
type of laws. Hanafite type of laws were based on the founder and Persian
scholar Abu Hanifa.
For both Hindu and Muslim legal systems, there were other variances based
on sectarian divisions (like the Sunni and Shi'a among Muslims), regional
specifics, and the local customs and practices. The Hindu law and the
Muslim Shari'at covered all aspects of life and did not differentiate much
between moral, custom, and law. Even during the Mughal Empire in the
Indian subcontinent, between the 16th and 18th centuries, Hindus and
Muslims were ruled largely by their own sets of local customs and personal
laws.
British-rule : The British came to the Indian subcontinent in the early 17th
century. In the initial years, they were not concerned with the various
regional and local laws practiced in the subcontinent. In 1772, when the East
India Company established themselves as the civil administrators, Warren
Hastings, the first Governor-General of Bengal, introduced the uniform
criminal law with the idea of equality before the law for both Hindus and
Muslims. However, in matters of personal law, he established that the laws of
the holy Quran would be applicable to the Muslims, and the Shastras for the
Hindus. As the British had no knowledge of the personal laws, they appointed
the Hindu pandits and the Muslim jurists as consultants in their courts, and
this led to the administration and development of the Anglo-Hindu and the
Anglo-Islamic personal laws. After 1864, the system of 'court Hindu pandits'
and 'Muslim jurists' was abolished due to dissimilar interpretations and some
suspicions of corruption; and the court judges interpreted the personal laws
themselves. For the Bengal region, they largely used the Dayabhaga digest,
while the Mitakshara digest with its four sub-categories was used for the other
parts of India, along with other customs and usages. For the Anglo-Islamic
personal law, the British judges used the sectarian Sunni and Shi'a,
interpretations of the Sharia as well as other sectarian traditions along with
some local customs and usages. During the British rule, both the Anglo-Hindu
personal law and the Anglo-Islamic personal law continued to develop through
reforms, law commissions, and mainly through case laws.
Post-Independence : After India's independence in 1947, efforts were made to
develop a uniform civil code for dealing with matters of personal law. It
started with the uniform Hindu Code Bill, which attempted to combine the
varied regional customs and usages. In 1951, it was shelved due to much
opposition. Since the Indian Constitution had adopted the word 'secular' as an
important feature of the Indian republic, the uniform family law was seen as
biased in favor of the Hindu majority community and unsecular. In a similar
manner, in 1955-56, the parliament adopted and codified the four different
major legislations governing the family and personal law matters of the Hindu
community: Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu
Minority and Guardianship Act (1956), and Hindu Adoptions and Maintenance
Act (1956). Accordingly, Christians, Parsis, and Sikhs have their own codified
Marriage Acts; Muslims are governed by the Sharia; and the traditional
communities continue to practice their uncodified customary laws. As
mentioned earlier, although the Indian Constitution, in Article 44, provides for
a goal or aspiration for achieving a uniform civil code, this has never been
taken up seriously for the fear of widespread communal violence.
Development of Hindu Law :

Development of Muslim Law :

Development of Parsi Law :

Development of Christian Law :

Go To MODULE-1 QUESTIONS
Go To Contents
Explain in detail the sources of various family laws in India. (Dec-2015)

Discuss fully the source of Hindu and Muslim Law. (Nov-2011, Nov-2012)
Discuss briefly the sources of Hindu and Muslim Laws. (Oct-2013)
Explain in detail the sources of Family Law. (Dec-2016)
ANSWER :
Refer :
http://www.grrajeshkumar.com/class-notes-on-family-lawhindu-law-i-1st-sem-
3-year-ll-b/
Sources of Hindu Law :
Sources of Hindu Law
The following are considered to be the sources of Hindu law:
Where does Hindu Law come from? What are its geneses? Laws usually evolve
from certain more basic propositions. This is the case on the Indian subcontinent
as well. Many thousands of years ago, people had been following the guidelines
and concepts laid down in the Vedas. These were guidelines then, and did not
have the force of law. Over time, they evolved into rules. When rulers started
enforcing these rules, they became de facto laws. These were then codified into
the various national legislations, such as the Hindu Marriage Act 1955, the Hindu
Adoption and Maintenance Act, 1956,the Hindu Minority and Guardianship Act
1956, and the Hindu Succession Act, 1956.

Ancient Sources : Let us first analyse the sources in greater detail. Shruti,
for
instance, refers to the oral tradition, and is derived from the root shru, which
means to
hear. It is considered to be the primary source of Hindu Law and is
believed to be the language of the divine revelation through the sages. v
When we talk of the shrutis, the vedas are also said to be included. The four
vedas Rig Veda, Yajurva Veda, Sama Veda, and Atharva Veda are
considered to be the repository of all knowledge. Each veda has three
components: Sanhita, which consists mainly of the hymns; Brahmin,which
enumerates our duties and means of performing them; and Upanishad,which
contains the essence of these duties.
While the shrutis are said be of divine origin, the smritis are considered to be
human works the ideas that the sages wrote down from their memory in their
own words. Dharmasutras and Dharmashastras are the two kinds of smritis.
While the former is in the form of prose (short maxims), the latter is made up of
small stanzas of poetry. Many of the renowned sages of ancient India, including
Manu (who is credited with giving Hindus their first laws), Vyas, Vasishta, and
Yama though this list is far from exhaustive are said to have penned the
smritis. The rules laid down in smritis can be divided into three categories: Achar
(relating to morality), Vyavahar (signifying procedural and substantive rules
which the king or the state applied for settling disputes in the adjudication of
disputes), and Prayaschit (signifying the penalty for commission of a wrong).
Commentaries and digests (nibandhs) cover a period of more than one thousand
years, from the seventh century to 1800 A.D. A lot of these works are devoted
to explaining and reconciling the contradictions in the smritis, and in that light,
are akin to modern scholarly journals. The different schools of Hindu Law arose
because different authorities wrote differing versions and gave interpretations of
the law. Dayabhaga and Mitakshara are the two major schools of Hindu Law.
Finally, we come to custom, which can be understood as a practice that has
been followed for such a long time that it has acquired the force of law. In many
aspects, a custom is said to be superior to written law.You may have noticed the
ubiquity and the importance of custom in your own family, where rituals and
rites have been handed down from generation to generation and are
unwavering. Customs can be local, based on the class, and familial. But can
every practice become a custom? No. For a practice to be considered to be a
custom and thereby, a source of law it must be:
Ancient;
Certain and unambiguous;
Free of technicalities;
Not illegal, immoral, or against public policy; and
Should have been continuously and uniformly followed for a long time.

Modern Sources : The most important modern sources of law are the
legislationpassed by the Parliament of India. As we studied earlier in this Unit,
various aspects of Hindu Law have been codified in legislation such as The Hindu
Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu
Minority and Guardianship Act, 1956, and The Hindu Succession Act, 1956. In
this Course, apart from looking at Muslim Law, Parsi Law and Christian law, we
will also study the three enactments listed above.Succession Law will be dealt
with in a separate Programme.Once enacted, the codified law is considered to be
final, and is said to override prior customs, unless the Act itself provides
otherwise.
Precedentsare also referred to as judge-made
law. Judgments of the Supreme
Court are binding on all courts (and itself), and the judgments of the higher
courts are binding on the lower courts. This way, when a court considers a
particular aspect of Hindu Law and provides a judgement, all courts are bound to
follow this decision and the law is said to be decided. Finally, in cases where
there is no existing rule or law that can be applied to a problem that comes up
before the Court, principles of justice, equity, and good conscience are to be
kept in mind while resolving a dispute. Fairness and propriety are to be
considered as the basic guiding factors.
This reliance on principles of justice, equity, and good conscience forms the
basis of natural law theory, which you can learn about in the free Programme on
Fundamentals of Legal Research on myLawU that is available here.

Sources of Muslim Law :

Sources of Christian Law :

Sources of Parsi Law :

Go To Contents
Explain in detail various schools and sub-schools of Hindu and Muslim law. (Nov-
2014)
Discuss in detail the branches and sub-branches of the Hindu Law. (Dec-2016)
Discuss in detail the branches and sub-branches of the Muslim Law. (Dec-2016)
Enumerate principal school of Hindu law and Muslim law and write short note on
them. (Nov-2011)
Explain in detail the main schools of the Hindu as well as Muslim Laws. (Oct-2013)
ANSWER :
Refer : 46 page Family Law.pdf
Intro :
In India family law does not differ from state to state. Every community is
governed by one single system of law. Though its members may be settled,
domiciled or residing in any part of the country, they will be governed by the
same law. However, within this single system of law there coule be some
variations; two groups of people belonging to the same community may be
governed by different sets of rules, as each constitutes a separate caste, sub-
caste or sect or sub-sect or has its own regional peculiarities. These variations,
as seen above, may also occur on account of custom, which may create
variations on the basis that the group belongs to a region, to a caste, community
or tribe or a family.
Schools of Hindu law : Schools of Hindu law have some regional connotation,
while it is not so in the case of the Muslim law.
The Dayabbaga school of Hindu law prevails in Bengal, Assam, Tripura and
Manipur.
In the rest of India it is the Mitakshara school that prevails. The Mitakshara
school is further sub-divided into four sub-schools, viz.,
the Mithila,
the Benares,
the Maharastra or Bombay, and
the Dravida or the South India school,
These sub-schools broadly speaking prevails in their respective jurisdictions.
The peculiarity of schools of Hindu law is that if a Hindu governed by a
particular school migrates to another region, he would continue to be
governed by his own school, unless he gives it up and adopts the law of the
place where he has settled.
The sub-schools in respect of certain matters have precedence over the law of
the Mitakshara; otherwise it is the law of the Mitakshara that prevails.
Another important aspect of Hindu law is that if the parties are able to prove
that they are governed by custom, then in all those matters where statutory
law does not override it, custom prevails.
These schools have still relevance in respect of uncodified Hindu Law,
particularly joint family and partition.
As to marriage, matrimonial causes, minority, guardianship, adoption,
maintenance and successions, Hindus are uniformly governed by one single
system of law the codified portion of Hindu law. This includes the Hindu
Marriage Act, 1955, the Hindu Minority and Guardianship Act, 1956, the Hindu
Adoptions and Maintenance Act, 1956 and the Hindu Succession Act, 1956
and a few more.
Schools of Muslim Law : In respect of Muslims, the schools have no territorial or
regional connotation in the sense in which they have in relation to Hindus.
Four schools of Sunni sect :
The Hanafi school covers a vast majority of Muslims all over India.
Most of the Shias are governed by the Ithna Ashari school.
Ismailis who constitute the smallest minority group of Muslims and who are
mostly found in western India are governed by Ismaili school.
Muslims belonging to Shaft school are mostly found in southern India.
Mention may also be made of the three commercial communities of Muslims,
the Khojas, the Bohras and the Cutchi Memons who before the Shariat Act,
1937 were governed by their own customs and in some matters by Hindu law.
However, after the year 1937 it is not so. The former two belong to Shite
Ismaili sect and the last belong to Sunnite Hanafi School. The Khojas still
retain the option of being governed by customary law but others have lost the
option by accepting the application of Muslim law.
The Mopilla Muslims of Kerala were another Muslim community, which was at
one time governed by customary law. They still retain the customary law of
tarvad.
Communities other than Hindu and Muslims : In the case of other communities
of India, there are no schools of law, though local variations still exist, such as
between those living in urban areas and those living in the mofussil. These
variations exist either on account of historical developments of the law of the
community or on the basis of custom, which overrides the law or supplements it.
Go To Contents
Explain : Jurisdiction / application of personal laws :

ANSWER :
Refer : 46 page Family Law.pdf
Under the Constitution of India all aspects of personal law are in the concurrent list
(entry 5). Both Parliament and the state legislatures have power to legislate in
respect of them. Apart from legislation relating to Muslim wakfs and Hindu
endowments, state legislatures have not exercised this power to any appreciable
extent.
The entire codified Hindu law has been enacted by the Union Parliament, though
some state legislature have made some modifications; for instance, the Uttar
Pradesh enactment, the Hindu Marriage (the Uttar Pradesh Sanshodhan)
Adhinyam, 1962 has made, inter alia, cruelty a ground of divorce. This may be
deemed to be superseded by the Marriage Laws (Amendment) Act 1976, which
made cruelty a ground of divorce.
The Shariat Act, 1937 and the Dissolution of Muslim Marriage Act, 1939; were
passed by central legislature. So were the Parsi Marriage and Divorce Act, 1936;
the Christian Marriage Act, 1872 and the Indian Divorce Act, 1869 and several
Hindu personal law reform enactments before independence.
Most of the Indian communities which have their separate family law are religious
communities, but their law is not necessarily religious law. It is also not necessary
for the application of the law that the members or individual member should be an
ardent believer or follower of that faith. In most cases, if he is a member of the
community by birth or conversion, that will suffice, though in actual persuasion he
may be atheistic or non-religious or even anti-religious; So long as he does not
leave it (mere renunciation of faith may not be sufficient) he will continue to be
governed by that law.
Community cannot expel a person, since ex-communication or outcasting is
unconstitutional.
In this context sometimes it becomes difficult to define who is a Hindu, Muslim,

Christian, Parsi or Jew.
More often the attempt is not to define them but to specify the categories of
persons governed by a particular personal law.
Hindu :
Explain in modern Hindu law the term "Hindu" has lost its religious
connotation
or Explain Hinduism is a culture rather than a religion :
Broadly speaking, Hindu law applies to any person
(i) who is a Hindu, Jain, Buddhist or Sikh by religion,
(ii) who is born of Hindu parents, i.e., parents who are Hindus, Jains,
Budhists or Sikhs (and in case one of the parents is a non-Hindu, then if
the child is brought up as Hindu) and
(iii) who is not a Muslim, Christian, Parsi or Jew (Hindu law will not apply to
him if it is proved that such person is not governed by Hindu law).
In the first category (i) are also included those persons who are converts to
Hinduism, Jainism, Budhism, or Sikhism. It is a remarkable feature of Hindu
law that for conversion no religious ceremony is necessary: intention of the
convert and his acceptance by the community is enough.
A person may be a Hindu even if he does not profess, practice or believe in
any of these religions, as mere deviation or dissent from the doctrines of
Hinduism or lapse from orthodox Hindu religious practices or his becoming an
atheist will not render him any the less a Hindu.
Sikhs, Jains and Budhists are governed by Hindu law, but it cannot be said
that they are Hindus by religion.
Similarly, a person who is not a Muslim, Christian, Parsi or Jew is governed by
Hindu law but such a person is not Hindu by religion.
Looked at in this perspective, Hindu law applies to all persons within the
territories of India (except the State of Jammu and Kashmir) who are not
Muslims, Christians, Parsis or Jews. This implies that in modern Hindu law the
term "Hindu" has lost its religious connotation; if Hindu religion has any
relevance in modern Hindu law, then it is in relation to religious endowments.
Muslim :
A Muslim is one who believes that (i) there is only one God and (ii) that
Muhammad is His Prophet. According to Ameer Ali :
The Mahommedan law applies to all Musalmans whether they are so by
birth or conversion... Any person who professes the religion of Islam, in
other words, accepts the unity of God and the prophetic character of
Mohammed is Moslem and is subject to Musalman law.

A person who professes to be a Muslim will be taken to be so, unless it is
proved otherwise.
Thus profession of Islam is enough; practice is not necessary. A totally non-
religious person (for instance, one who neither performs namaj nor observes
fast during Ramzan) may be regarded as a Muslim. However, pretension will
not be enough, nor will a colourable or fraudulent conversion.
Other communities : When one is concerned with other communities such as
Parsis, Christians and Jews, difficulties start creeping in. These communities do
not really have their own integrated system of law. Only a few branches of their
family law are codified. In respect of matters not covered by statutory law, it is
easy to say that they are not governed by any system of law than to indicate the
law that applies to them. To say that they are governed by common law or
custom will be too vague to be of any utility.
In India, Indians or any community does not have anything like common law
in the sense in which the term is commonly understood. Custom abounds in
India and it is its abundance that makes matters worse confounded.
Parsis came and settled down in India as a result of their persecution in their
native land.
Very few British or European Christians came to India to settle here, but a
large number of Christian Missions were successful in converting some Hindus
and Muslims to Christianity. And mostly it is these people (i.e., original
converts and their descendants) who constitute the Christian community in
India. To this may be added the Anglo-Indians.
The word 'Parsi' has both a religious connotation and a racial significance.
Indian Parsis belong to Zoroastrian faith and in that sense in India, Parsi and
Zoroastrian are synonyms. In modern India, Parsi law applies to the following
three sets of persons: (a) persons who are descendants of the original Persian
emigrants and are born of Zoroastrian parents, (b) those persons whose
father is (or was) a Parsi and mother an alien but admitted to Zoroastrian
faith and (c) Zoroastrians from Iran, who are either temporarily or
permanently residing in India.
In accordance with the Indian Christian Marriage Act, 1872, 'Christians' means
persons professing the Christian religion and 'Indian Christians' include 'the
Christian descendants of natives of India converted to Christianity'.
In respect of marriage, matrimonial causes and succession Parsis and
Christians are governed by statutory law.
After immigration to India, Parsis were greatly influenced by Hindu customs
and some of the Hindu customs were adopted by them.
The native converts to Christianity were mostly Hindus and in many cases
they retained their customs. With the establishment of East India Company's
rule in India, a dual system of administration of justice came into being. In
the Presidency towns, the Supreme Court of Judicature was enjoined in 'all
matters arising out of inheritance and succession to land and goods, and all
matters of contracts and dealing between party and party to apply
Muslim law and usage in case parties were Muslims; and
Hindu law and usage in case parties were Hindus, and,
the usage of defendant in case one of the parties was a Muslim or a Hindu'.
The courts in the mofussil, were enjoined to apply 'Acts of Parliament and
Regulations of Government applicable to the case; in the absence of such Acts
and Regulations the usage of the country in which the suit arose; if none such
appears, the law of defendant; and, in the absence of specific law and usage,
the rule of justice, equity and good conscience alone'.
The result seems to have been that with the exception of Hindus and Muslims,
all other British Indian subjects in the Presidency towns came to be governed
by the rules of English common law so far as it was applicable and in the
mofussil by the customary law so far as it existed and was ascertainable,
otherwise by rules of justice, equity and good conscience which were
construed to mean mainly the rules of English law if found applicable to Indian
society and circumstances.
How much of the English common law is applicable to these communities is
really difficult to say, though there are some decided cases, which lay down
which rule of English common law is applicable or is not applicable. It is
established that in respect of marriage and matrimonial causes Jews are
governed by their customary law. It is not so well established in respect of
other matters.

Go To Contents
Explain in detail : Concept of Wakf under the Muslim Law. (Oct-2013, Dec-2015)
ANSWER :
What is waqf/ wakf ? A waqf, also spelled wakf is, an inalienable religious endowment
in Islamic law, typically donating a building or plot of land or even cash for Muslim
religious or charitable purposes with no intention of reclaiming the assets.
Literal meaning of Wakf is detention, stoppage, or tying up as observed in M Kazim
vs A Asghar Ali AIR 1932.

Technically, it means a dedication of some specific property for a pious purpose or
secession of pious purposes. As defined by Muslim jurists such as Abu Hanifa, Wakf
is the detention of a specific thing that is in the ownership of the waqif or
appropriator, and the devotion of its profits or usufructs (right to enjoy
another's property without destruction) to charity, the poor, or other good
objects, in the manner of areeat or commodate loan.
Wakf Act 1954 defines Wakf as, "Wakf means the permanent dedication by a
person professing the Islam, of any movable or immovable property for any
purpose recognized by Muslim Law as religious, pious, or charitable."
Comparisons with trust law :
The waqf in Islamic law, which developed in the medieval Islamic world from the
7th to 9th centuries, bears a notable resemblance to the English trust law.
Every waqf was required to have a waqif (founder), mutawillis (trustee), qadi
(judge) and beneficiaries.
IMP ---> Under both a waqf and a trust, "property is reserved, and its usufruct
(right to enjoy another's property without destruction) appropriated, for the benefit
of specific individuals, or for a general charitable purpose; the corpus becomes
inalienable; estates for life in favor of successive beneficiaries can be created" and
"without regard to the law of inheritance or the rights of the heirs; and continuity is
secured by the successive appointment of trustees or mutawillis."
The only significant distinction between the Islamic waqf and English trust was "the
express or implied reversion of the waqf to charitable purposes when its specific
object has ceased to exist", though this difference only applied to the "waqf ahli
(Islamic family trust)" rather than the "waqf khairi (devoted to a charitable purpose
from its inception)". Another difference was the English vesting of "legal estate"
over the trust property in the trustee, though the "trustee was still bound to
administer that property for the benefit of the beneficiaries". In this sense, the
"role of the English trustee therefore does not differ significantly from that of the
mutawalli".
Essentials of a valid Wakf :
1. Permanent Dedication of any property - There are actually three aspects in this
requirement. There must be a dedication, the dedication must be permanent, and
the dedication can be of the property.
There is no prescribed form of dedication. It can be written or oral but it must be
clear to convey the intention of dedication. According to Abu Yusuf, whose word
is followed in India, mere declaration of dedication is sufficient for completion of
Wakf. Neither delivery of possession or appointment of Mutawalli is necessary.
The dedication must be permanent. A temporary dedication such as for a period
of 10 yrs or until death of someone is invalid.

The subject of Wakf can be any tangible property (mal) which can used without
being consumed. In Abdul Sakur vs Abu Bakkar 1930, it was held that there are
no restrictions as long as the property can be used without being consumed and
thus, a valid Wakf can be created not only of immovable property but also of
movable property such as shares of a company or even money.
Some subjects that Hanafi law recognizes are immovable property, accessories
to immovable property, or books.
The subject of the Wakf must be in the ownership of the dedicator, wakif. One
cannot dedicate someone else's property.
2. By a Muslim - A Wakf can only be created by a Muslim. Further, the person must
have attained the age of majority as per Indian Majority Act and should be of
sound mind.
3. For any purpose recognized by Muslim Law - The purpose is also called the
object of Wakf and it can be any purpose recognized as religious, pious, or
charitable, as per Muslim Law. It is not necessary that a person must name a
specific purpose. He can also declare that the property may be used for any welfare
works permitted by Shariat. In Zulfiqar Ali vs Nabi Bux, the settlers of a Wakf
provided that the income of certain shops was to be applied firstly to the upkeep of
the mosque and then the residue, if any, to the remuneration of the mutawalli. It
was held to be valid however, it was also pointed out that if a provision of
remuneration was created before the upkeep of the mosque, it would have been
invalid.
Valid purposes : The following are some of the objects that have been held valid
in several cases - Mosques and provisions of Imam to conduct worship,
celebrating birth of Ali Murtaza, repairs of Imambaras, maintenance of
Khanqahs, burning lamps in mosques, payment of money to fakirs, grant to an
idgah, grant to colleges and professors to teach in colleges, bridges and caravan
sarais.
Invalid purposes :
In Kunhamutty vs Ahman Musaliar AIR 1935, Madras HC held that if there are
no alms, the performing of ceremonies for the benefit of the departed soul is
not a valid object.
Some other invalid objects are - building or maintaining temple or church,
providing for the rich exclusively, objects which are uncertain.
Shia Law - Besides the above requirements, Shia law imposes some more
requirements for a valid Wakf. These are -
1. Delivery of possession to the first person in whose favour the Wakf has been
created is essential.
2. Dedication must be absolute and unconditional.

3. The property must be completely taken away from the wakif. It means that
the wakif cannot keep or reserve any benefit or interest, or even the usufructs of
the dedicated property.
Creation of Wakf : Muslim law does not prescribe any specific way of creating a Wakf.
If the essential elements as described above are fulfilled, a Wakf is created. Though it
can be said that a Wakf is usually created in the following ways -
1. By an act of a living person (inter vivos) - when a person declares his dedication
of his property for Wakf. This can also be done while the person is on death bed
(marj ul maut), in which case, he cannot dedicate more than 1/3 of his property for
Wakf.
2. By will - when a person leaves a will in which he dedicates his property after his
death. Earlier it was thought that Shia cannot create Wakf by will but now it has
been approved.
3. By Usage - when a property has been in use for charitable or religious purpose
for time immemorial, it is deemed to belong to Wakf. No declaration is necessary
and Wakf is inferred.
Kinds of Wakfs :
Public and Private : A Wakf can be classified into two types - Public and Private.
As the name suggests, a public Wakf is for the general religious and charitable
purposes while a private Wakf is for the creators own family and descendants
and is technically called Wakf alal aulad.
It was earlier considered that to constitute a valid wakf there must be a
complete dedication of the property to God and thus private wakf was not at all
possible. However, this view is not tenable now and a private wakf can be
created subject to certain limitation after Wakf Validating Act 1913. This acts
allows a private wakf to be created for one's descendants provided that the
ultimate benefits are reserved for charity.
Muslim Law treats both public and private wakfs alike. Both types of wakf are
created in perpetuity and the property becomes inalienable.
Quasi public Wakf : Some times a third kind of wakf is also identified. In a Quasi
public wakf, the primary object of which is partly to provide for the benefit of
particular individuals or class of individuals which may be the settler's family, and
partly to public, so they are partly public and partly private.
Contingent Wakf : A wakf, the creation of which depends on some event happening
is called a contingent wakf and is invalid. For example, if a person creates a wakf
saying that his property should be dedicated to god if he dies childless is an invalid
wakf. Under shia law also, a wakf depending on certain contingencies is invalid.
In Khaliluddin vs Shri Ram 1934, a muslim executed a deed for creating a wakf,
which contained a direction that until payment of specified debt by him, no

proceeding under the wakfnama shall be enforceable. It was held that it does
not impose any condition on the creation of the wakf and so it is valid.
Conditional Wakf : If a condition is imposed that when the property dedicated is
mismanaged, it should be divided amongst the heirs of the wakf, or that the wakif
has a right to revoke the wakf in future, such a wakf would be invalid. But a
direction to pay debts, or to pay for improvements, repairs or expansion of the
wakf property or conditions relating to the appointment of Mutawalli would not
invalidate the wakf. In case of a conditional wakf, it depends upon the wakif to
revoke the illegal condition and to make the wakf valid, otherwise it would remain
invalid.
Wakf alal aulad (can a wakf be created for one's family?) :
Wakf on one's children and thereafter on the poor is a valid wakf according to all
the Muslim Schools of Jurisprudence. This is because, under the Mohammedan
Law, the word charity has a much wider meaning and includes provisions made for
one's own children and descendants. Charity to one's kith and kin is a high act of
merit and a provision for one's family or descendants, to prevent their falling into
indigence, is also an act of charity.
The special features of wakf-alal-aulad is that only the members of the wakifs
family should be supported out of the income and revenue of the wakf property.
Like other wakfs, wakf alal-aulad is governed by Muhammadan Law, which makes
no distinction between the wakfs either in point of sanctity or the legal incidents
that follow on their creation.
Wakf alal aulad is, in the eye of the law, Divine property and when the rights of the
wakif are extinguished, it becomes the property of God and the advantage accrues
to His creatures. Like the public wakf, a wakf-alal-aulad can under no
circumstances fail, and when the line of descendant becomes extinct, the entire
corpus goes to charity.
The institution of private wakf is traced to the prophet himself who created a
benefaction for the support of his daughter and her descendants and, in fact,
placed it in the same category as a dedication to a mosque.
Thus, it is clear that a wakf can be created for one's own family. However, the
ultimate benefit must be for some purpose which is recognized as pious, religious
or charitable by Islam.
Completion of wakf :
The formation of a wakf is complete when a mutawalli is first appointed for the
wakf. The mutalwalli can be a third person or the wakif himself. When a third
person is appointed as mutawalli, mere declaration of the appointment and
endowment by the wakif is enough. If the wakif appoints himself as the first
mutawalli, the only requirement is that the transaction should be bona fide. There
is no need for physical possession or transfer of property from his name as owner
to his name as mutawalli. In both the cases, however, mere intention of setting
aside the property for wakf is not enough. A declaration to that effect is also
required. In Garib Das vs M A Hamid AIR 1970, it was held that in cases where
founder of the wakf himself is the first mutawalli, it is not necessary that the
property should be transferred from the name of the donor as the owner in his own
name as mutawalli.
Shia law -
1. Delivery of possession to the mutawalli is required for completion when the
first mutawalli is a third person.
2. Even when the owner himself is the first mutawalli, the character of the
ownership must be changed from owner to mutawalli in public register.
Legal Consequences (Legal Incidents) of Wakf : Once a wakf is complete, the
following are the consequences -
1. Dedication to God - The property vests in God in the sense that no body can
claim ownership of it. In Md. Ismail vs Thakur Sabir Ali AIR 1962, SC held that
even in wakf alal aulad (private wakf), the property is dedicated to God and only
the usufructs are used by the descendants.
2. Irrevocable - In India, a wakf once declared and complete, cannot be revoked.
The wakif cannot get his property back in his name or in any other's name.
3. Permanent or Perpetual - Perpetuality is an essential element of wakf. Once the
property is given to wakf, it remains for the wakf for ever. Wakf cannot be of a
specified time duration. In Mst Peeran vs Hafiz Mohammad, it was held by Allahbad
HC that the wakf of a house built on a land leased for a fixed term was invalid.
4. Inalienable - Since Wakf property belongs to God, no human being can alienate
it for himself or any other person. It cannot be sold or given away to anybody.
5. Pious or charitable use - The usufructs of the wakf property can only be used for
pious and charitable purpose. It can also be used for descendants in case of a
private wakf.
6. Extinction of the right of wakif - The wakif loses all rights, even to the usufructs,
of the property. He cannot claim any benefits from that property.
7. Power of court's inspection - The courts have the power to inspect the
functioning or management of the wakf property. Misuse of the property of
usufructs is a criminal offence as per Wakf Act.1995.
Revocation of Wakf :
In India, once a valid wakf is created it cannot be revoked because no body has the
power to divest God of His ownership of a property. It can neither be given back to
the wakif nor can it be sold to someone else, without court's permission.
A wakf created inter vivos is irrevocable. If the wakif puts a condition of

revocability, the wakf is invalid. However, if the wakf has not yet come into
existence, it can be canceled. Thus, a testamentary wakf can be canceled by the
owner himself before his death by making a new will. Further, wakf created on
death bed is valid only up till 1/3 of the wakif's property. Beyond that, it is invalid
and the property does not go to wakf but goes to heirs instead.
Go To Contents
Explain : Mutawalli (Nov-2011, Nov-2012)

ANSWER :
http://www.shareyouressays.com/117464/get-the-complete- information-on-
mutawalli-of-a-wakf
Who is Mutawalli ? Mutawalli is the manager of a wakf. He is not the owner or even a
trustee of the property. He is only a superintendent whose job is the see that the
usufructs (right to enjoy another's property without destruction) of the property are
being utilized for valid purpose as desired by the wakif. He has to see that the
intended beneficiaries are indeed getting the benefits. Thus, he only has a limited
control over the usufructs.
In Ahmad Arif vs Wealth Tax Commissioner AIR 1971, SC held that a mutawalli has
no power to sell, mortgage, or lease wakf property without prior permission of the
court or unless that power is explicitly provided to the mutawalli in wakfnama.
Who can be a mutawalli ? A person who is a major, of sound mind, and who is
capable of performing the functions of the wakf as desired by the wakif can be
appointed as a mutawalli. Females and the non-Muslims are also legally qualified to
be appointed as a mutawalli. A mutawalli is primarily concerned with the
superintendence or management of the waqf- property. Supervision and management
is a non-religious activity.
When a female and a non- Muslim CAN NOT be appointed as mutawalli : When the
nature of the functions to be discharged are religious, the mutawalli must be a
male and a Muslim.
(i) Where the mutawalli is to act as Sajjadnashin or a spiritual head.
(ii) Where the mutawalli is to act as imam, i.e. where he is required to lead
the assembly of people for religious prayers.
(iii) Where the mutawalli is to act as a Mulla. A land assigned to a Mulla as
remuneration of his office, cannot be succeeded by any female successor.
(iv) Where the mutawalli is required to give religious preaching i.e. where he
has to act as Khatib.

(v) Where the mutawalli is required to act as mujavar of a Durgah.
Thus, if religious duties are a part of the wakf, then a female or a non-muslim
cannot be appointed. In Shahar Bano vs Aga Mohammad 1907, Privy council
held that there is no legal restriction on a woman becoming a mutawalli if the
duties of the wakf do not involve religious activities.
When a female and a non- Muslim CAN be appointed as mutawalli : Where the
functions are not purely religious, a female is not disqualified to be appointed as
mutawalli. Thus, in the following instances a female is competent to be appointed
as a mutawalli.
(i) Where the office of mutawalli is purely secular in nature and no religious
performance is required to be done under the waqf, a female can be appointed
as mutawalli.
(ii) A woman can be appointed as head mujavar of Astan (a platform where
Muharram ceremonies are performed annually). The religious duties in some
cases may be delegated by a female mutawalli to any male Muslim. It has been
held that if certain religious functions were such as could be performed by a
proxy, the woman may hold the office of mujavar.
Who can appoint a mutawalli :-
Generally, the wakif appoints a mutawalli. He can also appoint himself as a
mutawalli.
Sunni law : If a wakf is created without appointing a mutawalli, in India, the
wakf is considered valid and the wakif becomes the first mutawalli
Shia law : even though the wakf remains valid, it has to be administered by the
beneficiaries.
The wakif also has the power to lay down the rules to appoint a mutawalli. The
following is the order in which the power to nominate the mutawalli transfers if the
earlier one fails -
1. founder
2. executor of founder
3. mutawalli on his death bed
4. the court, which should follow the guidelines -
a. it should not disregard the directions of the settler but public interest must
be given more importance.
b. preference should be given to the family member of the wakif instead of
utter stranger.
5. By Congregation
Powers of a mutawalli :- Being the manager of the wakf, he is in charge of the
usufructs of the property. He has the following rights -

1. He has the power to utilize the usufructs as he may deem fit in the best interest
of the purpose of the wakf. He can take all reasonable actions in good faith to
ensure that the intended beneficiaries are benefited by the wakf. Unlike a trustee,
he is not an owner of the property so he cannot sell the property. However, the
wakif may give such rights to the mutawalli by explicitly mentioning them in
wakfnama.
2. He can get a right to sell or borrow money by taking permission from the court
upon appropriate grounds or if there is an urgent necessity.
3. He is competent to file a suit to protect the interests of the wakf.
4. He can lease the property for agricultural purpose for less than three years and
for non-agricultural purpose for less than one year. He can exceed the term by
permission of the court.
5. He is entitled to remuneration as provided by the wakif. If the remuneration is
too small, he can apply to the court to get an increase.
Restrictions on mutawalli :
A Mutawalli has no power to transfer his office to any other person. His office is not
transferable during his life. The office of mutawalliship (Tawliyat) is created on the
basis of certain personal qualifications; therefore, it would be against the nature of
this office to allow a mutawalli to alienate his assignment to some other person.
Mutawalliship cannot be regarded as a property. As this office is not any property,
it cannot be subject of any transfer.
He is also not empowered to appoint any co-mutawalli to share his responsibilities.
But, if the founder has given the power of transferring his office, he can lawfully
transfer his assignment to another person.
Similarly, with an authority from the founder a mutawalli can appoint co-
mutawallis. However, in the absence of any express prohibition by founder, the
mutawalli has a right to appoint his deputy or assistants to help him in the
management of the dedicated property.
A mutawalli has no right to appoint any official or servant against any express
direction by the founder. Where such officials or servants have already been
appointed by the founder, the mutawalli has no power to make any change in those
appointments.
Moreover, the mutawalli has no right to make any changes in the salaries and
allowances of the officials who have already been appointed by the founder. This
power is vested in the court of law; the mutawalli can neither remove those
officials nor increase their allowances where it has already been fixed by the
founder.
Removal of a mutawalli :- Generally, once a mutawalli is duly appointed, he cannot be
removed by the wakif. However, a mutawalli can be removed in the following

situations :-
1. By court -
if he misappropriates wakf property.
even after having sufficient funds, does not repair wakf premises and wakf falls
into disrepair.
knowingly or intentionally causes damage or loss to wakf property. In Bibi
Sadique Fatima vs Mahmood Hasan AIR 1978, SC held that using wakf money to
buy property in wife's name is such breach of trust as is sufficient ground for
removal of mutawalli.
he becomes insolvent.
Failure of a mutawalli to perform religious services where it is an essential part
of his duties;
Where the mutawalli utilises the waqf-property or its benefits for his private use;
Where a mutawalli applies the income of the waqf-property against directions of
the waqf-deed;
Where a mutawalli otherwise exceeds his powers in dealing with the property, or
Where the mutawalli suffers from any physical or mental incapacity.
2. By wakf board - Under section 64 of Wakf Act 1995, the Wakf board can remove
mutawalli from his office under the conditions mentioned therein.
3. By the wakif - As per Abu Yusuf, whose view is followed in India, even if the
wakif has not reserved the right to remove the mutawalli in wakf deed, he can still
remove the mutawalli.
Go To Contents
Explain in detail : Ijamma. (Oct-2013)

Explain : Ijamma (Nov-2011, Nov-2012, Nov-2014)
ANSWER :

Go To Contents
Explain in detail : Parsi Court and its jurisdiction under the Parsi Marriage & Divorce
Act, 1935. (Oct-2013)

Explain : Parsi Court (Nov-2011, Nov-2012, Nov-2014)
ANSWER :
Refer :

Go To Contents
Discuss in detail : Uniform Civil Code : Concept, reasons, Need to enact, problems,
relevant Constitutional provisions, Judicial pronouncements.
ANSWER :
Refer :
Go To Contents
Module-2) MARRIAGE :
2.1) Concept of Marriage, Essentials of valid Marriage under Different laws
Hindu, Muslim, Parsi, Christian laws and Special Marriage Act,
2.2) Emerging concepts : Maitri Sambandh (Live in Relationship) and divided
home
2.3) Regular, irregular and void marriages under different family laws and
effects thereof
2.4) Iddat and its types under Muslim Law
2.5) State Regulations over customary practices like Polygamy, Concubine,
Child Marriage, Dowry, Sati System etc. by different legislations
2.6) Guardianship in Marriage (Jabar) and option of puberty under Muslim law
Go To Contents
Discuss in detail : (i) Concept of marriage under different family laws. (ii)
Regular, irregular and void marriages under different family laws and effects
thereof.
State the comparison in respect of essentials of valid marriage under various
family laws. (Dec-2015)
Discuss the law relating the legality of marriage under Hindu, Muslim, Parsi and
Christian Law. (Nov-2011, Nov-2012, Oct-2013)
Write short notes : Marriage solemnized (Hindu, Muslim, Parsi, Christian). (Nov-2012,
Nov-2014)
HINDU LAW : (i) Concept of marriage, (ii) Regular, irregular and void marriage .
Explain in detail the provisions of Valid Marriage and Divorce under the Hindu
Marriage Act 1955. (Dec-2016)
Explain in detail : Void marriages under the Hindu Marriage Act, 1955. (Oct-2013)
Explain : Void marriage under the Hindu Marriage Act 1955. (Nov-2012)
MUSLIM LAW : (i) Concept of marriage, (ii) Regular, irregular and void marriage .
Explain : Valid, irregular and void marriage - under Muslim Law. (Nov-2011, Nov-
2012)
Explain in detail : (Muta) Mutta Marriage. (Oct-2013, Dec-2016)
Explain : Mutta Marriage (under Muslim law) (Nov-2011, Nov-2012, Nov-2014)
Write short note : Valid, irregular and void marriage (under Muslim law). (Nov-
2014)
Explain in detail the provisions of Valid Marriage and Divorce under the Muslim
Law. (Dec-2016)
CHRISTIAN LAW : (i) Concept of marriage, (ii) Regular, irregular and void marriage .
Explain the provision relating to marriage ceremony, marriage certificate, reasons for
nullify of marriage under Christian Marriage Act 1872. (Nov-2014)
Explain in detail : Provisions of the marriage certificate under the Christian Marriage
Act, 1872. (Oct-2013)
Explain : Marriage Certificate (under Christian Marriage Act). (Nov-2011, Nov-2012)
Discuss in detail the provisions of Valid Marriage and Divorce under the Christian
Marriage and Divorce Act 1972. (Dec-2016)
PARSI LAW : (i) Concept of marriage, (ii) Regular, irregular and void marriage .
Discuss : Valid, irregular and void marriage (under Parsi law)
Discuss in detail the provisions of Valid Marriage and Divorce under the Parsi Marriage
and Divorce Act 1935. (Dec-2016)
SPECIAL MARRIAGE ACT 1954 : (i) Concept of marriage, (ii) Regular, irregular and
void marriage.
Explain in detail provisions of valid marriage as well as divorce under the Special
Marriage Act 1954 with case laws. (Dec-2015)
Explain : Void marriage under special marriage act 1954. (Nov-2011, Nov-2014)
Discuss in detail : Maitri Sambandh (Live in Relationship) and divided home.
Discuss : State Regulations over customary practices like Polygamy, Concubine,
Child Marriage, Dowry, Sati System etc. by different legislations.
Discuss : Guardianship in Marriage (Jabar).
Explain in detail : Options of Puberty. (Oct-2013)
Explain : Option of puberty (Nov-2011, Nov-2012, Nov-2014)
Explain With decided cases the provisions of Iddat as well as Mahar under Muslim
Law. (Nov-2012, Oct-2013, Nov-2014, Dec-2015)
-----> Discussed in Module-3.
Explain : Iddat (Nov-2011)
Explain in detail : Concept of Iddat and Mahar under the Muslim Law. (Dec-2016)
Go To Contents
MODULE-2 ANSWERS :
State the comparison in respect of essentials of valid marriage under various
family laws. (Dec-2015)
Discuss the law relating the legality of marriage under Hindu, Muslim, Parsi and
Christian Law. (Nov-2011, Nov-2012, Oct-2013)
Write short notes : Marriage solemnized (Hindu, Muslim, Parsi, Christian). (Nov-2012,
Nov-2014)
ANSWER :
Common Intro for ALL faiths : Marriage is a universal human institution which has
formed the foundation of the family. It usually means a voluntary union for life of one
man with one woman to the exclusion of others. While the traditions surrounding
marriage ceremonies, the rights and obligations of marriage, the way of choosing
ones marriage partner, and even who all are permitted to marry may differ from
culture to culture. In the case of Shaw v. Gould, Lord Westbury said, "Marriage is the
very foundation of civil society, and no part of law and institutions of a country can be
of more vital importance to its subjects than those which regulate the manner and the
conditions of forming, and if necessary of dissolving, the marriage contract."
Marriage is a basic social and legal institution.
General classification of marriage :
Valid : When all the conditions prescribed by the personal laws are fulfilled and
there is no legal impediment, the marriage is considered as valid or regular.
Voidable : However if a party contravenes any of the conditions for valid
marriage, different status would be ascribed to the marriage i.e. void or voidable
marriage. Such status of void or voidable marriage is dependent upon the nature
of conditions so violated.
A voidable marriage is a perfectly valid marriage as long as it is not annulled
(set aside) by any court of law. Only the aggrieved party to the marriage can
file the petition for annulment. The court can annul the voidable marriage by
passing a decree of nullity.
Void : A void marriage is no marriage.
Detailed discussion on various family laws follows under different heads.
Go To Contents
HINDU LAW : (i) Concept of marriage, (ii) Regular, irregular and void marriage :
Explain in detail the provisions of Valid Marriage and Divorce under the Hindu
Marriage Act 1955. (Dec-2016)
Explain in detail : Void marriages under the Hindu Marriage Act, 1955. (Oct-2013)
Explain : Void marriage under the Hindu Marriage Act 1955. (Nov-2012)
Valid Marriage :
<work on this>

Void and Voidable marriage under HINDU MARRIAGE ACT, 1955 :
Intro :
Marriage under the Act is the voluntary union of one man with one woman to the
exclusion of all others, satisfied by the solemnisation of the marriage. There are
three types of marriages under this Act,
1. Valid,
2. Void and
3. Voidable.
This distinction relates to the pre-marriage impediments to marriage which are
clearly enunciated in Section 5 of the Act.
If absolute impediments exist, a marriage is void ab initio. Section 11 deals with
void marriages.
If relative impediments exist, a marriage is voidable. Section 12 deals with
voidable marriages.
All other marriages which are not covered by these two Sections are valid.
Void Marriage [Section 11] :
A Void Marriage contravenes some tenet which is envisaged as basic to the
institution of the marriage. Section 11 states that any marriage solemnized at
the commencement of this Act shall be null and void and may, on a petition
presented by either party thereto against the other party be so declared by a
decree of nullity if it contravenes any of the conditions specified in clauses (1),
(4) and (5) of the Section.
Thus a marriage will be void ab initio,
1. if any party to marriage has a spouse living at the time of the marriage
[Section 5(1)]
2. if the parties are within the degree of prohibited relationship unless the
custom or usage governing each of them permits such a marriage [Section
5(4)]
3. If the parties are sapindas of each other, unless the custom or usage
governing each of them permits such a marriage [Section 5(5)].
IMP --> The provision is prospective but decree of court has retrospective
operation
Thus, Section 11 of this Act is prospective in nature. ie It is only applicable to
marriages solemnized after the commencement of HINDU MARREAGE ACT,

1955. It is not applicable to marriages solemnized before the commencement
of the HINDU MARREAGE ACT, that is before 18 th May, 1955, though such
marriages may be void.
But the decree of nullity passed in the case of a void marriage has
retrospective operation. It annuls the marriage not from the date of its
passing but from the date of the solemnization of marriage.
Sapinda : In short, one cannot marry within five degrees from father's side and
three degrees from the mother's side.
"Sapinda relationship" with reference to any person extends as far as the third
generation(inclusive) in the line of ascent through the mother, and the
fifth (inclusive) in the line of ascent through the father, the line being traced
upwards in each case from the person concerned, who is to be counted as the
first generation;
two persons are said to be "sapinda" of each other if one is a lineal ascendant
of the other within the limits of sapinda relationship, or if they have a
common lineal ascendant who is within the limits of sapinda relationship
with reference to each of them;
Effect of a Void Marriage : The expression "Void Marriage" is simply a convenient
phrase. A Void Marriage is no marriage. It is void since its inception. A void
marriage does not alter or affect the status of the parties nor does it create any
rights and obligations between the parties which normally arise from a valid
marriage. The relationship of husband and wife does not come into existence
from a void marriage. The position of the wife of a void marriage is not better
than concubine. The issues from a void marriage are illegitimate unless
legitimized by law (as per, Section 16, HINDU MARREAGE ACT) in some way.
In M.M. Malhotra Verses. UOI, the Apex Court observed that the marriages
covered by Section 11 are void ipso jure, that is, void from the very inception
and have to be ignored as not existing in law at all if and when such a
question arises.
Although the Section permits a formal declaration to be made on the
presentation of the petition, it is not essential to obtain in advance such a
formal declaration from a court in a proceeding commenced for the purpose.
If one withdraws from the society of the other, the other party has no right to
the restitution of conjugal rights. If one of them marries again, he or she is
not guilty of bigamy and the validity of later marriage is not affected because
of the first so called marriage.
Competence to move the petition :
It is only the parties to marriage who can move a petition for the declaration
of nullity of marriage. The first wife, during the subsistence of whose marriage
the husband takes second wife, has no right to move for declaration of nullity
of the subsequent marriage under this Section.
However, there is nothing in the Section or any other provision of any law to
debar a person affected by an illegal marriage from filing a regular suit in a
civil court for its declaration as void, if such party was affected by such
marriage.
There can be a civil suit by a person for declaration that the marriage of A
with B was a nullity and for consequential reliefs under the Specific Relief Act,
1963, if the Plaintiff has any cause of action for such relief.
In Uma Shanker Verses. Radha Devi, the Patna High Court ruled that the first
wife could obtain perpetual injunction to prevent second marriage of her
husband under Section 9 of the Civil Procedure Code and Section 54 of the
Specific Relief Act.
Voidable Marriage [Section 12] :
A marriage which can be annulled or avoided at the option of one or both the
parties is known as a voidable marriage.
A voidable marriage remains valid and binding and continues to subsist for all
purposes, unless a decree is passed by the court annulling the same on any of
the grounds mentioned in the Section.
IMP --> Section 12 is both retrospective and prospective unlike Section 11
which is only prospective.
Grounds for Voidability of a Marriage : A decree of nullity can be granted under
Section 12 only on the grounds mentioned in the Section and not merely
because the parties to the marriage cannot live happily together for any
domestic reasons. The court must look only to the provisions of the Act and see
whether the requirements of Section 12 are satisfied and whether there are any
grounds for refusing relief under Section 23(1). This section lays down four
grounds on which a Hindu marriage becomes voidable. These are,
1. Inability of the respondent to consummate the marriage on account of his
or her impotency.
2. Respondents incapacity to consent or suffering from a mental disorder
[Section 5(2)]
3. Consent of the petitioner being obtained by fraud or force.
4. Concealment of Pre-marriage pregnancy by the respondent.
Go To Contents
MUSLIM LAW : (i) Concept of marriage, (ii) Regular, irregular and void marriage :
Explain : Valid, irregular and void marriage - under Muslim Law. (Nov-2011, Nov-
2012)
Explain in detail : (Muta) Mutta Marriage. (Oct-2013, Dec-2016)
Explain : Mutta Marriage (under Muslim law) (Nov-2011, Nov-2012, Nov-2014)
Write short note : Valid, irregular and void marriage (under Muslim law). (Nov-2014)
Explain in detail the provisions of Valid Marriage and Divorce under the Muslim Law.
(Dec-2016)
ANSWER :
http://www.legalserviceindia.com/article/l418-Muslim-Marriage.html
https://www.scribd.com/doc/303911504/Family-Law
Intro :
Islam, unlike other religions is a strong advocate of marriage. There is no place of
celibacy in Islam like other faiths. The Prophet has said There is no Celibacy in
Islam.
Marriage acts as an outlet for sexual needs & regulates it so one doesnt become
slave to his/her desires. It is a social need because through marriage, families are
established and the families are the fundamental entity of our society.
Marriage is the only legitimate or halal way to indulge in intimacy between a man
and woman.
Islamic marriage although permits polygamy but it completely prohibits polyandry.
Polygamy though permitted is guarded by several conditions.
Under Section 2 of Muslim Women (Protection of Rights on Divorce) Act, 1986
Marriage or Nikah among Muslims is a Solemn Pact or Mithaq-e-ghalid between a
man & a woman, soliciting each others life companionship, which in law takes the
form of a contract or aqd.
In Islam, marriage is a legal contract (Arabic: aqd al-qirn, "matrimony contract")
between two people. Both the groom and the bride are to consent to the marriage
of their own free wills. A formal, binding contract is considered integral to a
religiously valid Islamic marriage, and outlines the rights and responsibilities of the
groom and bride.
Capacity for Marriage : The general essentials for marriage under Islam are as follows
:-
(i) Every Mahomedan of sound mind and having attained puberty can marry.
Where there is no proof or evidence of puberty the age of puberty is fifteen years.
(ii) A minor and insane (lunatic) who have not attained puberty can be validly
contracted in marriage by their respective guardians.
(iii) Consent of party is must. A marriage of a Mahomedan who is of sound mind

and has attained puberty, is void, if there is no consent.
Valid Marriage : The essentials of a valid marriage are as follows :-
(i) There should be a proposal made by or on behalf of one of the parties to the
marriage, and an acceptance of the proposal by or on behalf of the other party.
Proposal is called Ijab, and acceptance is called Qubul.
(ii) The proposal and acceptance must both be expressed at once meeting. The
acceptance must be corresponding to what is being offered.
(iii) The parties must be competent. i.e. they must be sane and adult.
(iv) There must be two male or one male & two female witnesses, who must be
sane and adult Mahomedan present & hearing during the marriage proposal and
acceptance. (Not needed in Shia Law)
(v) Neither writing nor any religious ceremony is needed.
Notes :
The marriage must be effectively immediate. If the Wali says I will marry her to
you after two months, there is no marriage.
The women must not be from the forbidden class.
The consent given must be free consent,. It must not be an outcome of
compulsion, duress, coercion or undue influence.
Kinds of Marriage : Under Muslim generally two types of marriage is recognized
(i) Regular Marriage
(ii) Muta Marriage
(i) Regular Marriage (essentials discussed earlier) :
Kinds/ Aspects of Regular Marriage :
Valid or Sahih
Irregular or Fasid
Void or Batil
Valid or Sahih Marriage :- Under the Muslim law, a valid marriage is that which
has been constituted in accordance with the essential conditioned prescribed
earlier. It confers upon the wife; the right of dower, maintenance and residence,
imposes on her obligation to be faithful and obedient to her husband, admit
sexual intercourse with him & observe Iddat.
Irregular or Fasid Marriage :- Those marriages which are outcome of failures on
part of parties in non fulfillment of prerequisites but then also are marriages; to
be terminated by one of the party is termed to be Irregular marriages. They are
outcome of-
(a) A marriage without witness (Not under Shia Law)
(b) Marriage with fifth wife.

(c) Marriage with a women undergoing Iddat.
(d) Marriage with a fire-worshipper.
(e) Marriage outcome of bar of unlawful conjunction.
An irregular marriage has no legal effect before consummation but when
consummated give rise to several rights & obligations.
Void or Batil Marriage :- Marriage is void on grounds of polyandry,
consanguinity, affinity and fosterage. A marriage which is unlawful from its
beginning. It does not create any civil rights or obligations between the parties.
The offspring of a void marriage is illegitimate. They are outcome of-
(a) Marriage through forced consent.
(b) Plurality of husband.
(c) Marriage prohibited on the ground of consanguinity.
(d) Marriage prohibited on the ground of affinity.
(e) Marriage prohibited on the ground of fosterage.
Explanatory Notes :
Polyandry means that a married woman cannot contract a second marriage
during the subsistence of the first marriage.
Consanguinity means prohibition of marrying certain blood relations. For
example, a Muslim cannot marry his mother, grandmother, daughter,
granddaughter, paternal and maternal uncles and aunts etc.
Affinity means prohibition of marrying certain persons with whom
relationship has arisen by marriage. For example, a Muslim cannot marry
wife's mother or grandmother, wife's daughter (from another husband) or
granddaughter if his marriage with wife is consummated.
Fosterage means when a woman, other than the mother of the child, has
suckled (feed baby from the breast) a child under the age of two years, the
woman becomes the foster mother of the child. A man cannot marry his
foster-mother or her daughter, or his foster sister.
(ii) Muta marriage : Muta marriage is a temporary marriage. Muta marriage is
recognized in Shia only. Sunni law doesnt recognize it.
A Shia of the male sex may contract a Muta marriage with a woman professing
the Mahomedan, Christian or Jewish religion, or even with a woman who is a fire
worshipper but not with any woman following any other religion.
But a Shia woman cannot contract a Muta marriage with a non muslim.
The essentials of Muta marriage are :-
(1) The period of cohabitation should be fixed.
(2) Dower should be fixed.

(3) If dower specified, term not specified, it could amount to permanent or
regular marriage.
(4) If term fixed dower not specified, it amounts to void marriage.
Effect of Valid (Sahih) Marriage : The lawful obligations which arise after marriage
are as follows-
(i) Mutual intercourse legalized and the children so born are legitimate.
(ii) The wife gets power to get Mahr
(iii) The wife entitles to get maintenance.
(iv) The husband gets right to guide and prohibit the wifes movement(for valid
reasons only)
(v) Right of succession develops.
(vi) Prohibition of marriage due to affinity.
(vii) Women bound to complete Iddat period & not to marry during Iddat period;
after divorce or death of husband.
The obligations and rights set between the two parties during and after the
marriage are to be enforced till legality. On the basis of a marriage husband and
wife do not get the right on one anothers property.
Case-law :
In Abdul Kadir vs. Salima : This case was argued before the Full Bench, Mr. Justice
Mahmood said that- "In this view of the case the reference cannot, in my opinion
be satisfactorily answered without considering, first, the exact nature and effect of
marriage under the Muhammadan law upon the contracting parties; secondly, the
exact nature of the liability of the husband to pay the dower; thirdly, the
matrimonial rights of the parties as to conjugal cohabitation; and fourthly, the rules
of the general law as to the decree of Court in such cases".
In nawab sadiq ali khan vs. jai kishori : In the case of a shia female, the age of
puberty begins with menstruation, it has been held by the privy council in shia case
that the age of the majority in the case of the girl is attained at the age of nine
years.
In pooja arya vs. state of UP : Where a muslim girl married a hindu boy, which
created a furore in local communities, in cases like this law authorities buy peace at
the cost of constitutional rights and privileges.
Conclusion :
After analyzing thoroughly the system of Islamic marriage a reasonable and
prudent way of thinking would always conclude that the Islamic personal law with
regards to marriage and divorce need to be changed a lot so to maintain its status
in modern society.
Marriage is a religious duty of every Muslim and it is considered to be a moral

safeguard and a social need. The Prophet has also said Marriage is my tradition
whosoever keeps away there from is not from amongst me.
Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a
nature of civil contract. Marriage is necessary for the legitimization of a child. When
the marriage is done in accordance to the prescribed norms it creates various
rights and obligations on both the parties.
It appears that Islamic law of marriage and divorce is not identical to the man
made laws which are changed by man himself moment after moment. It is evident
that the position of man and woman in the social set up of the community, is equal
in every respect, but keeping in view the mindset of both the genders, Islam
segregates the rights, duties and functions of both the gender and then declares
their status with regard to family matters.
If it is asked that are man and woman equal in Islamic way of life? There would not
be simple positive or negative way of answer rather, one must scrutinize, examine
and inspect closely and thoroughly their respective rights, duties and functions.
And then placing a complete picture in front, it may be possible to answer the
above question. In other societies of the world, the state of affairs is not in
concurrence to Islamic way of life. Those other societies always try to claim that
man and woman are equal in every respect which is not a natural phenomenon.
Go To Contents
CHRISTIAN LAW : (i) Concept of marriage, (ii) Regular, irregular and void marriage :
Explain the provision relating to marriage ceremony, marriage certificate, reasons for
nullify of marriage under Christian Marriage Act 1872. (Nov-2014)
Explain in detail : Provisions of the marriage certificate under the Christian Marriage
Act, 1872. (Oct-2013)
Explain : Marriage Certificate (under Christian Marriage Act). (Nov-2011, Nov-2012)
ANSWER :
http://www.helplinelaw.com/family-law/CTMRR/christian-marriage-and-
registration-procedure-in-india.html
https://www.scribd.com/doc/147358846/Notes-on-Indian-Christian-Marriage-Act
Introduction
Under the Indian Christian Marriage Act, 1872, Christian marriages in India are
performed by a Minister or Priest in a church. After the marriage is performed the

minister or priest enlists the marriage and issues a marriage certificate, thereby
endorsing the marriage. A marriage, performed earlier by a Priest or Minister of the
Church, can likewise be enrolled, in the register by the registrar of marriages. In
order to get a marriage registered, it is incumbent on each party to the marriage to
make an application to the concerned authority located within its place of
residence.
Valid marriage :
In order to constitute a valid marriage under the act, it is a requirement that either
one or both parties are Christians. Provided, personal law of both the parties do not
forbid such marriage on the grounds of prohibited degrees of their relationship,
thereby rendering the marriage as void
To constitute a legitimate marriage under the act the following factors have to be
complied with :-
The bridegroom must not be under twenty-one years and the bride must not
be under eighteen years of age respectively;
Consent must be free and voluntary and not obtained by misrepresentation of
facts, compulsion or undue influence;
Neither party should have a spouse living at the time of marriage;
Marriage must be performed in the presence of at least two reliable
witnesses, by a person licensed to grant a certificate to the marriage.
<work on void/ voidable marriage>
Conditions for Performance of a Marriage by a Marriage Registrar : The following
conditions have to be complied with for the performance of the marriage by the
Marriage Registrar appointed under the Act. They are as follows :
(a) Notice of Intended Marriage: A written application or notice is made by
either party to the marriage residing in the same area to the Marriage Registrar
to notify the concerned authority of their intention to get married. Incase both
the parties reside in different areas, each party would have to make a separate
notice in writing to the Marriage Registrar located within their areas of residence.
The written application or notice is recorded in the marriage notebook and is
pasted in a clear noticeable area in the office.
(b) A Pledge Before Registrar: Before the certificate of notice has been issued,
either one party to the marriage should make a personal appearance before the
Marriage Registrar, pledging that:
there is no obstacle, natural inclination or other legitimate impediment to
the Marriage;
the place of residence is within the locale of the marriage registrar;
where one of the parties is a minor, the consent of one of the persons
mentioned below is of paramount importance in order to perform the
marriage :
Father of the minor, if alive and not deceased, then,
The Guardian of the minor or if no guardian, then,
Consent of the mother is required unless, no person authorized to
give such consent resides in India.
Issuance of the Certificate of Notice : Once the pledge has been taken before the
registrar by either one of the parties to the marriage and a time limit of four
days have lapsed after the notice of intended marriage has been received, the
Registrar has the power to issue the Certificate of Notice. The information
contained in the Certificate of Notice pertains to the location of the Church or
Chapel, where the marriage rituals are expected to be performed. The certificate
won't be issued if it is stopped by anyone demonstrating grounds why the
testament (something that serves as a sign or evidence of a specified fact,
event, or quality) ought not to be issued. The certificate issued makes it
mandatory to perform the marriage within two months from the date of issuance
of it failing which, the certificate becomes redundant and a fresh certificate
would have to be issued.
Persons authorized to perform the marriage under the act : Under Section 5 of the
Act, the following persons are competent to perform the marriage :
persons appointed by the Episcopal, provided that such marriages are
performed as per the customs and rituals, regulations governed by the Church of
which he is a Minister;
by any Clergyman of the Church of Scotland, provided that such marriages
are performed according to the customs, rules and regulations governed by the
Church of Scotland;
by any Minister of Religion licensed under this Act to solemnize marriages;
By any person who is appointed by or in the presence of the Marriage
registrar under the Act;
any person licensed under this Act to grant certificates of marriage between
Indian Christians
If a marriage is performed by a person who is not authorized under the act to
perform it, such a marriage would be termed void.
Performance of the Marriage under the Act :
A Christian Marriage is performed between the parties to the marriage according to
the rituals considered essential and proper as per Minister or Priest performing the
marriage. The marriage rituals require the mandatory presence of two witnesses
apart from the minister or the priest performing the marriage. If a marriage has
not been performed within two months after the issuance of the certificate of
notice, such a marriage cannot be performed after the lapse of the two month
period, and a fresh certificate of notice would have to be applied for in order to
solemnize the marriage.
Time and Place for the Performance of the Marriage :
The Act, clearly stipulates the time and the place for the performance of
marriage. Time for performing of marriage rituals has been fixed to six in the
morning and seven in the evening and the place where the marriage is to be
performed is the Church. The Clergy of the Church, under a special issued are
given flexibility in the time and place for performance of the marriage.
Registration of Marriage :
An application for registration of marriage is made by the parties to the concerned
authority in whose Jurisdiction either party has been residing. Marriage is
registered in the Marriage Register, by the Registrar who was present and
performed the marriage of the couple. The acknowledgement slip of the
registration is signed by both the parties to the marriage along with their witnesses
and is attached to the register as a proof that the marriage was registered. These
acknowledgement slips are sent out at the end of the month to the Registrar
General of Births, Deaths and Marriages. Indian Christian marriages can also be
endorsed under a special provision without a prior notice.
Documents Required for Registration of Marriage under the Act :
Complete application form;
Passport Size photographs,
The Marriage Certificate issued by the Minister or the Priest who performed
the wedding,
Two photographs of the wedding rituals along with the wedding invite;
Residence and age proof of either party to the marriage;
An affidavit certifying the mental and marital status of both parties
Illustrations :
In Syed Ahmed Sharif V. Rajinamani, a marriage was allegedly solemnized
between a Christian woman and a Muslim man and it was not shown that it was
solemnized as per the provisions of the Act. It was held that such a marriage
was void and the Christian wife was therefore not entitled to any maintenance.
Divorce under Christian personal laws : <detailed discussion elsewhere in this doc>
The Indian Divorce Act, 1869, governs Christians. It also provides for nullity of
marriage. But the Act does not distinguish between void and voidable marriage. It
only states that marriage may be declared as null and void on certain grounds.
First, aggrieved party can get the decree of nullity on ground of impotency of
other spouse at the time of marriage.

Secondly, decree of nullity can be obtained if parties are within the prohibited
degrees of consanguinity or affinity.
Thirdly, marriage may be revoked if the former husband or wife of either party
was living at the time of marriage.
Lastly, it may be annulled if either party was idiot or lunatic at the time of
marriage.
Go To Contents
PARSI LAW : (i) Concept of marriage, (ii) Regular, irregular and void marriage :
Discuss : Valid, irregular and void marriage (under Parsi law)
ANSWER :
https://parsikhabar.net/news/what-is-the-origin-of-parsi-marriage-and-who-is-a-
parsi-the-legal-angle/3950/
History and Origin :
The term parsi is not the same of the religious community. It of course carries
some territorial or racial significance. In order to be a parsi, he or she must be a
Zoroastrian. The parsis are listed under the head other communities.
The Parsis originate from Iran. They originated in the Persian province of Pers. In
AD 636, when the Arabs invaded Persia and Caliph Omar defeated the Parsi King
Yezdezind, they sailed off in boats in search of a new land to escape persecution,
carrying with them their sacred fire. They landed twenty five miles south of Daman.
The head of the group implored the local king to give them refuge, with a promise
that they would enrich his land. The king laid down five conditions :
1. The parsis should adopt the local language
2. They should translate their holy texts into the local language
3. Their women must change their dress and wear the local saree
4. Their marriage ceremony should include the local rite of tying of the sacred
knot
5. They should surrender their arms
They consented to all the five terms and in return the king granted them
permission to build their fire temples and allotted them an undeveloped country
near Daman. They renamed the place as NAVSARI which literally means New Sari
as it reminded them of a place they had left behind in Persia. They settled down to
agriculture and lived amicably with the Hindu community.
They were able to maintain their separate and distinct identity. Parsi community
evolved as an important economic and political force during the colonial regime and
were able to negotiate for themselves a separate set of personal laws.
Who is a Parsi ?
Parsi Marriage and Divorce Act 1936 is applicable only to the Parsis. Therefore, it is
essential to know as to who is a Parsi. Parsis came from Persian Province of Pers
or Pars from which the word v Parsi, is derived. The Parsis follow Zoroastrian
religion.
Although the original faith allows conversion, amongst Parsis, Zoroastrian religion
is non-convertible religion. It was held that in India, conversion to Zoroastrian
religion is against usage and customs.
Thus the word Parsi means,
(a) Persons who are descendants of original Persian emigrants.
(b) Person whose father is or was, a Parsi and mother an alien but admitted to
Zoroastrian faith.
(c) Zoroastrians from Iran who are residing in India.
The Bombay High Court held that an Irani who temporarily resided in India and
was registered as a foreigner and whose domicile continues to be present
domicile cannot be treated as a Parsi merely because he was a Zoroastrian.
NOTE : In Subsection (2) of Section 52, it is also made clear that EVEN IF a Parsi
ceases to be a Parsi, he will be governed by the provisions of this Act, if his
marriage was solemnized under the Act, notwithstanding the fact that he is not a
Parsi and the Parsi Act otherwise ceases to apply.
Valid marriage : Although Aashirwad Ceremony is essential for validity of a Parsi
Marriage, yet a Parsi marriage is regarded as a Contract also.
(Section 3) A marriage of a Parsi, in order to become a valid marriage, requires the
following requisites :
1. Parties must not be related within the prohibited degree of,
(i) Consanguinity or
(ii) Affinity.
2. Marriage must have undergone the Ashirwad Ceremony, by (a) Priest in the
presence of (6) two witnesses.
3. The Parsi Act of 1936 provided that a Parsi below the age of 21 could contract
marriage only with the consent of his or her guardian or father. But by the Parsi
Marriage and Divorce (Amendment) Act, 1986, a change has been brought
about. Now bridegroom must complete the age of 21 years and the bride must
complete the age of 18 years obviously, the concerned provision is abolished.

Void or Invalid marriage :
There is NO concept of voidable marriage. A marriage is valid for ever or never.
Therefore, if a marriage is not valid, for any reason whatsoever, it is null or void in
the eyes of Law. Being no marriage in the eyes of law, it is void ab-initio or that it
did not come into existence from its inception.
For instance, in 1990 a man undergoes a ceremony of marriage with his sister and
they start living together as husband and wife. That will not make them husband
and wife in Law. Their marriage is void initio from 1990 and no legal consequences
flow from it.
The rule of nullity is based on the principle of epogomy. It may clearly and
expressly be noted that :
i. A marriage is void under the Act, if
1. Parties are within prohibited relationship of (a) Consanguinity or (b)
affinity.
2. Necessary formalities of marriage have not been performed.
3. Male has not completed the age of 21 years and female has not completed
the age of 18 years (Section 3).
4. Either party to the marriage was impotent (Section 30).
ii. The void marriage does not alter the status of parties.
iii. The Doctrine of Factum Valet (what has been done as a matter of fact
cannot be disputed) cannot cure the defect of marriage within the prohibited
degrees. However, the statutory Parsi Law in Section 3 (2) makes it clear that
even if marriage is invalid, children out of such a void marriage are legitimate.
iv. Bigamy and its consequences : A void marriage, being no marriage, no
judicial declaration of its invalidity is essential in as much as no offence of
bigamy is committed if any party to a void marriage enters into a second
marriage without getting it annulled. However, it is always better and safer to
have a declaration from the Court of Competent Jurisdiction that marriage is
void or what is called as Decree of Nullity. However,
(1) a third person has no locus standing to file a Petition of nullity. But he
can file a Declaratory Suit under Section 9 of Civil Procedure Code read
with Section 34 of Specific Relief Act, 1963.
(2) The Second Wife can file a petition for Decree of Nullity on the ground
that her husband was already having one wife and as such her marriage
with him is Nullity and the
(3) First Wife cannot seek Decree of Nullity of her marriage but certainly
she may petition for divorce on the ground of husbands adultery.
Note : There appears to be controversy amongst various High Courts as to

whether the first wife can get an injunction against her husband who wants to
take a second wife. This view is also taken Bombay and Rajasthan High Courts
have taken a view that suit may be filed under Specific Relief Act, 1963
whereas the contrary view is taken by Mysore and Patna High Courts.
v. When Court passes a Decree, annulling the marriage, it merely declares an
existing fact.
vi. A wife of void marriage cannot claim maintenance under Section 125 of Cr.
P.C. Although according to modern view, maintenance can be claimed for a
prolonged cohabitation as husband and wife.
Legitimacy of children of void marriage : No doubt, the Act lies down clearly and
distinctly the requirement for a valid marriage, nevertheless, it fails not in recording
in sub section (2) of Section 3 that the child of void marriage will not be held
illegitimate and such a child is given legitimacy. The oriental view has been that if the
marriage is void, the offspring of such an unholy alliance is illegitimate. However, the
Parsi Law does not believe in punishing the child for illegitimacy of its parents and
accords the status of legitimacy. Indeed, the modern theory as can be seen from
foreign rulings is that if parties have acted in good faith, they cannot be driven out
to vagaries and misfortune.
Registration of Parsi marriages :
Parsi Marriage and Divorce Act of 1936 (Section 6) provide for the registration of
marriages. Section 7 of the Parsi Act stipulates appointment of Marriage Registrar
and invests powers of appointment and removal of Marriage Registrar in the State
Government as well in the Honble the Chief Justices of the High Courts.
While the State Government can appoint the Registrar without prescribing local
limits within which he (the Registrar) can exercise his powers, the Honble Chief
Justice can make appointment only for the local area of the jurisdiction of High
Court.
Section 9 of the Parsi Act, inter-alia, and casts statutory duty on the Officiating
Parsi Priest to send a copy of marriage certificate to Parsi Marriage Registrar
violation of Section 9 of the Parsi Act attracts penalty of fine of Rs. 100/ under
Section 13 of the Act.
The Parsi Marriage Registrar, in turn, has to register the marriage in the Register.
No doubt, the Parsi Act makes it mandatory to have the marriage registered yet
Presumption of Marriage, under Section 114 of Evidence Act, would arise on the
basis of prolonged cohabitation and so also, such presumption would arise under all
Personal laws in India since the evidence Act is applicable to all communities.
The Marriage Register is a public document and therefore, under Section 8 of the
Parsi Act, it is open to public inspection.
It may clearly and expressly be noted that Parsi Marriage Registrar is different and
distinct from the Marriage Registrar under the Birth, Deaths and Marriages
Registration Act, 1886 in as much as the Priest has to send a copy of Marriage
Certificate to the (Parsi) Marriage Registrar of the place at which marriage was
solemnized who, in turn, has to send the copies of marriage registration to the
Registrar General of Births, Deaths and Marriages of the State.
The Honble Supreme Court of India did take notice of the fact that under the Parsi
Marriage and Divorce Act, it is compulsory to have marriages registered, however,
it is not so in other cases. While dealing with a non-registration of a Hindu
Marriage, the apex Court held that though registration of marriage itself cannot be
a proof of marriage perse and would not be a determinative factor regarding
validity of a marriage, yet it has great evidentiary value in family matters. If the
record of marriage is kept, to a large extent, the dispute concerning marriage often
is avoided. Discretion was given to file compliance report. Time for 3 months was
extended from 25-10-07.
Monogamy :
Subsection (2) Section 4 of the Act renders the second marriage void in express
terms; however, it is silent about the offspring of the child/ children born out of
wedlock of second marriage. But it should not be difficult to hold that the
child/children born out of second marriage under this Act itself would be legitimate.
But if a Parsi solemnizes marriage under some other Act, then the legitimacy of
child/ children born out of second marriage would be determined under the Act
under which the marriage was solemnized.
The Parsi Law professes monogamy and, therefore, the second marriage during the
subsistence of first marriage is prohibited under the Act. It is noteworthy that the
Act makes it abundantly clear that no matter the spouse has changed the religion,
the earlier marriage continues and does not abate, disappear or dissolved ipse
dixit.
Thus, the earlier marriage continues to follow the spouse like a shadow in the light
of earlier marriage. Necessarily, therefore, the either spouse can marry only after
the earlier marriage is dissolved (either by Order of Divorce or by a Decree of
Nullity) by the Competent Court under the Act.
The same position remains in case of change in faith/ domicile. Section 4 of the Act
makes it fairly clear that earlier marriage between two Parsis, man and woman
remains unchanged even if there is any change either in the religion or change in
the Domicile of either spouse. It may, however, be noted that since the Act is not
specific on the marriage between a Pars and non Parsi, it is silent on the change of
religion of the Parsi spouse. Indeed, the scheme of the Act shows that the Act
would apply only if the parties are Parsis and it is obvious that it does not deal with
the eventuality of one not being a Parsi.
However, the Act makes it explicitly clear that even if the second marriage is
solemnized under some other Act which provides polygamy, it will be unlawful
under Subsection (1) of Section 4 of the Act. Needless therefore to record that the
second marriage (whether performed under this Act (undoubtedly it is impossible
but assuming that by some dubious method, the second marriage is solemnized
under this Act itself then also] or under any other system of law providing for
polygamy or a limited polygamy] will be unlawful and void initio.
Penalty for bigamy :
The second marriage being void, Section 5 makes the second marriage penal and
provides for penalty by subjecting the parties to the provision of Sections 494 and
495 of the Indian Penal Code for bigamy. The Act also makes it expressly clear that
even if a spouse has ceased to be a Parsi, he will be subjected to Parsi Law. It only
means that the spouse is punished for his infringing the Parsi Law and nothing
more than that. Indian Penal Code, Section 494 deals with the marriage during the
lifetime of husband or wife.
The ingredients of Sections 494 of IPC are :
1. The spouse must have contracted the first marriage;
2. That while the first marriage was subsisting, the spouse concerned must have
contracted a second marriage;
3. That both the marriages must be valid in the sense that the necessary
ceremonies required by the personal law governing the parties had duly been
performed.
Note : The effect of expression whoever .marries (55 Section 494 of IPC
must mean whoever marries validly. Necessarily, therefore, if the second
marriage is void, no consequence follows and the charge under Section 494 fail.
It should also be noted that Section 495 of IPC renders the act of concealing the
earlier marriage penal.
The combined reading of Section 5 of the Parsi Act, Section 494 and 495 of IPC
makes it clear that no person or rather no Parsi can knowingly marry second time.
But unknowingly, if a second marriage is solemnized, the penalty under Sections
494 and 495 would not strictly follow. Nevertheless the second marriage under the
Act would surely be rendered void initio.
Consequences to the prist who solemnizes 2nd marriage : While the spouse
undergoing second marriage is punished for the act of bigamy under Section 5 of
the Act, the Priest who ventures to solemnize the second marriage too invites
punishment for himself under Section 11 of the Act. Punishment for the Priest
contravening and violating the provisions of Section 4 of the Act is simple
imprisonment up to six months or with fine up to Two Hundred Rupees or with
both.
Go To Contents
SPECIAL MARRIAGE ACT 1954 : (i) Concept of marriage, (ii) Regular, irregular and
void marriage :
Explain in detail provisions of valid marriage as well as divorce under the Special
Marriage Act 1954 with case laws. (Dec-2015)
Explain : Void marriage under special marriage act 1954. (Nov-2011, Nov-2014)
ANSWER :
https://www.scribd.com/document/177820067/Family-Law
http://www.lawcation.com/notes-special-marriage-act-1954-jafreen-haque-3rd-
year-nluja-assam/
Intro :
The main reason behind passing the Special Marriage Act, 1954 was to provide a
special form of marriage for the people of India and all Indian nationals in foreign
countries, irrespective of the religion or faith followed by either party.
The Special Marriage Act, 1954 not only allows the marriage of a Hindu and non-
Hindu, a Hindu and a Hindu, Buddhist, Sikh or Jain religion but also the Indian
Citizens who live abroad.
If parties belong to different communities (except in the case of Muslims where a
Muslim male can validly marry a non-Muslim) AND neither wants to convert to
another's faith, OR IF parties want to have a civil marriage, they have no option
but to marry under the Special Marriage Act, 1954. There is a uniform family law
applicable to both persons, though they profess different faiths, once they marry
under the Act.
This act guarantees the individuals marrying under the said Act, would not be
debarred from their Succession Rights. The Special Marriage Act and that of the
Indian Succession Act have made it very clear that,
a Hindu marrying another person of Hindu, Buddhist, Sikh or Jain religion, under
The Special Marriage Act, 1954 will get his Succession Rights under The Hindu
Succession Act, 1926, while,
a Hindu marrying a non-Hindu under The Special Marriage Act, 1954 will get his
Succession Rights under the Indian Succession Act, 1925.
This child born out of the marriage solemnized under The Special Marriage Act,
1954 will continue to be a part of Joint Hindu Coparcenary if he is a Hindu.
Importance of Registration of Marriages :- Registration of marriages in provides
documentary proof that a marriage has been performed. Individuals are frequently
faced with the need to prove that a particular marriage has been performed. For
example, rights to inheritance, pension, insurance, or other benefits may depend
upon official documentation of a marriage.
Registration of marriages is a critical issue and will help :-
1) to prevent child marriages and to ensure minimum age of marriage
2) To prevent polygamy, unless the same is permitted under any law or custom
3) To ensure that prior wives get notice of intended marriage;
4) Enable the married women including the women married to NRI/ foreigners to
claim her right to shelter and maintenance
5) Prevent the practice where men desert women after performing the marriage
including act as a deterrent to the practice of selling daughters to any person
including a foreigner, under the garb of marriage
Non registration of marriage affect women the most. Women most prominently
victims of bigamous relationships and property disputes face enormous hardship in
establishing their marriage as they have no proof of marriage. It has been seen in
a number of cases of bigamy that the wives are losing their cases by reason of
their failure to prove the first or second marriage of their husbands.
Eligibility for registration under Special Marriage Act, 1954 :
1. Any person, irrespective of religion.
2. Hindus, Buddhists, Jains, Sikhs can also perform marriage under the Special
Marriage Act, 1954.
3. The Muslim, Christian, Parsi, or Jewish religions can also perform marriage under
the Special Marriage Act, 1954.
4. Inter-caste marriages are performed under this Act.
5. This Act is applicable to the entire territory of India (excluding the states of
Jammu and Kashmir) and extends to intending spouses who are both Indian
nationals living abroad
Documents Requiered For Registratation :
Form-1 Application Form with Rs. 10/- Court Fee (will be provided in the court).
Application form completed in all respect and signed by both Husband & Wife.
Proof of residence
Six Affidavits- 1/ Bride 2/ Bridegroom 3/ Father or Mother (bride) 4/ Father or
Mother (bridegroom) 5/ Relative or Friend (bride) 6/ Relative or Friend
(bridegroom).
Affidavit should be attested by Executive Magistrate. (The address should be same
as in the ID and affidavit).
One passport size photo and Photo ID Proof attested of each individual mentioned
above.
Date of birth proofs of both husband and wife
Recent two passport size photograph of Husband and Wife
3 wedding photo post card size clearly depicting marriage of bride & bride groom.
Marriage invitation card if available.
Original copy of divorce decree/order in case of a divorcee and death certificate of
spouse in case of widow/ widower.
In case one of the parties belong to other than Hindu Buddhist, Jain and Sikh
religions, a conversion certificate from the priest who solemnized the marriage (in
case of Hindu Marriage Act).
In case applicant is a foreign national, a NO Objection Certificate in original from
the concerned High Commission to be submitted along with the application form.
If marriage was solemnized in a religious place or priest, a certificate from the
priest is required who solemnized the marriage.
Effect of Registration :
The validity of a marriage registered under this Act pursuant to a memorandum
having been filed by the parties to the marriage, shall not be called into question
solely on the ground that the marriage was performed or not performed in a
particular manner or that the ceremony was defective or was not in accordance
with law.
Requirements Under The Special Marriage Act, 1954 :
1. The marriage performed under the Special Marriage Act, 1954 is a civil contract
and accordingly, there need be no rites or ceremonial requirements.
2. The parties have to file a Notice of Intended Marriage in the specified form to the
Marriage Registrar of the district in which at least one of the parties to the
marriage has resided for a period of not less than thirty days immediately
preceding the date on which such notice is given.
3. After the expiration of thirty days from the date on which notice of an intended
marriage has been published, the marriage may be solemnized, unless it has been
objected to by any person.
4. The marriage may be solemnized at the specified Marriage Office.
5. Marriage is not binding on the parties unless each party states "I, (A), take thee
(B), to be my lawful wife (or husband)," in the presence of the Marriage Officer and
three witnesses.
Conditions Under The Special Marriage Act, 1954 :
1. Each party involved should have no other subsisting valid marriage. In other
words, each party should be monogamous.
2. The bridegroom must be at least 21 years old; the bride must be at least 18
years old.
3. The parties should be competent in regards to their mental capacity to the
extent that they are able to give valid consent for the marriage.
4. The parties should not fall within the degree of prohibited relationship as per
Hindu Marriage Act 1955 ("Sapinda relationship")
OFFENSES and PENALTIES :
Penalty for destroying or altering Register.- Any person destroying, tampering with
or dishonestly or fraudulently altering the register or any part thereof shall be
punished with imprisonment for a term which may extend to five years and/or fine
of Rs. Five Thousand.
Penalty for neglecting to comply with provisions of section 13.- Any person who
willfully omits or neglects to submit to the Registrar, the Memorandum as required
by section 13, shall be punished with a fine of Rs. Five Hundred.
Penalty for making false statements in the Memorandum.- Any person who makes
or verifies any statement in such Memorandum which is false in any material
particular and which he or she knows or has reason to believe to be false, shall be
punished with simple imprisonment for two months and /or fine which may extend
to Rs. Five Thousand17.
Operation of other penal laws.- Punishment for any offence under this Act shall be
in addition to the punishment provided for the offence by other Penal laws.
<Work on : void marriage>
Conclusion : The Special Marriage Act, 1954 is an attempt for the protection of the
rights of the individuals who come from different community and wish to marry and
live together and are not permitted by their respective personal laws. The Special
Marriage Act, 1954 helps in bringing down such issues and makes it possible for them
to marry and provide them with their Right to Life and Personal Liberty under Article
21 of The Constitution of India.
Go To Contents
Discuss in detail : Maitri Sambandh (Live in Relationship) and divided home.

ANSWER :
Refer :

Go To Contents
Discuss : State Regulations over customary practices like Polygamy, Concubine,

Child Marriage, Dowry, Sati System etc. by different legislations.
ANSWER :
State Regulations over Polygamy :

State Regulations over Concubine :

State Regulations over Child Marriage :

State Regulations over Dowry :

State Regulations over Sati System :

Go To Contents
Discuss : Guardianship in Marriage (Jabar).

ANSWER :

Go To Contents
Explain in detail : Options of Puberty. (Oct-2013)

Explain : Option of puberty (Nov-2011, Nov-2012, Nov-2014)
ANSWER :
http://www.shareyouressays.com/117537/essential-requirements-for-a-valid-
muslim-marriage-under-muslim-law
Option of Puberty (Khyar-ul-Bulugh) :
Under Muslim law, a minor on attaining the age of puberty, has a right to approve
or disapprove the marriage contracted by a guardian who was neither father nor
paternal grandfather. This is called the option of puberty. In other words,

marriage of a minor contracted by any person other than minors father or grand-
father is voidable at the option of such minor.
If a person, on attaining puberty, chooses to repudiate the marriage by exercising
his right of option of puberty the marriage is dissolved with immediate effect. On
the other hand, if the minor, on attaining puberty, opts to approve the marriage, it
is considered to be a valid marriage since its very beginning.

Difference between Shia and Sunni customs :
The exercise of this right is not compulsory; the minor, on attaining puberty,
may or may not exercise this right. Where a person has not exercised the right
of option of puberty after becoming adult, it is presumed that he or she has
approved the marriage contracted during minority.
But, under Shia law a minors marriage must be approved by the minor on
attaining puberty. According to Shia law, therefore, unless the minor on
attaining majority, expressly ratifies the marriage, it is no marriage at all in
the eyes of law.
Rules relating to the option of puberty under Muslim law :
(i) The option of puberty cannot be exercised by husband if his marriage was
contracted by father or grandfather. Father and the grandfather are supposed to
be the best persons to safeguard the minors interests. Therefore, their choice in
the marriage is normally binding on a minor.
However, in exceptional cases, where it is proved that father or the
grandfather had contracted the marriage either fraudulently or negligently,
the minor has a right to repudiate the marriage on attaining puberty.
(ii) A wife can exercise option of puberty even if her marriage was contracted by
her father or grandfather. Before 1939, a Muslim wife was not entitled to
exercise option of puberty if the marriage was contracted by father or
grandfather. But the Dissolution of Muslim Marriage Act, 1939, has now modified
the law in regard to the option of puberty by a wife.
Section 2(vii) of this Act provides that a Muslim wife is entitled to obtain a
decree for the dissolution of her marriage on the ground that her marriage
was contracted by her father or any other guardian during her minority (i.e.
when she was under the age of 15 years).
At present, a Muslim wife has an absolute right of the option of puberty and
she can repudiate her marriage even if it was contracted by her father or
grandfather.
(iii) The option must be exercised by a wife immediately after the attainment of
puberty. If there is an unreasonable delay in the exercise of the option, her right
is lost. However, under Section 2(vii) of the Dissolution of Muslim Marriage Act,
1939 a Muslim wife has a right to exercise this option till she attains the age of
eighteen years.
If she fails to exercise the right after attaining the age of eighteen years, it
may be considered as unreasonable delay and her right may be lost. But in
the case of a husband, the option continues till he approves the marriage
either expressly or impliedly. Payment of dower to the wife or cohabitation
with her is regarded as implied approval of the marriage by a husband.
(iv) When consummation takes place, the husbands right of option is lost
because consummation is regarded as implied consent. The option of puberty of
a wife is also lost after the consummation provided it was not (i) before
attainment of her age of puberty, or (ii) against her consent.
(v) The marriage does not dissolve merely by the exercise of option of puberty.
Confirmation by court is necessary for dissolution of marriage. However, only a
formal approval by the court is sufficient; decree is not necessary.
It may be noted that as the marriage does not dissolve without confirmation
therefore, where any spouse dies after the exercise of the option but before
courts confirmation, the surviving spouse is entitled to inherit the properties
of the deceased.
Case Law : Anything done by the minor during the period of minority would not
destroy the right which could accrue only after puberty. The cohabitation of a minor
girl would not thus put an end to the option to repudiate the marriage after
puberty. The assent should come after puberty and not before, for the simple
reason that the minor is incompetent to contract, nor should the consummation
have taken place without her consent (Ghulam Lakina Vs Falak Sha Allah Baksh
AIR1950 Lah)
Go To Contents
Module-3) MATRIMONIAL DISPUTES AND REMEDIES :

3.1) Non-judicial resolution of marital conflicts.
3.2) Matrimonial Remedies : Restitution of Conjugal Rights, Judicial Separation
and Dissolution of Marriage
3.3) Dissolution of Marriage ;
3.3.1) Customary dissolution of marriage
3.3.2) Unilateral divorce
3.3.3) Divorce by mutual consent
3.3.4) Other modes of dissolution of marriage like cruelty, desertion,
adultery etc.
3.4) Emerging concept : Irretrievably breakdown Theory for granting divorce
and Judicial pronouncements
3.5) Divorce under Muslim personal law
3.5.1) Talak and its kinds, Talaq-e-tafweez, Kinds of divorce
3.5.2) Grounds for Divorce under the Dissolution of Muslim Marriages Act,
1939
3.6) Re-marriage under different Family Laws Judicial resolution of marital
conflicts: the family court
Go To Contents
Discuss : Non-judicial resolution of marital conflicts.
Discuss : Restitution of conjugal rights under various family laws.
Write short note : Restitution of conjugal rights. (Nov-2014)
Write short note : Restitution of Conjugal rights. (Under Hindu Law). (Nov-2012)
Explain : Restitution of conjugal rights under Christian law. (Nov-2014)
Discuss : Judicial Separation under various family laws.
What is meant by judicial separation ? Under Hindu Marriage Act 1955, state under
what grounds judicial separation can be obtained ? What Will be effects of the decree
of judicial separation? Discuss fully. (Oct-2013)
What is meant by judicial separation under Hindu Marriage Act 1955. And state under
what grounds Judicial separation can be obtained. (Nov-2011)
Discuss fully the reasons for Divorce under Hindu law, and state the provisions for
wife to get divorce under special reasons. (Nov-2012)
Discuss following modes of Dissolution of Marriage : (i) Customary dissolution of
marriage, (ii) Unilateral divorce, (iii) Divorce by mutual consent, (iv) Divorce on
grounds of Cruelty, desertion, adultery.
Write short note : Divorce by mutual consent. (Nov-2012, Nov-2014)
Discuss : Irretrievably breakdown Theory for granting divorce and Judicial
pronouncements.
Discuss the various kinds of Divorce (Talaq) available under Muslim Law with
case laws. (Nov-2011, Nov-2012, Dec-2015)
Explain in detail with case laws the Various kinds of Talak under the Muslim Law.
(Oct-2013, Nov-2014)
On which ground Muslim wife may make petition to court for divorce under the
dissolution under Muslim Act 1939. (Nov-2011)
Explain : When Muslim lady can ask for talaq under Muslim divorce act 1939. (Nov-
2014)
Explain the various grounds for divorce under the Parsi Marriage and Divorce Act
1935 and Christian Marriage Act. 1872. (Nov-2012, Dec-2015)
Explain : Ground for Divorce according to Parsi Law. (Nov-2011)
Explain With decided cases the provisions of Iddat as well as Mahar under Muslim Law.
(Nov-2012, Oct-2013, Nov-2014, Dec-2015)
Explain in detail : Concept of remarriage under various family laws. (Dec-2015)
Explain in detail : Provision relating to remarriage. (Oct-2013)
Write short note : Remarriage under Hindu Marriage Act 1955. (Nov-2012, Nov-2014)
Explain in detail : Powers and jurisdiction of the Family Court. (Dec-2016)
Go To Contents
MODULE-3 ANSWERS :
Discuss : Non-judicial resolution of marital conflicts.
ANSWER :

Go To Contents
Discuss : Restitution of conjugal rights under various family laws.

Write short note : Restitution of conjugal rights. (Nov-2014)
Write short note : Restitution of Conjugal rights. (Under Hindu Law). (Nov-2012)
Explain : Restitution of conjugal rights under Christian law. (Nov-2014)
ANSWER :
http://www.legalindia.com/restitution-of-conjugal-righta-comparative-study-among-
indian-personal-laws/
What is restitution of conjugal rights?
Restitution of conjugal rights is a remedy available to both the husband and wife
aggrieved by the desertion by the other spouse without any reasonable cause.
In other words, if either husband or wife moves out of the company of the other
without any reasonable cause, the law makes a provision for the aggrieved to go to
court and enforce his or her matrimonial right vis--vis the other spouse. This can
be done by filing a petition in court seeking for resumption of cohabitation.
The clause for the decree of restitution of conjugal rights is also found in the
Special Marriage Act of 1954, the Parsi Marriage Act of 1936, and the Indian
Divorce Act of 1869.
Restitution of conjugal rights under the Hindu Marriage Act,1955 :
Sec-9 of HMA 1955 :
Restitution of conjugal rights : When either the husband or the wife has, without
reasonable excuse, withdrawn from the society of the other, the aggrieved party
may apply, by petition to the district court, for restitution of conjugal rights and
the court, on being satisfied of the truth of the statements made in such petition
and that there is no legal ground why the application should not be granted,
may decree restitution of conjugal rights accordingly.
Explanation- Where a question arises whether there has been reasonable
excuse for withdrawal from the society, the burden of proving reasonable excuse
shall be on the person who has withdrawn from the society.
Who can ask? Only married Hindus either husband or wife can ask for restitution of
conjugal rights under section 9 of the Hindu Marriage Act 1955.
When can they ask? They can ask whenever either the husband or the wife has,
without reasonable excuse, withdrawn from the society of the other.
How can they ask? The aggrieved party may file a petition to the court for
restitution of conjugal rights. On being satisfied with the truth of the statements
made in the petition court, and as long as there is no legal ground as to why the
application should not be granted, a decree for restitution of conjugal rights may be
passed.
The fundamental rule of matrimonial law is that one spouse who is at liberty to
the society and comfort of the other spouse, forms the foundation of the right to
bring a suit for the restitution of conjugal rights. The court has the duty of
granting a decree for restitution in those cases where either spouse has
abandoned or withdrawn from the company of the other.
On whom is the burden of proof ? The burden of providing reasonable proof
depends on the person who has withdrawn from the society.
Where do you file a petition for restitution of conjugal rights? An application for
restitution of conjugal rights has to be made to the family court or else to the
district court. If the court is satisfied of the truth of the statements and allegations,
a decree for restitution of conjugal rights can be passed.
Implications of grant of decree :
One of the important implications of section 9 is that it provides an opportunity
to the aggrieved party to apply for maintenance under section 25 (Permanent
alimony and maintenance).
Maintenance can also be obtained by the party in case when the action is
pending under section 24 (Maintenance pendente lite and expenses of
proceedings). Hence, a wife who is not agreed for judicial separation or
disruption of marriage, can obtain/seek maintenance from her husband without
filing a suit for the same under the Hindu Adoptions and Maintenance Act, 1956.
Another important implication of the section is that it provides a ground for
divorce under section 13(1A) on a condition that there has been no restitution of
conjugal rights between them for a period of one year or more after the passing
of a decree for the same.
Definition : Section-13(1-A) : Divorce :
Either party to a marriage, whether solemnized before or after the
commencement of this Act, may also present a petition for the dissolution
of the marriage by a decree of divorce on the ground-
(i) that there has been no resumption of cohabitation as between the
parties to the marriage for a period of one year or upwards after the
passing of a decree for judicial separation in a proceeding to which they
were parties; or
(ii) that there has been no restitution of conjugal rights as between the
parties to the marriage for a period of one year or upward after the passing
of a decree of restitution of conjugal rights in a proceeding to which they
were parties.
Abuse of the provision for restitution of conjugal rights :

A petition for restitution of conjugal rights is often filed in case of one spouse
who feels that the other has left him or her without any justifiable reason and
that the only relief she or he wants is for the spouse to come back into the
matrimonial home. This has been questioned by various activist in our country
on the ground that this provision has been used to forcefully keep partners
together when the couple was unwilling to stay together which may be due to
incompatibility or unwillingness. With the passage of time restitution of conjugal
rights is being used as a legal strategy by the Hindu husbands to refuse
maintenance to their wives.
For example, the husband throws the woman out of the house either for dowry
etc. The moment the wife files a suit for maintenance, the husband files a
petition for restitution of conjugal rights which works as a hinderance to not
provide maintenance to his wife. The argument given in the maintenance court is
that he was willing to take his wife but the wife is unwilling to return and
therefore, he is not responsible for providing her maintenance. His argument is
based on the legal principal one cannot take advantage of his or her wrongs. In
this case as argued by the husband, the wife cannot take advantage of her own
wrongs.
Defenses available against a decree for restitution of conjugal rights :
If there is a reasonable cause for a person to withdraw from her/his spouse,
then a decree for restitution of conjugal rights can be denied by the court. What
is a reasonable cause is up to the court to decide depending on the fact and
allegation made in that specific case. In considering this situation, the court will
look into whether there is cruelty or domestic violence in the case.
Example : Naresh filed a suit for restitution of conjugal rights against his wife
Savitri after she left him. The court did not entertain his suit as it was proved
that Naresh was a drunkard who used to habitually abuse his wife.
Case laws :
1. In Asha Kumari vs Satish Kumar 1990 (1) HLR 7 the court held that as during
the life time of the first spouse living the second marriage is void, the man
marrying when the first wife is still alive cannot claim restitution as against the
second wife.
2. In Sareetha vs Venkatasubbaiah AIR 1983 AP 356, the Andhra Pradesh High
Court held that the effect of decree of restitution of conjugal rights under Section
9 of the HMA is to coerce the unwilling party to cohabit against that persons
consent thus offending article 14 and 21 of the Constitution of India and also
held that section 9 was violated of the right to privacy of the individual. This was
overruled by the Supreme Court in Saroj Rani vs Sudershan and it was held that
in privacy of home and married life, neither Article 21 nor Article 14 has any
place.
3. In G.Rama Krishna Pillai vs J. Vijayakumari Amma (AIR 1990 Ker 55), the
court held that where the husband claims restitution of conjugal rights after a
big gap of seven years, there is justification for restitution when the wife does
not accompany him.
Restitution of conjugal rights under the Dissolution of Muslim Marriage Act,
1939 :
Who can ask? Only married Muslims either husband or wife can ask for restitution
of conjugal rights under section 2 of The Dissolution of Muslim Marriage Act, 1939.
When can they ask? When either husband or wife ceases to cohabit with the
spouse without just and reasonable cause then either could seek a right to
restitution of conjugal rights. This is a remedy under common law.
If the marriage is void (Batil) or irregular (fasid) under the provisions of the
Muslim Law a decree for restitution of conjugal rights will not be granted. This is
provided under The Dissolution of Muslim Marriage Act, 1939.
Some of the grounds on which the wife can resist a suit for restitution of
conjugal rights :
The marriage is irregular
Legal cruelty by the husband i.e., real violence endangering her health, safety
or causing real apprehension of such danger
False charges of adultery by the husband
Gross failure in performing matrimonial duties
Non-discharge of dowers/ Mehrs liability
Example :
Razak and Arifa got married under the Muslim Customary Law. Razak kept
harassing Arifa and assaulted her on many ocessions. He used to treat her with
cruelty. Arifa finally got fed up and left him and went to stay with her parents.
Razak filed a suit in the Court for restitution of conjugal rights but could not
succeed because his wife had just and reasonable cause to leave him.
How can they ask? The aggrieved party may a file a petition in the court for
restitution of conjugal rights and upon service of notice and hearing the parties, a
decree for restitution of conjugal rights may be passed.
Restitution of conjugal rights of Christians under the Indian Divorce Act, 1869 :
Who can ask? Only married Christians, either husband or wife, can ask for
restitution of conjugal rights under Section 32 of the Act.
When can they ask? Either husband or wife, has withdrawn without reasonable
excuse from the society of the other.
How can it be asked? The aggrieved party files a petition in the District Court under
section 32 for restitution of conjugal rights and the court on being satisfied of the
truth of the statements made in the petition, can grant the decree for restitution of
conjugal rights.
Restitution of conjugal rights under the Parsis Marriage and Divorce Act, 1936 :
Who can ask? Only married Parsis either husband or wife, can ask for restitution of
conjugal rights under Section 36 of the act.
When can it be asked? When a wife or husband has deserted or without lawful
cause ceased to cohabit with his each other. The party so deserted or with whom
cohabitation has so cease may sue for restitution of her/his conjugal rights in the
court.
How can it be asked? By filing a suit for restitution of conjugal rights in the court
and if the court is satisfied of the truth of the allegations contained in the
application and where there is no just ground why relief should not be granted the
court may grant a decree for restitution of conjugal rights.
According to the Parsi Law the Parsi chief matrimonial court and Parsi district
matrimonial courts have to be established to hear suits under this Act.
Restitution of conjugal rights under Special Marriage Act, 1954 :
Who can ask? A marriage between two persons; women or men whose religion are
different or are from the same religion can ask for restitution of conjugal rights
under section 22 of the Special Marriage Act.
When can they ask? When a husband or a wife has withdrawn from the society of
the other without any reasonable excuse.
How can they ask? The aggrieved party files a petition in the District Court for
restitution of conjugal rights. The court on being satisfied of the truth of the
statements made in the petition, can grant the decree for restitution of conjugal
rights.
On whom is the Burden of proof? When a question arises whether there has been
reasonable excuse for withdrawal from the society, the burden of proving
reasonable excuse shall be on the person who has withdrawn from the society.
Go To Contents
Discuss : Judicial Separation under various family laws.

What is meant by judicial separation ? Under Hindu Marriage Act 1955, state under
what grounds judicial separation can be obtained ? What Will be effects of the decree
of judicial separation? Discuss fully. (Oct-2013)
What is meant by judicial separation under Hindu Marriage Act 1955. And state under
what grounds Judicial separation can be obtained. (Nov-2011)

ANSWER :
Judicial Separation under the Hindu Marriage Act, 1955 :
Who can ask? Only married Hindus, either husband or the wife, can ask for Judicial
separation under section 10 of the Hindu Marriage Act 1955.
When can they ask? Either husband or wife could ask on the grounds of divorce as
given in section 13 (1) and the wife also on any grounds given in section 13(2).
What are the grounds when the courts pass a decree for judicial separation? When
section 10 is read along with section 13 of the Hindu Marriage Act the following are
the grounds for Judicial Separation :
1. Adultery: If after the marriage either husband or wife has had voluntary
sexual intercourse with a person other than her/his spouse.
2. Cruelty: If either husband or wife behaves in a manner which causes
physical or mental stress to the other.
3. Desertion: A divorce may be sought on the grounds of desertion if either
husband or wife has abandoned her/his spouse for a period of at least two
years or more. There has to be no justification for this abandonment.
4. Conversion: Either spouse has ceased to be a Hindu by conversion to any
another religion.
5. Unsound Mind: A divorce may be taken if either spouse is incurably of
unsound mind or suffering from any such mental disorder. Unsoundness of
mind would mean some form of madness or insanity and where either spouse
cannot be expected to continue living with the other.
6. Leprosy: If either spouse is suffering from incurable form of leprosy, it is a
ground for divorce.
7. Venereal disease: If either spouse is suffering from communicable venereal
disease.
8. Renunciation of the world: A divorce may be sought if either spouse has
renounced the world by entering any religious order.
9. Disappearance of spouse: If the party has not been heard of as being alive
for a period of seven years or more, by persons who would naturally have
heard.
GROUNDS AVAILABLE ONLY TO A WIFE :
10. First wife can file for judicial separation if her husband has married a
second wife.
11. Husband has committed rape of someone other than the wife, sodomy or
bestiality.
12. Marriage took place before the wife attained 15 years and she repudiated
it before attaining 18 years.

13. The husband has not provided the wife maintenance for over two years.
Where do you file a petition for judicial separation?
The aggrieved party may a file a petition to the family court or where there is no
family court in the district court for judicial separation on the grounds mentioned
above. The court may pass a decree for judicial separation. It is no longer
obligatory for the petitioner to cohabit with the respondent.
Where a decree for judicial separation has been passed and the husband and
wife get over their differences and want to live together, the decree will not
come in their way and the court has the power under section 10(2) of HMA to
rescind. However, this must be exercised with due care.
What is the effect of judicial separation?
Where a decree for judicial separation has been passed and there has been no
resumption of cohabitation between the parties to the marriage for a period of
one year or more; then it becomes a ground for divorce between the parties.
Judicial Separation of Christians under the Divorce Act 1869 :
Who can ask? Only married Christians, either husband or wife, can ask for judicial
separation under section 22 of the act.
When can they ask? When either of the husband or the wife married under the
Christian Law ask for it on the following grounds given under section 22 of the act.
Adultery
Cruelty
Desertion for 2 years or more
Case law :
In Jorden Diengdoh vs Swaranjeet Singh Chopra, 1989 RLR 595 the court held
the following as cruelty on the husbands part. Husband deceiving his wife as to
antecedents, refusal to cooperate over the family matters, not maintaining
personal cleanliness, nagging, moods of sulkiness during which the husband
ignore his wife, killing wifes child, brutality to her child, systematic neglect or
insult, willful neglect to maintain his wife and children, in certain circumstances,
desertion, sexual malpractices on the other spouse such as interrupts, or grossly
excessive or revolting sexual demands, refusal to have a child, false accusations
of adultery, misconduct in relation to third parties such as husbands indecent
assault on the child of the marriage or his step-daughter or his conviction for
indecent exposure, writing of threatening letters to wife, making false complaint
of theft against her to the police and writing letter(s) to her superior(s)
containing false and baseless allegations.
The aggrieved party can file an application in the District Court under section 23
of the said Act for Judicial separation on the grounds mentioned above. The
court on being satisfied of the truth of the statements made in the application
and where there is no legal ground why the application should not be granted
may pass a decree for judicial separation.
Judicial Separation under the Parsi Law :
Who can ask? Only married Parsis either the husband or the wife can ask for
judicial separation under Section 34 of the act.
When can they ask? A suit for judicial separation may be filed under section 34 of
the Parsis Marriage and Divorce Act, 1936.
What are the grounds for judicial separation? The following are the grounds for
judicial separation and divorce as given in section 32 of the Parsis Marriage and
Divorce Act, 1936 and as amended in 1988.
Continuous absence of seven years.
Non-consummation of marriage within one year owing to wilful refusal.
Unsound mind provided the other spouse was unaware of the fact at the time of
marriage and the divorce must be filed within three years of marriage.
Pregnant by some other man provided the husband was unaware of the incident
during the time of marriage and that he must not have undergone sexual
intercourse after he came to know about the situation. The divorce must be filed
within two years of marriage.
Adultery, bigamy, fornication, rape, or any other type of perverse sexual act.
Act of cruelty.
Suffering from venereal disease or forcing the wife into prostitution.
Sentenced to prison for seven years or more.
Desertion for two or more years.
Non-resumption of cohabitation after passing an order of maintenance or a
decree of judicial separation.
By filing a suit for restitution of conjugal rights in the court and if the court is
satisfied of the truth of the allegations contained in the application and where
there is no just ground why relief should not be granted, the court may grant a
decree for restitution of conjugal rights.
According to the Parsis Law the Parsis chief matrimonial court and Parsis district
matrimonial courts have to be established to hear suits under this act.
Judicial Separation under the Special Marriage Act, 1956 :
Who can ask? A husband and wife married under the provisions of the Special
Marriage Act can seek Judicial Separation under section 23 of the Act.
When can they ask? A suit for judicial separation may be filed under section 23 of
the Special Marriage Act 1956.
What are the grounds for judicial separation? The following are the grounds for
judicial separation and divorce as given in section 27 of the Special Marriage Act,
1956 :
Adultery.
Desertion without cause for at least three years before filing the petition.
Imprisonment for seven years or more for an offence under IPC.
Cruelty.
Unsoundness of mind for not less than three years.
Communicable venereal diseases.
Leprosy.
Disappearance of spouse. Has not been heard of as being alive for seven years
or more by those persons who would naturally have heard of.
A petition for judicial separation can be moved in the district court under section
31 of the Act by either the husband or the wife on the grounds on which a
petition for divorce might be presented and on the ground of failure to comply
with a decree for restitution of conjugal rights.
When the court grants a decree for judicial separation, it shall no longer be
obligatory for the petitioner to cohabit with the respondent but if an application is
moved by either party and on being satisfied of the truth of the statements made
in the application the court could rescind the decree if it consider it just and
reasonable.
Go To Contents
Discuss fully the reasons for Divorce under Hindu law, and state the provisions for
wife to get divorce under special reasons. (Nov-2012)
ANSWER :
Intro : Dissolution of marriage under the Hindu Marriage Act, 1955 :
Divorce is the dissolution of the legal relationship of marriage where the spouses
will cease to be husband and wife. Divorce can be sought only on grounds
recognised by the law. There are two forms of divorce.
1. Contested divorce where one spouse has to prove a matrimonial wrong on
the part of other and

2. Mutual consent divorce where both the parties state that it is impossible to
continue to live together and mutually opt out of the marriage.
Who can ask?
Only married Hindus either husband or the wife can ask for judicial separation
under section 10 of the Hindu Marriage Act 1955.
When can they ask?
Either husband or wife could ask on the grounds of divorce as given in section
13(1) and the wife also on any grounds given in section 13(2).
Contested Divorce : Section 13 of the Hindu Marriage Act spells out the grounds
and the procedure for seeking divorce.
a. Adultery : Sec. 13(1) (i)
b. Cruelty: Sec. 13(1) (ia)
c. Desertion: Sec. 13(1) (ib)
d. Conversion to another religion: Sec. 13(1) (ii).
e. Incurably of unsound mind or suffering from mental disorder: Sec.13(1)
(iii)
f. Incurable leprosy: Sec. 13(1) (iv).
g. Venereal Disease: Section13(1) (V)
h. Renunciation of the world by entering a religious order: Sec. 13(1)(vi)
i. Disappearance for seven years: Sec. 13(1) (vii)
j. Non-resumption of co-habitation after judicial separation or restitution.
a. Adultery : Sec. 13(1) (i) :
The Hindu Marriage Act defines adultery as the act of voluntary sexual
intercourse by the respondent with a person other than her/his spouse. Thus, in
order to constitute adultery, the applicant has to prove that she/ he was married
to the respondent and that the respondent has had sexual intercourse with
another person other than her/ him.
In many cases, the Courts have held that one act of sexual intercourse by the
respondent is sufficient to constitute adultery under this section.
Proof of adultery entitles a person to seek either judicial separation or divorce.
The burden to prove adultery is on the petitioner. He or she must prove that an
act amounting to adultery was committed. A mere statement is not enough. The
statement should be substantiated by concrete evidence.
Example : Tabesh, was already married to Rani. Quite often, he would go out
with another woman and spend nights with her in hotel rooms. Rani can file for a
divorce on the grounds of adultery under Section 13(1) (i) of the Hindu Marriage
Act, 1955.
b. Cruelty: Sec. 13(1) (ia) :
Sec. 13(1) (ia) only states that if after marriage, husband or wife treats the
other partner with cruelty, it is a valid ground for divorce. The section has not
defined the term cruelty. But over the years the courts have developed an
understanding and meaning of cruelty based on the specific circumstances of
each case. These are :
Acts and omissions of such a nature that the couple cannot reasonably be
expected to live with each other.
The behaviour of husband or wife which causes physical or mental trauma
and/ or stress to the other.
Cruelty is a form of domestic violence. Thus, cruel behaviour may take any form
including mental, physical, emotional, economic and sexual.
Illustration :
Arti and Subhash have been married for two years. Arti complains that for the
last one year her husband has done little or nothing to help her run the
household. He takes away her entire salary leaving behind only a meagre
amount for domestic and her personal use. She says that he is incorrigible
and inexcusably comes home late and whenever she raises this issue with
him, he reacts sharply. Not only does he snubs her but also abuses and slaps
her. It seems like he is too full of himself to think of anyone else. Fed up with
this behavior, Arti has filed for divorce on grounds of cruelty. Even though he
did not intend to be cruel, acts such as these are considered to amount to
cruelty by the courts. If it can be proved that the respondent is overbearing,
harsh and abusive and resorts to violence, then the courts can pass a decree
of divorce in the applicants favour.
Types of cruelty recognised in law : Cruelty can be either physical or mental.
Some examples of mental and physical cruelty have been mentioned below :
Not maintaining the wife and children.
Domestic violence.
Sexual abuse.
Threat of violence.
Verbal abuse.
Demands of dowry (see case law Shobha Rani Vs Madhukar Reddi
(1988)1SCC105.
Husband assaulting wife. A single act of violence may be suffi cient to be an
offence of cruelty (see case law Smt A P Marry Vs K G Raghavan).
Falsely accusing the spouse of adultery or unchastity repeatedly.
Persistent refusal to have sexual intercourse.

Drunkenness.
False criminal charges.
Birth of illegitimate child.
Threat of suicide.
c. Desertion: Sec. 13(1) (ib) :
A divorce or judicial separation may be sought on the grounds of desertion if
either the husband or the wife has abandoned his/ her spouse for a period of at
least two years or more without the consent of the other party and without any
justifiable reason.
Wilfully neglecting a person and not performing marital obligations would also
amount to desertion.
In order to constitute desertion under section 13(1) (ib), the petitioner should
also be able to prove that the spouse has left her/him for a continuous period of
not less than 2 years. The law recognises two kinds of desertion,
one which is actual desertion where a person leaves the home and
second kind called constructive desertion which applies in situations where a
couple continue to live together yet there is neglect and a failure to perform
marital obligations.
Example: Mamta went on a trip to Sri Lanka and due to civil strife at that time
could not return for two years. This does not amount to actual desertion and
sanjeev cannot get a divorce on the grounds of desertion.
d. Conversion to another religion: Sec. 13(1) (ii).
Judicial separation or divorce may also be sought on the grounds that either
party has converted from Hinduism to any other religion.
Example: Mukesh hates everything that is Hindu and, therefore, eats food that is
not allowed in his religion and says bad things about all the Hindu gods. He has
changed his name to James and goes to the infant Jesus Church every Sunday.
He is still a Hindu because he has not converted to Christianity and thus his wife
Archana cannot file for a divorce. Also, if he converts to any other religion such
as Jainism, Buddhism or Sikhism, she still cannot get a divorce because the
Hindu Marriage Act defines a Hindu to includes Buddhism, Jainism and Sikhism.
e. Incurably of unsound mind or suffering from mental disorder : Sec.13(1) (iii) :
One of the conditions of a valid marriage is that neither party should be
incapable of giving a valid consent due to unsoundness of mind. A contravention
of this ground renders the marriage voidable at the instance of the other party
under section 12(1) (b).
If a person is diagnosed to be mentally ill but is able to take care of his/her daily
needs and is able to lead a normal life, this will not be a ground for divorce for
the other party.
Sec. 13(1) (iii) affords an option to annul the marriage on grounds of
unsoundness of mind after the marriage has taken place. There are two
conditions to be fulfilled before a decree for divorce is made on this ground :
The persons unsoundness of mind or mental disorder must be incurable.
The mental unsoundness or disorder must be such that the applicant cannot
be reasonably expected to live with the respondent.
It is often difficult to prove mental disorder or unsoundness of mind as not all
forms of mental disorder are debilitating. It is thus very important to understand
what constitutes mental illness, what the varieties of mental illness are and what
treatments they entail.
Mental disorders such as schizophrenia are such that the person may not know
of the illness for a long time after it has set in. It is only during the later stages
of ones life that schizophrenia becomes debilitating. The court have therefore
held that it is not the presence of mental illness but what that illness is actually
doing to the applicant that is important to understand before a decree of divorce
is granted in favour of the petitioner.
f. Incurable leprosy: Sec. 13(1) (iv) :
If either spouse is suffering from a form of leprosy that is both virulent and
incurable, it is a ground for divorce. What is incurable is decided on the facts of
the case (the stage of leprosy of the respondent) and the opinion of the medical
profession.
g. Venereal Disease: Section13(1) (V) :
If either spouse is suffering from venereal disease in a communicable form, it is
a ground for divorce. It is immaterial that the disease is curable or was
innocently contracted but it should not have been contracted from the spouse.
No specific duration has been mentioned.
h. Renunciation of the world by entering a religious order: Sec. 13(1)(vi) :
A spouse is entitled to file for a divorce if the other renounces all worldly affairs
by embracing a religious order. A divorce may be sought if either spouse has
renounced the world and entered a religious order. Thus, on a petition for
divorce on this ground, the petitioner must prove the following :
The respondent has entered any religious order.
She/he has performed the necessary ceremonies.
Thus, merely proclaiming that one has become a sanyasi is not sufficient to
prove that the person has formally entered a religious order.
i. Disappearance for seven years: Sec. 13(1) (vii) :
Not Heard Alive If a person is not seen or heard alive by those who are
expected to be naturally heard of the person for a continuous period of seven
years, the person is presumed to be dead. The other spouse should need to file a
divorce if he/she is interested in remarriage.
A person can present a petition to have the marriage dissolved on the grounds
that the other party to the marriage has not been heard of as being alive for a
period of seven years or more by those persons who would in the normal course
have heard from him or her.
According to the Indian Evidence Act, a person is presumed dead if he has not
been heard of as alive by people who would normally have heard from him in
seven years.
Example: Birendra is kidnapped and not heard of for seven years. His wife
remarries after this period. However, it is around this time that Birendra is
released and comes back home. His wife is not guilty of bigamy as the condition
under sec. 13(1) (vii) of the Hindu Marriage Act is satisfied. Since Birendra had
been presumed dead for the past seven years, the marriage with him can be
dissolved.
j. Non-resumption of co-habitation after judicial separation or restitution :
It becomes a ground for divorce if the couple fails to resume their cohabitation
after the court has passed a decree of separation. When the husband and the
wife have not started to live together for a period of one year or more after the
decree for judicial separation or restitution order had been passed, this affords
grounds to seek a divorce.
Grounds on which a HINDU WIFE may apply for divorce : Sec. 13(2) : The
following are the grounds for divorce in India on which a petition can be filed by the
wife only :
I- Bigamy, Sec. 13(2)
II- Deviant sexual behaviour, Sec. 13(2)
III- A decree of maintenance has been passed either under sec. 18
IV- Repudiation of marriage, Sec. 13(2)
I- Bigamy, Sec. 13(2) : If the husband had another wife living at the time of the
marriage. Bigamy is an offence under the Indian Penal Code and a ground for
divorce under sec. 13 of the Hindu Marriage Act, 1955.
II- Deviant sexual behaviour, Sec. 13(2) : If the husband has, after the marriage,
been guilty of rape, sodomy or bestiality, this is a valid ground for divorce for a
woman. Deviant sexual behaviour is a criminal act and is punishable under the
Indian Penal Code. Sec. 375 of the Indian Penal Code defines rape and provides a
minimum punishment of seven years. Rape is forced sexual intercourse by a man
with a woman, not being his wife. The Indian Penal Code unfortunately does not
recognise marital rape. The wife can plead that she was sodomised although she
cannot lead that she was raped. Sec. 377 of the Indian Penal Code deals with
sodomy and bestiality under the heading of unnatural offences. The criminal
provision has a maximum of ten years punishment.
III- A decree of maintenance has been passed either under sec. 18 HAMA (Hindu
Adoptions and Maintenance Act) or under sec. 125 Cr.PC (Criminal Procedure Code)
and the parties have not been living together for over a year since the passing of
that decree, Sec. 13(2) :
There may be instances where the husband and wife have separated from each
other but during such separation the wife may apply under sec. 18 of HAMA
(because she continues to be married to her partner) or under sec. 125 Cr.P.C.
After applying for maintenance under either of these provisions and getting a
favourable order, the wife may continue to life separately for over one year. In
this situation, she is entitled to file for a divorce.
IV- Repudiation of marriage, Sec. 13(2) : A woman who was married before she
turned 15 years old can repudiate her marriage before she turns 18, by making an
application to the court asking for the marriage to be nullified. She will have to
prove that she was married before she turned 15 years and that she repudiated the
marriage soon after. It is not important to prove that the marriage was not
consummated. This factor is immaterial for the purposes of this provision.
The Restrictions on Seeking Matrimonial Relief :
a) Taking advantage of ones own wrong
b) One year bar
a) Taking advantage of ones own wrong :
A person cannot take advantage of ones own wrong at the time of seeking any
relief. Taking advantage of ones own wrong means that one who comes to Court
must come with clean hands and with sincerity.
Examples :
A. A husband who had illicit relations with another woman, ignored and ill
treated his own wife. When the wife confronted the husband regarding his
affair with another woman, he hurled abuses at her and threatened to throw
her out of the house. As a result, both quarreled every day. In such a
situation if the husband goes to Court seeking divorce on account of mental
cruelty by his wife, the Court will state that he cannot come to Court and take
advantage of his own wrongs. The court further states that even assuming
that the wife was perpetrating mental cruelty upon the husband, it was
actually the husband who had enticed her to quarrel with him by having an
affair.
A husband filed a case of restitution of conjugal rights but actually did not
allow the wife to join him. After one year, the husband went to court stating
that his wife was refusing to join him and therefore he should be granted a
divorce. The court would not entertain his petition for divorce, since he was
trying to take advantage of his own wrongs.
b) One year bar :
In order to ensure that the parties to a matrimonial proceeding are not taking a
hasty decision, a petition for divorce cannot be filed within the first year of
marriage. However, there are a few exceptions. If the following circumstances
exist the court may allow the petition :
Exceptional hardship to the person bringing the petition to Court
The children of the marriage
No reasonable probability of reconciliation between the parties
Latest Amendment to Hindu personal law :
On August 31, 2010, the President of India signed a Bill which was notified in the
official gazette on 1st September 2010. The Personal Laws Amendment Act,
2010 which removed the age-old gender discrimination against women and gave
Indian women equal rights as men in adopting children and becoming guardians
of minors, including their own children.
The objective of the amendment was to change the law since, the constitution of
India guarantees equality of status and equality of opportunity to all citizens,
irrespective of the fact whether they are men and women. There is also a
growing demand for making laws free from gender bias and to provide legal
equality to women in all spheres of life.
The Personal Laws (Amendment) Act, 2010 has removed the gender
discriminatory provisions from two different laws
The Guardians and ward Act allowed a court to appoint either the father, or
any other person in case the father was not alive, as the guardian of a minor
child, thus diluting the mothers claim to be appointed guardian of her child in
case of her husbands death. But the latest amendment to the act has
removed this anomaly and the courts will no longer be free to appoint any
other person as guardian of the child, ignoring the mothers claim.
The Personal Laws (Amendment) Act, 2010 has now amended sections 8 and
9 of the Hindu Adoptions and Maintenance Act, 1956 giving women equal
rights as men in matters of adopting children or giving her children in
adoption to others. Following the amendment to the 1956 act, any major
Hindu woman of sound mind is also entitled to adopt a son or daughter or
give her son or daughter in adoption.
If married and if her husband is alive, who is of sound mind, the woman,
then, will have to take the consent of her husband for adopting the
children. The law till now entitled only men to adopt children or give them
in adoption, albeit in consultation with their living wife, but not vice versa.
Divorce by mutual consent : Sec. 13B : What is divorce by mutual consent and
what conditions are required ?
Both the husband and the wife may also seek a divorce, jointly by moving an
application to the court. This is divorce by mutual consent.
The following conditions must be fulfilled before this divorce is granted :
At the time of filing the application, both the husband and the wife should be
living separately for a period of one year or more. This does not mean that
they are living in separate houses but that they have not cohabited for more
than a year.
Both should arrive at the decision that they are unable and incapable of living
together and have therefore agreed that the marriage must be dissolved.
How would a couple apply for a divorce by mutual consent ? There is a definite
procedure for application for a divorce by mutual consent. The procedure is :
1. First, the husband and the wife must make the application voluntarily.
2. The petition for divorce should be filed in the Family Court and if there is no
Family Court in the district, in the District Court.
3. The parties have to make a statement that they cannot live together due to
differences in their nature and temperament.
4. From the date of filling the application for a period of six months, the Court
does not take any action on the application in order to allow the parties to try
one more time to rethink on their decision for a divorce.
5. If the parties do not reconsider their decision to divorce in this period, the
Court will accept the application for the divorce.
Go To Contents
Discuss following modes of Dissolution of Marriage : (i) Customary dissolution of

marriage, (ii) Unilateral divorce, (iii) Divorce by mutual consent, (iv) Divorce on
grounds of Cruelty, desertion, adultery.
Write short note : Divorce by mutual consent. (Nov-2012, Nov-2014)
ANSWER :

Go To Contents
Discuss : Irretrievably breakdown Theory for granting divorce and Judicial

pronouncements.
ANSWER :

Go To Contents
Discuss the various kinds of Divorce (Talaq) available under Muslim Law with case
laws. (Nov-2011, Nov-2012, Dec-2015)
Explain in detail with case laws the Various kinds of Talak under the Muslim Law.
(Oct-2013, Nov-2014)
ANSWER :
https://en.wikipedia.org/wiki/Divorce_in_Islam
What is Talaq ?
The word Talaq originally meant "repudiation" or "rejection". In Muslim law, it
means release from a marriage tie, immediately or eventually. In a restricted sense
it means separation effected by the use of certain appropriate words by the
husband and in a wide sense it means all separations for causes originating from
the husband.
Talaq is also generic name for all kinds of divorce but it is particularly applied to
the repudiation by or on behalf of husband.
In Moonshee Buzloor Rahim vs Lateefutoon Nissa, it was said that Talaq is a mere
arbitrary act of a muslim husband, by which he may repudiate his wife at his own
pleasure with or without cause.
Who can pronounce Talaq ?
As per Islamic law, only the husband has a right to pronounce Talaq. Under Talaq-
e-tafweez, a husband may delegate the authority to the wife to pronounce talk on
his behalf. The husband must posses the following qualifications to be able to
pronounce a valid Talaq -
Shia - He must be of sound mind and attained the age of puberty. It must be
pronounced orally in the presence of two witnesses unless he is unable to speak.
Further, Talaq must not be pronounced under duress or compulsion otherwise
Talaq is void. It must be spoken in Arabic terms and strictly in accordance to
sunnat.
Sunni - Only two requirements - Sound mind, attained majority. A Talaq

pronounced under compulsion or intoxication is effective.
In the case of Mohamad Siddiqu Ali v/s Mustt. Fatima Rashid-2007, it was held by
the court that mere pronouncement of Talaw orally or in writing is not sufficient to
terminate the marriage. The factum of the Talaq should be proved by the
independent witnesses.
In the case of Iqbal Bano v/s State of U.P.-2007, the Apex Court held that the
conclusion that in view of the statement in the written statement about an alleged
divorce 30 years back by utterance of the words talaq, talaq, talaq three times is
sufficient in law is not sustainable. A mere pleas in the written statement of a
divorce having been pronounced sometimes in the past cannot by itself be treated
as effectuating Talaq.
Discussion :
After pronouncing Talaq either once or twice or thrice, the man has to wait for 3
menstrual periods before finally letting his wife leave.
If the couple want to come together AFTER the Talaq is completed, the Quran
states that there is no harm in doing so after the wife has married another man
and has divorced that husband (known as 'Talaq Halala').
According to some Islamic scholars, a husband do a "triple talq", in which the man
says, in one sitting, "I divorce you" three times (or "I divorce you, three times",
"you're triple divorced").
According to some Islamic scholars, there is a waiting period involved between the
three talaqs, pointing to Quran and various hadiths.
By and large, however, the practice of "triple talq" at one sitting has been
"legally recognized historically and has been particularly practiced in Saudi Arabia."
Shia and Sunni Muslims have different rules for performing a talq divorce :
A few Sunni schools of jurisprudence say, each talaq utterance should be followed
by a waiting period of three menstrual periods for women or three month (iddah or
iddat), when the couple are supposed to try to reconcile with the help of mediators
from each family, until the third and final talq. Some Sunnis who believe the
practice of triple talaq in one is wrong nonetheless accept it as final, especially the
Hanafi schools of jurisprudence.
Shias don't have the concept of verbal "Triple Divorce" i.e. just uttering the phrase
"I divorce you" three times.[2] Shi'a practice also has a iddah waiting period when
the couple are supposed to try to reconcile with the help of mediators from each
family, but requires two witnesses for the declaration of talq. If the couple
consummates in the waiting period, the divorce is voided. After the waiting period
is over, the couple is divorced and the husband is no longer responsible for the
wife's expenses, but remains responsible for the maintenance of the children until
they are weaned.

Discussion :
It is not necessary that Talaq must be pronounced in the presence of wife. In
Fulchand vs Navab Ali Chaudhary 1909, it was laid that Talaq should be deemed to
have come into effect on the date on which the wife came to know of it.
Intention is not necessary for a Talaq to take effect. If unambiguous words
denoting irrevocable Talaq are pronounced even by mistake or in anger, it is a valid
Talaq.
Talaq can be effected orally or in writing (Talaqnama).
If the words are express and well understood as implying divorce (e.g. "I have
divorced thee"), no proof of the intention is required.
If the words are ambiguous (e.g. "Thou art my cousin, the daughter of my uncle,
if you goest"), then intention of the user must be proved.
After the passing of Muslim Marriage Dissolution Act 1949, a Muslim wife can also
get a divorce on certain grounds. (Explained below)
Note that technically, Talaq is not same as divorce, but in the exam when these
morons ask about types of Talaq, they actually mean types of divorce !
Talaq options for women : <detailed discussion somewhere else in this doc>
Women can initiate talaq through delegation (tafwid), which can be made
conditionally or unconditionally in the marriage contract or during the marriage.
Most modern Muslim-majority countries permit this type of divorce in some
form.
It is also possible for a woman to petition a qadi or qazi (judge of Muslim
jurisprudence) for a divorce under certain conditions. This type of divorce is known
as khula. The circumstances which are regarded as acceptable vary amongst the
four Sunni groups of Islamic schools of jurisprudence.
The following diagram shows various types of divorces -
Types (kinds) of Talaq :

By Husband
Talaq ul sunnat or revocable Talaq
Ahasan (Most Proper),
Hasan (proper)
Talaq ul biddat or irrevocable Talaq
Ila - (Vow of continence)
Zihar - Injurious Assimilation
By Wife
Talaq e tafweez
Talaq e taliq
By Agreement
Khula
Mubarat
By Judicial Decree
Lian
Fask
Detailed discussion on types (kinds) of Talaq :
Talaq by Husband :
Talaq ul sunnat or revocable Talaq - It is a Talaq which is effected in accordance
with the traditions of Prophet. It is further divided in two types
Ahasan (Most Proper)

It is the most approved and considered to be the best kind of Talaq. The
word ahasan means best or very proper. To be of Ahasan form, it must
satisfy the following conditions -
the husband must pronounce the formula of divorce in a single sentence.
the pronouncement of divorce must in done when the wife is in state of
tuhr (purity), which means when she is free from her menses.
husband must abstain from intercourse for the period of iddat.
If the marriage has not been consummated, if the spouses are away from
each other, or the wife is beyond the age of mensuration, Talaq may even
be pronounced while the wife is in menses.
Pronouncement in this form is revocable during the period of iddat. Such
revocation may be either express or implied. It becomes irrevocable at the
expiry of iddat.
Shia :
Written Talaq is not acceptable unless the husband is unable to speak.
Two male witnesses are required.
Intention to divorce is required on the part of husband.
Sunni :
Written Talaq is acceptable.
No witnesses are required.
Talaq pronounced even by mistake is binding.
Hasan (proper).
Hasan in arabic means "good" and so this form of Talaq is considered to be
a good form of Talaq but not as good as Ahasan. To be in this form, it must
satisfy the following conditions -
1. there must be three successive pronouncements of the formula of
divorce.
2. in case of a menstruating wife, the three pronouncements must be
made in three consecutive tuhrs.
3. in case of a non-menstruating wife, the three pronouncements must
be made during the successive intervals of 30 days.
4. no sexual intercourse must take place during these three periods of
tuhr.
Hasan talaq can be revoked any time before the third pronouncement. It
becomes irrevocable on the third pronouncement.
Talaq ul biddat or irrevocable Talaq:
It is a disapproved and sinful form of Talaq. It was introduced by Ommeyyads

in order to escape the strictness of law. To be of this form, it must satisfy the
following conditions -
1. three pronouncements may be made during a single tuhr either in one
sentence (e.g. "I divorce thee thrice." ) or in three sentences (e.g. I divorce
thee, I divorce thee, I divorce thee).
2. a single pronouncement made during a tuhr clearly indicating an
intention to dissolve marriage irrevocably (e.g. "I divorce thee
irrevocably").
It becomes irrevocable immediately when it is pronounced irrespective of
iddat. Thus, once pronounced, it cannot be revoked. One a definite complete
separation has taken place, they cannot remarry without the formality of the
woman marrying another man and being divorced from him.
In Saiyyad Rashid Ahmad vs Anisa Khatoon 1932, one Ghayas Uddin
pronounced triple Talaq in the presence of witnesses though in the absence of
the wife. Four days later a Talaqnama was executed which stated that three
divorces were given. However, husband and wife still lived together and had
children. While the husband treated her like a wife, it was held that since
there was no proof of remarriage, the relationship was illicit and the children
were illegitimate.
It has been said that this type of Talaq is theologically improper. InFazlur
Rahman vs Aisha 1929, it was held that Quran verses have been interpreted
differently by different schools. Thus, it is legally valid for Sunnis but not for
Shia.
Ila (Vow of continence) : Where the husband is of sound mind and of the age of
majority, swears by God that he will not have sexual intercourse with his wife
and leaves the wife to observe iddat, he is said to make ila. If the husband after
having pronounced ila abstains from having sexual intercourse with wife for four
months, the marriage is dissolved with the same result as if there had been an
irrevocable divorce pronounced by the husband. Ila divorce requires following
conditions -
1. Husband must be of sound mind and above the age of majority.
2. must swear by God or must take a vow.
3. vow must be that he will not have sexual intercourse with his wife.
4. must abstain from sexual intercourse with his wife for four months or more
after taking the vow.
Ila can be canceled by - resuming sexual intercourse within the period of four
months or by a verbal retraction.
Ila is not in practice in India.
Zihar - Injurious Assimilation -

If a husband compares the wife with his mother or any other female relative
within prohibited degree, the wife has a right to refuse herself to him until he
has performed a penance such as freeing a slave or fasting for a month. In
default of expiation by penance, the wife has the right to apply for judicial
divorce.
Ingredients -
1. husband must be sane and adult
2. husband compares wife to his mother or any other female relative within
prohibited degrees.
3. presence of two witness
Shia required
Sunni not required
If above ingredients are there, the wife has a right -
a) to refuse to have sexual intercourse with him till he has expiated
himself by penance,
b) to apply in court for an order directing him for a penance or to decree
her a regular divorce.
Muta marriage may be dissolved by Zihar.
The comparison (wife-mother-relative) must be done intentionally and with
disrespect. If the husband makes a comparison to show respect to his wife, an
penance is not necessary.
This form of talaq has become obsolete.
Legal Effects - Zihar by itself does not terminate the marriage nor does it
cause the wife to lose her right to maintenance even in case of default of
penance. It causes the following -
1. sexual intercourse becomes unlawful
2. husband is liable for penance
3. wife can claim judicial separation if the husband persists in wrong doing.
Talaq by Wife :
Talaq e tafweez
Tafweez is delegation by a husband of his power to give Talaq to any third
party or even to his wife.
An agreement made either before or after the marriage providing that the
wife is at liberty to divorce herself from her husband under certain specified
conditions (e.g. husband taking a second wife), is valid, provided that such
power is not absolute and unconditional and that the conditions are
reasonable and are not opposed to public policy.

In Mohd Khan vs Mst Shahmali AIR 1972, there was a pre-nuptial agreement
in which the defendant agreed to live in plaintiff's parental house after
marriage and if he left the house, he would pay a certain sum to the plaintiff,
the default of which the condition would act as divorce. It was held that the
condition was not unconscionable or opposed to public policy.
Note that a wife does not divorce her husband but gets herself divorced from
the husband.
Ameer Ali gives three kinds of tafweez - (This is given in Aqil Ahmed's book. I
have no idea what is the difference between the three).
Ikhtiar - giving her authority to Talaq herself.
Amr-bayed - leaving the matter in her own hands.
Mashiat - giving her the option to do what she likes.
This does not deprive the husband from his right to give Talaq.
Talaq e taliq -
It means contingent divorce. Under the Hanafi law, pronouncement of divorce
may take effect immediately or at some future time or event.
Talaq by Agreement :
Khula - Divorce at the request of wife - A wife has a right to buy her release
from marriage from her husband. It must satisfy the following conditions -
1. there must be an offer from the wife.
2. the offer must be accepted with consideration (evaz) for the release.
3. the offer must be accepted by the husband.
It becomes effective as well as irrevocable (Talaq ul bain) as soon as it is
accepted by the husband and the wife is bound to observe iddat.
As a consideration for release by the husband, everything that can be given in
dower can be given. If the wife fails to give the consideration that was agreed
upon at the time of Khula, divorce does not become invalid but the husband
has the right to claim the consideration.
In Moonshee Buzloor Rahim vs Lateefutoon Nissa, Khula was defined as a
divorce by consent in which the wife gives or agrees to give a consideration to
the husband for her release from the marriage tie. Khula is thus the right of
divorce purchased by the wife from her husband.
Shia : Husband must be adult, sane, free agent (mukhtar), and must have
intention to divorce her. Husband has no power of revocation but wife can
reclaim the consideration during iddat. In this case, the husband can revoke
Khula.
Sunni : Husband must be adult and sane. It is irrevocable and partners cannot
resume sexual intercourse until a fresh marriage is arranged.
Mubarat : Divorce by mutual agreement - It is a form of dissolution of marriage
contract, where husband and wife both are averse to the marriage and want to
separate. It requires following conditions -
1. Either of husband or wife can make the offer.
2. The other one must accept it.
3. As soon as it is accepted, it become irrevocable and iddat is necessary.
Since it is a mutual agreement, there is no question of consideration
Talaq by Judicial Decree :
Lian - False charge of adultery -
When the husband charges the wife with adultery and the charge is false, the
wife is entitled to sue for and obtain divorce. In Zafar Hussain vs Ummat ur
Rahman 1919, the Allahabad HC accepted the doctrine of Lian. The following
conditions must be satisfied -
1. Husband, who is adult and sane, charges his wife with adultery or denies
the paternity of her child.
2. Such charge is false.
3. The marriage is a Sahih marriage.
Features of Lian -
1. Such false charge does not dissolve the marriage automatically but only
gives a right to the wife to sue for divorce. The marriage continues till the
decree is passed.
2. Wife must file a regular suit and just an application will not suffice.
3. Judicial separation due to Lian is irrevocable.
4. Lian is applicable only to Sahih marriage and not to Fasid ones.
Retraction - A husband may retract the charge. However, the retraction must
be bona fide and unconditional. It must be made before the closing of
evidence.
Fask - Cancellation -
Muslim law allows a lady to approach a qazi for dissolving the marriage under
the following conditions -
1. if the marriage is irregular.
2. if the person having an option to avoid a marriage has exercised his
options.
3. if the marriage was within prohibited degrees or foster age.
4. if the marriage has been contracted by non-Muslims and the parties have
adopted Islam.
Before the enactment of Muslim Marriage Dissolution act, this was the only
way for a muslim woman to repudiate a marriage.
Provisions of Muslim Marriage Dissolution Act 1939 :
Section 2 of Muslim Marriage Dissolution Act 1939 : Section 2 of Muslim
Marriage Dissolution Act 1939 gives the following grounds to wife belonging to
Shia as well as Sunni sects, upon which she can ask for divorce -
1. Absence of husband - 4 yrs. Decree passed on this ground will take affect
only after 6 months of passing and if the husband shows up during the 6
months he can request the court to set the decree aside.
2. Failure to maintain - for 2 yrs. Cause is immaterial. Poverty, incapacity is
no excuse. There is no agreement among HCs regarding the conduct of wife.
In Fazal Mahmood vs Ummatur Rahman AIR 1949, Peshawar HC held that
if a wife is not faithful or obedient, the husband is under no obligation to
maintain her and her suit for divorce was dismissed.
However, in Mst Nur Bibi vs Pir Bux AIR 1950, Sind HC held that a wife is
entitled to divorce if the husband has failed to maintain her for two years
preceding the suit even though she may not be entitled to maintenance
owing to her bad conduct.
3. Imprisonment of husband - for 7 yrs or more.
4. Failure to perform marital obligations - for 3 yrs
5. Impotency of husband - If the husband was impotent at the time of
marriage and continues to be so.
6. Insanity, leprosy, or venereal disease - For insanity, 2 yrs are required. For
disease, no time period is required.
7. Repudiation of marriage - If the wife was married before she was 15, she
can repudiate the marriage before she turns 18.
8. Cruelty of husband - cruelty involves - habitual assault, associates with
women of bad repute, attempts to force her to lead immoral life, disposes off
her property, obstructs her practice of religion, does not treat all his wives
equally.
9. Grounds allowed by muslim law - This covers all the grounds such as Ila,
Zihar, Khula, and Mubarat, which are provided by muslim law.
Section 4 of this act removes rejection of Muslim faith as a ground for granting
divorce automatically. However, if a woman reconverts back to her original faith,
the marriage will stand dissolved.
Financial considerations :
Dowry (mahr) in divorce : A mahr is an agreed upon compensation for the wife
that is obligatory on the husband before the act of intercourse occurs, especially in
Shia Islam. In these cases the Islamic jurisprudence has clear guidance depending
on who asks for the divorce and whether or not the wife is still a virgin. If the
husband asks for a divorce and intercourse has occurred, he pays full mahr; if the
husband asks for a divorce and the wife is still a virgin, the husband pays half the
dowry; if the wife asks for a divorce and she is not a virgin, the husband pays half
the mahr; and if the wife asks for a divorce and is still a virgin, then no mahr is
required to be paid by the husband. However, there may be other financial
obligations depending on the length of marriage, whether there are any kids
involved and their ages, and the property that they own under joint ownership.
Other financial obligations in divorce : Depending on the length of marriage,
whether intercourse occurred or not or if any children are involved and income
levels for either husband or wife, the husband may be required to provide a
monthly maintenance support for the children to ensure their well-being. However,
unlike the American laws where the couple split assets earned during the marriage,
Islamic laws does not entitle the wife to a split of the husband's assets at divorce.
Go To Contents
On which ground MUSLIM WIFE may make petition to court for divorce under
the dissolution under Muslim Act 1939. (Nov-2011)
Explain : When Muslim lady can ask for talaq under Muslim divorce act 1939. (Nov-
2014)
ANSWER :
Intro :
As per the definition of Talaq propounded in Moonshee Buzloor Rahim vs
Lateefutoon Nissa, Talaq is a mere arbitrary act of a muslim husband, by which he
may repudiate his wife at his own pleasure with or without cause.
A muslim wife does not have any right to give Talaq to her husband. However,
there are ways through which a muslim wife can repudiate her marriage and get a
divorce from her husband. These are as follows -
1. Talaq e tafweez
2. Khula
3. Zihar
4. Lian
5. Fask
<ALL above discussed in detailed under the head Types (kinds) of Talaq>
Provisions of Muslim Marriage Dissolution Act 1939 :

---> read this from elsewhere in this doc.
Consequences arising from Talaq :
1. Marriage - Parties are entitled to contract another marriage. If the marriage was
consummated the wife has to wait until the period of iddat is over, otherwise, she
may remarry immediately. If the marriage was consummated and if the husband
had four wives at the time of divorce, he can take another wife after the period of
iddat.
2. Dower - Dower becomes payable immediately if the marriage was
consummated, otherwise, the wife is entitled to half of the amount specified in
dower. If no amount is specified, she is entitled to 3 articles of dress. Where the
marriage is dissolved due to abandonment of religious belief of the wife, she is
entitled to whole of the dower if the marriage has been consummated.
3. Inheritance - Mutual rights of inheritance cease after the divorce becomes
irrevocable.
4. Cohabitation - Cohabitation becomes unlawful after the divorce has become
irrevocable and children from such intercourse are illegitimate and cannot be
legitimated by acknowledgment as held in In Saiyyad Rashid Ahmad vs Anisa
Khatoon 1932.
5. Remarriage - Remarriage between the divorced couple is not possible until
the wife observes iddat
after iddat she lawfully marries another man
this intervening marriage is consummated
the new husband pronounces divorce or dies
the wife again observes iddat
A marriage done without the fulfillment of the above is irregular, not void. But
mere cohabitation after an irrevocable divorce is void.
6. Maintenance - The wife becomes entitled to maintenance during the period of
iddat but not during the iddat of death.
Go To Contents
Explain the various grounds for divorce under the Parsi Marriage and Divorce Act
1935 and Christian Marriage Act. 1872. (Nov-2012, Dec-2015)
Explain : Ground for Divorce according to Parsi Law. (Nov-2011)
ANSWER :
Divorce under Parsi Law :

Who can ask? Only married Parsis either husband or wife can ask for divorce under
Section 32 of The Divorce Act, 1869.
Parsi Law ask for it on the following grounds given under Section 32 of the act.
What are the grounds for Divorce ? The following are the grounds for divorce in
India included in the Parsis Marriage and Divorce Act, 1936 and the amendment of
the same in 1988.
Continuous absence of seven years.
Non-consummation of marriage within one year.
Unsound mind provided the other spouse was unaware of the fact at the time of
marriage and the divorce must be filed within three years of marriage.
Pregnancy by some other man provided the husband was unaware of the
incident during the time of marriage and that he must not have undergone
sexual intercourse after he came to know about the situation. The divorce must
be filed within two years of marriage.
Adultery, bigamy, fornication, rape, or any other type of perverse sexual act.
Act of cruelty.
Suffering from venereal disease or forcing the wife into prostitution.
Sentenced to prison for seven years or more.
Desertion for two or more years.
Non-resumption of cohabitation after passing an order of maintenance or a
decree of judicial separation.
Divorce under Christian Law : The Indian Divorce Act, 1869, governs Christians. It
also provides for nullity of marriage.
Who can ask? Only married Christians, either the husband or the wife, can ask for
divorce under Section 10 of The Divorce Act, 1869.
Christian law ask for it on the following grounds given under Section 10 of the act
enumerated herein below :
What are the grounds for Divorce ? The following are the grounds for divorce as
given in section 10(1)&(2) of the Divorce Act, 1869 and as amended in 2001 :
a. Adultery.
b. Conversion to another religion.
c. Incurable of unsound mind continuously for a period of two years
or more.
d. Suffering from incurable form of leprosy.
e. Suffering from venereal disease in communicable form.

f. Not heard of for a period of seven years.
g. Refusal to consummate the marriage.
h. Has failed to comply with a decree for restitution of conjugal rights for a
period of two years.
i. Desertion.
j. Cruelty.
Grounds available ONLY TO THE WIFE: (Section 10(2) of the divorce Act 1869) :
Husband guilty of :
Rape
Sodomy or
Bestiality
Go To Contents
Explain With decided cases the provisions of Iddat as well as Mahar under Muslim Law.
(Nov-2012, Oct-2013, Nov-2014, Dec-2015)
ANSWER :
1. Iddat :
http://www.legalserviceindia.com/article/l418-Muslim-Marriage.html
Intro : In Islam, iddah or iddat (Arabic: period of waiting) is a period after a
divorce, during which a woman may not marry another man. The period is
calculated on the number of menses that a woman has, usually three. Iddah was
intended to ensure that the male parent of any offspring produced after the
cessation of a nikah would be known.
Iddat after death of husband (Iddat e wafaat) :- Qur'an prohibits widows to engage
themselves for four (4) lunar months and ten (10) days after the death of their
husbands. This is also to ascertain whether a woman is pregnant or not, since four
and a half months is half the length of a normal pregnancy.
Husbands should make a will in favor of their wives for the provision of one
years residence and maintenance, unless the wives themselves leave the house
or take any other similar step.
The directive of the Qur'an regarding the waiting period of a widow, are as under
: Whoever from amongst you dies and leaves behind wives, the wives will hold
themselves [from marriage] for four months and ten days. Then, when they
have expired this period, there is no blame upon you in whatever they do
regarding themselves, according to the recognized traditions. And God is fully
aware of whatever you are doing. And there is no blame upon you in proposing
[marriage] to these women or in keeping such proposal to yourself - God is
aware that you would mention it to them - but do not make with them any
secret commitments, except that you say a noble word to them. However, do
not commit the marriage-contract with them, until the law has reached its
prescribed time.
Iddat after divorce (iddat e Talaaq) : The iddah of a woman divorced by her
husband is three monthly periods, unless she is pregnant in which case the iddah
lasts until she gives birth, or unless the marriage was not consummated in which
case there is no `iddah, or unless she does not menstruate, in which case "the
scholars say that she should observe an iddah of a full year, nine months for
pregnancy and three months for iddah.
Difference between two types of Iddat :
Comparing this waiting period with the one prescribed for a divorced woman (i.e.
three menstrual periods of the divorced woman), we see that the waiting period
prescribed for a widow exceeds that, which is prescribed for a divorced woman
by at least a month and a half. It is also clear from the stipulations of the Qur'an
that the prescription of the waiting period for a divorced woman is with the basic
purpose of ascertaining her condition with reference to pregnancy as well as to
provide the divorcing couple adequate time to review and, if possible, to revise
their decision. Thus, in view of the increased prescription of waiting period in the
case of a widow, it seems that the waiting period prescribed for a widow entails
other purposes, besides merely ascertaining the woman's position with reference
to pregnancy.
The Muslim jurists and thinkers have generally construed this additional purpose
entailed in the prescription of the waiting period for widows to be that of the
widow's 'mourning' her deceased husband. The understanding of the Muslim
jurists and thinkers seems to be quite logical and in consonance with sayings
ascribed to the Prophet. However, it seems important to add that the
prescription of a specified 'waiting' or 'mourning' period is for the purpose of
safeguarding the woman against defamation, slander and ill-repute in society. It
is specifically for this purpose that others are directed against making a 'secret'
commitment of marriage with the widow or deciding about the time and place of
the marriage-contract, during the prescribed period. It is reported that
Muhammad advised widows to be extra modest in their appearance and to even
refrain from wearing any fragrance, during this period. All these directives and
advice seem to point to the fact that a woman should not only be, but also
appear to be in a state of mourning, so that her social circles do not get a

chance to say a negative word about her.
Discussion :
No other restrictions apply to a widow during her waiting period.
Commencement : The Iddat of divorce commences immediately upon the
pronouncement of repudiation and in case of invalid marriage if they are
separated voluntarily then from the time of separation but if the separation is
effected by the court then it starts with the issuance of judicial decree. In case of
widowhood the period of Iddat begins with the decease of husband. If the
information of divorce or of her husbands death does not reach the wife until
after the expiration of Iddat period, she is not bound to observe Iddat. The
period is considered to have been passed.
HOW is Iddat observed ?
If the marriage is terminated by divorce or in consequence of annulment by the
Court, then the Quran has specifically explained the situation in such words,
women who are divorced shall wait, keeping themselves apart, three (monthly)
courses. And it is not lawful for them that they should conceal that which Allah
hath created in their wombs if they are believers in Allah and the last day.
Therefore the divorced woman is bound to observe Iddat for three menstrual
cycles i.e. the period of three complete courses of menstruation. However, in the
above two cases if the marriage has not been consummated nor any valid
retirement has taken place then after the termination of marriage the woman is
not required to observe Iddat.
Iddat of A Pregnant Widow : In case of pregnancy, the widow is bound to
observe the Iddat for a period which ever is the longest. i.e. if the child is born
before the period of four months and ten days then her Iddat is not over with
the delivery but she will complete the normal specified period of Iddat (four
moths & ten days). If the child is expected to be born after the specified period,
then the Iddat will lost up till the delivery of a child. They consider it binding
upon all widows who are pregnant or non pregnant, so according to their view
the fore mentioned period of four months and ten days is the minimum
obligatory period for a widow.
WHO pays for maintenance During Iddat ? The husband is under obligation to pay
for the wifes maintenance during her period of Iddat, regardless of its duration.
Thus, in the following cases the wife is entitled to maintenance during Iddat :
When the marriage is dissolved by repudiation, no matter the repudiation was
revocable or irrevocable, it was perfect or imperfect.
When the marriage is dissolved by Lien (oath of imprecation) or by Illa (a vow of
continence) or by way of Khula provided she has not renounced her right to
maintenance.
When the husband on attaining puberty, exercises the right of option and
dissolves the marriage.
When the marriage is dissolved by reason of the inferiority of dower or by reason
of the husbands inequality or his impotency.
When a wife, who is not subject to menstruation, observing Iddat by months
becomes subject to menstruation before the completion of specified period. She
is entitled for maintenance in the additional period of Iddat because she is
obliged to stay in Iddat for three full monthly courses.
Widow is not entitled to maintenance even if she is pregnant; almost all the
Muslim jurists have the same opinion in this regard.
2. Mahar (Mahr / Dower) :

Definition -
As per Tyabji, Mahr is a sum that becomes payable by the husband to the wife
on marriage either by agreement between the parties or by operation of law. It
may either be prompt (Mu ajjal) or deferred (Mu wajjal).
According to Amir Ali, Mahr is a consideration which belongs absolutely to the
wife.
In Saburunnessa vs Sabdu Sheikh AIR 1934, Cal. HC held that Muslim marriage
is like a contract where wife is the property and Mahr is the price or
consideration. However, it is also true that non-payment of Mahr does not void
the marriage, so Mahr is not purely a consideration.
Need and Importance of Mahr :
In pre Islamic Arabia, when the institution of marriage as we know it today was
not developed, many forms of sexual relationships existed. Some were hardly
better than prostitution. Men, after despoiling their wives, often turned them
out, helpless and without any means. Under this background, Islam tried to
provide a just treatment for wives. In Muslim Law, a husband can divorce his
wife at his whim and to ensure that the woman is not left helpless and without
any means, the concept of Mahr was brought in. It forces the husband to pay a
certain amount to the wife either at the time of marriage or at the time of
dissolution of marriage. This amount acts as a security to the wife in case she is
turned out by the husband or in her old age.
Marriage in Muslim Law provides an absolute power to the husband to divorce
his wife. It also allows the husband to have multiple wives. This often results in a
desperate situation for women because they are left with no means to support
themselves. Mahr mitigates this issue to certain extent. Therefore, Mahr is very
important for balancing the rights of the husband and wife.
Mahr is an absolute requirement of a Muslim marriage and so, even if Mahr is
not specified at the time of marriage, the law will presume it by virtue of the
contract of marriage itself.
Even if a woman stipulates to forgo the Mahr, her declaration will be invalid.
In Abdul Kadir vs Salima AIR 1980, J Mahmood has observed that the marriage
contract is easily dissoluble and the freedom of divorce and of polygamy to a
husband place the power in the hands of the husband, which the Muslim law
intends to restrain by the mechanism of Mahr. Thus, right of wife to her Mahr is
a fundamental feature of the marriage contract.
Purposes of Mahr :-
1. to impose an obligation of husband as a mark of respect to wife.
2. to place a check on the power of husband to divorce and polygamy.
3. to provide for subsistence of wife in the event she is divorced by the husband.
Nature of Mahr :
Mahr is an essential requirement of a muslim marriage. Thus, it is obligatory for
the husband to pay Mahr to wife upon marriage. A wife has an unrestricted right
to demand Mahr from husband.
In Abdul Kadir vs Salima AIR 1980, J Mahmood observed that Mahr may be
regarded as a consideration for concubial intercourse by way of analogy to the
contract for sale. It provides the woman with the right to resist the husband until
Mahr is paid. This right is akin to the right of lien of a vendor upon sold goods
while they remain in his possession and so long as the price for the goods has
not been paid.
In Smt Nasra Begum vs Rizwan Ali AIR 1980, it was held that right to dower
precedes cohabitation. Thus, a wife can refuse consummation of marriage until
Mahr is paid.
The right of wife to her dower puts her in a similar position as that of other
creditors. Just like other creditors, she must be paid out of the property of the
husband. Thus, it can be said that Mahr is a kind of debt upon the husband
incurred in marriage.
However, payment of Mahr is not a charge upon the estate of the husband,
unless an agreement is made to that effect. The interest that a wife has over the
property of her husband in lieu of dower debt is limited to existing lawful
possession towards her self enjoyment only. It does not give her the right to
alienate the property. After the death of the husband, she can sue the heirs for
the dower but heirs are not personally liable for it. They are liable only to the
extent of their share in the inherited property.
A dower can also be secured by an agreement just like any other debt. In Syed
Sabir Hussain vs Farzand Hussain, a father stood surety for payment of dower
by his minor son. After his death, his estate was held liable for the payment of
his son's dower.

Legal Consequences of Mahr (Rights of wife in case of non payment of Mahr)
1. Dower is like a debt and the husband is liable to pay it to the wife before the
consummation of marriage. Until it is paid, the wife has a right to resist
cohabitation with the husband.
2. If the wife is in possession of husband's property, she has a right to retain it
until dower is paid. She does not get a title to the property and does not get a
right to alienate it.
3. Wife can sue heirs of the husband for payment of dower.
4. If the dower is deferred, the wife is entitled to it upon dissolution of marriage
either due to divorce or due to death.
5. Dower is a vested right and not a contingent right. Thus, even after the death
of the wife, her heirs can demand it.
6. If dower has not been agreed upon at the time of marriage, courts can decide
the amount of dower by taking financial status of the husband, age of wife, cost
of living, property of wife, into consideration.
Unpaid dower/ Mehr : Right of wife over husband's property :
Dower ranks as debt and the wife is entitled, along with other creditors, to have
it satisfied on the death of husband out of his estate. Her debt, however, is no
greater than any other unsecured creditor except that if she is lawfully in
possession of the husband's property, she is entitled to that possession until she
is able to satisfy her debt by the rents or issues accruing out of the property.
She is also entitled to the possession against the heirs of the husband until her
dower is satisfied.
Limitations on right of retention -
This right arises only after the death of the husband or after divorce. During
the course of marriage, a wife does not have any right to retain the property.
She should have obtained the possession lawfully.
Right to retention is not analogous to mortgage. Thus, she does not get title
to the property in case dower is not paid.
Further, if the property is mortgaged, the wife cannot retain possession
against the mortgagee.
Wife cannot alienate the property. She has to satisfy the dower only though
the rents or other issues accruing from the property.
In a leading case of Maina Bibi vs Chaudhary Vakil Ahmad 1924, one Moinuddin
died leaving his widow Miana Bibi and some property. The respondents instituted
a suit against the widow for immediate possession of the property. However, the
widow claimed that she had the right to possession until her dower was paid. It
was held that the respondents could have the possession of their share of the
property after paying the dower to the widow. The respondents did not pay and
the widow continued possession. Later, the widow sold the property. The deed
showed that the widow tried to convey an absolute title to the property. The
respondents again filed the suit claiming that the widow did not have the right to
transfer property because she only had a right to retain and did not have any
right to title for herself. It was held by the privy council that a widow has the
right to retain the possession of the property acquired peacefully and lawfully,
until she is paid her dower. Further, she has no right to alienate the property by
sale, mortgage, gift, or otherwise.
Who can change Mahr ?
A husband can increase the amount of debt at any time, though he cannot
decrease it.
A wife can remit the dower wholly or partially. The remission of Mahr by wife is
called Hibe e Mahr. However, she should have attained puberty to do so. She
does not have to be a major to relinquish Mahr, only attaining puberty is
sufficient. The remission made by the wife should be with free consent. Thus, in
Shah Bano vs Iftikhar Mohammad 1956 Karachi HC, when a wife she was being
ignored by husband and thought that only way to win him back was to waive
Mahr, her remission of Mahr was considered without her consent and was not
binding on her.
Kinds of Mahr : Mahr is of two kinds
Specified (Mahr i Musamma) and
Customary or Proper (Mahr i Misl)
Specified (Mahr i Musamma) :
Specified Dower means the dower that has been agreed upon by the parties
at the time of marriage. Such a dower can be settled before marriage, at the
time of marriage, or even after the marriage. In case of a minor or a lunatic,
the guardian can fix the amount of dower. Dower fixed by the guardian is
binding upon the boy and after attaining puberty or majority, he cannot take
the plea that he was not a party to it.
A husband can settle any amount as dower to his wife, even if that leaves
nothing to the heirs but he cannot settle for less that 10 dhirams in Sunni
Law. Shia law has no minimum.
For those Muslims who are so poor that they cannot even pay 10 dhirams,
they can teach the wife Quran in lieu of paying Mahr.
Specified dower can further be divided into two categories -
Prompt (Mu Ajjal) and
Deferred (Mu Wajjal).
Mu Ajjal - As the names suggest, Mu ajjal dower means that the dower is
payable immediately upon the marriage.
1. The wife has a right to refuse cohabitation with the husband until she
is paid the dower.
2. If the wife is a minor, the guardian can refuse to allow the wife to be
sent to the husband until dower is paid.
3. Only after the payment of dower, the husband is able to enforce the
conjugal rights. However, if the marriage is consummated, the wife
cannot refuse cohabitation after that.
4. Prompt dower does not become deferred after consummation and the
wife has the right to demand and sue for it any time.
5. The period of limitation starts after demand and refusal and it is of
three years.
Mu Wajjal - It means that the dower is payable upon dissolution of
marriage either by divorce or by death of husband.
1. Even though it is deferred, an agreement to pay it is valid and
binding.
2. A wife does not have a right to claim dower but a husband can treat it
as prompt and transfer property as payment.
3. A widow can relinquish her claim to dower at the time of the funeral of
the husband by reciting a formula, but her relinquishment must be a
voluntary act.
4. The interest of wife in deferred dower is a vested one and her heirs
can claim it after her death.
Customary or Proper Mahr (Mahr i Misl) : When the amount of dower is not
fixed in the marriage contract or even if the marriage has been contracted on
the condition that she will not claim any Mahr, the wife is entitled to Proper
Dower. The amount is to be arrived upon after taking into consideration the
amount of dower settled for other female members of the father's family. It is
also regulated with reference to the following factors -
1. age, beauty, fortune, understanding and virtue of wife.
2. social position of her father
3. dower given to her female paternal relations.
4. economic condition of the husband.
5. circumstances of the time.
Differences between Shia and Sunni Law on Mahr :
Sunni Law Shia Law
1 Minimum of 10 dhirams for specified No minimum limit.

dower.
2 No maximum limit for proper or Dower above 500 dhirams

specified dower. (paid by Prophet
Mohammad for his
daughter Fatima) is
considered abominable but
legal.
3 If dower was not decided or marriage Dower shall be payable only

was done on condition that no dower if the marriage was
will be paid, dower shall be payable if consummated in this case.
marriage is dissolved by death
irrespective of whether the marriage
was consummated or not.
4 An agreement that no dower shall be Such an agreement by sane

payable is void. and adult wife is valid.
5 In absence of a contract, only a Whole of dower is

reasonable part of the dower is presumed to be prompt.
considered to be prompt. Rest is
deferred.
There is no maximum limit in Sunni Law, but shia law prescribes a maximum limit
of 500 Dirham.
Go To Contents
Explain in detail : Concept of remarriage under various family laws. (Dec-2015)

Explain in detail : Provision relating to remarriage. (Oct-2013)
Write short note : Remarriage under Hindu Marriage Act 1955. (Nov-2012, Nov-2014)
ANSWER :
Refer :

Go To Contents
Explain in detail : Powers and jurisdiction of the Family Court. (Dec-2016)

ANSWER :
Refer :

Go To Contents
Module-4) GUARDIANSHIP, ADOPTION, ALIMONY AND MAINTENANCE :

4.1) Guardianship under different family laws
4.2) Provisions for adoption under various family laws and CARA Guidelines for
Adoption
4.3) Maintenance and alimony under the Criminal Procedure Code and various
Family Laws:
4.3.1) Maintenance of neglected wives and divorced wives
4.3.2) Maintenance of children: disabled, legitimate and illegitimate
4.3.3) Maintenance of Parents and Grand Parents
4.3.4) Alimony and maintenance as an independent remedy: a review under
different personal laws - need for reforming the law, Alimony and
maintenance as an ancillary relief
4.3.5) Maintenance of divorced Muslim women under the Muslim Women
(Protection of Rights on Divorce) Act, 1986: a critical review, Judicial
pronouncement on the issue : Shah Banos case and Danial Litfi v.
Union of Indias case
Go To Contents
Explain in detail : Concept of guardianship under various family laws. (Dec-2015)
Explain in detail : provisions for adoption under various family laws. (Dec-2015)
Discuss the provisions relating to custody of children under various family laws.
(Nov-2014)
Write short notes : Custody of Children. (Nov-2012)
Explain in detail : Provisions of maintenance of wife UNDER THE CRIMINAL
PROCEDURE CODE. (Dec-2016)
Discuss the law relating to maintenance of wife, children and parents UNDER
VARIOUS FAMILIES LAW. (Nov-2011, Oct-2013, Nov-2014, Dec-2015)
Explain : Maintenance of widowed daughter-in-law (Nov-2011)
Explain : Shares (Nov-2011)
Write short notes : Permanent Alimony and Maintenance. (Nov-2012)
Write short notes : Alimony pendente lite
Discuss : Need for reforming the law, Alimony and maintenance as an ancillary relief.
Discuss : Maintenance of divorced Muslim women under the Muslim Women
(Protection of Rights on Divorce) Act, 1986.
Discuss : Shah Banos case and Danial Litfi v. Union of Indias case.
Explain : Full blood, half blood and uterine blood relations. (Nov-2014)
Go To Contents
MODULE-4 ANSWERS :
Explain in detail : Concept of guardianship under various family laws. (Dec-2015)
ANSWER :
http://hanumant.com/MinoriyAndGuardianship.html
Evolution of the concept of guardianship :
In Hindu dharmashastras, not much has been said about guardianship. Due to the
concept of joint families, a child without parents was usually cared for by the head
of the joint family. Further, it was well accepted that the king is the guardian of all
the orphans. Thus, no specific laws were required regarding guardianship.
During British period, guardianship was primarily based on the extension of
paternal authority. Thus, after parents, elder brothers,paternal uncles, and then
maternal relations used to look after the interests of the minor. The British also
introduced the concept of testamentary guardians in India.
The concept of guardianship has changed from paternal power to the idea of
protection in modern times and the HMG Act 1956 codifies the laws regarding
minority and guardianship with the welfare of the child at the core.
A person below the age of 18 yrs is considered to be a minor as per Section 4 of
HMGA 1956. Such a person is not capable of taking care of himself or of handling
his affairs and thus requires help, support, and most importantly, protection, which
is usually provided by the parents. However, in many unfortunate cases, parents
are not available and in those cases other relatives or persons come to the rescue.
Thus, parents and other people who look after a minor are called as guardians in
general parlance. Sec 4 of HMGA 1956 defines Guardian as follows:
Definition : Guardian : Section 4 of HMG 1956
Guardian means a person having the care of a person of a minor or of his property
or of both the person and his property. This includes:
1. natural guardian
2. guardian appointed by the will of a natural guardian (testamentary
guardian)
3. a guardian appointed or declared by court
4. a person empowered to act as such by the order of Court of Wards.
5. De facto guardian. A person who is taking care of a minor without authority
of law, can also be a guardian under the above definition and is called a de
facto guardian. De facto guardians include self appointed guardians and
guardians by affinity, such as guardians for a minor widow. However, a person
does not have right to sell or deal with minor's property if he is merely a de
factor guardian as per section 11.
1. Natural Guardian (Sec 6) : Section 6 of HMG Act 1956 defines only three natural
guardians:
For a legitimate boy or a girl, the father, and after father, the mother, provided
that the custody of a child less than 5 yrs of age will be with the mother.
For an illegitimate boy or a girl, the mother, and after mother, the father.
For a married woman, the husband.
Note :
No person shall be entitled to be a natural guardian of a minor if
he ceases to be a Hindu or
he renounces the world completely by becoming a sanyasi.
By 'father' and 'mother', natural father and mother are meant. Step father or
step mother do not have any right to guardianship unless appointed by court.
As per section 7, natural guardianship of an adopted son passes on to his
adoptive father and after adoptive father, to adoptive mother.
Positions of father, mother and husband :
Position of Father : Pre- 1956, the right of the father was supreme. He could
even appoint a person to act as a guardian after his death even if the mother
was alive. This is not the case now. Further, as held in the case of Lalita vs.
Ganga AIR 1973 Raj., a fathers right to guardianship is subordinate to the
welfare of the child. In the case of Githa Hariharan vs RBI AIR 1999 SC held the
mother to be the natural guardian in spite of the father being alive and further
held that the word "after" means "in the absence" rather than "after the life" of
the father. Thus, if a father is incapable of protecting the interests of a minor
due to any reason, he can be removed from guardianship.
Position of Mother : The mother is the natural guardian of her illegitimate
minors. In case of legitimate minors, the mother has right to custody of a minor
less than 5 yrs of age. This does not mean that mother does not have the right
to custody after 5 yrs of age. In case of Sheela vs Soli, 1981 Bom HC, it was
held that a mother's right to guardianship is not lost upon conversion to another
religion if she is able to provide proper care to the minor. Further, in Kumar vs
Chethana AIR 2004, SC has held that the mother's right to guardianship is not
lost automatically after her remarriage. In all such cases, welfare of the child
has to be considered above all including the convenience and pleasure of the
parents.
Position of Husband : In Hindu shastras, husband and wife are considered to be

one. Thus, it is believed that the guardianship of a minor wife belongs to the
husband. However, due to section 13, a court may revert the guardianship to
the father or mother depending on the best interests of the minor.
In Paras Nath vs State, Allahbad HC 1960, held that the father-in-law is the
rightful guardian of a minor widow. However, this view has not been adopted
by Nagpur HC. Madras HC also did not hold this view and held that the
welfare of the child is to be considered first before anything else.
Powers of a natural guardian (Sec 8) : Section 8 of HMGA 1956 describes the
powers of a natural guardian as follows :
A guardian can do any act, subject to provisions of this section, that are
necessary or are reasonable and proper for the benefit of the minor or the
benefit of the minor's estate. But the guardian, in no case, shall bind the minor
by a personal covenant.
The guardian cannot, without prior permission from the court,
mortgage, charge, or transfer the immovable property of the minor by way of
sale, gift, exchange, or otherwise.
lease the immovable property for a term more than 5 years or where the
lease ends one year after the minor attains majority.
Any sale of immovable property in violation of the above two points, is voidable
at the insistence of the minor.
The court shall not give permission for sale of immovable property unless it is
necessary or clearly in the benefit of the minor.
These powers also include the following
right in education
right to determine religion
right to custody
right to control movement
right to chastisement
Case-law : In the case of Manik Chandra vs Ram Chandra AIR 1981 SC has held
that the meaning of "necessity" and "advantage" of a minor are quite wide and
the courts have the power to widen their scope as per the case facts before
giving the permission. As per section 12, no guardian can be appointed for the
undivided interest in the joint property of the minor. However, the court may
appoint a guardian for the complete joint family if required.
Custody of a minor :
Custody of a minor is also subordinate to section 13, which declares the welfare
of the child to be of paramount interest. Regarding a child, who is at the age of
discretion, his wishes are also to be considered, though his wishes may be
disregarded in his best interest.
That a mother is preferred to father for custody is not right. Better economic
condition of the father than maternal grandfather is considered to be in favor of
the father. In Kumar vs Chethana AIR 2004, SC has held that mother's
remarriage is not a sufficient cause in itself to lose custody of a minor. It was
further held that convenience of the parents is irrelevant.
To ensure the welfare of the child, the custody may even be given to the third
person as was given to the mother and grand father by SC in case of Poonam vs
Krishanlal AIR 1989.
In the case of Chakki vs Ayyapan 1989, a mother who says she will keep living
with friends and may beget children from others, was not considered appropriate
for custody in the minor's interest.
Power over minor's property :
In general, a guardian may do all acts that are in the interest of the minor. A
third party may deal safely with the guardian in this respect. However, this
excludes fraudulent, speculative, and unnecessary deals. Before this act, a
natural and testamentary guardian had the power to alienate the minor's
property if it is necessary as determined by SC in Hanuman Prasad vs Babooee
Mukharjee 1856. However, this rule has been restricted through sec 8, which
mandates courts permission before alienating the minor's interest in the minor's
property. Also, a guardian does not have any right over the joint family interest
of a minor.
In the case of Vishambhar vs Laxminarayana, 2001, SC has held that a sale of
minor's immovable property without courts permission is voidable and not void
ab-initio. It further held that Sec 60 of Limitations Act would be applicable when
the minor repudiates the transaction.
In case, a minor repudiates an improper alienation made by the guardian, he is
liable to return the consideration.
Liabilities of a guardian :
Since the legal position of a guardian is fiduciary, he is personally liable for
breach of trust.
he is not entitled to any compensation unless explicitly specified in a will.
A guardian cannot take possession of minor's properties adversely.
must manage the affairs prudently.
liable to render all accounts.
If the minor, after attaining majority, discharges the guardian or reaches a
settlement of account, the guardian's liability comes to an end.
Rights of a guardian : A guardian has a right to

represent the minor in litigations.
get compensation for legal expenses from minor's property.
sue the minor after he attains majority to recover expenses.
refer matters to arbitration if it is in the best interest of the minor.
have exclusive possession of minor's property.
Removal of a guardian : Court has the power to remove any guardian in
accordance to section 13.
ceases to be a Hindu.
becomes hermit or ascetic.
court can remove if it finds that it is not in the best interest of the child.
2. Testamentary Guardian (Sec 9) :
A person who becomes a guardian due to the will of a natural guardian is called a
testamentary guardian. Section 9 defines a testamentary guardian and his powers.
For a legitimate boy or a girl, the father, who is a natural guardian, may appoint
any person to act as the guardian of the child after the death of the father.
However, if the mother is alive, she will automatically become the natural
guardian and after her death, if she has not named any guardian, the person
appointed by the father will become the guardian.
A widow mother who is a natural guardian, or a mother who is a natural
guardian because the father is not eligible to be a natural guardian, is entitled to
appoint a person to act as a guardian after her death.
For an illegitimate child, the power of appointing a testamentary guardian lies
only with the mother.
Powers of a Testamentary Guardian :
A testamentary guardian assumes all powers of a natural guardian subject to
limitations described in this act and to the limitations contained in the will. A
testamentary guardian is not liable personally for the expenses and he can ask
the guardian of the property of the minor to meet the expenses through the
property.
The rights of the guardian appointed by will cease upon the marriage of the girl.
3. a guardian appointed or declared by court :
work on this
4. a person empowered to act as such by the order of Court of Wards :
work on this
5. De Facto Guardian :
Section 11 says that a de facto guardian is not entitled to dispose or deal with the
property of the minor merely on the ground of his being the de facto guardian.
There is controversy regarding the status of a de facto guardian. Some HC consider
that alienation by de facto guardian is void while alienation by de jure guardian is
voidable (Ashwini Kr vs Fulkumari, Cal HC 1983), while some HC have held that
both are voidable (Sriramulu' case 1949). It is now well settled that de facto
guardian does not have the right to assume debt, or to gift a minor's property, or
to make reference to arbitration.
Welfare of the minor is of paramount importance (Sec 13) :
While appointing or declaring a guardian for a minor, the count shall take into
account the welfare of the minor.
No person shall have the right to guardianship by virtue of the provisions of this act
or any law relating to the guardianship in marriage if the court believes that it is
not in the interest of the minor.
Thus, under this doctrine, any guardian may be removed depending on the
circumstances on per case basis and the court may appoint a guardian as per the
best interests of the minor.
MODULE-4 QUESTIONS
Go To Contents
Explain in detail : provisions for adoption under various family laws. (Dec-2015)
ANSWER :
What is adoption ?
Adoption is a process whereby a person assumes the parenting for another who is
not kin and, in so doing, permanently transfers all rights and responsibilities from
the original parent or parents.
Adoption can be a beautiful solution not only for the childless couples and single
people but also for homeless children. It enables a parent-child relationship to be
established between persons not biologically related.
Adoption is defined as a process by which people take a child not born to them and
raise it as a member of their family.
Adoption is the transplantation of a son/daughter from the family in which he/she
is born, into another family by gift made by his/her natural parents to his/her
adopting parents.
What is the history of adoption under the Personal Law in India?
Adoption as a legal concept was available only among the Hindus. It allowed to
legally adopt a child and the other communities could only act as a legal guardians
of the child.
The religion-specific nature of adoption law was a very retrograde step. It
reinforced practices that were unjust to children and hindered the formation of a
Uniform Civil Code.
Article 44 of the Constitution declares: The State shall endeavour to secure for the
citizens a Uniform Civil Code throughout the territory of India. Over the years,
several attempts were made to formulate a general secular law on adoption. The
attempts of Parliament in this direction did not bear fruit, all these went in vain on
account of a number of reasons. The history of all such efforts does not bring credit
to the secular credentials of the Indian polity.
The Adoption of Children Bill, 1972 was not approved as the Muslims opposed it.
The Adoption of Children Bill, 1980, aiming to provide for an enabling law of
adoption applicable to all communities other than the Muslim community, was
opposed by the Bombay Zoroastrian Jashan Committee, which formed a special
committee to exempt Parsis from the Bill.
The National Adoption Bill, tabled twice in Parliament in the Seventies, has yet to
enter the statute books.
The history of attempt to bring in the concept of secular adoption into our system
of laws narrates a sad tale of inaction and action without conviction on the part of
the legislature.
ADOPTION UNDER THE HINDU LAW :
Adoption in the Hindus is covered by the Hindu Adoptions and Maintenance Act
(HAMA), 1956 and after the enforcement of this Act all adoptions can be made in
accordance with this Act. It came into effect from December 21, 1956.
Salient provisions :
Before enactment of this Act, only a male could be adopted, but with the passing
of the Act it makes a provision that a female may also be adopted.
One of the features of this Act is that no Hindu person can adopt a son or
daughter, if they already have a child of that sex.
The HAMA provides that there should be an age difference of 21 years between
the adoptive parent(s) and the adopted child whenever they are of opposite sex.
This is intended to prevent sexual abuse.
What are the laws under which adoption can be made? There are three legislations
under which adoption can be made. They are :
The Hindu Adoptions and Maintenance Act (HAMA), 1956
Guardians and Ward Act ,1890
The Juvenile Justice (Care and Protection of Children) Act, 2000.
Who has a right for adoption under the HAMA ?
Only Hindus, Buddhists, Jains and Sikhs and to any other person who is not a
Muslim, Christian, Parsi by religion. (section 2(1)(a)(b)(c))
Requirements For A Valid Adoption : As given in section 6, no adoption can take
place unless :
(A) The person adopting has the capacity and the right, to take in adoption
(B) The person giving a child in adoption has the capacity /right to do so:
(C) the person adopted is capable of being taken in adoption
(A) The person adopting has the capacity and the right, to take in adoption :
Capacity of male to adopt (Section 7) : Any male Hindu, who is of sound mind
and is not a minor, has the capacity to take a son or daughter in adoption.
Provided that,
if he has a wife living, he shall not adopt except with the consent of his wife,
unless his wife has completely and finally renounced the world or has ceased
to be a Hindu, or has been declared by a court of competent jurisdiction to be
of unsound mind.
if a person has more than one wife living at the time of adoption the consent
of all the wives is necessary unless the consent of one of them is unnecessary
for any of the reasons specified in the preceding provision.
Capacity of female to adopt (section 8) : Any female Hindu
who is of sound mind
who is not a minor, and
who is not married, or if married, whose marriage has been dissolved or
whose husband is
dead or has completely and finally renounced the world or has ceased to
be a Hindu, or has been declared by a court of competent jurisdiction to be
of unsound mind,
has the capacity to, take a son or daughter in adoption.
In case the woman is married it is the husband who has the right to take in
adoption with the consent of the wife.
(B) The person giving a child in adoption has the capacity /right to do so :
Section 9 of Hindu Adoptions and Maintenance Act (HAMA), 1956
No person except the father or mother or guardian of the child shall have the
capacity to give the child in adoption.
The father alone, if he is alive, shall have the right to give in adoption, but
such right shall not be exercised except with the consent of the mother unless
the mother has completely and finally renounced the world or has ceased to
be a Hindu, or has been declared by a court of competent jurisdiction to be of
unsound mind.
The mother may give the child in adoption if the father is dead or has
completely and finally renounced the world or has ceased to be a Hindu, or
has been declared by a court of competent jurisdiction to be of unsound mind.
Where both the father and mother are dead or have completely and finally
renounced the world or have abandoned the child or have been declared by a
court of competent jurisdiction to be of unsound mind or where the parentage
of the child is unknown - the guardian of the child may give the child in
adoption with the previous permission of the court.
The court while granting permission shall be satisfied that the adoption is
for the welfare of the child and due consideration will be given to the
wishes of the child having regard for the age and understanding of the
child.
The court shall be satisfied that no payment or reward in consideration of
the adoption except as the court may sanction has been given or taken.
(C) the person adopted is capable of being taken in adoption : (section 10) No
person can be adopted unless
He or she is a Hindu;
He or she has not already been adopted;
He or she has not been married, unless there is a custom or usage applicable to
the parties, which permits persons who are married being taken in adoption;
He or she has not completed the age of fifteen years unless there is a custom or
usage applicable to the parties which permits persons who have completed the
age of fifteen years being taken in adoption.
Other conditions for a valid adoption : Section 11 provides for the conditions to be
complied with. They are as follows :
i) If the adoption is of a son, the adoptive father or mother by whom the
adoption is made must not have a Hindu son. The sons son or sons sons son
living at the time of adoption
ii) If the adoption is of a daughter, the adoptive father or mother by whom the
adoption is made must not have a Hindu daughter or sons daughter living at the
time of adoption;
iii) If the adoption is by a male and the person to be adopted is a male, the
adoptive father is at least twenty one years older than the person to be adopted;
iv) If the adoption is by a female and the person to be adopted is a male, the
adoptive mother is at least twenty one years older than the person to be
adopted;
v) The same child may not be adopted simultaneously by two or more parents;
vi) The child to be adopted must be actually given and taken in adoption with an
intent to transfer the child from the family of birth.
Effects of adoption :
An adopted child shall be deemed to be the child of his or her adoptive father or
mother for all purposes with effect from the date of adoption.
However, any property which vested in the adopted child shall continue to vest
in such person subject to the obligations if any attached to the ownership of
such property including the obligation to maintain relatives in the family of his or
her birth.
Similarly the adopted child shall not divest a person of any estate which vested
in him or her before adoption.
Subject to any agreement to the contrary, an adoption does not deprive the
adoptive father or mother of the power to dispose of his or her property by
transfer inter vivos or will.
Registration :
The adoption deed is not required to be registered (except in Uttar Pradesh),
except where it declares or reserves an interest worth Rs. 100 or more for a
third person in an immovable property.
However, authority to adopt is required to be registered under section 17(3),
Indian Registration Act. The Hindu Minority and Guardianship Act, 1956 (32 of
1956) has codified laws of Hindus relating to minority and guardianship.
Other provisions :
Natural guardian for both boys and unmarried girls is first the father and then
the mother.
Prior right of mother is recognised only for the custody of children below five.
In case of illegitimate children, the mother has a better claim than the putative
father.
The act makes no distinction between the person of the minor and his property
and, therefore guardianship implies control over both. The Act directs that in
deciding the question of guardianship, courts must take the welfare of child as
the paramount consideration. A guardian may be a natural guardian,
testamentary guardian or a guardian appointed by the court. In deciding the
question of guardianship, two distinct things have to be taken into account
person of the minor and his property. Often the same person is not entrusted
with both.
ADOPTION UNDER MUSLIM, CHRISTIAN AND PARSI LAW :
(The Guardians and Wards Act, 1890)
Personal laws of Muslim, Christian, Parsi do not recognize complete adoption.
Muslims, Christians and Parsis can take a child under the said Act only under foster
care. Once a child under foster care becomes major, he is free to break away all
his connections. Besides, such a child does not have legal right of inheritance.
Foreigners, who want to adopt Indian children have to approach the court under
the aforesaid Act. In case the court has given permission for the child to be taken
out of the country, adoption according to a foreign law, i.e., law applicable to
guardian takes place outside the country.
As non-Hindus do not have an enabling law to adopt a child legally, the people
belonging to these religions who are desirous of adopting a child can only take the
child in guardianship under the provisions of the Guardians and Wards Act, 1890.
The statute does not deal with adoption as such but mainly with guardianship.
However, these persons can adopt the children from orphanage by obtaining
permission from the court under the Guardians and Wards Act.
The process makes the child a ward, not an adopted child. Under this law, when
children turn 21 years of age, they no longer remain wards and assume
individual identities. They do not have an automatic right of inheritance.
Adoptive parents have to leave whatever they wish to bequeath to their children
through a will, which can be contested by any `blood relative.
The aforesaid enactments remain silent about the orphan, abandoned and
surrendered children. There was no codifi ed legislation dealing with the adoption of
the children of these categories. As a result, several misconceptions or
irregularities appeared in respect of the custody, guardianship or adoption of these
types of children, which were prejudicial to the interest of the children.
Considering all the aspects mentioned above laudable attempt were undertaken
by the legislature by the stipulations, which have been made in Chapter IV of the
Juvenile Justice (Care and Protection of Children) Act, 2000. This enactment
shows that the legislature may be found to have accepted the concept of secular
adoption whereby without any reference to the community or religious
persuasions of the parents or the child concerned, a right appears to have been
granted to all citizens to adopt.
It is pertinent to mention here that there arises confusion as to the interpretation
as well as concept of adoption as because the expression Adoption has not been
defined at all in the enactments like HAMA or GAWA. Moreover, the legal status of
the adopted child has not declared to be equal to that of a biological legitimate
child. Though at the initial stage the Juvenile Justice (Care and Protection of
Children) Act, 2000 did not contain these factors, these are introduced in Juvenile
Justice (Care and Protection of Children) Amendment Act, 2006.
The concept of adoption has been well defined in Sec.2 (aa) of the said Act,
which is as follows :
Adoption means the process through which the adopted child is permanently
separated from his biological parents and becomes the legitimate child of his
adoptive parents with all rights, privileges and responsibilities that are
attached to the relationship.
Islam does not recognise adoption. In Mohammed Allahabad Khan v. Mohammad
Ismail, it was held that there is nothing in the Muslim Law similar to adoption as
recognised in the Hindu System.
Acknowledgement of paternity under Muslim Law is the nearest approach to
adoption. The material difference between the two can be stated that,
in adoption, the adoptee is the known son of another person,
while one of the essentials of acknowledgement is that the acknowledgee
must not be known son of another.
However, an adoption can take place from an orphanage by obtaining permission
from the court under Guardians and wards Act.
Likewise, the Personal Laws of Christians and Parsis communities also do not
recognise adoption and here too an adoption can take place from an orphanage by
obtaining permission from the court under Guardians and Wards Act.
National Commission on Women has stressed on the need for a uniform adoption law.
The general law relating to guardians and wards is contained in the Guardians and
Wards Act, 1890. It clearly lays down that fathers right is primary and no other
person can be appointed unless the father is found unfit. This Act also provides that
the court must take into consideration the welfare of the child while appointing a
guardian under the Act.
MODULE-4 QUESTIONS
Go To Contents
Discuss the provisions relating to custody of children under various family laws. (Nov-
2014)
Write short notes : Custody of Children. (Nov-2012)
ANSWER :
Refer :

MODULE-4 QUESTIONS
Go To Contents
Explain in detail : Provisions of maintenance of wife under the Criminal Procedure
Code. (Dec-2016)
ANSWER :
Refer :
http://www.thedivorcelawfirm.in/pdf/9.pdf
http://www.legalserviceindia.com/articles/hmcp.htm
MAINTENANCE UNDER CODE OF CRIMINAL PROCEDURE 1973 :
Definition : S.125 CrPC : Order for maintenance of wives, children and parents :
(1) If any person having sufficient means neglects or refuses to maintain
(a) His wife, unable to maintain herself, or
(b) His legitimate or illegitimate minor child, whether married or not, unable
to maintain itself, or
(c) His legitimate or illegitimate child (not being a married daughter) who has
attained majority, where such child is by reason of any physical or mental
abnormality or injury unable to maintain itself, or
(d) His father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal, order
such person to make a monthly allowance for the maintenance of his wife or
such child, father or mother, at such monthly rate not exceeding five hundred
rupees in the whole, as such magistrate thinks fit, and to pay the same to such
person as the Magistrate may from time to time direct
It should be kept in view that the provision relating to maintenance under any
personal law is distinct and separate. There is no conflict between the two
provisions.
IF a person has already obtained maintenance order under his or her personal law,
the magistrate while fixing the amount of maintenance may take that into
consideration while fixing the quantum of maintenance under the Code. But he
cannot be ousted of his jurisdiction.
The basis of the relief, under the concerned section is the refusal or neglect to
maintain his wife, children, father or mother by a person who has sufficient means
to maintain them. The burden of proof is on him to show that he has no sufficient
means to maintain and to provide maintenance.
Section 125 gives a statutory recognition to the moral, legal and fundamental duty
of a man to maintain his wife, children and aged parents.
Although this section also benefits a distressed father, the main thrust of this
section to assist women and children.
Article 15(3) of the Indian constitution envisaged that the state can make special
provision for woman and children. Section 125 is also along the lines of Art.39 of
the Indian Constitution that states that the State shall direct its policy towards
ensuring that all citizens both men and women have equal access to means of
livelihood and children and youths are given facilities opportunities in conditions of
freedom and dignity.
At the time of enactment of this code section 125 is intended to be applicable to all
irrespective of their personal Laws although maintenance is a Civil remedy yet it
has been made a part of this Code to have a quick remedy and proceedings and
S.125 is not a trail as non-payment of maintenance is not a criminal offence.
The word any
person u/s. 125 includes a person belongs to the undivided family
although the proceedings strictly against the individual concern and not the
undivided family. However, the Magistrate may take into consideration the joint
family property is determining the amount of maintenance that should be payable
by such person..; it also includes a person, a father, an adult son and a married
daughter. But not include a mother or a wife or an unmarried daughter.
MODULE-4 QUESTIONS
Go To Contents
Discuss the law relating to maintenance of wife, children and parents under
various families law. (Nov-2011, Oct-2013, Nov-2014, Dec-2015)
ANSWER :
Refer :
http://www.thedivorcelawfirm.in/pdf/9.pdf
http://www.legalserviceindia.com/articles/hmcp.htm
MAINTENANCE UNDER HINDU LAW :
The relief of maintenance is considered an ancillary relief and is available only upon
filing for the main relief like divorce, restitution of conjugal rights or judicial
separation etc. Further, under matrimonial laws if the husband is ready to cohabit
with the wife, generally, the claim of wife is defeated.
ONLY in Hindu Law, the right of a married woman to reside separately and claim
maintenance, even if she is not seeking divorce or any other major matrimonial
relief has been recognized. A Hindu wife is entitled to reside separately from her
husband without forfeiting her right of maintenance under the Hindu Adoptions and
Maintenance Act, 1956. The Act envisages certain situations in which it may
become impossible for a wife to continue to reside and cohabit with the husband
but she may not want to break the matrimonial tie for various reasons ranging
from growing children to social stigma.
I) MAINTENANCE OF WIFE :
Under S.24 of Hindu Marriage Act, 1955 (herein after mentioned as HM Act),
either the wife or husband can apply for interim maintenance. The basis of the
claim for interim maintenance is that the claimant has no independent income of
his/her own to support himself/herself. The provision is silent on the quantum of
maintenance and it is upon the discretion of the court to determine the
quantum.
Similarly, maintenance pendente lite is to be provided to the claimant who does
not have an independent income and the financial need of litigation expenses
has to be provided by the other spouse.
The interim maintenance is payable from the date of presentation of the petition
till the date of dismissal of the suit or passing of the decree.
Interim maintenance is supposed to meet the immediate needs of the petitioner.
And maintenance pendente lite is for providing the litigation expenses to the
claimant.
S. 3(b) (i) of Hindu Adoption and Maintenance Act, 1956(herein after mentioned
as HAM ACT) defines maintenance as "provision for food, clothing, residence,
education, and medical attendance and treatment." In the case of unmarried
daughter, it also includes her marriage expenses.
GROUNDS FOR AWARD OF MAINTENANCE : Only upon proving that at least one
of the grounds mentioned under the Act, exists in the favour of the wife,
maintenance is granted. These grounds are as follows :-
a. The husband has deserted her or has willfully neglected her;
b. The husband has treated her with cruelty;
c. The husband is suffering from virulent form of leprosy/venereal diseases or
any other infectious disease;
d. The husband has any other wife living;
e. The husband keeps the concubine in the same house as the wife resides or
he habitually resides with the concubine elsewhere;
f. The husband has ceased to a Hindu by conversion to any other religion;
g. Any other cause justifying her separate living;
QUANTUM OF MAINTENANCE :
The means and capacity of a person against whom the award has to be made
should be taken into consideration for determining the quantum of
maintenance. In fact, in case of the husband, it is not only the actual earning,
but also his potential earning capacity, which must be considered i.e. there is
a presumption that every able-bodied person has a capacity to earn and
maintain his wife.
The income of the husband is a significant factor to be considered by the court
in fixing the quantum of maintenance. It is disposable income and not the
gross income, which is to be considered.

Section 23(2) of HAM ACT states the factors to be considered in determining
the amount of maintenance payable to the wife, children and aged parents,
and they are as follows
the position of and status of the parties, the reasonable wants of the
claimant,
the claimant if living separately is justified or not,
the income of the claimant and the value of the claimants property and
the number of persons entitled to maintenance under the Act.
Even if one of these grounds exists in favour of the wife, she will not be
entitled to relief if she has indulged in adulterous relationship or has
converted herself into any other religion thereby ceasing to be a Hindu.
It is also important to note here that in order to be entitled for the relief, the
marriage must be a valid marriage. In other words, if the marriage is illegal
then the matrimonial relationship between the husband and wife is non-
existent and therefore no right of maintenance accrues to wife.
However, thanks to judicial activism, in particular cases the presumption of
marriage is given more weight age and the bars to maintenance are removed.
MAINTENANCE OF CHILDREN :
Section 20 of HAM ACT imposes an obligation upon the parents mother and
father, both equally to maintain the children both legitimate and illegitimate.
This is a unique feature of the Hindu law where both the parents are equally
responsible to maintain the children.
S.20 (2) of HAM ACT lays down that the children are entitled to maintenance
during their minority. This right of maintenance for the daughter is extended till
she gets married. The parents are obliged to bear her marriage expenses.
However even after marriage a minor married daughter, if she is unable to
maintain herself then she can claim for maintenance under S.125 CrPC.
When an application has been filed under section s24 and 25 of HM ACT, the
children are also entitled to get maintenance if the claimant has the
responsibility of maintaining them i.e. the claimants right to maintenance also
includes the right of maintenance of the children.
Section 26 of HM ACT also provides that in any proceeding under the Act the
court can from time to time pass interim orders and make provisions in respect
of the custody, maintenance and education of the minor children.
MAINTENANCE OF PARENTS :
S. 20 of HAM ACT also lays down an obligation of maintenance of old and infirm
parents who are not able to maintain themselves out of their own personal
earnings and property. The HAM ACT is the first statue in India, which imposes
an obligation on the children to maintain their parents. The obligation to
maintain is not only limited to the sons but it also extends to the daughters.
Under HAM ACT, both the mother and the father have an equal right to claim
maintenance. The explanation to this section also includes stepmother in the
term parent. However it is important to note that the section imposes an
obligation to maintain only those parents, who are unable to maintain
themselves and therefore the obligation to maintain the parents other than those
infirm and unable, is only moral.
MAINTENANCE OF GRAND PARENTS :

MAINTENANCE UNDER MUSLIM PERSONAL LAW :
The main principles of maintenance may be recounted as follows :
(i) A person is entitled to maintenance if he has no property,
(ii) is related to obligor in prohibited degrees, or is the wife or child, and
(iii) the obligor is in position to support him.
The obligation of maintenance is also hedged by the factor of their economic
condition.
PERSONS ENTITLED TO MAINTENANCE :
I) Maintenance of Wife
II) Maintenance of Children
III) Maintenance of Parents, and
IV) Other relations
I) MAINTENANCE OF WIFE :
It is incumbent on a husband to maintain his wife, whether she is Muslim or
Kitabiyyah, poor or rich, enjoyed or unenjoyed, young or old. However if the wife
is too young for matrimonial intercourse she has no right to maintenance from
her husband, whether she is living in his house or with her parents.
The husband is bound to maintain his wife so long as she is faithful to him and
obeys his reasonable orders. It is decided in an interesting caseby Strachy and
Badruddin Tyabji, JJ. that disobedient wife need not to be maintained. Strachy,
J., observed : ...the husbands duty to maintain his wife is conditional on her
obedience and he is not bound to maintain her if she is disobeys him by refusing
to live with him or otherwise. Only paid occasional visits to husband house,
staying for a night or so returning on occasion to mothers house... I am clearly
of the opinion that in such circumstances the Muhammadan husband is not
bound to give his wife separate maintenance...
Where the marriage is valid and the wife is capable to render marital intercourse
its the husbands duty to maintain his wife even though she may have means to
maintain herself. But if she unjustifiably refuses to cohabit with her husband
then she loses her right for maintenance.
The right of maintenance would also be lost if the wife refuses to obey the
reasonable commands of the Husband but not so if disobedience is justified by
circumstances or if she is forced to leave husbands house on account of cruelty,
so that of the husband refuses to maintain his wife without any lawful
reasons/causes the wife may sue him for maintenance.
She is not however entitled to past maintenance. Maintenance is payable from
the date of the decree unless the claim is based on specific agreement.
Where a wife is turned out or ill treated so as to make her impossible to stay or
live together with her husband, or where the breach between the wife and
husband is irremediable she is entitled to maintenance by living separate from
him whether the question arises u/s. 125 of the Code of Criminal Procedure
1973 (corresponding section. 488 of the Code of Criminal Procedure 1998) or in
a suit for restitution of conjugal life.
To summaries, the wife loose the right to maintenance in the following
circumstances :-
a) She is minor, incapable of consummation.
b) Refuse free access to the husband at all reasonable times.
c) Is disobedient.
d) Never visited his house.
e) Refuses to cohabit with him without reasonable excuse.
f) Abandon conjugal home without reasonable reasons.
g) Deserts him.
h) Elopes with another person.
The husband and wife or their guardian may enter into agreement whereby the
wife is entitled to recover maintenance from her husband, on the happening of
some special event such as ill-treatment, disagreement, husbands second
marriage etc. but the agreement in the marriage contract that the wife would
not be entitled to maintenance is void.
The key consideration is that the agreement should not be opposed to the public
policy and Muslim Law.
An agreement between a Muslim and his first wife, made after his marriage with
a second wife, providing for certain maintenance for her if she could not in future
get on with the second wife, was held not void on the ground of the public
policy.
Followings are the valid conditions for an agreement :
a. If the husband treats the wife with cruelty then the wife has a right to
separate residence and maintained to meet it.
b. If he brings subsequent wife and the previous wife is unable to with her,
she will get maintenance allowance to live separately or even at her fathers
house.
c. If he brings his other wife to the matrimonial home, she will reside at her
fathers home and he will give her maintenance. This view was reiterated by
the Karnataka High Court.
d. In case of disagreement with each other, he will give her maintenance for
her separate residence.
After divorce the Mahomedan wife is entitled to maintenance during the time
period of Iddat and also for the time, if any, that elapsed after the expiry of the
period of Iddat and her receiving notice of Talak. After expiry of the period Iddat
the enforceability of the order of maintenance ceases.
The wife is entitled to sue for maintenance at her normal place of residence at
the time of divorce and the place where she receives the notice thereof.
A widow is not entitled to maintenance out of the estate of her late husband in
addition to what she is entitled to by inheritance or under his will.
II) MAINTENANCE OF CHILDREN :
In case of Legitimate Children the maintenance of the children is rest upon the
father.
In Hedaya, the following verse of the Koran, namely ----"The maintenance of
woman who suckles an infant rests on him to whom the infant is born", is
mentioned and from which it has been inferred that the maintenance an infant
child is rest upon the father, because, as maintenance is decreed to the nurse on
account of her sustaining the child with her milk, it follows that the same is due
to the child himself a fortiori.
Thus a father is bound to maintain his sons until they attain puberty and his
daughter until they are married. He is also responsible for the upkeep of his
widowed or divorced daughter, or a child in the custody of the mother. However,
the father is NOT bound to provide separate maintenance for a minor or an
unmarried daughter who refuses to live with him without reasonable cause.
An adult son need not to be maintained unless he his infirm. The father is not
bound to maintain a child who is capable of being maintained out of his or her
own property.
If the father is poor or infirm then the mother is bound to maintain the children.
And failing her it is the duty of the parental grandfather.
In case of Illegitimate Children, Muslim Law the father is not bound to maintain
illegitimate children. U/S 488 of the Criminal Procedure Code, 1908 (as amended
up to 1955), however did bound the father to pay a reasonable amount even
him the mother refuses to surrender the illegitimate child to him.
In a case it was held, An agreement to maintain an illegitimate child, for which
the Muhammadan Law makes no provision, will in my opinion not have the effect
of defeating the provisions of any law. As a matter of fact the maintenance of
the illegitimate children has been statutorily recognized u/s 488 of the CrPC in
our country and it is in consonance with this wholesome policy that the offspring
born under such circumstances are to be provided for and should not be left to
the misfortunes of the vagrancy and its attended social consequences.
It is, however not open to a Court to award maintenance u/s. 488 of the CrPC
unless expressly asked for.
MAINTENANCE UNDER CHRISTIAN LAW :
A Christian woman can claim maintenance from her spouse through criminal
proceeding or/and civil proceeding. Interested parties may pursue both criminal
and civil proceedings, simultaneously, as there is no legal bar to it.
In criminal proceedings, the religion of the parties does not matter at all, unlike in
civil proceedings.
Section 36 of the Indian Divorce Act, 1869 (IDA) are similar to S.24 of HM ACT.
However S. 36 of IDA differs in the respect that the maintenance pendente lite and
interim maintenance can only be claimed by the wife and not by the husband.
If a divorced Christian wife cannot support her in the post divorce period she need
not worry as a remedy is in store for her in law. Under S.37 of the Indian Divorce
Act, 1869, she can apply for alimony/ maintenance in a civil court or High Court
and, husband will be liable to pay her alimony such sum, as the court may order,
till her lifetime.
The Indian Divorce Act, 1869 which is only applicable to those persons who
practice the Christianity religion inter alia governs maintenance rights of a Christian
wife. The provisions are the same as those under the Parsi law and the same
considerations are applied in granting maintenance, both alimony pendente lite and
permanent maintenance.
The provisions of the Indian Divorce Act, 1869, are produced herein covered under
part IX -S.36 - S.38
In every such case, the Court may make an order on the husband for payment to
the wife of such monthly or weekly sums for her maintenance and support as the
Court may think reasonable :
Provided that if the husband afterwards from any cause becomes unable to
make such payments, it shall be lawful for the Court to discharge or modify the
order, or temporarily to suspend the same as to the whole or any part of the
money so ordered to be paid, and again to revive the same order wholly or in
part as to the Court seems fit.

Under section 38 of the Indian Divorce Act, 1869, in all cases in which the Court
makes any decree or order for alimony, it may direct the same to be paid either to
the wife herself, or to any trustee on her behalf to be approved by the Court, and
may impose any terms or restrictions which to the Court seem expedient, and may
from time to time appoint a new trustee, if it appears to the Court expedient so to
do.
MAINTENANCE UNDER PARSI LAW :
Parsi can claim maintenance from the spouse through criminal proceedings or/ and
civil proceedings. Interested parties may pursue both criminal and civil
proceedings, simultaneously as there is no legal bar to it.
In the criminal proceedings the religion of the parties doesn't matter at all unlike
the civil proceedings.
If the Husband refuses to pay maintenance, wife can inform the court that the
Husband is refusing to pay maintenance even after the order of the court. The
court can then sentence the Husband to imprisonment unless he agrees to pay.
The Husband can be detained in the jail so long as he does not pay.
The Parsi Marriage and Divorce Act, 1936 speaks about the right of wife to
maintenance-both alimony pendente lite and permanent alimony.
The maximum amount can be decreed by court as alimony during the time a
matrimonial suit is pending in court is one-fifth of the husband's net income. In
fixing the permanent maintenance, the court will determine what is just, bearing in
mind the ability of husband, wife's own assets and conduct of the parties and this
order will remain in force as long as wife remains chaste and unmarried.
In case of pendent lite and interim maintenance sections 39 of the Parsi Marriage
and Divorce Act, 1936 (PMDA) is similar to S.24 of HM ACT.
S.40. of Parsi Marriage and Divorce Act says that the defendant shall pay to the
plaintiff for her or his maintenance and support, such gross sum or such monthly or
periodical sum, for a term not exceeding the life of the plaintiff as having regard to
the defendants own income and other property, if any, the income and other
property of the plaintiff, the conduct of the parties and other circumstances of the
case, it may seem to the Court to be just, and any such payment may be secured,
if necessary, by a charge on the movable or immovable property of the defendant.
The Court if it is satisfied it may, at the instance of either party, vary, modify or
rescind any such order in such manner as the Court may deem just and if the Court
is satisfied that the party in whose favour, an order has been made under this
section has remarried or, if such party is the wife, that she has not remained
chaste, or, if such party is the husband, that he had sexual intercourse with any
woman outside wedlock, it may, at the instance of the other party, vary, modify or
rescind any such order in such manner as the Court may deem just.
MODULE-4 QUESTIONS
Go To Contents
Explain : Maintenance of widowed daughter-in-law (Nov-2011)

ANSWER :
Refer :

MODULE-4 QUESTIONS
Go To Contents
Explain : Shares (Nov-2011)

ANSWER :
Refer :

MODULE-4 QUESTIONS
Go To Contents
Write short notes : Permanent Alimony and Maintenance. (Nov-2012)

Write short notes : Alimony pendente lite
ANSWER :
https://notesmilenge.files.wordpress.com/2014/09/alimony-and-maintenance-as-
an-independent-remedy.doc
Intro :
Alimony is a very important matter to deal with during the litigation of a divorce
case. As the rate of divorce is increasing in India at a rapid speed, people are
becoming aware of the various details related to divorce laws. The era of feminist
campaigns, and spread of education among women have contributed to the
growing applicability of alimony in divorce cases.
The alimony or the spousal support is an obligation by laws in almost all the
countries of the world. It is expected that both the spouses irrespective of the sex
must bear the maintenance support during and after marriage.
According to marriage conventions marriage is a sacred union. Once the knot is

tied, the duties and obligations of marriage are to be carried out for the rest of the
life even if there is mental disparity or physical separation between the husband
and the wife. The husband is bound to take up the responsibilities for the
maintenance of his wife in spite of sharing an estranged relationship. However, as
time changed, the laws and education empowered woman, divorce came as a
spontaneous solution for an unsuccessful marriage.
The present society treats men and women equal, as a result the burden of
alimony can now fall upon either side of the party depending upon the financial
circumstances of the spouses. Though in the present age of equality both men and
women are now equal in the eyes of law, in practice men are more liable to provide
interim support to their ex spouse during the litigation procedure.
After divorce either of the spouse has the right to claim alimony. Though not an
absolute right, but can be granted by the court depending upon the circumstances
and financial conditions of both the spouses.
Under following conditions alimony is awarded by the court :
Alimony is generally not granted to the seeking spouse if he or she is already
receiving support during the time of divorce. Although the rewarding of alimony
can be revised in such events based on the arguments for claiming the support.
In case of a contested divorce, often spouses fail to come to any understanding
regarding alimony. In such situations, the court takes up the task of making a
decision on the amount of alimony to be paid.
Only under certain compelling situations the court steps out to change the already
framed alimony. Some times the court might even hand over the burden of paying
for the maintenance to a public body.
Factors that influence the duration and amount to be paid as alimony :
The amount and duration of alimony generally depends upon how long the
marriage existed. Marriages that lasted more than 10 years are entitled to be
granted a life long alimony.
Age of the spouse is also taken into consideration while awarding alimony.
Normally a young recipient of alimony gets it for a short period of time if the court
thinks that he or she will soon be able to become financially sound through
prospective career excellence.
Alimony is also in vogue in order to equalize the economic condition of both the
spouses. The higher earning spouse is entitled to pay a heavy amount as alimony.
The spouse who is projected to be enjoying a prosperous career is liable to pay
high alimony amount.
If one of the spouses is suffering from poor health, the other is subjected to
payment of high alimony to ensure proper medication and well being of the other
spouse.
The terms and conditions of payment of alimony in India vary from one personal law
to another. None of the Indian personal laws are spared from criticism due to
existence of flaws in framing definite rules for granting alimony. The Shah Bano
case is one such instance that exposes how the sustenance of a divorced woman is
affected due to inclusion of inappropriate laws regarding post divorce maintenance
and financial support.
Alimony Under Hindu Marriage Act :
Recent Supreme Court decision in Savitaben case is very important. Here Supreme
Court denied to provide alimony to the wife because her marriage was void in the
eye of the law.
Various rights have been attributed to Hindu wife and husband on matrimonial
issues under the Hindu Marriage Act. Yet on few issues the rights of wife and
husband are different from each other but on many issues both the spouses stand
on equal footing. Right of alimony is also one of them.
Alimony means the allowances which husband or wife by court order pays to other
spouse for maintenance while they are separated or after they are divorced
(permanent alimony) or temporarily, pending a suit for divorce (pendente lite). The
principle is that one who is unable to maintain oneself, has a right to be maintained.
Alimony pendente lite :
The doctrine of pendente lite and permanent alimony is based on economic
tutelage of a spouse. It aims at administering justice and maintaining equilibrium
between the parties. The doctrine applies to both husband and wife equally. Law
has placed both the spouses on the same footing for this purpose.
Sec. 24 of Hindu Marriage Act, 1955 provides for the power of the court of ordering
alimony pendente lite in a pending proceeding for matrimonial relief. The liability is
on the person who initates the proceedings to maintain the opposite party during
the pendency of the proceedings if the opposite party is unable to maintain herself
and to meet the expenses of the proceedings.
In order of alimony pendente lite should be supported by reasons and the applicant
is to establish that he or she has no independent income sufficient for his or her
support and for necessary expenses of the proceeding.
Following are the considerations in granting maintenance pendente lite and cost of
litigation :
(i) whether applicant is being supported by an adulterer, and
(ii) whether the respondent has not sufficient means.
Thus, where the wife was prepared to go and live with the husband but the
husband did not wish to keep her with him on the ground of her inability of
consummate the marriage, the wife is entitled to maintenance.
Note that the petitioning spouse being maintained by his or her parents is no
ground to deprive the petitioner of his or her maintenance and expenses of
litigation. For considering the application for grant of interim maintenance, only
independent income of the petitioning spouse or the conduct of her is material.
The word sufficient connotes that the income of the applicant must be such which
would be sufficient for a normal person for his or her sustenance as well as to meet
the necessary expenses of the proceeding. So the fact that the wife sits in her
fathers shop and earns a paltry sum by knitting and by tuition is not relevant in
deciding the question of alimony pendente lite, neither the fact that the father of
the wife is suporting her nor her refusal to live with the husband could be any
ground for denial of maintenance under Sec. 24. Also, the question whether the
wife is guilty of desertion cannot be decided at the time of passing order of
maintenance pendente lite.
It is noticeable that Sec. 24 only refers to income and not other property. So in
case of alimony pendente lite other property of the spouses should not enter
judicial consideration. Therefore immovable property yielding no income cannot be
considered. Only the income out of it received by the applicant can enter judicial
consideration.
A husband who voluntarily incapacitates himself cannot be absolved of his liabiity
to maintain the wife. In Sousseau Mitra v. Chandana Mitra Case, the husband
graduate in science and a B.Ed. coming from respectable family and able bodied
capable of earning, contended that he was earlier working as a typist-cum-clerk
but had resigned and so was out of employment. The Court held that he couldnt
avoid his liability to maintain his wife and child by voluntarily incapaciting himself.
The Court can legitimately take into consideration his ability to earn a reasonable
amount.
The grant of such relief is not in any case dependent either on the merits of the
case or on the ultimate success of the main petition.
Quantum of Alimony pendents lite :
The preponderance of judicial opinion is that in respect of alimony pendente lite
under the Hindu Marriage Act there is no fixed formula for allowing maintenance
out of the income of the husband to the wife. In some cases 1/3rd of the income
of the husband has been allowed as maintenance to the wife and in some cases
one-half of the income. Maintenance for the wife is to be fixed keeping in view
all the facts and circumstances of each case.
The wife is entitled to have the same status as her husband. She must have the
necessary medical facility, food, clothing etc. while fixing the amount of
maintenance the Court should also take into consideration the inflation and cost
of living. Where the estimated income of the husband was Rs. 20,000 per month
alimony pendente lite to the tune of Rs. 5,000 per month was fixed by the
Supreme Court.
It is common knowledge that in maintenance cases parties rarely disclose their
actual income. It is, therefore, left to the Court to make an assessment by
taking various factors into consideration. One of the most significant guidelines
or factors is the status and lifestyle of the parties. In Radhika v. Vineet Pungta
case the wife in her application for interim maintenance admitted that she has
some nominal income from interest on deposits though she did not state the real
income. Accepting wifes appeal the Court observed : Experience. . . . . . . . .
dictates that where a decision has to be taken pertaining to the claim for
maintenance and the quantum to be granted, the safer and surer method to be
employed for coming to a reasonable conclusion is to look at status of the
parties since while income can be concealed, the status is palpably evident to all
concerned. If any opulent life style is enjoyed by warring spouses, he should not
be heard to complain or plead that he has only a meagre income.
Permanent Alimony :
Section 25 makes provisions for the grant of permanent alimony. The object of this
section is to treat both the husband and the wife on equal footing for the purpose
of financial assistance to be rendered permanently to the spouse who is poverty-
stricken without having any independent income of its own for maintenance and
support.
Grant of permanent alimony and maintenance is circumscribed by two conditions.
First, this grant will remain in force till the applicant remains unmarried and
pursues the chaste life. Secondly, this grant is the personal right of the applicant
and extinguishes with the death of the applicant.
This section differs from the provisions of another legislations on this issue to the
effect that under analogous laws permanent alimony is granted ONLY to the wife,
but this section recognizes this right for both the spouses alike following the legal
principle of equality before law. Though Section 25 does not use the expression
permanent alimony in any part of the enactment, the marginal note to the section
clearly shows that the section is intended to deal with permanent alimony.
The concept of permanent alimony is not an indigenous concept grown on the soil
and there was no law of divorce amongst Hindus in the country. But when the Act
was enacted providing inter alia for divorce amongst Hindus, the concept of
permanent alimony was borrowed by the draftsmen of the Act from England. In
England a wife is entitled to permanent alimony from the husband where a decree
is passed granting relief by way of judicial separation, divorce or nullity of
marriage. Whether the decree be passed in favour of the husband or the wife, the
wife can ask for permanent alimony from the husband.
The reason for awarding permanent alimony to the wife seems to be that if the
marriage bond which was at one time regarded as indissoluble is to be allowed to
be severed in larger interest of society, the same considerations of public interest

and social welfare also require that the wife should not be thrown on the street but
should be provided for in order that she may not be compelled to adopt a
disreputable way of life.
The right of permanent alimony is statutory right and as such it cannot be abridged
or taken away by any contract of the parties to that effect.
It is significant to note that the relief of permanent alimony is a relief incidental to
the granting of the substantive relief by the Court in the main proceeding. It is an
incidental relief claimed in the main proceeding, though an application is necessary
for claiming it. The application is an application in the main proceeding for claiming
an incidental relief consequent upon the granting of the substantive relief by the
Court.
The fact that the proceedings for grant of permanent alimony are incidental to the
main proceedings also lends support to this approach. Therefore an application
under Section 25(1) can be made even after the grant of a divorce decree. This
section has no application where a marriage is admittedly a nullity. But where the
question of nullity is in issue and is contentious, the Court has to proceed on the
assumption until contrary is proved that the wife is the applicant.
Section 25 differs from Section 18 of the Hindu Adoptions and Maintenance Act,
1956 :
Though section 25 confers power on the Court to order the permanent alimony
and maintenance but this power is discretionary and is exercised with reference
to certain well established principles.
On the other hand, Section 18 of the H.A.M.A. does not provide any such
discretionary power and as such the Court is to pass order under this section on
determination of question of facts and questions of law. Thus, no question of
judicial discretion is involved in this matter.
Section 25 does not deprive the wife of her right of maintenance even if the divorce
is granted on the ground of desertion on the part of the wife. The Court can also, in
appropriate cases, grant relief of maintenance to women from the estate of her
deceased husband even though it is found by the Court that the marriage was void.
Sub-section (1) of Section 25, apart from various other matters to be taken into
account, the Court is also to take into account the conduct of the parties when a
request is made for payment of alimony and maintenance.
Sub-section (2) provides for the Court varying, modifying or rescinding any order
already passed under sub-section (1) on being satisfied that there is a change in
the circumstances of either party at any time after the order was passed under
sub-section (1).
But there is another special provision contained in sub-section (3) making it
obligatory on the Court to cancel an order passed under sub-section (1), under
following circumstances :
(i) The party in whose favour maintenance is awarded has remarried.
(ii) If that party is the wife, that she has not remained chaste, and
(iii) If such party is the husband, that he had sexual intercourse with any women
outside wedlock.
The term any decree in section 25, cannot be construed to include every
decree. In Bhau Saheb v. Leelabai the issue involved was whether an order
dismissing a wifes petition seeking declaration that marriage was valid can come
under the return any decree. The Court considered some hypothetical situation to
indicate that the term any decree cannot be expanded or streched too liberally to
include any Court order.
A problem arising under Section 25(1) is of ascertaining the income and property of
the parties for fixing the quantum of alimony and maintenance. In practice the
difficulty comes in ascertaining the income and property of the respondent. The
applicant is not generally aware of or is not in possession of documents from which
the income of respondents can be ascertained. Such documents are accessible to
the respondent only. It is, therefore, suggested that matrimonial statutes
themselves should contain specific provisions which would make it obligatory on
the parties of maintenance proceeding to produce documents particularly Income-
tax Return.
Conclusion :
According to the Preamble of the Indian Constitution the dignity of the individual man
or woman be achieved with justice, liberty and equality. The dignity of the women is a
new human right recognized under Art. 21 of the Constitution. The right to live under
Art. 21 is not a mere life with dignity and worth. The justice includes economic justice
also. There is no period of limitation prescribed by the legislation for filing application
for maintenance. But it is the enforcement system provided by the legislature which
keeps the poor facing starvation in dark. All these should be balanced through
utilizing the following doctrines :
Delay defeats justice too.
Justice delayed justice denied.
Justice hurried justice buried.
If balance is maintained among these doctrines, the right to maintenance may be
protected in a proper way.
MODULE-4 QUESTIONS
Go To Contents
Discuss : Need for reforming the law, Alimony and maintenance as an ancillary relief.
ANSWER :

MODULE-4 QUESTIONS
Go To Contents
Discuss : Maintenance of divorced Muslim women under the Muslim Women

(Protection of Rights on Divorce) Act, 1986.
Discuss : Shah Banos case and Danial Litfi v. Union of Indias case.
ANSWER :
Refer to study note on subject 214K Legal Principles through Case Study.
MODULE-4 QUESTIONS
Go To Contents
Explain : Full blood, half blood and uterine blood relations. (Nov-2014)
ANSWER :
Full blood, half blood and uterine blood relations come in to play in following
circumstances :
assertaining degree of Prohibited relationship as per the Hindu Marriage Act, 1955
Hindu Succession Act, 1956
Illustration :
A(male) and B(female) are married, and they have C as their daughter and D as
son.
A remarries with E and further have their children F as daughter and G as son.
B(female) remarries to Z(male) and have children as K(daughter) and V(son).
FULL BLOOD: The persons who are related to each other by common parents(both
FATHER and MOTHER) are FULL BLOOD brother-sister.
C and D are full blood bro-sis, and
F and G are full blood bro-sis.
HALF BLOOD: when two persons have a common father between them but have 2
different mothers then they both are related to each other by HALF BLOOD.
C and F are HALF BLOOD SISTERS or HALF SISTERS as they both have a common
father A but two different mothers B and E.

D and G are both HALF BLOOD BROTHERS or HALF BROTHERS.
UTERINE BLOOD: When two persons have a common mother but have two different
fathers, they both are related to each other by UTERINE BLOOD.
C and K are UTERINE SISTERS as they both have a common mother but two
different father as A and Z.
D and V are UTERINE BROTHERS.
MODULE-4 QUESTIONS
Go To Contents
*** End-of-Compilation ***

Source : Public domain print/ internet contents.
URLs of some such resources are listed herein above.
Credits/ copyrights duly acknowledged.
Suggested Reading :
Paras Diwan, Law of Interstate and Testamentary Succession, Universal
Basu, N.D. Law of Succession, Universal
Kusern, Marriage and Divorce Law Manual, Universal
Machanda S. C. Law and Practice of Divorce in India, Universal
P.V. Kane, History of Dharmasastras Vol.2 Pl. 1 at 46:2
A. Kuppuswami (ed) Maynes Hindu Law and Usage Ch.4
B. Sivaramayys, Inequalities and the Law
K.C. Daiya, Population control through family planning in India Indian Journal of Legal
Studies,
J.D.M. Derrett, Hidnu Law Past and Present
J.D.M. Death of Marriage Law
A.A.A. Fyzee, Outline of Muhammadan Law, Alladi Kuppuswami, Maynes Hindu Law and
Usage J.D.M. Derret, A Critique of Modern Hindu Law
Paras Diwan, Hindu Law

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Rakshitah/ Page- 1 of 126

LL.B. Semester - III

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Act, 1935. (Oct-2013)

Nature of Family Law :

Explain in detail the sources of various family laws in India. (Dec-2015)

Explain : Jurisdiction / application of personal laws :

In this context sometimes it becomes difficult to define who is a Hindu, Muslim,

Mohammed is Moslem and is subject to Musalman law.

vs A Asghar Ali AIR 1932.

of 10 yrs or until death of someone is invalid.

2. Dedication must be absolute and unconditional.

which contained a direction that until payment of specified debt by him, no

A wakf created inter vivos is irrevocable. If the wakif puts a condition of

Explain : Mutawalli (Nov-2011, Nov-2012)

has to act as Khatib.

usufructs of the property. He has the following rights -

removed by the wakif. However, a mutawalli can be removed in the following

Explain in detail : Ijamma. (Oct-2013)

Act, 1935. (Oct-2013)

marriages solemnized after the commencement of HINDU MARREAGE ACT,

(iii) Consent of party is must. A marriage of a Mahomedan who is of sound mind

(b) Marriage with fifth wife.

(2) Dower should be fixed.

Marriage is a religious duty of every Muslim and it is considered to be a moral

performed by a Minister or Priest in a church. After the marriage is performed the

other spouse at the time of marriage.

complete the age of 18 years obviously, the concerned provision is abolished.

Note : There appears to be controversy amongst various High Courts as to

Discuss in detail : Maitri Sambandh (Live in Relationship) and divided home.

Discuss : State Regulations over customary practices like Polygamy, Concubine,

Discuss : Guardianship in Marriage (Jabar).

Explain in detail : Options of Puberty. (Oct-2013)

paternal grandfather. This is called the option of puberty. In other words,

Module-3) MATRIMONIAL DISPUTES AND REMEDIES :

Discuss : Restitution of conjugal rights under various family laws.

Abuse of the provision for restitution of conjugal rights :

Discuss : Judicial Separation under various family laws.

what grounds Judicial separation can be obtained. (Nov-2011)

it before attaining 18 years.

the part of other and

Persistent refusal to have sexual intercourse.

Discuss following modes of Dissolution of Marriage : (i) Customary dissolution of

Discuss : Irretrievably breakdown Theory for granting divorce and Judicial

Sunni - Only two requirements - Sound mind, attained majority. A Talaq

they are weaned.

Types (kinds) of Talaq :

Ahasan (Most Proper)

It is a disapproved and sinful form of Talaq. It was introduced by Ommeyyads

Zihar - Injurious Assimilation -

reasonable and are not opposed to public policy.

Provisions of Muslim Marriage Dissolution Act 1939 :

Divorce under Parsi Law :

e. Suffering from venereal disease in communicable form.

appear to be in a state of mourning, so that her social circles do not get a

2. Mahar (Mahr / Dower) :

his son's dower.

Sunni Law Shia Law

1 Minimum of 10 dhirams for specified No minimum limit.

2 No maximum limit for proper or Dower above 500 dhirams

3 If dower was not decided or marriage Dower shall be payable only

4 An agreement that no dower shall be Such an agreement by sane

5 In absence of a contract, only a Whole of dower is

* End-of-Compilation *