FAMILY LAW- I

26.07.21
- Basic course outline discussion
Bas. khatam. Period. The end.

- Continuous Evaluation
1. Case note
2. book/article review
3. Documentary

28.07.21
Broad areas of research (choose only a topic based on Family Law I)
1. Age of marriage under hindu laws/muslim law/ personal law
2. Consent under hindu laws/muslim law/ personal law.
3. Monogamy
4. Fraud
5. Judicial pronouncements - eg. SC on Hindu marriage
6. Bigamy under hindu laws/muslim law/ personal law/judicial pronouncements
7. Sc on bigamy v. monogamy
8. Marriage under special marriage act
9. Child marriage - judgmetns/inconsistency w personal laws
10. SC on special marriage act
11. Restitution conjugal rights
12. Divorce/ grounds for divorce
13. Pre marriage pregnancy
14. Maintenance

30.07.21-
 MODULE I: INTRODUCTION TO FAMILY LAW

What is Family Law?

● Laws related to the very personal aspects of a human being. Hence it is also known as
‘Personal Laws’. It is applicable to family matters with certain limits and to a certain
degree.
● Proper definition- A branch of civil law, which regulates personal matters of an
individual and the people associated closely with them.
Ex- Marriage, Divorce, Adoption. Inheritance, etc.

Application of Uniform Civil Code in India-

● Uniform Civil Code (Hereinafter UCC) is provided in the Constitution of India under
Article 44. It should also be noted that the Constitution provides for freedom of religion.
● In India, we have a multi religious community. Therefore, application of the UCC would
be extremely difficult. It has been practically impossible owing to religious complexities.
● The demand for UCC can be traced back to the period after Independence. It was brought
into debate by Pandit Nehru during the passing of Hindu Code Bill.
● The Supreme Court of India, has said time and again that it is high time for the UCC to
be implemented in India ( Mohd. Ahmed Khan v. Shah Bano Begum; Sarla Mudgal v.
Union of India, among many other cases).
● In Sarla Mudgal v. Union of India, the issue before the SC was conversion for the sole
purpose of marriage. Hindu men converted to Islam to marry again as bigamy is prohibited
under the Hindu Marriage Act and IPC. SC opined that Islamic principles cannot be
misused (Gyan: Sources of Islamic Law are very relevant even today). The Court was of
the opinion that UCC paved the way for National Integration and Consolidation and hence
it encouraged the implementation of UCC.
● Conflict and Inconsistency are the barriers for the implementation of UCC. Ex- Hindu
marriage act governs marriage between Hindus only, same goes for the marriages in other
religions.
 Inconsistency between provision of the Prohibition of Child Marriage Act and the practice
of marriage among muslims as soon as puberty is attained (SAFFRON, please clarify this).
● Hence, it can be concluded that personal Laws are not of general application. They are
applicable to family matters with certain limits and to a certain degree.
Ex- Waqf Act→ For management of property. But the basic principles will still be

based on the sources of Muslim Laws (SAFFRON, CLARIFY)

Constitution of the Indian Society based on Religion-

● Consists of Hindu, Muslim, Christian, Parsis, Jews.
● What about Sikhs, Jains and Buddhists? They are considered as Hindu by the Law.
● Who is a Hindu? → Any person who is Hindu by religion in any of its forms, by birth

or conversion. This includes Jains, Buddhists and Sikhs. Section 2 of any Hindu related

Statute provides for this. → Why? Art 25 Exp. 2 also contains this understanding but also
displays an understanding that they are separate religions, but clubbed because they are
substantially similar; they have all originated in the same subcontinent. (she mentioned a
case but not in full, just said ‘Kaur’).

Regulatory Regime-
● For Hindus-
1. Hindu Marriage Act, 1955
2. Hindu Adoption and Maintenance Act, 1956
3. The Hindu Minority and Guardianship Act, 1956
● For Muslims-
1. The Muslim Personal Law (Shariat) Application Act, 1937
2. The Dissolution of Muslim Marriage Act, 1939
3. Muslim Women (Protection of Rights on Divorce) Act, 1986
4. The Muslim Women (Protection of Rights on Marriage) Act, 2019
● For Christians-
1. The Indian Christian Marriage Act, 1872
2. The Indian Divorce Act, 1869
 ● For Parsis-
1. The Parsi Marriage and Divorce Act, 1936
● Other Legislations (Secular)-
1. The Special Marriages Act, 1954
2. The Indian Succession Act, 1925
3. The Guardians and Wards Act, 1890
4. Juvenile Justice Act, 2015
5. The Prohibition of Child Marriage Act, 2006

Succession and Adoption for Christians and Parsis: Special Marriage Act in Family Law II (idk
how)

HINDU LAW

I. Sources

1. Ancient Sources: Shrutis (vedas and stuff), smritis, digests, commentaries,

customs [Legal History throwback woohoo]
2. Modern Sources (more important): Judicial decisions, legislations (most imp, has
even overtaken ancient sources), justice, equity & good conscience

● Section 4 HMA states that customs prevalent before the Act are not valid, but still imp as
it has led to development of Hindu law
● Modern Sources:
a) Judicial decisions develop new principles: Right of daughter in HUF, 2005
Amendment, constructive cruelty brings mental cruelty into the ambit and has
broadened the concept
Eg. Dastane v. Dastane (1975) -- test developed to identify whether certain conduct
amounts to cruelty
b) Legislation - codification of the grounds for dissolution + given rights to both
parties to dissolve marriage and given importance to consent in dissolution (more
 power to women than customs essentially) -- this source is important to ensure
dynamic law. Static law is problematic and hence codification and amendment of
it is important (ex: divorce incorporated in Hindu law, then mutual consent
developed etc). While a major chunk of Hindu Law has been codified, the Joint
Family system is still governed by Mitakshara and Dayabhaga Schools of Hindu
law.
c) Justice, Equity & Good Conscience: Yukti, Dharma already play an important

role → in Ancient law, smritikars said:

- Any decision w/o these elements is not a correct decision
- In a conflict between laws, the more just one should prevail
- In colonial interpretations, it is v narrow (Court of Conscience) → you need to

fit a certain writ to get a judgement, mismatched idea of damages as

compensation instead of specific performance or injunction blah blah blah

- We have equity but it is codified in the law, if there is a conflict b/w law and
equity, the law will prevail (modern context).
- Equity can only be used if there is no law on that point.
- Note the diff b/w ancient and modern importance of equity.
● Ancient Sources:
a) Shrutis: Heard from god and has been passed down from generations

(Shru=hearing, hence word of god): 4 Vedas, Upanishads and Vedangas → most

primary and paramount source as all other sources are based on them

b) Smritis: Human origin which have been remembered by Rishis which have

been handed down, other than Vedic principles they incorporate prevailing

customs and usages hence more exhaustive → two parts: Dharma Sutras (First)

and Dharma Shastras (Second)

- Dharma Sutras are prose (Gautama, Vashista)
- Dharma Shastras are poetry (Manu, Yajnavalkya, Narada)
c) Commentaries: Based on a particular Smriti and region based appraisal of local
customs, ex: Mitakshara
 d) Digests: More like a compilation, ex: Dayabhaga (check her slides for names of
principle digests and commentaries w/ authors)
e) Customs: Earlier a lot of customary practices were prevalent. When the law was
not codified, custom was the most significant source. Legislation gave an
overriding effect to the customs. Various smritikaras gave custom the highest
priority.
Narad in Narada smriti - Customs decide everything and overrule sacred law.
Yajnavalkya, Manusmirti, brihaspati etc. gave a lot of importance to customs. They
believed that what is accepted by the people is important.
Brihaspati - suppression of custom will give rise to resentments.
➢ Customs and Hindu Marriage Act, 1955
- Section 3(a) - Definition of Custom
- Section 4(a) - overriding effect of the Act. Basically reduced the significance of
customs.
- Section 5 & 7 - Recognition of customs. Eg. Saptapadi
- Section 7 - Ceremonies. Hindu marriage may be solemnized by customary
practices or rituals of either of the parties. If one of the practices is about saptapadi,
then marriage is said to be completed after saptapadi.
(During her marriage, one pandit said 5 steps and another said 7 steps. She took 7
steps)
- Section 5 - Essentials of a valid marriage. Most Imp section.

Essentials - NO Bigamy, Consent should be there, Age 18 and 21, Prohibited degree of relation -
void Section.11,

Essentials of custom
06.08.2021

II. Schools of Hindu Law

● Not a very significant topic for our course, it’s more imp for Fam Law II
● It’s more related to uncodified, traditional Hindu Law
● Remember: She will not ask any question from this topic
● There are two schools: Mitakshara (commentary) and Dayabhaga (digest)
● These two are the most prominent and accepted schools
● Succession , etc, based on either of these two
● In India, Mitakshara is followed mainly except in Bengal and Assam where Dayabhaga is
followed.

Why and What we should know about the schools

Mitakshara

● There is not much difference in these sub schools because Mitakshara is the authority.
Dayabhaga

● It’s a more dynamic, progressive and refined school than Mitakshara as it not only
recognised agnates(males) but also cognates(females) unlike Mitakshara
Basic difference between them

Joint Property
● Mitakshara
- By Birth (till 4th generation): gives right to ancestral property by birth only, and it
passed by survivorship. So, as a son takes birth, he gets the right. If a person dies,
his interest will be divided among other survivors, i.e. the interest in prop of other
survivors will increase. This is the meaning of interest passing by survivorship
- This changes in the 2005 amendment. Two changes: 1) daughters will also have
rights. 2) If one son died, instead of his interest getting divided by others, his
interest. Share will be devolved as per Hindu Succession Act. (i.e in the manner
of a self acquired property, class succession of property)
● Dayabhaga
- By death: Right is given by death of the owner and not by birth of successor.
- If father is alive, he has exclusive and absolute right on his property, that property
is his prerogative and he can do whatever he wants to the property (sell off,
dispose, etc)
- Only after his death the property will fall down to his heirs.

Relevance
 ● How to divide property, succession: Hindu Succession Act primarily deals with self
acquired properties not ancestral properties. That is why these schools are still important
wrt succession of ancestral properties.

MODULE 2: CONCEPT OF MARRIAGE

Ancient Perspective of Marriage

● Rig Veda: Marriage is an essential sanskar. ‘Vivaah’ is an important sanskar (sacrament)

for Hindus. Under traditional Hindu system, marriage has a religious character. There are
many yagnas or rituals which a man alone cannot perform unless they are married. Only
husband and wife can perform them.
● Manusmriti: Wife is the better half of the husband. Many rituals cannot be performed
without her.
● Shatapatha: Man is incomplete until he marries as marriage is an important sankar.
● Shastras: Husband and wife are considered so important for performance of certain
aspects and leading a complete life.
 ● Conclusion: Marriage has been a sacrament for Hindus, not a contract. It’s a permanent
union. Courts have held marriages to be sacrosanct, and cannot be seen as
agreements/contracts/arrangements.
● Even the Hindu Marriage Act recognises some religious rites and ceremonies for a valid
hindu marriage. Thus it’s a sacrament.
● Three major ancient perspectives of Hindu Law on Marriage:
- 1) It was considered as a permanent union, something which cannot be dissolved.
Under Shastric law, it was said marriage cannot come to an end. Manu also said
the same:

- 2) It was also considered an eternal union: As per traditional Hindu Law, this
union extends to a series of births.
- 3) It is considered as a holy union. It was an important sanskar for Hindus and
certain yagnas in life could not be performed without getting married. That’s why
Manu discouraged remarriage of women after the death of their husbands.
Because it’s an ‘eternal union’.
● Before, spouses had to be of the same varna, and cannot be from the same ‘gotra’ because
that means they originated from the same ancestral rishi.
● Degrees of prohibited relationship implemented now also.

Modern Perspective (Changing perspective)

● 1856: Hindu Women Remarriage Act introduced. The concept of ‘eternal union’ became
less accepted with time. Remarriage became accepted and practiced also.
 ● 1955: Section 13, Hindu Marriage Act- grounds for dissolution of marriage (adultery,
etc.). Dissolution of marriage was recognised. Argument against the concept of
permanent union.
● However, it’s still considered a Holy Union.

1976 Amendments
● Section 13b: mutual consent introduced as a ground for dissolving marriage. Another
argument against the notion of ‘permanent union’ (before based on guilt theory).
● Not considered completely pure, some elements of a contract are present.
● Debate started: whether marriage is a sacrament or has become more of a contract.
● Arguments AGAINST contractual nature -
- AGE: As far as a contract is concerned, it’s important that parties should be
major. However, as per HMA, it can be valid. Only when read with other sections
it makes marriage voidable. HMA brought statutory mandates under section 5 for
calling marriage a valid one. One of them is age- 18 (g) and 21 (b). However, it
does not talk about the consequences of a child marriage (what happens when
they are below age?). Prohibition of Child Marriage Act says that it is voidable.
So you can argue that marriage is still a sacrament and age doesn’t play such an
important role.
● Arguments FOR contractual nature
- AGE: Section 12 of PCMA- makes child marriage void ab initio in certain cases.
- FREE CONSENT: For contract, consent should be free. Even section 5 says free
consents should be there. But what if consent wasn’t free? It nowhere mentions
what will happen then. In fact, consent earlier hardly used to play any role. It has
become important after codification. It’s a step towards marriage being a contract
as well.
● You can say marriage is no more a pure sacrament (considered the source to attain
moksha) and has a resemblance to a contract also.
● Hampered consent results in a voidable marriage
● Hindu marriage is a holy union, even if it is not an eternal union:
●
● Courts have allowed certain remedies like restitution of conjugal rights (s. 9), judicial

separation, dissolution, etc if a spouse does not perform their matrimonial duties →

notion of sacrament doesn’t fit now.

 ●
● Marriage is valid as long as you comply with Sections 5 and 7.
● Section 25 gives provisions for maintenance.
● If the Court deems it may grant judicial separation u/s 10 (opportunity to see if there is
possibility of reconciliation but they can live separately) instead of divorce u/s 13 → the

grounds for JS & divorce are the same after 1976.

● The ground for adultery was liberalised. Before, the continuous act of adultery needed to
be proved and obvs that is a huuuuge burden so later they realised that even a single
breach of trust and confidence can constitute a ground for dissolution of marriage
● Insanity also became more liberal and the standard is “if they cannot be lived with”.
● Venereal diseases of communicable nature: gravity as opposed to duration as a ground
for divorce. [Leprosy is no longer a ground for divorce though. Check for examples]

Section 5 of HMA

● Conditions for a valid Hindu marriage:

- “May” be solemnized b/w “any 2 Hindus”: Arguments on what it means
 a) One argument is that the parties need not both necessarily be Hindus

→ ‘may’ in a literal sense so inter-religious marriage is valid

b) Do not read in isolation, r/w totality of S.5 → marriage may be

solemnised if the following conditions are fulfilled (sub sections),

includes any 2 Hindus is obligatory, ‘may’ is for the validity of

marriage part only [THIS IS THE CORRECT ONE, NO DISPUTE

ANYMORE]
- Monogamy (neither has a living spouse at the time of marriage) → S.11

- Consent (soundness of mind, mental disorder making them mentally unfit for

procreation, recurrent attacks of insanity) → this will be voidable → S.12

- Age of Marriage: No mention of validity status :) → PCMA states it is

voidable
- Prohibited degree: Beyond means it is void u/s 11 unless customs or usages say
otherwise
- Sapinda relationship: Beyond means it is void u/s 11 unless customs or usages say
otherwise
● Is it necessary that both the parties should be hindu for a valid marriage? (Use of
the word “May” in Section 5)

- FACTS: Roman Catholic Christian man married Hindu Woman in a Hindu

temple by exchange of thali. Parties registered their marriage under S.8 of HMA.
Within 1 year, the wife filed a petition under S12(1)(c) of HMA (annulment of
marriage). The ground for her petition was misrepresentation and fraud by
husband regarding his social status and religion. According to her, he had said
 that he was a Hindu, but later she got to know that his entire family was Christian.
The petition was dismissed by the Family Court so an appeal was preferred to
HC.
- HC: The HC said that this marriage was void ab initio because marriage between
Hindu and non-hindu was not valid under HMA. Husband appealed before SC.
- Issue before SC: whether marriage between Hindu and Christian was valid under
S.5 of HMA
- Contention of Husband: The word “may” under S.5 has been used such that it
reasonably appears to be optional. He says that the opening statement of S.5 uses
“may” which makes it not mandatory or obligatory. His argument was that since
HMA permits this kind of marriage, this marriage can’t be declared void.
- Wife’s contention: Section 5 has to be read in total. In order to understand the
correct meaning, we not only have to take entire section 5 into consideration, we
have to refer to the preamble of HMA. The Preamble of HMA very expressly says
“Act to amend and codify law relating to marriage among Hindus”.
- SC: Reading section 5 in isolation would give a wrong interpretation to the use of
the word “may”. There is no option given in this context, it is mandatory. The
purpose was to codify law among Hindus. If essential requirements under S.5 are
not met, then the validity of marriage can be challenged. The court expressly said
we need to look at the law as a whole. Under a holistic understanding of the law,
when it comes to marriage under HMA, it is important that both the parties should
be hindus. A marriage otherwise solemnised between a hindu and non-hindu, such
marriage is dealt with by the Special Marriage Act, not the Hindu Marriage Act.
- Court also said registration under S.8 does not cure an invalid marriage of its
defects. If you have registered, it doesn’t mean it becomes a valid marriage.
- This is a landmark judgement
● Law on the Application of HMA
 -

-
● Whether the conduct is important to decide if the person has converted?

- FACTS: Wife approached the family court of Bombay for judicial separation
under S.10 of HMA on the ground of cruelty and ill-treatment by the husband.
Husband filed a matrimonial suit for declaring that their marriage (solemnised in
1980s) was null and void because at that point of time, the wife was a christian
and had not converted herself. Also, Husband had an ex-wife and kids from his
first marriage which was dissolved long back and after that he had married this
christian lady according to Hindu rites and ceremonies. The same day, they went
to a church and performed a church wedding.
- Husband: Interpretation of “may” was not in question as it was well settled that
HMA applied to Hindus only. So no relief should be granted to the wife as the
marriage itself was void under the Hindu Law.
 - Wife: The marriage was solemnised under Hindu rites. From the first day of the
marriage she had fully accepted the Hindu religion, she performed Pujas and
Hindu rituals, went to temples, she did everything as a Hindu wife. Though there
was no formal conversion, her conduct was enough to indicate that she had
accepted Hindu religion. (Many witnesses testified to this)
- Issue before HC:
- Bom HC: In the absence of ceremony, you cannot say that the person has not
converted to a Hindu. What is important is the bona fide intention of the person.
If s/he has bona fide accepted the religion, his/her conduct is enough to indicate
that s/he has converted to a Hindu.
- The court also relied on Perumal Nadar case. (similar facts- wife was christian-
had not formally converted- HMA not applicable to her). The court in this case
said that in the absence of any conversion ceremony, the conduct and bona fide
intention of the person are sufficient to indicate whether the person has effectively
converted to the Hindu faith.

First Condition of S5: Monogamy

● First essential requirement for a valid marriage is that no subsisting marriage of either party
should be there.
● S.5(1) provides for the rule pertaining to monogamy. Those two Hindus getting married
under the HMA, cannot perform a marriage if they are already married. If they breach this
provision, consequence is given under Section 11 read with Section 17 of HMA.
● If the second marriage is bigamous, that marriage will be void. (Section 11)
● Three essential requirements under Section 11.
● For bringing a case under bigamy, it is essential to prove that the first marriage was a valid
marriage under HMA and with ceremonies and customs. Similarly, a second marriage
should have been performed under Hindu ceremonies and customs. The court will ask for
additional evidence to reach a concrete conclusion.
● Section 17 deals with punishment for bigamy: Any marriage between two Hindus
solemnised after the commencement of HMA is void if at the date of such marriage, either
party had a spouse living. Under such circumstances, Section 494 and 495 of IPC will be
applied.
● When a second marriage is allowed: death of first spouse, or divorce.

Landmark case: Anurag Mittal v. Shaily Mittal (2018)

❖ FACTS: Anurag Mittal married Rachna Aggarwal under HMA. Rachna approached
the court for dissolution of marriage under Section 13 on grounds of cruelty. Anurag
also filed for restitution of conjugal rights. Court accepted rachna’s petition. Anurag
filed an appeal against the decree before HC. During the pendency of the appeal,
Anurag and Rachna reached a settlement whereby Anurag agreed that he would
withdraw the appeal and accept decree of dissolution and subsequently withdrew. HC
 dismissed the appeal (around 20th Dec’11) based on the withdrawal. Before HC could
dismiss the appeal, on 6th Dec, Anurag married Shaily. Even the second marriage
could not survive and Shaily approached the family court to declare her marriage with
Anurag null and void as they had married during the pendency of that appeal.
❖ Shaily: Marriage happened during the pendency of an appeal that was filed to
challenge the decree of divorce by the family court. The appeal was not dismissed
when they married. So their marriage was null and void.
❖ LAW: Sections 5, 7, 11; Section 15 of HMA: when can divorced person remarry?
Crux of Section 15- when marriage has been ended by decree of divorce, and all
remedies (like appeal) have been exhausted, a person can remarry. If an appeal has
been preferred, the person has to wait till the final decision on that appeal has been
given. If the right to appeal was there but was not availed, the person has to wait for 90
days (Section 23 of HM -Amendment).
❖ SC: applied the purposive interpretation rule. The very purpose of Section 15 is to
protect the person who has appealed against the divorce. If the person himself/ herself
has remarried and filed a withdrawal application, his/her intention is very clear that
s/he has accepted the divorce. Thus there is no problem with his second marriage.
● If the First marriage is VOID for various reasons u/ s 11 then second marriage not void
● If the First marriage is VOIDABLE u/ S. 12 - the second marriage is valid if the annulment
of the first marriage has not been filed.

● Section 108 of Evidence Act- presumption of death. Under such circumstances, if due to
strong presumption of death, a person is marrying after 7 years, the second marriage is valid.
● Muslim men remarrying and having many wives is an exception not a rule. It’s a
misconception among us that under Quran it has been allowed to every Muslim Man. The
Prophet has expressly mentioned that a man may have more wives only if he is in a position
to treat them equally and give equal love and respect. Otherwise, prefer one wife. This is
how it’s written in the Quran. It is not a very common practice. This has also been misused a
lot. Hindu males have converted themselves just to marry again and have multiple wives.
● The SC in Sarla Mudgal v UOI dealt with this issue.
- 3 issues in this case (check ss above)
- LAW: Generally when it comes to issues of marriage among Muslims, they are regulated
by Sharia Law (Shariat Act in India)
●
● For all matters expressly mentioned under Section 2, Shariat Act, this Act will be
applicable.

18.08.2021
Sarla Mudgal v. UOI
3 main petitions in Sarla Mudgal case
Law in the second issue means hindu law.

Under the 3rd issue - hindu law section 5, if it is a bigamous marriage - it will be void. If the first
marriage is concealed then he‘ll be liable under section 494 ipc. This 494 ipc is not applicable to
muslim law. Their personal law will apply under section 2 of muslim personal marriage act.

2nd issue - first marriage was performed and is in subsistence, then after conversion the second
marriage will be considered valid bcz then islam allows 2 wives. Conversion ipso facto does not
dissolve marriage. It may become the ground for dissolution.

SC said that the sanctity of marriage should be preserved. It is a sacred institution. Therefore you
cannot allow any person of any religion to exploit the sanctity of any other religion. The biggest
role to prevent this sanctity can be done by implementing Uniform civil code.

SC also said that unless they don't implement UCC, there is an open inducement to Hindu
husbands who want to enter into a second marriage by conversion. Conversion under s 13 is
ground for dissolution.

Imp:
227th LAW commision Report reviewed the Sarla Mudgal case and the Lily thomas case in
2000.
A lot of recommendations were given. Jobless people. 2 important aspects - a new section under
the HMA, after s17 s17(a) should be inserted. It should specifically be inserted to give effect to
propositions under hindu marriage. If a person remarries after conversion without dissolving the
first marriage then the other marriage will be considered null and void, and liability under s494
ipc will be applicable. But this is a compoundable offence.

Lily Thomas Case

Important but she said she will not discuss bcz it is similar to Sarla mudgal case

SECTION 5(2)
Please read this section very very very carefully. She said.
At the time of the marriage, if either party
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of
such a kind or to such an extent as to be unfit for marriage and the procreation of children;
or
(c) has been subject to recurrent attacks of insanity

Such marriages are voidable in nature. At the time of marriage if such conditions arrive
s12 will apply and After marriage if unsoundness of mind or some condition like this
occurs s13 will apply.

ALKA SHARMA V ABHINESH SHARMA

FACTS - married for 10-20 days only as a couple, which were separated over time-- and
wife started behaving weirdly - husband called psychiatrist - psychiatrist said that the wife
was suffering from schizophrenia for a long time. Other in-laws also concurred that Alka
had some mental disorder. So at the time of the marriage she was suffering with mental
 disorder so husband filed under s5(2), r/w s12(1)(b) and (c) for annulment of Hindu
Marriage Act, before the District Court.

23.08.2021
Section 12 has to be read with Section 5-- ancillary provisions to understand the full
scope. The husband under S. 12(c) claimed that he had been defrauded, since material
information concerning the partner was not disclosed. The fact that Alka was being
treated for Schizophrenia was known to the matchmaker [intermediary] also, but was not
disclosed. He said that Alka did not comprehend the relation of marriage, did not show
any concern or understanding of the relationship and the family.
This is an appeal filed by the wife, Alka Sharma, under S. 28 of the HMA, before the HC.

Appellant’s Contention: -
She denied all the claims, including those of schizophrenia. She claimed that S. 5(2) has
to be interpreted differently. She claimed that to get a decree of annulment, two conditions
must be met: 1. Unfit for marriage, AND 2. Unable to procreate. These conditions are
injunctive, since the word “and” is used in Section 5(2). Since she can procreate, she does
not fall under S. 5(2).

Respondent’s Contention: -
The counsel pleaded that the intention of the legislature must have been to read the “and”,
as actually an “or”, thus either condition would disqualify the person from marriage.

High Court held: - objective/intention

The Appellants' contentions were set aside, since that interpretation would lead to
unreasonable results. If a person is mentally unwell, but can procreate, it does not make
them fit for marriage. Because procreation is not just birth, but also care, nurture and love
for children, which cannot be ensured by a mentally unwell person.
 Moreover, if a person is only unable to procreate, it does not disqualify them from
marriage. They can still enter into a marriage. Thus keeping in mind the intention and
objective of the legislation, it was held that the "and" must be read as an "or".

Note:- Section 12(c) is much broader in scope than Section 12(b).

Also, burden of proof under S. 12 is on the claimant. The presumption is always that a person
is fit for marriage, unless proved otherwise.

Section 5, 12, and Section 13--

There is no clear definition of mental illness. Prior to 1976, the definition was extremely
narrow, having only lunacy or idiocy as the meaning.
Post 1976 judgement (dunno which one), the meaning was taken much broader.

Section 5 r/w 12-- allows for dissolution for conditions which prevailed before marriage.
Section 13-- Is for dissolution for unsoundness of mind developed after the marriage has
taken place as well.
Also, in case of impotent persons, their partners can get an annulment.

CHILD MARRIAGE
Is when the male is less than 21 years, and the female is below 18 years of age.

Consequences of Child Marriage under HMA: -

Section 5(3)- provides minimum age limits for marriage (18 for girls, 21 for boys) by the 1978
amendment from (15, and 18).

Section 13(2)(iv) r/w Section 5(3), in a way recognises child marriage. No clarity on the nature
of the marriage. 27% in India. A female can repudiate her marriage before she turns a major u/s
13(2)(iv). Thus, it recognises the marriage by providing a ground to annul the marriage.

25.08.2021
Child Marriage Restraint Act 1929
● First legislation in India to talk about the need to restrain child marriage.
● Female 15 years; Males 18 years
● 1978 Amendment - Female 18 years; Males 21 years
● It did not provide for consequences of marriage below this age limit.
● It didn’t even mention whether child marriage was void/ voidable (nature of child marriage)
● NHRC and NCW gave recommendations as to the nature of child marriage and the
consequences thereof. Accordingly, this act was repealed.

PROHIBITION OF CHILD MARRIAGE ACT, 2006

● Discusses the nature of child marriage considering different circumstances.
● Rigorous imprisonment of upto 2 years in case of child marriage.
● Section 3 - child marriage is voidable. Only the child can file a petition under this section.

Section 18 of HMA - in case of child marriage, simple imprisonment upto 2 years to be line with
the Prohibition of Child Marriage Act.

Definitions:
1. Child - a person, if male, has not completed 21 years and if female, has not completed 18
years.
2. Minor - Not to be taken from the Majority Act. Refers to the capacity of a person wrt
marriage.
3. Child Marriage - Do not mix concepts of child/minor with the Majority Act, 1875.

The word ‘Prohibition’ is not a narrow word. It includes three things within it: (1) Prevention, (2)
Protection and (3) Prosecution.

Overview of the Prohibition of Child Marriage Act in 3 categories:

1. Prevention
● S. 15: child marriage is a cognizable and a non-bailable offense.
 ● S. 16: Appointment of child marriage prohibition officers in every state (1) to
prevent child marriage and (2) to ensure protection is to be given to the victims of
child marriage.
● S. 13: Power of injunction given to magistrate to prevent child marriage.
● S. 14: Any marriage carried out in contravention of such an injunction order is void
ab initio. Other than this, child marriage is voidable as per S. 3.
● S. 12: Circumstances where child marriage shal be considered nul and void (void
ab initio (eg. minor is taken away from the lawful guardians, or marriage has been
undertaken by deceit, or child was sold for child marriage, etc.).
● S. 10 and 11: Punishments/ penalties for adults enabling the marriage - eg. parents,
priests, etc.
● S. 9: Punishment for male adult marrying a child. (no provision for cases where
women marry a child)
2. Protection
● Gives power to the child to end the marriage. In the HMA, only a girl is given this
option; however, in this Act, both are given this power.
● Maintenance of the female contracting party. Includes provision of residence to the
female child until she remarries. If the male is a minor then the guardian of the male
minor has to follow through - needs of the female child, income levels of the male/
guardian of male, etc. are the kinds of factors that are taken into consideration while
deciding the maintenance amount.
● S. 6: Legal status to children born of child marriage. They are considered to be
legitimate children.
● Child marriage prohibition officers - legal aid to victims of child marriage, provide
care and protection, etc. (s. 16)
3. Prosecution
● S. 9: Punishment to an adult male above 18 who marries a child [Recent SC case
where purposive construction was used]
● S.10: Punishment for performing, directing, abetting, conducting child marriage
 ● S.11: Child contracts a child marriage, any person having charge of that child can
be punished (parent, guardian, institution) (women are not punishable by
imprisonment in this case).
● S.13: Kidnapping, abduction or through force
● Punishment for those who conduct the child marriage, aid and abetment of

child marriage. Includes punishment for permitting or promoting child

marriage for up to 2 years of imprisonment → Dist. Magistrate, etc are given

powers under the Act to use special powers when given information about

solemnization of child marriage → they can issue an injunction and whoever

disobeys and performs child marriage, they can be punished u/ss 11 and 13, no

woman can be punished under them → marriages u/ this is void ab initio

● S.16: Authorities

Section 3 PCMA
● One of the most important provisions in this Act.
 ● Only the contracting party can file a petition - if the petitioner is a minor, the guardian of
such a contracting party shall file the petition.
● Can be filed before a district court or a family court if one exists.
● Limitation period - May be filed at any time when s/he is a child and up to 2 years after
attaining majority. Therefore, a female can file until she turns 20 and a male can file until
he turns 23.
● Consequence - voidable. Void ab initio for specific circumstances [Ref. Ss. 12 and 14.
Above].

She wants us to read the legislation; she will discuss it sort of briefly only.

Sections 4 and 5: Maintenance & Custody of Child (Female Contracting Party):

- S.4: Male contracting party may be directed to give maintenance or make provisions for
the female party’s residence until her remarriage.
- S. 5: If there is a child born, the court should make an appropriate order, fundamental
principle should be “the best interest of the child.”

Section 6: Legitimacy of the Child:

Even if the child marriage is anulled, the child born out of the marriage will be considered
legitimate.

Section 9: Punishment for Male Adult Marrying a Child

- if above 18 years of age, punishable w/ rigorous imp for 2 years or fine for 1 lakhs) →

here adult is in context of Majority Act, not PCMA Act

Hardev Singh v. Harpreet Kaur, (2019) SC:

- Dude married a girl, the guy was 17 and the girl was 18 so she was a major
- HC held that FIR under section 9 should be filed
- SC held that grave error on the face of the record that the boy was a minor so Section 9
cannot be applied since there is no provision to punish the girl.
- Even if you read the marginal heading you cannot arrive at such a conclusion.
 - Assuming the boy is b/w 18-21, section 9 is not applicable → purposive interpretation.
- What is the reason for this conclusion: Gender plays an important role in India, people take
girls as a burden and don’t give good quality of life and the act was enacted in order to
protect the girl.

The PCMA is contradictory to many personal laws and there are a lot of challenges in Courts.

Anyway, the ground reality is different and the Act has not been very effective since parents

themselves fix these marriages and children think it is right → lack of awareness makes the

limitation period ineffective.

205th LCR: Where the child is less than 16 it should be made void ab initio but the provisions
regarding maintenance, custody, etc can apply normally.

Independent Thought v. UOI

- Exception under s. 375(2) IPC about age of consent.

PCMA is a secular legislation.

06.09.2021
Section 7, HMA- Ceremonies for a Hindu Marriage.
● It has been nowhere specified under HMA with regard to what will happen if ceremonies
are not followed properly. Section 11 HMA nowhere talks about the fact that if the
ceremonies have not been followed properly, what would be the consequences of that
marriage. Section 12 also mentions nothing regarding ceremonies.
● For a valid marriage, it is not only important that elements of Section 5 have to be

followed, but the elements under Section 7 also need to be performed → Requirement

of Solemnisation of marriage in accordance with ceremonies.

● S.5 r/w S.7 → The Courts have clearly stated that concrete reading of these two sections

will only make us reach the conclusion that elements in S.5 + S.7 are essential for a
 valid marriage. There is a possibility that if the requisites under S.7 are not followed,

the court may declare such a marriage to be invalid. Since Hindu Law very explicitly

emphasises on the fact that marriage should be performed on the basis of some

ceremonial practices for declaring a marriage to be valid.

● Section 7 expressly states that a Hindu marriage may be “Solemnized” in accordance with
customary rites and ceremonies of either party thereto. Where such rites and ceremonies
include but are not limited to saptapadi.
● This provision can be bifurcated into 3 heads-
1. This section makes it mandatory that for the solemnization of a Hindu Marriage it
is necessary that the marriage should have been performed in accordance with some
ceremonies.
2. The ceremonies can be customary or be based on customary rites and practices of
either of the parties. (As opposed to ‘each’ used to prohibit degree of relationship
or sapinda)
3. If such customary rites and practices include saptapadi as an essential ceremony
with regards to the parties concerned, then the marriage is complete.
● Why is Saptapadi important? Why is it the only ceremony specifically mentioned?
Grihya Sutra → Explanation for what sort of practices/ ceremonies should be followed

in a Hindu Marriage. Also provides the sequence in which the ceremonies have to be

performed and what mantras have to be chanted for each ceremony.

During the codification of the Hindu Marriage Act, after considering the practices of
various communities and tribes, it became difficult to conclude what are essential
ceremonies. Diversity within Hinduism made this task impossible. Hence, all ceremonies
are not mentioned. Saptapadi is a common practice in almost all communities, and the
Court has often held it to be an essential ceremony. Hence, it is mentioned. There are a lot
of variations in Saptapadi also based on region, customs etc. Saptapadi makes marriage
binding, but this is not mandatory as a few customs do not practice this. Therefore the law
or the Courts cannot mandate and there are no hard and fast rules. However, if your custom
provides for Saptapadi, it should be followed.
 ● “Solemnisation” means to celebrate the marriage with proper ceremonies and form (law
has not intervened in this), it can be based on Shastric or Customary practices. Nobody
should be allowed to make a mockery of this institution or should be allowed to invent new
ceremonies.
● Devaivani v. Chidambaram, 1954
An anti-purohit organisation came up with a wedding ceremony where the elders of the
family presided over the wedding and only a few simple ceremonies were practiced. The
Court held that such marriages are void as one cannot invent ceremonies. Performance of
ceremonies should be based on customs or shastras. Even if the intention is good, such
marriages are void. Customs should be reasonable and should be followed from times
immemorial. (She said that this form of marriage was later legalised with a state
amendment, it was some Arya Samaj type marriage she told).
● Bhaurao Shankar Lokhande v. State of Maharashtra
Unless the marriage is celebrated in accordance with a law applicable to a marriage
(statutory or customary), it is void.
● Dr. A.N. Mukherjee v. State, 1969
Dr. Mukherjee was in a relationship with Harbas Karur. This lady insisted that they get
married, and the Dr. agreed. He performed three different ceremonies-
1. He recited two Sanskrit verses, which the lady could not understand, under
moonlight and then he told “I accept you as my wife. Hence we are Husband and
Wife” He told the lady that this form of marriage was valid.
2. The lady again had some doubts regarding that ceremony, so the man to put to rest
her doubts took her to a Kali temple. They exchanged garlands and took seven steps
before the god. There was nobody in the temple when this happened.
3. After a few days, the lady again questioned the validity of the marriage. The man
then performed some ceremonies before the Gurugranth Sahib at home.
Later, some differences arose between the couple and they went to the Court. The Court held that
with such mock ceremonies, the marriage was void, as it was neither customary nor shastric.
Mockery of ceremonies cannot be allowed.
 ● The ceremonies in a marriage should be recognised by either of the parties. Ex: A Hindu
and a Sikh are getting married, the customs of either party can be followed. But the parties
cannot follow Jain or Buddhist practices just because they feel like it.
● Natharao v. - I missed the name of this case. See her PPT
A Hindu Marriage can be solemnised under a customary ceremony of either party. It is not
necessary that it should be as per the groom only.
● Shantadevi v. Ramlal Agarwal
Kanyadan is not an essential ceremony. It was prevalent during the ancient times as child
marriage was the norm and the girl was too young. However, now, the parties have to be
majors before getting married and they can choose their own life partners and take their
own decisions. Perspectives have changed.
● Rajdevi v. - 1980 (Missed the case name, see her PPT
According to customary practice, if Saptapadi is not an essential ceremony and if in such
circumstances it has not been performed, and other practices which are considered as
essential for a valid marriage under that community have been performed, the marriage is
valid.

SECTION 8: REGISTRATION OF MARRIAGE:

● This practice is essential because, there are a lot of issues particularly where women are
more vulnerable, such as mock marriages, child marriages, bigamy. Domestic violence,
etc, which have to be addressed even though the government is taking measures to curb the
same. They can be addressed through Uniform Civil Code (Task kind of impossible) or
Registration of marriage should be made compulsory.
● Section 8, HMA provides for registration, but it nowhere says that if a marriage is not
registered, it cannot be considered as valid.

08.09.2021
SECTION 8: Registration of marriages
Article 16 of the conventions declares that there should be equality in marriage and family
relations.

Why should we have compulsory registration of marriage?

Provision of Section 8
- Registration of Hindu Marriages
- [Link]
 - It doesn’t expressly mention that registration should be compulsory but it imposes a fine.
If a marriage is not registered, it doesn't mean that marriage is invalid. Penalty also will
only be imposed when the question comes.

Seema v. Ashwani kumar 2006

- SC issued a direction - let the state decide upon the registration process and documentation.

There are a lot of provisions that say registration is compulsory but if a marriage is not registered,
it in no way proves that marriage is invalid. Registration is mainly to avoid issues of bigamy or
polygamy or anyother things.

2011 Law Commission Report

- It said that they should come up with a proper registration plan and process which will be
common to everyone in India. The Registration Act, 1908 should also be amended.
- This is important..please read this report”
 - So far none of the legislation says that your marriage will be invalid if you have not
registered it. On the other hand, if your marriage is registered but it isn’t not valid as per
the applicable law, then it will be invalid. Registration therefore doesn’t mean validity.

MODULE 3: MATRIMONIAL RELIEFS

RESTITUTION OF CONJUGAL RIGHTS

These reliefs are given to either of the parties. So we will begin with RCR. Not the rapper RCR.
RCR means Restitution of Conjugal Rights. (Thanks for clarifying)
1. Restitution of Conjugal Rights - Section 9
● The objective of this is to preserve the institution of marriage.
● If one of the parties is not fulfilling the conjugal relationship and duties or obligations -
physically, emotionally and mentally - the parties are brought together and court generally
orders a decree - go fulfill your conjugal rights and obligations.
● If one of the parties departs from performing a matrimonial relationship, the other party
can take help of this statutory relief.
● She is interpreting s 9 for us - [Link]
Available to either party.
Society is used in the sense of marital relationship - a broader concept.
No she didn’t interpret. She just read whatever is written.
● When one of the parties withdraws herself/himself from the society of the other - this refers
only and only to the matrimonial obligations and rights. Ntg else.
● Society - let say a husband and a wife are not living together, but they are performing all
the rights they have to, for the mutual benefit of the family or kids - in such case none of
them has withdrawn from the society of marriage bcz there is no intention.
 ● If the intention is clear that one of the parties are not interested in performing rights and
obligations, no mutual cohabitation, in such case there is withdrawal from society of other
- statutory relief can be taken.
● When the question arises of withdrawal - the onus would be on the person who has
withdrawn - that person should have a reasonable excuse to withdraw.
● Example - husband is not behaving properly with wife - cruelty or intimacy with someone
else or smtg - this is a reasonable excuse for withdrawal.
[Link]
indian-personal-laws/ -- For extra cases, etc.
● Essentials

13.09.2021

● Burden of proof is always on the person who has withdrawn from the society of the other
person.
● Court will look into:
 It is not easy to establish a precedent in family law because the situation depends on family
and every family has different merits and demerits.
● It is important for getting an RCR decree. The court will look into the validity of marriage.
If marriage is invalid no RCR will be granted. - Pallavi Bhardwaj v. Pratap chauhan
● Intention, conduct and behaviour plays an important role. Then comes the withdrawal.
● Example - A couple is physically living separate but are fulfilling all the duties towards
children and family, they have not withdrawn. There is no intention.
● In the same example if a woman starts living with her parents and her husband is cruel to
her and she just doesn't want to live together. Intention is clear and you have a reasonable
reason. This can be seen through the conduct of the person.
●
● You have to keep mental separation and physical separation in mind. Physical separation
without mental separation is not withdrawal.
● Exception to withdrawal
 Some judgements - She did not explain anything in detail. These cases are just examples
to understand

There was one other case where the wife was deliberately not taking care of her old inlaws. She
just ignored them and was not willing to stay with them. Court said this can’t be a reasonable
ground for withdrawal. - She didn’t mention the name of the case.

Tirathkaur v. Kirpal Singh AIR 1964 punjab 28

Husband filed a decree that the wife doesn’t stay with him. Husband said that the wife's primary
duty after marriage is to stay with the husband and look after him and shit like that.

The counsel for the wife said that society has changed. You cannot expect a woman to stay with
her husband. She can work and earn and become independent.

Punjab and Haryana HC: Conservative approach. RCR decree granted to husband.
Reasonable excuse depends from case to case. It is not defined anywhere.
Modes of execution

Constitutional validity of s9 of HMA

[discussed in next class]

15.9.2021
Objective of 1964 Amendment of HMA
● The 1964 amendment deleted clauses 8 and 9 and inserted Section 13(1)(a) as a new
clause altogether, which says either party to a marriage can file for a decree of divorce
or restitution of conjugal rights. Intentionally “either” has been used to give a chance to
both parties to decide to get a divorce.
● The 1964 amendment changed the previous regime under s.8 and s.9 and now either party
can enjoy the relief of dissolution of marriage when the marriage has come to a level
where cohabitation is not possible.
Additionally,
● Section 23 of the Act provides certain bars to these matrimony reliefs, one of which says
that no one should be allowed to take advantage of their own wrong/fault. “Wrong”
should be grave and weighty in nature.
● The bar usually arises against the person seeking the relief of restitution. The court has to
check whether the conduct falls within the ambit of “wrong”.
● The conduct should be of such character that due to the gravity of the act/wrong, the
spouse becomes disentitled to the matrimonial relief. Merely because parties did not put
effort to come together after decree if restitution of conjugal rights is passed, is not a
ground for disentitlement.
● If for example, a decree has been passed in favour of the husband who sought restitution
of conjugal rights, if there was non-compliance of that decree by that husband, it does not
mean that the relief ought to be set aside.

Constitutional Validity of Section 9

T Sareetha v. Venkata Subbaiah
AP HC: Restitution of conjugal rights u/s 9 is uncivilised and barbarous and violative of Art 14
and 21. The court said that in a way women are being compelled to submit themselves to the
physical desire of the husband as sexual cohabitation is an inseparable element of restitution of
conjugal rights under section 19. This is a coercion. It is against human dignity guaranteed under
Article 21 and violates the right to privacy also. The integrity of one’s body is the right of that
person only and this section denies the woman that right.

Harvinder Kaur v Harmendra Singh Chaudhary

Delhi HC: When it comes to S.9, it is not at all violative of Art 14 and 21 of Constitution, it’s not
savage or barbarous. The idea of cohabitation, the biggest purpose behind restitution is that
parties can come to cohabitation and consortium and it does not merely mean physical or sexual
cohabitation. It means they get a chance to come together and live. Having a very narrow
understanding of section 9 and treating it as a vehicle to compel another party to submit to sexual
desires, should not be allowed. We should look at the broader picture of cohabitation. No one is
being compelled to physically submit. They disagreed with the view held by AP HC.

Saroj Rani v. Sudarshan

SC settled this controversy: S.9 is not unconstitutional. The remedy may be outdated, out of tune
and may not be required in contemporary times. But the scheme is to save the parties from
reaching the consequences of divorce. By this decree the court acts as a bridge to allow parties to
reconsider and divorce is discouraged and should only be the last resort. The attempt has always
been to preserve marriage, considering the circumstances involved obviously. This is the
objective of s.9. It’s not to compel or to make the spouse submit to the sexual desires of the other
party. It’s not barbarous. It is gender neutral, it’s nowhere written that this remedy is only given
to the husband. It should not be interpreted narrowly.

Conclusion- Two perspectives of S.9

● Negative relief: it is considered that by virtue of intervention of court, one is being forced
to stay with the other party unwillingly.
● Positive relief: it is a tool used to protect a marriage in a country where marriage is
considered sacred.

RCR Provisions under various laws

JUDICIAL SEPARATION
What is JS?
● It is considered something half-way to divorce.
 ● It has nothing to do with dissolution of marriage, it is also an attempt to give space to the
parties and let them thinkover and reconcile the issues.
● Similar objective of possibility of coming back together.
● It’s a temporary suspension and not a cancellation of marital relationship.
● Marriage is still valid, it’s only a process whereby husband and wife can live [Link]
DOES NOT dissolve marriage.
● It is codified u/s10.
● Objective:

Essential Requirements

The marriage should be valid and in subsistence.

Section 10 of HMA
Grounds are the same for JS (s.10) and divorce (s.13). Prior to 1976, grounds were different. The
petition for JS should specifically contain one of the grounds given under Section 13 of HMA.

Similarity b/w RCR and JS: both aim at preservation of marriage.

Section 13(1A)(i): Either party to a marriage, whether solemnised 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 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.
Section 23 applicable to JS also.

Section 13A
The court has discretion to not grant a decree of dissolution of marriage and grant JS instead.

JS under various laws

17.09.2021
VOID MARRIAGE

Section 11
“11. Void marriages: Any marriage solemnised after 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 one of the conditions specified in
clauses (i) , (iv) and (v) of section 5.”

Section 11 of HMA deals with void marriages. Determines what falls under the ambit of void
marriages. But, it does not talk about the consequences if those conditions of a valid marriage are
not met. Section 11 and Section 5 are to read together holistically because Section 11 does not
cover all aspects like consequences.

Lakshmi v. Ramaswami

As per wording of section 11, only a party to a second marriage can file a petition for declaration
of void marriage/ nullity for the reason that the spouse was already married. The word either party
is used, and not the aggrieved party. Intention of the legislature is very clear. It would have drafted
in that sense if it wanted any aggrieved party to file the petition.

However, an aggrieved party can still go to the court and file a civil suit under section 9 of CPC
and section 34 of Specific Reliefs Act for getting a decree that the marriage is null and void. They
can’t go under Section 11 of HMA.

MM Malhotra v. UOI
SC: Marriage under Section 11 is ipso facto void from the very beginning/ inception. An absence
of a decree will not make it a valid marriage.

Maintenance in cases under Section 11

The discretion is with the court to order maintenance in favour of the spouse.

Legitimacy of Children under void marriages

Section 16: clarifies that children born under void marriages are legitimate. They also have
property rights. (SC has clarified this position in various cases).

VOIDABLE MARRIAGE

Section 12(1)
Section 12 talks about certain situations in which a marriage can be annulled on grounds of
voidable marriage. Here, the petition that’s filed is for annulment unlike Section 13. Section 11 is
no marriage/ void-ab-initio. Understand the difference among these three. There are four situations
discussed in Section 12(1).

I. Non-consummation due to Impotency

● 1st ground- impotency of the respondent due to which marriage could not be consummated.
● Gender neutral- impotency can be of either wife or husband.
● On this ground, marriage can become voidable and annulment can be sought.
● Impotency can be pathologica, physical, and psychological also. The ambit is quite wide.
● Courts have been clear that the meaning of impotency can be wide- temporary, permanent,
mental, physical, etc.
● Her examples: workaholic guy so caught that marriage could not be consummated.
 II. Marriage is in contravention of conditions in section 5(2)
● 2nd ground
● “At the time of marriage” is the decisive factor
● The limitation given in section wrt mental capacity of the spouse should be present at the
time of marriage for getting a relief under section 12 (annulment)
● If a person becomes insane or of unsound mind after marriage, relief will only be available
under section 13 of HMA.

III. Consent of petitioner or guardian was obtained by force/fraud

● 3rd ground: Fraud/ Force
● Fraud: active concealment of “material” facts like age, health condition, education,
financial status etc. Knowledge should be absent at the time of marriage.
● This section is broader than fraud under Section 17 of the Indian Contract Act.

IV. Respondent was pregnant by some other person at the time of marriage
● “At the time of marriage” the husband did not have knowledge of this.

Section 12(2)
Section 12(2)(a)
- Is to be read only with section 12(1)(c)
- No petition of annulment can be filed under section 12(1)(c) if two criterias are not fulfilled
1. Petition should have been filed within 1 year after force ceased to operate or fraud
was discovered.
2. Petitioner should not have lived with full consent with the other party after the force
had ceased or fraud was discovered. If you have accepted what happened, and lived
with full consent as a spouse, after the force stopped or fraud was discovered, the
petition will not be accepted under section 12(1)(c).
Section 12(2)(b)
- For a petition under section 12(1)(d), the husband has to prove that he was not having
knowledge of the pregnancy.
- Also, a petition has to be filed within 1 year after marriage commenced. Limitation period
starts from the date of marriage.
- Thirdly, the husband should have stopped having sex with the lady lol. If he continued
having a consensual physical relationship with her after coming to know of her pregnancy,
the petition can be refused.

DIVORCE UNDER HINDU LAW

20.9.2021
BACKGROUND
Divorce comes from the latin word “divortium” which means to separate. Aims at putting an end
to the matrimonial bond and the conjugal relationship.

Initially, Section 13 was considered a revolutionary change as in Shastric Law divorce was not
there.

1964 Amendment
Through 1964 Amendment, two clauses 8 and 9 were omitted and Section 13(1)(a) was added.
Under the old regime of 8 and 9, the decree-holding party could get relief of JS or restitution if
cohabitation after the decree could not happen. Under section 13(1)(a), either of the parties can
file a petition for implementation of the decree for divorce, unlike Sections 8 and 9. The 1964
Amendment also introduced 2 years for the chance of cohabitation/ consortium. Remember
limitations under Section 23 also- conduct of the party filing the petition should come with clean
hands. But, non-adherence to the decree is not wrong conduct under Section 23.

Object of the Amendment- By virtue of this amendment which inserted Section 13(1)(a), to an
extent, we have actually incorporated an essence of irretrievable marriage. When there is nothing
left in the marriage or no scope of coming back together, then divorce is the option. Though this
is not directly mentioned in the amendment.

1976 Amendment
This amendment changed the time required for trying to cohabite after a decree is passed : If
there is non-resumption of cohabitation up to 1 year, the parties can get a decree of divorce. This
amendment brought drastic changes in HMA.

THEORIES OF DIVORCE

Will Theory
● Followed in Islamic Law
● Under Islamic Law, there are two kinds of divorce: extra-judicial and judicial divorce.
This theory is followed in extra-judicial divorces. For example, Talaq-e-Sunnat allows a
husband to divorce his wife “at his will” unilaterally.

Frustration Theory
● No-fault theory
● The very purpose of marriage is frustrated without any party’s fault
● Reasons: Mental ailment of either party, person has renounced the world, disappeared for
a long time, etc.

Guilt Theory/ Fault theory

● One party is aggrieved and other will be at fault

● Innocent party is entitled to get divorce under the grounds mentioned in Section 13

Mutual Consent Theory

 ● Under this theory, even if no party is at fault, parties want to put an end to marriage in a
sophisticated manner.
● This theory was not recognised before and one party had to be at fault or give a
substantial ground/ reason.
● The 1976 Amendment brought this theory by introducing Section 13B.
● Three grounds under Section 13B(1) (check ss above).

Amardeep Singh v. Harveen Kaur (2017)

SC held: The court has discretion to waive off 6-months cooling off period which was an
essential requirement under Section 13B(2).
This section said that apart from grounds under sub clause 1, there is another requirement that
when the petition is filed, the court shall not grant anything at least for a period of 6 months. So
this was the waiting period/ cooling off period.
Whether this clause was mandatory or directory? Court said that it depends on facts and
circumstances and if the court is satisfied that all efforts have failed and they could not agree to
live together, and everything is settled (like maintenance and custody of child, alimony etc.), the
court may reach the conclusion that this waiting period of 6 months is not needed. It is not
mandatory. Only condition is that all grounds have been satisfied in Section 13B(1).

Irretrievable Breakdown Theory

 ● It is not a specific ground for getting a divorce.
● It is defined as a failure of the matrimonial relationship whereby a prudent person can
reasonably reach a conclusion that there is no probability/chance of the parties coming
together as husband and wife. It is a situation where the relationship has been destroyed
to such an extent that there is no hope in the marriage.
● It is not necessary that there is any fault of either party. It can be because of compatibility
issues, temperament issues, etc. Such cases are increasing nowadays.

22.9.2021
● Irretrievable Breakdown theory- This is incorporated in Indian Law→ If the marriage

is not working, there is no point in dragging such a marriage. Mutual Consent

Divorce is based on this concept → Parties living separately from more than a year +

There is no fault + marriage is not working.

● But in all cases of no fault, mutual consent divorce will not work, because
sometimes, one of the parties does not want divorce. What happens in Such Cases?
Another situation can be where both parties are at fault and the Doctrine of unclean
hands comes into play. What happens then?
These questions have no concrete answers. In these situations, the Supreme Court will
intervene as the Trial Court will not be able to grant relief. Where the marriage is clearly
not working and there is no possibility for reconciliation, the SC gives relief by putting an
 end to such marriages by invoking the power bestowed upon it by Article 142, as the
marriage is irretrievably broken down.

● Section 13A→ Alternate Relief in divorce proceedings → Petition for dissolution

of marriage except in cases of conversion, Renouncing the world, missing, the court

may pass a decree for judicial separation instead of divorce. All attempts need to be

made to save the marriage.

SECTION 14: No Petition of divorce to be presented within one year of marriage

● This was reduced from 3 years to 1 year through the 1976 Amendment.
● Ideally, the court should not entertain such petitions unless it is filed after one year of
marriage.
 ● However, it is discretionary as the court can entertain such petitions in cases of Extreme
Hardships or Depravity. It depends on the facts and circumstances of each case.
● Renu v. Rakesh, AIR 2013 UTTRA 1
The wife was ill treated by her husband and in laws right from the day after the marriage,
to the extent that seeing the cruelty, the court concluded if the court does not interfere in
this matter for one year the woman might not be alive to even file the petition, it may so
happen that she may die (She was made to drink toilet cleaner and many such instances
followed).

SECTION 13: DIVORCE

● Essential Ingredients-
1. Any marriage solemnized by Hindu Rites and Ceremonies (valid marriage).
2. Marriage should be in subsistence at the time of filing the petition for divorce.
3. Either party should approach the Court.
4. In Mutual Divorce, both parties should approach the Court
● Section 13(2)- Grounds exclusively for the wife: Bigamy, Guilty of Rape/Sodomy/
Beastiality, Cohabitation not resumed for 1 year, Got married at 15 years and repudiated
the marriage before attaining 18 years.
● Section 13(1)- Grounds (Gender Neutral)- Adultery, Cruelty, Desertion, Conversion,
Unsound mind, venereal diseases, Renounced the world, Missing.
● Leprosy is not a ground for divorce because - It is treatable, non contagious. It is removed
as a ground for divorce in all religions to curb the discrimination against such people. India
is also a signatory to the UN Convention of Eliminating Discrimination against persons
affected by leprosy. India should take measures to remove such discriminative legal
provisions.

SECTION 13(1)(i): ADULTERY

● Fault/ Guilt Theory- Matrimonial Offence.
● Gender Neutral
● Voluntary Sexual Intercourse with any person other than the spouse after the solemnisation
of marriage (Pre marriage sexual intimacy will not fall under this category)
 ● The term Adultery is not explicitly mentioned anywhere in this provision.
● Circumstantial Evidence plays an important role.

24.9.2021

27.9.2021
GROUNDS FOR DIVORCE

CRUELTY

Cruelty as a ground
● It is not possible to define cruelty.
● The petition should be based on some concrete set of facts- can be physical or mental
cruelty.
● Physical cruelty can be easily ascertained through direct evidence.
● It's difficult to prove mental cruelty so in mental cruelty facts and circumstances play an
imp role.
● Impossible to ascertain the degree of fear one has, etc.

Mental Cruelty
● Mental cruelty: Sufficient to prove due to the act of respondent it is practically impossible
for petitioner to live with the resp. The trauma, depression, torture, fear due to conduct of
resp can be shown.
● Many factors like temperament, etc. play an imp rule
● Eg of cruelty: false allegations, ill-treatment of spouse/children/parents of spouse,
demand of dowry, no maintenance, illicit relationship, etc.
● Plethora of cases in mental cruelty
● Anita Gaur v. Rajesh Gaur- U HC: Mental cruelty is no less than physical cruelty.
● Praveen Mehta v. Inderjit Mehta: SC said mental cruelty is not possible to be proved
through direct evidence and is thus based on facts and circumstances and the court has to
apply its mind to draw inferences to determine mental cruelty.
● Intention is immaterial. MC can be unintentional also.
● Courts have stated that judges should not apply their preconceived notion or perception
while deciding such matters.
● Question of fact: thinking, social bg, society or community they belong to, etc.
● Thus there is no yardstick to measure cruelty. Every case is different.

● For physical cruelty, there must be real injury or apprehension in the mind of the petitioner
that there will be physical injury or harm.
● Petitioner should have not condoned the act of cruelty.
 ● Apprehension should not be fictional. It should be reasonable and proved to the satisfaction
of the court.
● Question court will look into: what is the extent and gravity of the conduct of the
respondent? They will trace this out to reach to conclusion whether there is mental or
physical cruelty

Sadhana Srivastava v. Arvind Kumar Srivastava

● Facts: After marriage, the wife's treatment with husband and in-laws was very harsh and
abusive. It became very difficult for them to peacefully live. She used to nag constantly
and ill-treated them. She also made a false allegation of illicit relationship on husband
● Whether there was mental cruelty?
● Court: Yes, such allegations made either by husband or wife, amounts to mental cruelty.

Abhisha v. Poozhitura
● Facts: Abhisha was an air hostess. During her job, she met a guy and they got married
under HMA. The parents of both parties were against it and they did not accept it. So the
wife said she will not develop a physical relationship until her parents consent. The
husband also became suspicious of the wife wrt her behaviour with colleagues and all. She
was completely irritated. She had said she would not have a physical relationship until her
husband forced. Husband was really suspicious and paranoid.
 ● Court: suspicion, alleging illicit relationship is mental cruelty and becomes a ground for
divorce.

Dastane v. Dastane- landmark case

● Facts: NG Dastane and SN Dastane married each other. Before marriage, father of the wife
had written to the father of the husband, mentioning that his daughter, the wife, had
sustained some mental issue because of a sun stroke but later everything became fine and
now she is absolutely fine. He also mentioned in the letter that they can talk to the doctor
of the wife also. Father of the husband talked to the doc and was reassured that everything
is fine. After marriage, issues developed. Both parties were really educated and highly
qualified. They were broad minded. Two kids were born. After marriage, the wife used to
behave in erratic manner due to her previous mental problem. Husband filed for Judicial
separation for cruelty (at that time cruelty was not a ground for divorce). He also prayed
for divorce on grounds of unsoundness of mind. Under Section 12(1)(c) he alleged fraud
because the wife’s family did not disclose the real state of the wife; they said everything
was fine.
● Trial court: granted decree of JS. but did not give relief under divorce or 12(1)(c). Both
parties appealed. Appeal of husband dismissed. So the matter came before SC.
● SC: did not talk about S.13 or S.12(1)(c). The Court only gave relief of judicial separation.
Issue before SC was only wrt cruelty.
 ● SC: If we carefully examine a set of facts, there is mental cruelty. No doubt.
● The ‘facts’: Husband had said that wife used to threaten that she would kill herself, set her
house on fire, publish all this in the newspaper, abused the husband and his father, used to
say that his entire family would face bad faith, etc. She used to make the husband stay in
office by refusing to open the door for him. She used to beat the kids. Husband’s and his
family’s personal safety was a big concern, added by the mental trauma faced by the family.
Once their kid was having a high fever but she assaulted the kid. Wtf??
● Problem: The husband, despite the cruel behaviour of his wife, lived together and cohabited
and the lady was also pregnant with a third child. So the Court stated that the husband had
condoned the act of cruelty as they had developed close intimacy despite the wife’s acts.
● SC: Two elements of condonation- forgiveness and restoration. Restoration means the
guilty party should be restored back to the position before the guilty acts. SC said there is
no doubt there’s cruelty but we can’t give relief because the husband had condoned the
wife’s acts.

28.09.2021
● I missed the first 20 mins. She Apparently explained more about Dastane v. Dastane.
● Rajiv Dinesh Gadkari v. Smt. Nilangi Rajiv Gadkari, AIR 2010 (1) Bom 45
This is another case for mental cruelty. Husband who was residing in the USA compelled
his wife to adopt another culture which she was not comfortable with such as forcing her
to drink wine, wear western clothes, eat non- veg etc [ See her PPT for detailed facts].
Court held that the compulsion on the wife with something she is not comfortable with, is
mental cruelty. The wife can definitely be given the relief of dissolution of marriage on the
ground of mental cruelty.
● In cruelty, intention is not important. Sometimes unintentional actions also amount to
cruelty.
Section 13(1)(ib) - DESERTION:
● Gender Neutral
● Togetherness is the essence of marriage
● If parties don’t live together, the very purpose of marriage is defeated.
● Abandonment of one spouse by another without any reasonable cause
● Desertion not only means physical separation, it also involves mental aspects.
● Can be physical or constructive.
29.10.21
[Sorry I missed class on this day. But Dalal sent notes]
01.10.21
Divorce on the basis of Conversion

If a person ceases to be a Hindu, then the marriage can end by divorce.

 1. The spouse that converts does not have any right to go before the Court, only the other
party has this right.
2. Conversion does not ipso facto dissolve the marriage.
Hindu here means the religion in the wider sense.

Vilayat Raj v. Sunila AIR 1983 Delhi 351

The converter party does not lose any rights that they would have in an ordinary marriage; except
to seek divorce on grounds of conversion. Unless the non-convertor party comes before the Court,
the marriage shall continue to exist “as was”. The marriage will be valid in all other aspects.

Suresh Babu v. VP Leela

Whether if a person has consented to the spouse’s conversion, does this result in a waiver of rights?
The statute does not provide for any such qualification for consent at all, so it cannot be the intent
of the Legislation to impose estoppel on the consenting party. So the answer is no, consent does
not waive the right to seek divorce on the grounds of conversion.
Law Commission 235th report said-- proper registration of such conversions, or re-conversions,
that happen in a marriage. The registrations must be published so that persons can raise an
objection, etc. -- based on the Kerala HC judgment.

Grounds of Unsound Mind

The 1976 amendment brought this into picture-- prior to which it was only a ground for legal
separation. -- required to be unsound for three years earlier, but now it : -

1. Incurably of unsound mind

2. Mental disorder-- which is unbearable to live with [to be read with explanation].
The Court has to determine whether such persons can continue to live an ordinary life, and perform
their marital obligations. So, the gravity of illness also has to be taken into account.
Technically, depression and anxiety will not fall under this category, mainly because they do not
make it unbearable to live with such persons.
Bottom line is that the person must behave in such a manner that it is not possible for the petitioner
to live with a person who is suffering from such conditions.
She actually made a great point-- half or more of India is suffering from mental illnesses such as
depression. So who all will remain married even [lol].
 -- Law Commission
Report, which basically laid down the amendment that was brought in 1976.
2nd condition-- “can be reasonably expected to live with a person of such mental disorder” must
be decided by the Courts. Depends on the facts of the case.

Sudhakar Shenoy v. Vrinda Shenoy AIR 2001 Kant 1

Facts - the wife drank the entire milk on their wedding night, and did not share. Did not
consummate the wedding. All ridiculous stuff.
Court said these facts do not show insanity/mental disorder. The woman had peculiar habits, but
lived an ordinary life-- gave birth to a kid, was a good mother, spent time with the family, etc. The
facts do not show that it was unbearable to live with the person. So the petition for divorce had no
grounds.
[in my opinion, the husband is an asshole]

Krishna Bhat v. Srimathi 1995 AIHC 4330

The Court defined the ambit of this ground-- the onus to prove insanity/unsound mind is on the
petitioner/applicant.

Mere claims do not show anything-- you have to substantiate the claims with evidence.
The standard of proof in such cases is very high. So, use of witnesses etc can be done. The Court
will have to examine each case individually.
The Respondent suffers from such a mental disorder that it is not reasonable to expect the petitioner
to live with them-- the decree of divorce will be given.

More cases: -
Ram Narain Gupta v. Smt. Rameshwari Gupta AIR 1988 SC 2260-- upheld the “reasonably
expected to live” test. Said that the degree of mental disorder is necessary to be considered.

Sheela v. Baldev Singh AIR 2010 UTR 18-- grave mental disorder which caused a lot of agony to
the kids and husband. Medical reports and prescriptions were brought on record.

Darshan Singh Gupta v. Radhika (2013) 9 SCC 1-- extremely sad case. Facts in the slide. The wife
was suffering from a mental illness, but it was not found to be of such gravity that it would be
difficult for the husband to live with her.

Leprosy as grounds for Divorce

Not grounds anymore-- UNHRC, India’s HRC, made recommendations for this. The disease is not
curable, and it was leading to a lot of discrimination against people suffering from leprosy.

Venereal Disease as grounds for Divorce

Criteria -- Venereal disease + Communicable form + at the time of petition.

If the disease was contracted from the petitioner-- then no right to divorce as “unclean hands”--
pun intended.

HIV AIDS--
These cases were dealing with HIV/AIDS cases-- whether this disease amounts to venereal
disease? Courts held yes-- as it communicable, and is a venereal disease.

Renunciation of World as grounds for Divorce

Court must assess: -

1. Conduct of the respondent
2. Any ceremony conducted
3. Joined any religious cult/group/order etc.
4. Renouncement of the world
5. Civil death
Merely title of “sanyasi” not enough- must be proved by conduct, etc.
 Presumption of Death
-- basic.

04. 10. 21

● Section 15 - says that divorced persons can be married again

➔ As long as - There is no right to appeal, or limitation barred, or the appeal prefered but
dismissed, then the person can be remarried.
➔ Case - Anurag Mittal (she discussed in light of void marriages – bigamy).
➔ Basic issue – Wife went to court to get divorced. Other party was not ready. Settlement
reached somehow and then he agreed to withdraw appeal against divorce. Immediately he
 married another lady. Second lady filed that the second marriage wasn’t valid because the
previous marriage was in subsistence.
➔ Court said – no, the appeal was withdrawn. So it is implied that he agreed to divorce.

● Section 19 - jurisdiction of the court.

➔ To which court the petition should be filed. District Court now replaced by the family
court most expressly.
➔ Where the marriage was solemnised, where the respondent resides or where the parties
reside(ded) together. But this shouldn’t be temporary (like a hotel. There should've been
an intention to make it their family home.
➔ If the respondent is missing for 7 years – where the respondent lived it can also be filed.

● Section 23, Hindu Marriage Act - Matrimonial bar, very clear with certain aspects –
➔ S. 23 says relief would not be granted if the petitioner did not come to court with clean
hands. Cannot take advantage of their own wrong.
➔ So if they have committed cruelty or adultery, it makes no sense to grant relief of divorce
to THEM.
➔ Additionally, if some act has been condoned, or they have been an accessory, or
participated directly or indirectly in that act – the petitioner – now asking that as a ground
for dicvorce, no divorce can be granted.

Ex – husband, the petitioner, says wife has committed adultery. Since 1976 adultery has
been, ‘liberalized’ – it makes more ‘sense’- where even one single illicit relationship can
be allowed as a decree for divorce on grounds of it being a matrimonial offence. But in
court if it is proved that he asked her to do it for some benefit, he won't be given the benefit
of using adultery as ground for divorce.
 Or, husband's friends came home and tried to develop an intimate relationship with their
wife and he walked out and didn’t protest and gave them room to have the seggs, then it is
a problem ofc and no relief can be given.

➔ In cases of mutual consent – both parties should reach a common consensus and should
have been living apart for more than a year and then have filed a petition together. If such
consent was obtained by fraud, force, etc then it is not free consent. It is then very
difficult to obtain divorce. The person should agree out of his or her will. IF compelled to
reach that agreement, they are not agreeing to the same thing in the same sense.
➔ Another bar – unnecessary or improper delay in instituting proceedings. Limitation period
– S. 12 very expressly prescribed. Otherwise it is very hard to decide the limitation period.
SO if there is ‘unnecessary’ delay in instituting proceedings, then barred.

Section 23(2) – shows the whole intention of legislation when it comes to granting relief with
regard to reaching a conclusion. When you read the legislation in toto (in totality) the intention has
always been to save/ preserve marriage!

➔ Intention has been the same of the judiciary also. The same thing is reflected in S. 23 (2) –
it shall be the duty of the court in the very first instance to see to it and make every
necessary attempt to see that there can be reconciliation between parties. If there is
any scope and hope.

The Law commission has said it, and SC has used its extraordinary powers – the fact that
irretrievable breakdown of marriage exists as a ground for divorce – some people think it will
further destroy the fundamental aspect of marriage. So it is very important to try everything to
preserve the marriage because for Hindus a marriage is a sacrament.

● Section 28 – appeal order – within 90 days to HC so on and so forth.

Lowkey detour to S. 9 to connect it to Section 23(2).

● Section 9 – restitution of conjugal right – can be a negative / positive relief.

➔ Ma’am, First Perspective – Ofc it’s a negative relief because they are compelled even if
they are not willing to do so, violative of FRs of a person.
 ➔ Second perspective – We can see and assess and reflect it in S.23 (2) – attempt made to
reconcile. Positive perspective - the whole and sole objective is to make sure that under
any circumstances, marriage should be tried to be saved.

Session on Hindu Marriage Act concluded.

Now, Muslim Law!

● Sources of Muslim Law – sources play an important role when it comes to understanding
the law.
● More significant as compared to Hindu law because clear understanding of Sharia law or
Shariat – the larger portion of Muslim law is uncodified, because here we follow Shariat.

Now, however, we do have specific legislation – the Wakf Act that adds responsibility. The larger
portion is uncodified. It can’t be static, it has to be dynamic from both judicial and legislative
intervention.

Primary Sources – most important.

Secondary sources – Precedent, legislation, justice, equity, good conscience, customs. Customs
don't have much weight now. The Shariat Act was brought so that customs don’t contradict the
accepted law.

Ma’am is confined largely to primary sources because they are the most relevant.

Primary Sources of Muslim law (in order of importance)

1. The Quran
➔ First, the paramount and most fundamental source. Every word in the Quran is said to
be a word of God. It therefore represents the will of God. Revelation of God communicated
through Angel Gabriel.
➔ So the verses are holy enough to be considered directly God-given. It is the fountainhead
of Muslim law.
➔ However, it cannot be said to be a law book.
 ➔ Regardless, it cannot be overlooked because it has shaped the modern legal principles.
They are based on what has been said in the Quran. It effectively represents civil law. (idk
what she meant by this)
➔ It is above every other source. Any conflict or contradiction, the Quran is what is
going to prevail.
➔ Even when it comes to the two sects – Shias and Sunnis – this division is altogether a
different thing. It happened after the death of Prophet Mohammed regarding who will
become his successor. The next caliph. They interpret several things differently. There is a
division of interpretation of law.

Both sects nonetheless believe in the same things. The importance of marriage in a
specific method.

For both, Quran is most paramount source of Muslim law

2. Sunna

What the prophet said, did, his deeds, acts, and sayings. It was believed that whatever the prophet
did or however he is conducting himself is equally important because it was believed that he
derived his actions from God himself. Even his sayings are authority next to the words of God
himself.
 3. Hadees (also Hadis, Hadith, Hadeet)

Narration of the occurrence and deeds that happened in the life of the prophet. It is a report of what
has been said/ done by the prophet. In any given situation. Because he lived strictly in accordance
with the injunctions of the Quran and showcased model behavior.

(1) Ahadis-i-Mutwatir - Narrated by an innumerable number of people who were followers,

companions, successors and so forth of the prophet. – universally accepted. Ratified
essentially.
(2) Ahadis-i-Mashoor - Popular traditions – well known, narrated by a limited number of
companions but then became a continuous tradition. The reported number is relatively less,
but thereafter it has been followed continuously as a tradition.
(3) Ahadis-i-ahad - Isolated tradition – only certain sections accepted. Rests upon testimony
of a very limited number of narrators. It does not fulfil continuous traditions. Not known
to many. Only few have said, and few have acted upon.

Pure Science format

In the compilation of sunnah and hadith there is a proper science. Like codifying history. In
chronological order.

Verification, chain of authority, trustworthiness of the narrator – his status, reliability, etc is taken
into account. And only then they were taken into consideration. This helps in further interpretation
of Muslim law.

05.10.2021

● Close to 200 verses pertain to family law → these are decisive

● Ijma refers to the consensus of companions of the Prophet, or even of the jurists at a period
of time
● Abu Bakr, 1st Caliph, wanted collection of the Quran. It was revealed to the Prophet in last
20 years and compilations were made, final form attained only by the time of 3rd Caliph.
● For the future of Islamic jurisprudence, ijma and qiyas are very important → ijma is a

living tradition of Islamic jurisprudence

● In the Quran, alcohol is haram but nothing about other intoxicating substances, analogical
deduction can be made about these.
● Not anyone draws analogical deductions, they need to be well-versed with the Islamic laws
● Customs (lost significance to a greater extent), JE&GC (even if qiyas cannot satisfy or

go against public interest in the opinion of jurists), Judicial precedents, legislations

(Waqf Act, etc)→ other sources applicable in Muslim law in India

● Election method: Sunnis (supported Abu Bakr), Inheritance method: Shias (supported Ali)
● Hanafi: In India, Maliki: found is Malik?? (she mumbled idk) → no followers in India,

mostly Spain, Morocco, Africa, etc, Shafeis/Shafis: South India, Arabia, Egypt,

Indonesia, Malaysia
● Zaidias: prevalent in Southern Arabia, Yemen not in India, Ismailis: India, Pakistan, Asna-
Ashariyas: found in India
● Sunnis need witnesses during marriage, for Shias witnesses are necessary for dissolution
of marriage; Shias do not recognise the first three Caliphs, give preference to interpretation
of Imam.
06. 10. 21

● Competency in Muslim law –

1. Major and puberty u/n muslim law are the same
2. Soundness of mind
3. Party should be Muslim
● Three considerations for interreligious marriage –
Parties-
Sunnis/ Shias
Kitabia – Christians, Jews
Idolaters – Hindus
Fire Worshippers - Parsis
1. Sunni to Sunni
2. Sunni Muslim male marrying Kitabia female
3. Sunni Muslim male marrying Idolator/ Fire Worshipper female
Same for Shias
 Competency
1. Offer and acceptance - Reciprocity in one sitting only.
a. Sunni – 2 male witnesses of sound mind and muslims. (what happens if
there is only one male – that’s okay. Otherwise 2 females)
b. Shias – no requirement of witnesses during marriage, required during
dissolution.
2. Consent should be free of parties or guardians (in certain circumstances).
3. There shouldn’t be any legal disability. (Similar in HMA, prohibited degree of
relationship)
Perpetual or absolute-void
Temporary or relative-irregular
4. Mehr (the wife’s entitlement, gesture of respect and regard, keep the husband in
control when it comes to divorce because divorce at will was possible) / Dower –
some scholars say that it can be considered consideration (very narrow
interpretation of Mehr)
Ma’am – can you see similarities in formalites with contract laws? Yes! But it is a personal law so
obviously there’s that aspect. But there’s similarities due to the civil contract nature of it.

06.10.2021:

● JJ Act not only provides for adoption but also reintegration → more holistic
● HAMA doesn’t cover inter-country adoption and does not cover re-integration at all
● Guardians and Wards, JJ v. HAMA: HAMA is clearer and has lesser ambiguities
● Limitations of HAMA:
- Adoption term is not defined but defines maintenance
- Does not cover inter country adoption
● Adopter, adoptee and guardian before adoption should be Hindus
● If child is abandoned and parentage is not known → ss 7 and 8
● S 6: Competency of person giving and taking in adoption
● Before, married women could not take child in adoption unless widow, etc even u/ 1956
Act but this changed after 2010 Amendment
● S. 9: Before women could not give child up for adoption, after the 2010 Amendment same
right was given to them
● If a child’s parentage is not known, the question of eligibility of the child for adoption
(must be Hindu) is not applicable
● Can only be adopted by one couple, not multiple couples
● Valid adoption cannot be cancelled or reversed
● Consent of other spouse is required if married and wishing to adopt/give in adoption
● Unmarried people can also adopt
● Welfare of the child is the paramount consideration
● Adopted child will have two-fold prohibited degrees of relationship (bio fam and adopted
fam)
● If the child is there but parents get divorced, the spouse giving the child in adoption needs
consent of the other party
● Adoption doesn’t require consent of karta when the child given in adoption is of a widow
in a HUF.
08.10.2021
MUSLIM MARRIAGE

● Muslim marriage is contractual in nature Nikahnamah. Formalities are similar to that

of a contract → Free Consent, Competency, Consideration, No legal disabilities

(Prohibited degrees of relationship).

● Civil Contract with religious connotations → Has certain religious aspects.

● “Nikah”- Signifies conjunctions, but which in the language of law can be defined as a
marriage contract (See her slides for more definitions)
● Marriage- Sunna- Marriage completes half of one’s religion. The Quran says marriage is a
sacred covenant and God will always shower blessings on those who are married (Solace
of Life).
● Abdul Rahim’s definition- Most appropriate.

Competency-
● Age of Marriage- Age of puberty- Presumed to be on the completion of 15 years.
Consent after 15 years will be considered valid. Indian Majority Act is not applicable to
Muslim marriages. Minors in muslim law- Anybody below 15 years. In such cases, the
Guardians can give consent for the marriage.
Atika Begum v. Mohd. Ibrahim, (1916) AIR PC 250- Privy Council held that According
to Mohammedan Law, the age of majority of a girl and a boy is at the completion of 15
years.
The Concept of option of puberty can be exercised by the parties who were married as
minors when they attain majority (puberty).
● Soundness of Mind- Not lunatic or mentally unsound. Guardians can give consent for the
marriage of such people with unsound minds.
Who is a Guardian?
Sunni- Father or Paternal Grandfather however high so ever, brother or any male relative
on the paternal side. If none of these are present, it will be the mother, or maternal uncle
and so on.
 Shia- No broad interpretation of the terM Guardian. Guardians are only the father or the
paternal grandfather how high so ever.
● Parties Should be Muslim - Both Husband and wife should be Muslim.
Sunni
Muslim Female- She cannot marry anyone who is not a muslim. If she marries a non
Muslim- The marriage will be considered irregular.
Muslim Male- He can perform a valid marriage with a Kitabia woman (Christian or Jew).
Marriage with a fire worshipper (Parsi) or Idolateress (Hindu) will be considered as
irregular.
Shia
A man may marry only a Muslim woman and vice versa. If the spouse belongs to some
other religion, the marriage will be considered as void and invalid.

Offer and Acceptance-

● Muslim Marriage does not require any specific ceremonies. The only requirement is offer
and acceptance.
● Abdul Rahim v. Julaiga Begum, 2001(3) CTC 710 Mad
1. Proposal should be made by or on behalf of one of the parties to the marriage.
2. Acceptance should be by or on behalf of another party
3. Marriage should happen in the presence of two male members or one male member
and two female members. These witnesses should be adults and Muslims
(Applicable to Sunni only. Shia requires no witnesses)
4. Both the proposal and acceptance should be made in one meeting →

Reciprocity is essential.
5. It need not necessarily be in writing. No specific religious ceremonies need to be
followed.
● Can be oral or written. But these days Nikahnama is used.

Prohibitions in Muslim Marriage-

Absolute Prohibition- (Such Marriage will be void ab initio)
 1. Consanguinity (Blood Relations)- A Muslim male cannot marry his mother or
grandmother how high so ever, his daughter or grand daughter how low so ever, his sister-
half or full, niece or grand niece how low so ever, aunts or grand aunts how high so ever.
Similar pattern is also applicable to women.
2. Affinity (Relation by marriage) - A female cannot marry her father in law, brother in law,
Grand father in law how high so ever, son in law etc. Similarly a man cannot marry his
mother in law, sister in law, daughter in law, etc.
3. Fosterage (Relation by milk)- Relation developed by nursing. A lady breastfeeds a child,
and she will be considered as his mother even though she is not his real mother. Hence he
cannot marry that lady or her daughter.

Relative Prohibition ( Marriage will be considered Irregular→ Sunni; void in case of Shia→

Not applicable to them)

1. Unlawful Conjunctions
a) Numbers- Muslim wife marrying a second husband.
b) Relationship between co- wives- A man is forbidden to have two wives at the same
time who are related to each other closely either by consanguinity affinity or
fosterage. Ex: A man is not allowed to marry the sister of the wife when the
marriage with his wife is in subsistence.
2. Marriage During Pilgrimage
3. Marriage without witnesses (Sunni only)
4. Marriage with fifth wife
5. Marriage with non muslims (sunni only. In case of Shia, it is void)
6. Marriage During Iddat

MUTA’H MARRIAGE (Shia Law- Isna Asharia School)

● Temporary Marriage
● Shia male can enter into a muta marriage even though he already has four wives.
● Two major essentials in the contract- Time Period, Dower (Mahr).

09.10.2021
MAINTENANCE
● Interpersonal Relationship → Obligation → Certain people should be left with at least

basic means of survival

Hindu Law-
● Ancient Hindu Law- Shastric Aspects- Mitakshara and Dayabhaga. Maintenance was
considered a religious duty of a Hindu man. He had to maintain his wife, his unmarried
daughters, sons both legitimate and illegitimate (until they attain majority, unless they are
incapable), aged parents.
● Hindu Adoption and Maintenance Act- S.1 to S.17- Adoption; Section 18 onwards -
maintenance.
● Hindu Marriage Act - S. 24 and S.25.
● Maintenance is a Broad Concept. Can include anything.

Section 24, Hindu Marriage Act [ Maintenance Pendente Lite → Interim Maintenance]
● Unique concepts only found in this statute.
● Either Husband or Wife, if he or she is not having proper means of survival or the resources
for survival, they can claim maintenance.
● Requisite:
a) Only Applicable to the parties in a marriage
b) Can only be provided when there is a litigation between the parties
● This has been provided to protect the interest of the parties
● Has provision to claim litigation costs with maintenance.
● Stop gap solution till the suit is decided. Scope of S,24 ends with the decree.
● Smt. Pramila Bhatia v. Vijaya Kumar, AIR 2000 Raj 362- Wife filed a petition for
maintenance. But the husband did not have any source of income and he was dependent on
his mother. Court considered this and held that in such situations, the person is not bound
to pay maintenance.
● Maintenance is not a right, it is the discretion of the court
● Pradeep v. Sbailaja Kapoor, AIR 1989 Del 10- Factors to be considered before
determining maintenance-
 1. Financial Status of Parties
2. Needs of the Claimants
3. Income of the Claimant and Respondent
4. Any other special consideration

Section 25, Hindu Marriage Act: Alimony

● Alimony is a broader concept than maintenance, and can include requirements of children
as well.
● Maintenance to separated parties can be granted under this section.
● Can be monthly, yearly or one time settlement
● Temporary and Permanent Alimony
● Temporary Alimony - Awarded as a lump sum for a period of time or for an indefinite
period of time. The terms and conditions can be modified as per the change in
circumstances.
● Parties usually prefer a one time settlement - the Court can order the payment of
maintenance to be stopped after one of the parties remarry. Hence, one time settlement is
preferred.
● If maintenance under S.24 and S.25 is not possible, parties can go under Hindu Adoption
and Maintenance Act.

Maintenance in Void Marriages

Rameshchandra Daga v. Rameshwari Daga (2005) 2 SCC 33.
● Bigamy → Marriage is void → No relationship between the parties in the eyes of Law.

● Court went with liberal interpretation and held that - Section 25 is an enabling

provision → it empowers the court to decide all kinds of matrimonial matters, when it

comes to maintenance. This provision cannot be read in isolation. It should be read in

a manner in which the society can derive maximum benefit from such provision. It

considers any kind of decree passed under HMA (Including a decree declaring a

marriage void). When a person enters into a marriage in such circumstances, either of

the parties or both parties will have the knowledge. When a certain party is unaware,
 maintenance can be claimed as there is no fault of that party. In this case, it was held

that the wife is entitled to maintenance.

Section 25(2), HMA- Modification of Maintenance - Can be revised as per circumstances.

Section 18, Hindu Adoption and Maintenance Act

● Only the wife is entitled to maintenance. NO HUSBAND → Exclusive Provision
● Wife can get maintenance for life time
● Can get maintenance under any of the mentioned grounds, and separate residence can

be granted → Can claim as a right. If this is granted, the Husband Cannot file for

Restitution of Conjugal Rights. If the wife lives separately for one year and there is no

scope for reconciliation, She can directly file for divorce.

● Section 18 can be exercised in case of - Desertion, Cruelty, Any other wife living (Hindu
Married Women’s right to separate residence and maintenance Act, 1946), Husband
residing with a concubine (Adultery), Conversion, Any other case to justify separate living.

Section 19, Hindu Adoption and Maintenance Act : Hindu wife’s right to claim maintenance
from father-in-law after the death of the Husband.
● In every case, this is not necessary.
● FIL should maintain only if
1. She is not able to maintain herself after the death of her husband
2. She has no property from which she can derive income
3. She has not obtained from the estate of her husband or father or mother
4. She is not getting maintenance from her children
5. If she has not remarried
6. If she has not taken a share from any coparcenary property
7. FIL cannot maintain if he has no coparcenary property in his possession.

HE DID NOT DISCUSS THIS IN CLASS.

Section 20 HAMA - Maintenance of Children and aged parents
Section 22, HAMA- Maintenance of Dependants (List in S.21)
Section 23, HAMA-Amount of Maintenance
Section 24, HAMA- Claimant to maintenance should be a Hindu
Section 25, HAMA- Amount of Maintenance should be modified.

CrPC- Section 125 to Section 127

● Maintenance to wife, children and aged parents
● Secular legislation
● Uniform legislation to all, prevention of destitution, quasi civil proceedings in criminal
law, Summary proceedings, no ceiling amount on maintenance,Matrimonial status-
irrelevant consideration, Power to arrest in execution proceedings, maintenance through
informal relationships (live-in relationships)
● Informal relationships include - Live-in relationships, prolonged cohabitation, presumption
of marriage, relations in the nature of marriage, persons in domestic relationships.

CrPC and Islamic Law-

Shah Bano Case
● Shah Bano married Ahmed Khan in 1932 and had 5 children. Due to some differences, she
was driven out of the house. She filed for maintenance in 1978 and the Husband divorced
her by irrevocable talaq.
● The magistrate ordered Rs.25 to be paid as maintenance (CrPC).
● Muslim Law permits maintenace to wife during the subsistence of marriage. After divorce,
the maintenance is to be paid only till iddat ends.
● After this dude divorced her, he agreed to pay maintenance only for 3 months (iddat). After
these three months she had no means of survival.
● The HC upheld the magistrate’s order.
● The Supreme Court looked at the Shariat Act, 1937 which says that in case of marriage,
divorce, maintenance, traditional Islamic Laws need to be applied. The Question before the
Court was whether CrPC was applicable to Muslims when it comes to maintenance? CrPC
has no specific exclusion to Muslims. There was no intention of the legislators to exclude
muslims from the benefits provided under CrPC. The intention of S.125 to S.127 is to
provide social security to women, children and aged parents. Traditional Law is also valid.
 But since the application was made under CrPC, the Husband was bound to pay
maintenance even after iddat (overriding effect).
● The Supreme Court extended the Scope of maintenance beyond the period of iddat in this
case, through CrPC.
● This case led to a huge controversy → Several muslims claimed that it was beyond the

principles of islamic law and CrPC should not be extended beyond the iddat period.
● To nullify the effect of this judgement, [CLASSIC LEGISLATURE MOVE. I WAS
HAPPY AT LEAST ONE ONE SUBJECT DID NOT HAVE THIS NEVER ENDING
CYCLE. BUT NVM. SORRY FOR THE RANT] the Rajiv Gandhi government enacted
The Muslim Women (Protection of Rights on Divorce) Act, 1986 (only upto iddat + no
provision for in-laws to provide maintenance)

Islamic Law-
● Traditional Islamic law- Each and every muslim husband is supposed to provide basic

means of survival to his wife, children (until they are majors) and necessitous parents

during the lifetime → Atmost duty under the concept of nafaqa.

● Section 4- The Muslim Women (Protection of Rights on Divorce) Act, 1986- The

women should be divorced + cannot maintain herself after iddat + not remarried → Her

own relatives should provide for her and that too if she some property which they can

inherit after her death (SOMEBODY CROSS CHECKKKKK)

Hierarchy-
1. Her Children
2. If children are unable to pay, her parents
3. Other relatives
4. Waqf board (Progressive move)
5. State government (Progressive move)
● Section 5- Option to be governed under CrPC.

11.10.2021
MUSLIM MARRIAGE CONTD
MUTA MARRIAGE
● There is no maximum or minimum number of muta marriages
● Shia male can contract muta marriage with a kitabia or fire worshipper (because it is a
temporary marriage)
● Time should be specifically mentioned in the contract. If the duration is not mentioned, the
marriage will be considered permanent
● Can be oral or written contract
● Dower should be specifically mentioned. If it is not mentioned, marriage will be considered
as void.
● Children born out of such marriages are considered legitimate.
● Iddat- In case of death of husband- 4 months and 10 days;
Other cases- Menstruating woman, marriage consummated- 2 menstrual cycles. Non
menstruating wife- 45 days. Not consummated- Not required.
● Dower- Consummated marriage- Full Dower; Not Consummated- Half Dower; If wife
leaves before the completion of the term- proportional dower.
● Maintenance only under CrPC as its not available under traditional law

Iddat-
● Iddat commences after the marriage is dissolved either by the death of the husband or
divorce.
● Women are prohibited from marrying within a specific period. This is to ascertain whether
the woman is pregnant or not, to avoid confusion of paternity.
● Death-
a) Normally 4 months and 10 days
b) If the woman is pregnant- 4 months and 10 days or till the date of delivery,
whichever is longer.
● Divorce-
a) Menstruating women- 3 cycles, if not menstruating - 3 lunar months
b) Pregnant woman- till the date of delivery
 Cause Valid Marriage (Iddat) Irregular marriage (Iddat)

Death YES Only if marriage is

consummated (3 months)

Divorce YES Only if marriage is

consummated (3 months)

MAHR (Dower)
● Orthodox scholars consider mahr as consideration or sale price for cohabitation or conjugal
rights
● Quran- “Free gift to lady by her husband on their marriage. Symbol of truthfulness,
friendship of the husband and wife.
● Unsecured debt, actionable claims, entitlement of wife

13.10.21
Syllabus
Hindu Law
- Sources and Schools of Hindu Law-> Can skip for endsems.
- Start prep from concept of marriage, the ancient perspective and modern perspective.
- Marriage including matrimonial relief [S. 5, S. 7, Ceremony, Void S. 11 and Voidable]
- S. 5 is most bulky, do it properly.
- RCR [S. 9, 10 11]
- Dissolution of marriage.
- Child marriage [S. 5]
Muslim Law
- Schools you should know
- Marriage- Mehr etc.
- Dissolution
- Maintenance and Adoption, as per guest lectures.
- Guardianship -- small topic.
Class Begins

Mehr was the proper and valid consideration for the contractual type of marriage.
Types of Dower: -
1. Unspecified - Aka proper dower.
The amount to be paid is not specified.
The only issue that arises here is ‘what amount is to be paid’??
So in unspecified, the amount depends on factors such as the wife’s qualifications, family
standards, past customs, etc.

2. Specified - Aka customary dower.

Here, the amount is specifically paid. No confusion here.
a. Prompt dower-- to be paid on the demand of the wife. Husband pays when she asks.
b. Deferred dower-- to be paid when the marriage is dissolved, or it comes to an end. This
amount is paid on divorce or death. Considered as an unsecured debt, but is enforceable in
courts.
Purpose of Dower
Not just consideration as many authors state, but also other factors.
1. Social Security-- in both prompt and deferred, the mahr serves as a security to the wife.
2. Check on talaq-- since the husband can give talaq at his will, with no reason, then this
amount serves as a disincentive.
3. Personal/exclusive property-- it is the entitlement of the wife only, and cannot be paid to
any representative etc. it is her personal property.
4. Mark of respect-- apparently by paying the woman, there is respect given to her. Idk. My
mom says it was only for the purpose of giving security to the woman.

Time of fixation- generally at the time of marriage. But not necessary, can be fixed at any time
also. It can happen before or after the marriage also.
In case of ambiguity in fixation of the mahr--
- Shia law-- where the dower is not ascertained as deferred or prompt, then the whole of the
amount will be assumed to be prompt mahr.
- Sunni law-- here, in case of ambiguity, it assumes 50:50 prompt and deferred payment of
the mahr. Courts have said that ideally, it should be considered as prompt only, as per
customary practices.

Who can fix the dower? -- only the husband and wife can generally fix this. In case of minors, then
the patriarchs/fathers/guardians can fix the dower for either party.
- Sunni law-- where the amount has been fixed by the guardian/father on behalf of the
minor/person of unsound mind, then such an amount will be binding on the son only. There
 is no personal liability of the father in this case. He can only be held liable if it is apparently
clear that he acts as a surety for the dower.
- Shia law-- a father can obviously contract on behalf of the minor for the dower. But then,
the father will be personally liable for the payment of the dower in such a case. The
enforcement will be against such a guardian/father.

Subject matter of dower -- falls under the definition of ‘maal’, i.e. it is property or object, then it
is acceptable as mahr. Practise and law are two different things, since the law allows different
objects, but in practise it is usually money.
Eg-- the Hadees of the Prophet allows for a ‘handful of dates’ or ‘promise to teach quran’ or ‘profits
from property’ can be dower.

Amount of dower --
- Sunni law-- at least 10 dirham should be the minimum amount of dower to be paid. As in
exceptional cases to this minimum limit also, as per the Hadees. There is no maximum
amount specified.
- Shia law-- there is no minimum amount, but the maximum amount of dower is 500 dirham.
Why 500? Bcos the Prophet fixed 500 dirham as his daughter’s dower.
- What is dirham?-- the compendium of All India Muslim Personal Law Board has various
aspects. S. 129 of this compendium, says 10 dirham is equal to 30.168g of silver, and is the
minimum amount for Sunnis.
Mahr is considered as a debt, and can five rise to an actionable claim.
Can the wife remit her claim to mahr?? -- yes, of course she can. It should only happen out of her
free will, and with no influence or coercion. No restriction on this. She is also free to transfer it.
The Right to dower is transferrable and inheritable.
Kapoor Chand v. Kadarussia [1950]-- the mahr is a debt. This will have prevalence over all other
inheritance claims. Debt will take priority over inheritance and legacies. So, she will be treated as
any other creditor of the husband. She will be an unsecured creditor of the Husband. A suit can be
filed for recovery of her dower. Limitation period is applicable to such actions. Limitation depends
on the nature of the dower-- prompt/deferred. Suit for prompt dower has a limitation of 3 years. In
case of deferred dower, the limitation for suits is 3 years from the death/dissolution of the marriage.

Right of Retention-- it is not lien. It is a right given to the widow, for the unpaid dower. So, if she
is in possession of the husband’s property, she has the right to possession of the same. No charge
is created. ONLY right to possession. She can take benefits accruing from the property, upto the
amount of her dower. Aka “widow’s right to lien for the dower”. No right to sell, gift or create
third party rights on such property. It is not the right to lien at all. Please remember that. In case
she is dispossessed of the property, then again she can bring a suit for the recovery of possession.
 13.10.21: Sushil Goswami’s guest lecture

Guardianship

● Almost the same under all religions as well as the Guardians and Wards Act, 1890.
● Guardianship is a mechanism where you are acting / treating someone as a guardian. The
question of guardianship comes only when someone is a minor – someone to look after
yourself and property as well as ancilliary aspects – health, education, marriage (although
child marriage is not permitted).
● If Sushil Goswami is 10 years old living with natural parents – natural guardians. Have
some rights and relationships as they provide patronage.
● Hindus – very clear act- so well drafted, very easy to understand – both adoption and Hindu
Minority and Guardianship Act
➔ Relevant elements/ Factors -
1. Who can be a guardian?
2. How can they become guardians?
3. Legal authority of the guardian. (when it comes to decision making and property matters)
➔ Relevant Acts (ALWAYS WRITE THE FULL NAMES OF THE ACTS ALONG WITH
THEIR YEARS IN THE EXAM)

The Indian Majority Act, 1875 – provides ages of majority – 18 years (for this we do not go as
per the Hindu Marriage Act)

The Guardians and Wards Act, 1890 - Secular Act. Islamic law has been following this recently.
Very similar to -

The Hindu Minors and Guardianship Act, 1956 - Super clear one.

Sometimes parents may take decision and child may challenge later

Guardians can determine religion – a legally valid guardian – if not, then decisions can be
challenged.

● Hindu law –

S. 4(b) – the mechanism of guardianship is determined such that every aspect may be defined by
law. It is in a way providing all the possible kinds of guardians based on need.

➢ Natural Guardian
➢ Layman – mother or father. Whenever a child takes birth, the mother and father are
always the guardians of each and every child. There is clear demarcation on the authority
of the mother or father.
● Minor, unmarried boy or girl - father is the first guardian. Mother is not having that
much capacity during the lifetime of the father to be called guardian. Getting it as a
secondary right.
● If the father is disqualified – then it is the mother.
● Proviso - The law says the custody of a minor less than 5 year of age – if custody had
been given to either parent, irrespective of the fact of custody, the mother may be
considered the natural guardian. Custody ‘shall be’ with mother; - ordinarily – i.e.
subject to the interest of the child. Anything can be overruled in a way by the court to
protect the interest and welfare of the child – paramount concern.
 ● Second provision – illegitimate child/ unmarried girl – natural guardianship coming
to mother. Then father. Mother is always going to be a mother always. The CHILD will
bear the illegitimacy tag based on the relationship between husband and wife. It is
perceived that the interests of the child will be protected in a better way with the mother.
Father has no such direct relationship with the child.
● Third case – a married minor girl – immediately she is under the guardianship of her
husband.

When a 21 year old marries a 15 year old – he will be guardian. There may be that both partners
are minor. Can a minor be a guardian of someone? Yes. For all legal purposes – the husband
himself will be the guardian. But the guardian of the husband will be considered the de facto
guardian for the girl. They’ll have to do everything and be responsible for their minor daughter-
in-law. (He said since they are doing something illegal by marrying off minors anyway, this
responsibility is expected).

Change of guardianship for child marriages - Repudiation of marriage doesn’t change anything.
Dissolution does.

➢ Second perspective – disqualifications– exceptions.

Those who aren’t qualified can’t be in the primary or secondary category.

1. Civil death - When someone is renouncing the world completely – going to the Himalayas
– cannot be guardian. Then the second in line will become the primary guardian.
2. Conversion – Hindu only be the guardian of the Hindu because Hindu law governs it.

If both parents convert – they won't have the legal authority over the child. Other kinds of
guardians.

S. 10. – minors cannot be a guardian for any person or property.

S. 13. - guardianship which is not in the interest of the child will not be valid. Any action can
be challenged. Natural or not. If it is not in welfare then it can be challenged.
Adoption - The moment a child goes from natural family to adoptive family, all rights will be
transferred including that of natural guardianship. Though they are adoptive parents they are
natural guardians for all purposes.

➢ Rights and powers of Natural Guardians

In practice hardly anyone follows –

● Right to custody of child

● Right to determine various aspects of the personality of a child – Education, religion, etc.

Including marriages - Primarily all child marriages are valid except 12 or 14? So a father
can determine and marry off.

● Reasonable punishment or deterrent.

● In the interest of the child the guardian can decide on a contract, compromise, agreement,
etc.

Minor acquired property as a gift out of love and affection. And during the minority the
father takes care of property – rent, lease, compromise contract, agreements etc can be
entered into, but natural guardians cannot transfer property - movable or immovable.

● Natural guardians are not allowed to put children under obligation. If any father or
mother enters into an agreement directly or indirectly which due to their own actions the
child is coming into obligation – invalid.

Hindu Succession Act – pious obligation of son – if my father took some loan and could
not pay during lifetime then should settle all dues as a pious obligation – Mitakshara School
even grandpa’s debt would be son’s responsibility. Not valid any longer after the 2005
amendment.

➢ 2 fundamental principles regarding handling of property by guardian -

1. Transfer property on a temporary basis – valid. Reasonable or long term or permanent
transfer –including long term mortgage and sale (transfer of ownership) you have to
take permission from the court. Otherwise not possible in any case.
 2. In the cases of extreme necessity (highly subjective) which a guardian can justify, or
welfare/ advantage of the child – no need for permission.

So parents can do this all the time right? After reaching the age of majority, the child can
challenge the action. If there is no court permission then the child can challenge and it will
have to be returned with interest.

★ So the catch is that, since it is subjective, it is Voidable on the option of the child.

● Q. What about leasing the property?

A. Cannot be given at a time for more than 5 years! Can be renewed.

Also only till the age of majority is reached. The remaining time for the age of
majority + 1 year more. So if the child's age is 16, then 2+1 = father can give a
lease for 3 years.

➢ Testamentary guardian (this and natural guardian are important)-

S. 9. Guardian appointed in will

One thing you need to remember – appointed in the will of natural guardian

Ex - For my son’s xyz property, Ayush will take care.

Not naturally, coming as in writing.

Key point - For example an orphan child being taken care of by grandfather / uncles/ other
relatives. In view of taking care of the minor grandson and property, the grandfather writes will -
Sushil, who is a grandson of me, is having property xyz, in case I am dead, Ayush will be guardian.
Not valid in the eyes of law.

So far in examples we have seen 2 sets of testamentary guardian

1. Natural parents
 2. Grandfather.

In both cases it is being appointed by will.

First requirement – writing a proper testamentary document is fulfilled!

★ But! Most crucial - people who have the capacity of being a natural guardian, only they have
a right. Grandfather appointing a testamentary guardian is wrong.

Normal course – Mother cannot appoint a testamentary guardian because during lifetime
the father, who is the primary natural guardian.

Illegitimate child – other way round.

S. 10 – minors can act as guardians in law, not in fact.

➢ Karta
● Guardian of all the family members- head of family and guardian of everyone – Joint Hindu
Family.
● In JHF – karta is taken as guardian for everything – lookin after all the possible aspects.
BUT KARTA IS NOT NATURAL GUARDIAN AND CANNOT APPOINT
TESTAMENTARY GUARDIAN.
● Coparcenary joint family – no guardian can be appointed. As long as karta is alive or the
family is not broken up – karta is enough.

➢ De facto guardian

Many times – the small kids stay with grandparents – uncles other family members have parents
or not.

All day to day affairs that person is taking care of. These kinds of guardians are called de facto
guardians. But in law, they are not guardians. Decisions cannot be binding on the minor child.
Cannot deal with the property
 ● De facto guardians have one right –

When a child gets to majority, they can recover that amount - If they have spent a huge amount on
the child, either for upbringing or education, that money can be recovered.

Or if an orphan left with property – de facto guardian – cannot do anything because it is not
recognized in law. No right to deal with property. But can recover money

➢ Ad litem guardian –

Appointed by courts to deal with litigation. The legal heir has interest in property but is a minor!
If they want to contest, it can be contested in court by being represented by some person who will
be appointed by the court. The purpose is only to deal with a specific matter in court – guardians
are supposed to deal with litigation and cannot take any other initiative.

Ad litem is a derivative concept.

S. 39. If any guardian is not behaving in accordance with HMGA or not in the welfare of the child,
then – court can remove the guardian. Read it yourself. Some relatives can file in court.

13.10.2021

● Islamic law –

Providing the concept of guardianship – no adoption thus guardianship – for the same reasons and
purpose as in Hindu law – property, welfare of person.

Guardian act also applicable – secular act

Indian majority act applicable to all religions

In marriage – who can give the child in marriage’ – guardians for the purpose of marriage

Custody under Sunni law – read yourself

Shia law – custody goes to the mother? - read yourself

For the purpose of property – guardians can be appointed – father, grandfather, however high it
can go in that line.

Sunni law is also the same.

Islamic law the guardianship is now covered by the guardians and wards act which also provides
for custody of children – uniformly.

The court has to see the interest and welfare of the child. No clear perspective on custody. As a
whole – welfare is paramount. Though the acts give options, the welfare of the child – paramount.

Islamic law – religious perspective of guardianship. (he did not explain it)

16. 10. 21 Extra Class (I think I missed the first 30 minutes. I’m not sure if she started at 9 am or
a little later).

● Dissolution of marriage became better in the Arabic world with the advent of Islam because
husbands ability to dissolve marriage at his will was curtailed with conditions.
● Now - dissolution can happen by
1. Act of God - virtue of death
2. Act of EITHER parties - although husband has primary rights
● Divorce under Islamic law can be of two types -
1. Extra-judicial or
2. Judicial divorce

Judicial - allows for specific legislation allowing a wife (or the husband)to put an end to their
marriage.

Extra-judicial - Husband! can put an end to marriage based on his whims.

● Methods of divorce -
1. approved and
 2. not approved (not considered good practice)

Approved -

Talaq ul Sunnat- not irrevocable - 3 months given, certain requirements, approved, two categories

1. Talaq e Ahsan (most approved)

2. Talaq e Hasan (approved)

Husband can also put end to marriage by virtue of second category (not approved form even in
Islam - even Quranic injunction doesn't approve, further prophets allowed it) -

Not Approved -

Talaq e biddat/ ul biddai (triple talaq) - 2019 legislation declared void.

Reason not approved - irrevocable in nature. Instant talaq.

Misconception - Pakistan doesn't follow triple talaq! Not allowed. It's not Quranic! Later caliphs
allowed it.

Further forms -

Illah- husband says I won't have any physical relationship with you. Then 4 months later it'll end.

Strihar? - injurious comparison of wife with mother, sister, etc. Forbidden relationship comparison.

● How can a wife divorce the husband?

1. Delegated talaq. Husband gives powers to wife - Talaq e tasdeer.
2. Mutual consent / agreement -

Khulla

Mubarat
 ● Distinction - Sunni law v. Shia law
1. Mode of divorce and Witness requirement -

Sunni law - divorce can happen either orally (oral dissolution cannot be challenged. It is also
equally valid - hibah or something she said) or in writing.

Sunni law doesn't prescribe any particular form. Talaq namah (written) also as long as one is
clearly expressly indicating divorce to whom by whom, no specific requirement of words to be
pronounced.

Witnesses were not required at the time of dissolution.

Shia law - ideally divorce HAS TO BE PRONOUNCED ORALLY IN THE PRESENCE OF - 2

male witnesses (who have achieved puberty, are Muslims. Remember, Shia witnesses are not
required at the time of marriage)

Must be pronounced only in Arabic! That too in specific form. Not necessary as such that the
husband should know Arabic, the husband can engage a person as an agent for pronouncing Talaq
(who is sane and understands what he's doing) or wife by delegation.

If nobody knows Arabic and how to pronounce Talaq and put an end to marriage, exceptional
cases - Talaq MAY be pronounced in any other language. Or in writing. For Example - if the
husband has a physical disability.

2. Validity

Sunni law - even if husband pronounced talaq under intoxication or under jest / anger - valid

Shia law - no. Pronounced under intoxication, jest or please someone else - not valid. Shia is
relatively stricter.

● Other points -
- Any Muslim husband of sound mind and puberty can pronounce talaq. Guardians
not required.
 - Shia law - if the husband is lunatic and the father has given consent on behalf of
the lunatic person then the father can give talaq but only in the interest of the lunatic
person.
● Repudiation with or without reason -

Husband needn't give a reason. As far as the requirement of intention is concerned however - in
some circumstances it has to be proved. For example - if it is ambiguous/ not clear.

Oral talaq - if words are used but not express or clear or indicating expressly - then intention may
need to be proved. But as long as it is clearly pronounced - no need to prove intention. However,
certain schools of Shia require it to be expressly proved.

Written talaq - if not written in the proper sense - intention may be needed to be proved. If written
in the customary form as prescribed - it is “manifest” (ma’am’s words) - intention is presumed.
No need to prove intention

Intention usually need not be proved if words are absolutely clear. Words are 'sahi'? Under
Muslim law - intention is presumed.

● More points

Even the presence of a wife at dissolution is not required! - it is a law now cleared by the Privy
Council long ago.

Talaq becomes effective the moment it is pronounced, not when the wife comes to know about
it.

● Types of Talaq in a bit more detail

1. Talaq al Sunnat - approved! - most proper form of talaq. Ma'am has used Quranic verses
in the slides to show us how it is approved.

2 categories - talaq e ahsan and e hasan

1. Talaq e Ahsaan - MOST approved. Even better than Hasan. As per Islamic injunction this
is correct. .
Husband to divorce wife in a tuhr - in the period of purity. She's not menstruating. Or done with
her cycle. Single pronouncement .

For 3 menstrual cycles husband abstains from entering into sexual relationship with wife - period
of iddat? If none entered into, then talaq becomes effective.

The husband can take them back as a wife if they want reconciliation.

Very good because it provides an opportunity for reconciliation. And go ahead with conjugal
relationships.

Not menstruating then tuhr not there.

2. Talaq e Hasan - less approved than Ahsaan.

Because the husband has to repeat it thrice - during three successive tuhrs. And abstain from sex
during any of these tuhrs.

After he repeated in the third month - divorce became effective.

Not approved - "the words that are not considered good for any marriage have to be repeated
thrice"

He can still try to reconcile in three months.

So till the third tuhr she's technically still his lawful wife.

In Sunnat - both modes have the opportunity of revoking. So even if given in anger/ spur of the
moment - husband has time to rethink.
2. Talaq e Biddat - disapproved - improper - not possible in India because of judicial intervention
and legislation of 2019 - also known as Talaq i Bidai/ Talaq al Bain

Recognized by the second caliph - Umar/ Omar. The Prophet never ever encouraged this.
Introduced by the Omayyad Monarchs.

It can be exercised in two ways.

1. Al Talaq al Bain - Triple talaq. Once the third word is said it becomes effective.

2. At Talaq al Bain - Single pronouncement.

It is an irrevocable form of talaq.

If the husband explicitly mentions this fact at the time of pronouncing - that he is invoking talaq e
bidat it’ll be effective. So even if he doesn't pronounce it thrice it'll be instant talaq the moment
the words are said.

Orally also possible - but usually the single pronouncement was done in writing. Triple talaq was
done orally.
Here there is no scope for reconciliation. Intoxication or anything it is immediately effective. Even
if not free will. No scope to get back to wife. Practically not possible to put an end to talaq.

Lunatics - scholars - can divorce in the sane period for Sunnis. Shias are not allowed.

“The man can repent. Women who hear the heat of these practices. For no reason they've been
left. No idea how or why it happened.”

So SC - accepts a petition to declare it unconstitutional. And done.

Only Sunnis recognize this kind of talaq. But many Sunnis have not considered it - Hannafis
only.

Shias won't follow because it is not in the Quran and completely irrevocable.

18. 10. 21 - LAST CLASS WHEE!

 3. Delegated talaq-

3 types (she said she won’t explain it but she mentioned these three so I wouldn’t say its THE
three types but A three type you guys get what I’m saying?)-

1. At pleasure of wife

2. Temporary

3. Permanent ( not exactly the ones but whatever)

Feature - delegated power can be given at the beginning or at the end. With the prenup or during
marriage also.

Conditional Talaq - (she segwayed)

Sunni law - Conditional or contingent divorce possible. Ex - “if you go to father's house I'll
divorce”

Strictly prohibited under Shia law.

4. Divorce by mutual consent.

● Khulla -

Wife insists on divorce (Ma’am kept saying at ‘instance’ of wife). Then if husband consents they
no sex for 4 months at the end of which term divorce is finalized.

Mulla and Farzi- Khulla is mutual consent. Because it's not possible without the consent of the
husband EVEN if it comes into play at the insistence of the wife.

Paris Diwan- No. It's a right given to a wife.

Maam - ultimately not unfettered right given to wife. Acceptance of the husband is important.

Concept of consideration - Bad play format

Wife - release from marital stuff.

Husband - okay but at what cost?

Wife has to give something to the husband in the form of consideration.

Can hand over dower also.

Wife - take it I just want divorce.

Husband - okay.

● Mubarat- is like hindu laws.

● Ila -

Shia - ila not confirmed divorce without court order.

Sunni - after four months, an irrevocable form of talaq.

But Shafi's think it's only a ground for judicial separation of the wife.

● Zihar is almost obsolete (damn sad). No such cases in India usually.

When husband compares wife to a ‘forbidden relationship’. Like - ‘Thou art like moi madre’.

Wife can say chee I’m out.

Husband can do penance to fix it.

● JUDICIAL SEPARATION READ S. 2

● Apostate dissolution - when either party switches religion

Husband becomes apostate - marriage gets dissolved ipso facto. Void then and there.
Wife becomes apostate- judicial route with S. 2. Basically the marriage isn’t dissolved
immediately.

Reconversion not covered for women - that is if wife was say, a Jew who converted to Islam and
got married and after marriage reconverts to Judaism AGAIN! The marriage gets dissolved ipso
facto. ONLY THE SAME RELIGION OKAY. SHE CAN GO BECOME HINDU AND THIS
BECOMES GROUNDS FOR ONLY JUDICIAL ROUTE.

● The Lunatic-Puberty dissolution question

Aditya’s explanation - Puberty is something that determines maturity for marriage in Muslin Law.
Back then if you were married before puberty, you couldn’t repudiate the marriage after hitting
puberty.
There were a lot of steps, nuances involved, especially if a CLOSE guardian, like your father or
grandfather had made the decision on your behalf. But if it was a distant guardian, apparently the
process was simpler.

But now it has changed. How? Even he’s not sure.

I think the same applies to lunacy. I’ll check and clear this up.