FAMILY LAW-I 1

FAMILY LAW-I 2

Contents
I. INDEX I-III
II SHORT NOTES INDEX IV-VI
III TABLE OF CASES VI-IX
III ESSAY QUESTIONS AND ANSWERS 1-114
IV SHORT NOTES 115-138
V DICTIONARY OF FAMILY LAW-I 139-149
VI IMPORTANT QUESTIONS 150
VII REFERENCE B OOKS 151

I HINDU LAW 01
1 Who is a Hindu? 01
2 Sources of Hindu law 03
3 Schools of Hindu law 05
4 Distinction between Mithakshara and
Dayabhaga Schools 06

II THE HINDU MARRIAGE ACT, 1955 07

5 Essentials of a valid marriage 07
6 Essential ceremonies of a valid marriage 09
7 Whether Hindu marriage is a sacrament or civil contract? 12
8 Restitution of conjugal rights 14
9 Judicial separation 18
10 Nullity or Annulment of marriage or void and voidable marriage 20
11 Divorce 24
12 Cruelty as a ground for divorce 30
13 Divorce by mutual consent 33
14 Maintenance pendente lite 35
15 Permanent alimony and maintenance 37
16 Custody of children 39
17 Disposal of property 40
FAMILY LAW-I 3

18 Changes brought by Hindu Marriage (Amendment)Act, 1976 42

III MUSLIM LAW 44

19 Who is a Muslim? 44
20 Sources of Muslim law 44
21 Schools of Muslim law 47
22 Nikah or Shadi or Valid marriage 49
23 Essentials of a valid marriage 50
24 Valid, irregular and void marriages 52
25 Muta marriages 55
26 Option of puberty or Khyar-Ul-Bullugh 56
27 Iddat 57
28 Dower or Mahr 59
29 Divorce or Talaq or Dissolution of marriage 63
30 Divorce under the Dissolution of Muslim Marriage Act, 1939 67
31 Maintenance of wife under Muslim law 70
32 Maintenance of wife under Section 125 Cr.P.C 72
33 Guardianship or Wilayat 74

IV CHRISTIAN LAW 79
35 Who is a Christian? 79
36 Conditions relating to solemnization of marriages
under the Indian Christian Marriage Act, 1872 80
37 Dissolution of marriage under Christian Marriage Act 82

VI THE SPECIAL MARRIAGE ACT, 1954 85

38 Advantages and consequences of marriage
solemnised under the Act of 1954 87
39 Remedies under the Special Marriage Act, 1954 88
40 Differences between the Hindu Marriage Act and
Special Marriage Act 91
41 Uniform Civil Code 92

VII THE HINDU ADOPTIONS AND MAINTENANCE

ACT, 1956 94
42 Essential conditions of a valid adoption 96
43 Factum valet 98
44 Ante-adoption agreement 99
45 Doctrine of relation back 100
FAMILY LAW-I 4

Divorce
Section 13

D
IVORCE : T HE LAW relating to divorce is dealt under
Section 13 of the Hindu Marriage Act, 1955. Divorce
means separation or split. It is also known as dissolution
of marriage. Divorce puts an end to the marital relations. Accord-
ing to the ancient Hindu law marriage comes to an end only with
the death of the parties to the marriage. Hence there was no rem-
edy of divorce, but under the modern Hindu law, the Hindu Mar-
riage Act, 1955 provides the remedy of divorce. Thus the English
matrimonial law had greatly influenced the Indian matrimonial law.
Either husband or wife who aggrieved may file a petition for di-
vorce in the District Court or Family Court. On a petition pre-
sented by either the husband or the wife, the Court, if satisfied
with the grounds specified under Section 13 shall pass a decree of
divorce by dissolving the marriage. According to Section 14 no
petition for divorce can be filed within one year from the date of
the marriage. The Court will not pass a decree of divorce within
one year. This one year time and opportunity is given to parties
for reconciliation and adjustment. The parties are no longer be
husband and wife after passing a decree of divorce. They are free
to marry again as per their own choice.
I. Grounds of divorce in favour of both wife and husband:
Section 13(1) of the Hindu Marriage Act, 1955 lays down the
following eleven guilty grounds on which a petition for divorce
can be filled by either aggrieved husband or wife. That the other
party
FAMILY LAW-I 5

1. Adultery: Sec 13(1)(i): The spouse who engages in extra-

marital intercourse is guilty of adultery. Living in adultery is
not necessary. Even an isolated act of adultery is sufficient to
file a divorce petition.
In Subbarama Reddiar v. Saraswathy AIR 1967 Mad 85 The hus-
band who returned home late in the midnight. He found a
stranger in his wife’s bedroom. Madras High Court held that,
unless the act can be explained by some innocent explanation,
adultery might be inferred. Therefore Court relied on the cir-
cumstantial evidence and granted a decree of divorce.
2. Cruelty: Section 13(1)(i-a): Cruelty means unkindness or bru-
tality. Violent behaviour is the basis of cruelty. Prior to the
amendment, cruelty was a ground only for judicial separation.
By the Marriage Law (Amendment) Act, 1976 cruelty is one of
the grounds on which divorce can be claimed. e.g. beating,
harassment etc. The petition for divorce can be filed on the
ground cruelty.
In Dastane v. Dastane AIR 1975 SC 1534 A reasonable appre-
hension that it will be harmful or injurious for the spouse to
live with the other was held to be ‘Cruelty’ by the Supreme Court.
The Court laid down that ‘cruelty’ requires danger to life, limb
or health. Therefore a mere threat by the wife to commit sui-
cide and set fire to the books written by her father-in-law does
not amount to cruelty. Cruelty may be subtle or brutal, physical
or mental. It may be by words, gestures or mere silence.
3. Desertion: Section 13(1)(i-b): Abandoning or leaving the
spouse by the other spouse without any reasonable cause and
without the consent or against the wish of the other is called
desertion. Desertion may be actual or constructive. Withdrawal
from the place is called actual desertion and withdrawal from a
state of things i.e. under the same roof is called constructive
desertion. The burden is on the petitioner to prove desertion.
In Durga Prasanna Tripathy v.Arundhati Tripathy 2005-
AIR(SC)-0-3297 the Court held that a lengthy desertion of 14
years, impossible reconciliation leads to the presumption the
marriage is irretrievably broken and therefore the decree of
FAMILY LAW-I 6

divorce was upheld.

In Rishikesh Sharma v. Saroj Sharma 2007 (2) SCC 263 both
husband and wife crossed 49 years and they were living inde-
pendently for the past 25 years. On the ground of irretrievable
breakdown of marriage the Court passed a decree of divorce.
In B. Srinivasulu v. Mrs. Veena Kumari AIR 2008 AP 20 The wife
suspected her husband’s character and made unethical and un-
holy allegations by linking up character of husband with char-
acter of sister-in-law. Their marriage was irretrievably broke
down. The husband and wife hardly lived together only for 11
months. The Court granted a decree of divorce on grounds of
cruelty and desertion.
4. Conversion: Section 13(1)(ii): Conversion means change of
religion i.e. conversion to any other religion from Hinduism.
It is also known as ‘apostasy’. If either party to the marriage
has voluntarily relinquishes his or her religion and adopts an-
other religion after formal ceremonial conversion he or she
shall be ceased to be a Hindu.
5. Unsound mind: Section 13(1)(iii): Unsoundness of mind is a
mental disorder. If the respondent has been incurably of un-
sound mind or has been suffering from mental disorder of such
a kind and to such an extent that the petitioner cannot reason-
ably be expected to live with the respondent, is entitled to file a
petition for divorce.
In Dr.Kollam Padma Latha v. Dr. Kollam Chandra Sekhar 2007
(1) ALD 598 (DB) it was held that Schizophrenia which is
curable and treatable can not be a ground for divorce. Hence
the petition for divorce filed by the husband was dismissed.
6. Leprosy: Section 13(1)(iv): If the respondent has been suf-
fering from virulent and incurable from of leprosy, the peti-
tioner has a right to file a petition for divorce.
In Annapurna v. Nabakishore, AIR 1965 SC 72, lepromatous lep-
rosy, which is malignant (hateful) and contagious and in which
prognosis is usually grave was held to be virulent leprosy.
1. Sec 13(2)(i) Bigamy of the husband
FAMILY LAW-I 7

2. Sec 13(2)(ii) Husband guilty of rape, sodomy or

bestiality
3. Sec 13(2)(iii) Decree or order of maintenance
4. Sec 13(2)(iv) Repudiation of marriage between
15-18 years
In Vinita Saxena Vs. Pankaj Pandit 2006-AIR (SCW)-0-1585 a
gap of 13 years without the consummation of marriage was held
to be a valid reason for the grant of divorce.
In Mahendranath Yadav v. Sheela Devi 2010 9 SCC 484 It was
held that customary dissolution of marriage through panchayat
can’t be a basis for divorce under Section 13 of Hindu Mar-
riage Act,1955.
Evaluation
1. Describe the various grounds on which divorce can be obtained by either
spouse under The Hindu Marriage act, 1955?
2. State the legal meaning of divorce and on what grounds the marriage can be
dissolved under the provisions of Hindu Marriage Act,1955 ?
FAMILY LAW-I 8

Shortnotes Index
Acknowledgement of paternity 117 Guardian under Muslim Law 124
Ad hoc guardian 117 Guardians by affinity 124
Adoptiosan 117 Guardians of person 124
Adoption by a Hindu female 117 Guardianship of property 124
Adoption by a Hindu male 117 Hanafi school 124
Adoption by a Hindu widow 118 Hindu marriage is a civil contract 125
Adultery 118 Hindu marriage is a sacrament 125
Affinity under Muslim Law 118 Iddat 125
Annulment of marriage 118 Ijma 125
Ante-adoption agreement 118 Ila 125
Certificate of marriage 119 Impotency 125
Certified guardian 119 Interim maintenance 126
Christian marriage 119 Irregular marriage 126
Consanguinity under Muslim Law 119 Judicial separation 126
Conversion 119 Judicial separation:Muslim law 126
Cruelty 119 Kanyadana 127
Custody children 120 Kharcha-I-pandan 127
Custom 120 Khaykhyar-Ul-Bullugh 127
Customary or proper dower 120 Khula 127
Dastane v. Dastane 120 Legislation 127
Dayabhaga School 120 Leprosy 128
De facto guardians 120 Mahr 128
Deferred dower 121 Mahr-I-misl 128
Desertion 121 Maintenance Pendente Lite 129
Digests and Commentaries 121 Maintenance: Muslim Law 129
Disposal property 121 Maliki school 129
Divorce 121 Mitakshara School 130
Divorce by mutual consent 121 Muajjal mahr 130
Divorce by Talaq 122 Mubaraat 130
Doctrine of Relation Back 122 Mushaarat 130
Dower 122 Muta marriage 130
Dower in Muta marriage 122 Muwajjal mahr 130
Factum valet 123 Nafqah 131
Family Court 123 Precedent 132
Fasid . 123 Premarital pregnancy 132
Faskh 123 Renouncing the world 133
Fosterage or Riza 123 Restitution of conjugal rights 134
FAMILY LAW-I 9

Table of Cases
Alka Sarma v. Abhinesh Chandra Sarma 1991 08
Amirda Amalraj v. Thamima 1995 83
Anita v. R. Rambilas 2003 34
Annamalai v. Perumayee Ammal 1965 18
Annapurna v. Nabakishore, 1965 28
Ass Kaur (Dead) by LRs v. Kartar Singh (Dead) by LRs & Ors 2007 04
Aviral Bhatla v. Bhawana Bhatla 2009 34
AzizaKhan v. Dr. Amir Khan 2000 78
B. Srinivasulu v. Mrs. Veena Kumari 2008 27,32
Bai Tahira v. Ali Hussain 1979 73
Balbir Kaur v. Raghubir Singh 1973 36
Basanti Mohanty v. Rarikhit Rout 2003 102
Bharatha Matha & Another v. R. Vijaya Renganathan &Ors 2010 21
Bhaswati Sarkar v. Angshuman Sarkar II 2001 89
Bipin Chandra v. Prabhavati 1957 26
Brij Kishore v. Rekha 1992 41
Dastane v. Dastane 1975 30
Dattu v. Tarabai 1985 102
Debnam v. Debnam 1949 36
Deepa Sugal v. Dineshchandra, 1993 17
Deivain Achi v. Chidambara Chettiar, 1954 10
Dr.Kollam Padma Latha v. Dr. Kollam Chandra Sekhar 2007 27
Durga Prasanna Tripathy v.Arundhati Tripathy 2005 27
Flg.Officer Rajiv Gakhar v. M.S. Bhavana @ Shahar Warf 2011 23
Ghisalal v. Dhapubai, 2011 95
Godhabai v. Narayana 1972 18
Gullipilli Sowria Raj v. Bandaru Pavani @ Gullipilli Pavani 2009 08
Hanuman Prasad v. Musamat Babooee 1856 108
Hitesh Bhatnagar v. Deepa Bhatnagar 2011 35
Jaitunbi Mubarak Shaikh v. Mubarak Fakhruddin Shaikh & Ors 1999 21,78
Jinia Keotin v. Kumar Sita ram Manjhi 2003 18
Joyita Saha v. Rajesh Kumar Pandy 2000 11
Kalicharan v. Sudhirchandra 1985 110
Kamaladevi v. Shiva Kumar Swamy 2003 16
Kartar Singh v. Suraj Singh 1974 97
Kesari Bai v. Horibhan 1975 103
Kumar V. Jahangirhar v. Chetana K Ramatheertha 2001 39
FAMILY LAW-I 10

Shortnotes

A
C KN OW LED GEMEN T OF Even religious ceremonies and sac-
paternity: Muslim law ramental formalities are not neces-
does not recognise the insti- sary for adoption.
tution of adoption but recognises the Adoption by a Hindu female: A
institution of ikar or doctrine of ac-
Hindu unmarried female, widow or
knowledgement. The children born divorcee can adopt but a Hindu mar-
out of lawful wedlock are presumed ried female has no capacity to adopt
to be legitimate children. The ques- even with the consent of her husband.
tion of legitimacy arises where the If there is to be an adoption, it must
marriage of the spouses is in dispute. be made only by her husband with
In many cases, the parties may or her consent. According to Section
may not acknowledge the paternity 11(iv) a Hindu female who adopts a
or maternity of the children. male child, must be older to him by at
Ad hoc guardian: A guardian ap- least 21 years, otherwise the adop-
pointed only to do a particular isolated tion is void.
transaction in respect of minor’s Adoption by a Hindu male: A
property is called ad hoc guardian. Hindu bachelor, married person, di-
He is not a guardian in the eye of law. vorcee or widower can adopt. Ac-
He is neither natural guardian not cording to Section 5(1) an adoption
guardian appointed by the Court, but
made without the consent of wife is
he can be described as de facto void. Therefore, a Hindu married
guardian. However he is bound to male must obtain the consent of his
manage the property like any other wife for adoption. In Bhotooram v.
guardian. Ram Law AIR 1989 MP 198, the
Adoption Adoption under ancient Court held that even if the wife is liv-
Hindu law was meant for spiritual and ing separately without dissolution of
religious purposes. Hence it was marriage, her consent is also neces-
based on ‘religious theory’. Accord- sary.
ing to Shastric Hindu law adoption Adoption by a Hindu widow: A
was a sacramental act than a secu- widow can also adopt a child without
lar act, but The Hindu Adoptions and her husband’s authority and without
Maintenance Act, 1956 has made the assent of her husband’s sapindas.
adoption a secular institution and A son adopted by his widow shall be
secular act. Adoption is a matter of deemed to be her husband’s son and
status and not a matter of contract.
FAMILY LAW-I 11

Dictionary
Abandoned:Neglected Desertion: leaving, forsaking
Acknowledgement: Recognizing Devdasis: devadasis
Adoption: taking up a child Devolve: pass to, give to
Adultery: willful extramarital sex Dharmapatni: wife
Affinity: relation, likeness Digests: publications, books
Age of major: of full age Disabilities: handicaps
Ahsan: best or very proper Discrimination: bias, unfairness
Alienate: transfer Divine injunctions: godly bans
Allowance: pocket money Divorce: break-up, split-up
Amicus curiae: friend of the Court Divorcee: a divorced woman
Analogous: similar in some respect Equity: fairness, impartiality
Analogy: similarity, equivalent False allegations: untrue charges
Ancestors: forefathers Family Court: Court of matrimony
Annulment: cancellation Family custom: family tradition
Arthangi: life partner Fasid: Irregular marriage
Ascendants: parents Faskh: cancellation of marriage
Batil: Void marriage Fidelity: faithfulness
Bequest: inheritance Formal ceremony: official ritual
Bride: female partner in wedding Formalities: official procedure
Carnal conjunction: bodily union Fosterage: bringing up
Ceremonies: official rituals Ganapati Puja: Ganapati pooja
Chastity: virtuous, pure Garbha Dana: Garbha danam
Commentators: reporters or analysts Geeta: Holy Book of Hindus
Conjugal rights: marital privileges Govern: administer
Conjunction: combination, union Hermit: vanaprastha, solitary person9
Consanguine: related by blood Hostile: unfriendly
Consanguinity: blood relationship Idolatress: a woman idolater
Consensus: agreement, consent Ijma: collective opinions and deci-
Custom: tradition, practice sions of the commentators
Customary rites:traditional rituals Illa: vow of continence
Dayabhaga law: Law of Dayabhaga Illegitimate: unlawful
De facto: in fact, reality Illegitimate child: unlawful baby
Deceased ancestors:dead relatives Illicit relation: illegal connection
Deity: god or goddess Impotency: sexual weakness
Descent: parentage, lineage Impotent: sexually powerless