FAMILY LAW I

INTRODUCTION

The meaning of family is an important one as it is the beginning of the first step to ascertain
various concepts such as marriage, adoption, inheritance thus important. Marriage as a concept
is important as obligations arise post marriage such as adoption, inheritance, succession,
maintenance etc. These obligations are determined based on the religion of the individual. Thus
the validity of marriage needs to be ascertained in all cases, and should ideally be tested in a
court of law (does not happen practically). In Indian law before divorce there are multiple
stages before the marriage ends. These steps are added because marriage is considered divine
and sacrosanct and thus cannot end without taking necessary steps. In Indian Family Law,
religion plays a very important role. For Hindu, Christians and Parsis, there exists codified
legislation that govern various aspects of personal life. Muslim Law remains uncodified,
however certain legislation exists for maintenance, waqf, divorce etc. The Shariat Act of 1937
authorises the court to follow traditional Islamic law while adjudicating on Muslim personal
matters.

Each community is government by their own set of personal laws. If I commit a crime it is not
governed by family law. Family law is applied to determine the relationship between parties
and the ensuing obligation based on the religion. Eg: if I die and my friend has to divide my
property, what will my friend do? Determining the personal law which will be applicable is the
first issue to be dealt with. Whenever an issue of personal relationship arises everything will
depend on the religion of the parties. Both religion and family law are intrinsically linked.

WHAT IS PERSONAL LAW?

Personal Law may be traditional, codified, or uncodified based on customs and accepted
practices. It is a branch of civil law which regulates the personal matters of individuals.
Family law deals with personal matters of people, usually on the basis of the religion. These
laws are not of general application. Religion is an integral part which cannot be detached from
personal matters. Concepts like adoption, maintenance divorce, succession etc. are governed
by personal laws. Family law is confined to personal laws and personal relationships. It is
different from law of contracts which deals with private matters that are not a part of personal
relationships. However, it might include some extent of criminal law. (eg: Section 125 of IPC)
if my wife is able to prove that I am treating her with cruelty, court can grant a divorce on this
ground. However, a family court cannot give a punishment in this regard.
 Prior to 1984, matters were referred to the district court, but after enactment of Family Courts
Act of 1984 ever district is required to have a family court to deal with matters of a personal
nature. These family courts do not have the authority to initiate criminal proceedings.

STRUCTURE OF INDIAN SOCIETY

the Indian society consists primarily of Hindus. Muslims are the largest minority group. Other
smaller minority communities include Christians, Parsis, Jews, etc.

Families in an Indian society are multigenerational in that it consists of individuals from

various generations.

TYPES OF FAMILY

. Nuclear Family: consists of Parents and their Children. Some schools consider grandchildren
but its minority view. Nuclear families may be relevant for the purpose of adoption and
maintenance. There is no requirement of staying together, and the only condition is that they
have not relinquished their right. Before marriage, as per legal statutes, children are a part of
the family. This is not the case after marriage, unless there is an express declaration to the
contrary.
I. Step Family: consists of one Parent and Children along with second spouse and their children.
This includes foster children, adopted children, etc. Eg: Step-brother, step-sister, etc. I am
married to a woman and have a child. My wife dies and I and I remarry. My second wife is my
sons step mother. I then have a son with my second wife. My two children are step brothers. If
my wife dies, the second son will inherit the property. If I die, my wife can only claim
maintenance from her real son. Real son will get preference as per Hindu laws.
II. Composite Family: consists of two nuclear families coming together ad associating. No
special rights arise from such a relationship. It is considered similar to joint families but the
rights here are different. Here, there is blending of two families where two parallel generations
live together. It is essentially the result of pooling resources when two nuclear families come
together, usually joined by a blood relation common. Eg. If my sister and her husband (parallel
generations) live with me, then it’s composite.
III. Nuclear Dyad Family: consists of spouses only, with no children, or where children are
staying elsewhere.
IV. Single Parent Family: consists of one parent and children
V. Joint family and Joint Hindu Family: consist only of people related from various
generations. It is the most recognised form and important with respect to family matters.
 Ancient Hindi law governs joint families in India. There is no difference between Hindu Joint
Family & Hindu Undivided Family. It is considered as one of the most important family as per
Mitakshara system. A Karta is the head and representative of a JHF. A JHF is more about
status and appearance in that it must appear that they are staying together. It is not
determined through property or co habitation.
i. It must have a joint status
ii. It must be accepted by some school i.e. Mitakshara or Dayabhaga
When the property in question is not self-acquired & passes from one generation to another
and is undivided till then, its JHF property which shall be referred as coparcenary or ancestral
property. A JHF can exist even w/o property. You merely need the status of JHF. Each & every
Hindu is a part of JHF (presumption). In a JHF, the Karta is duty bound to provide for minors
& widows. Further, people earning in a JHF are duty bound to contribute in the common pool
over which every member has equal right.
If someone (memeber of the JHF) dies before the year 1956, then it will be divided as ancestral
property where the property will be divided amongst all the members.
This is not a legal classification, as only JHF are recognized legally. Indirect recognition maybe
drawn from S.19 of HAMA.
Family laws such as HMA decides who gets property in the case of death, the rights to which
differs according to what type of family one is in. Therefore an indirect relevance to the type
of family can be drawn from legislations.
Laws applicable to JHF are Hindu Succession Act, Income Tax Act, Wealth Tax Act, Hindu
Adoption and Mainetanance Act. A JHF is a separate taxable unit under the Income Tax Act.

ESSENTIALS AND FEATURES OF JHF

1. Ancestral Property: Important component of JHF. Although important, not decisive. In case I
inherited nothing, contributions from sons A, B and C will be considered joint family stock for
JHF purposes.
2. Status: Members related to each other by blood, marriage and adoption staying together and
portraying to society or holding out tos ciety as one unit, or have nt declared to society as being
partitioned will be considered as JHF.
3. Common residence: Important, not decisive. Example Karta’s property may all be dispersed
and divided but existence of status may still accord it JHF
SOURCES IN HINDU LAW (MID-SEMESTER EXAM ONLY):

ANCIENT LAW:

. Shruti
A. Smrithi
B. Commentaries
C. Digest
D. Customs
0. Modern Law:
. Judicial Decision
A. Legislation
B. Justice, equity & good conscience

OVERVIEW AND IMPACT OF CODIFICATION:

Codification of hindu law only happened from 1940’s. till then, traditions of Dayabhaga and
Mitakshara ruled the customs of marriage, succession, adoptions etc. after 1955, there was no
marriage which was governed by M and D, as everything was now in accordance with HMA.
Courts would apply codified law rather than D and M and to the extend that the codified law
would allow customs. -for example. HAS 1956 has application to property disputes regarding
all self equired, but not ancestry property. Claims regarding ancestral property are still
governed by traditional law.

Impact #2: Earlier JHF partition would earlier take place based on D and M which did not
recognize women’s rights. 1957 onwards, self acquired property division was governed by
HSA. as per codification, equal rights were given to daughters in father and mother’s self
acquired property as per HSA. Thus, while in 2005 daughters acquired ancestral rights, they
acquired property rights in codification itself.

Equal rights given to wife, widows, daughters in parent’s self acquired property by HSA.
however equal rights given to daughter in ancestral property only (and only daughter) in 2005
amendment of Section 6.

2015 saw many legislations repealed, including the Amendment Act. However, daughters
continue to have these rights as such an amendment was made integrral to the entire HSA act.
the act of 2015 had no effect on HAS because 2005 had already amended the entire HAS. only
on the repeal of the entire law would it be annulled.
ANCIENT SOURCES

. SHRUTI: “what has been heard, generally believed to contain the word of God received
by saints and sages. Consists of all 4 vedas. it is believed to be the most important source of
law. All four vedas taken together govern personal relationships indirectly like the model way
of living. Vedas are considered to be at the highest level as words of gods conveyed to people.
There are four Vedas from which Yajurveda & Samveda are the most important ones. Vedas
laid down the principles but it was a little vague. Todays, Hindu law that is followed is different
from what existed previously based on the Vedas.

A. SMRITHI: It was considered to be written by seers & sages called Rishis who interpreted
the Vedas. Vedas were divided in two parts: A) Prose (Dharmasutra) by Gaulama, Nasistha
Vishnu, Harita etc. B) Poetry (Dharmashastra) by Manu, Yagnavalkya, Narad, Vrihaspati,
Katyanana, Vyas etc. It is a commentary on the vedas with analysis and opinions of authors.
Manusmriti is considered the most important.

B. COMMENTARIES & DIGESTS: Commentaries are interpreation of Smrithi along w/ that

of Vedas which gives an overall comsideration and analysis. It records all the traditions and
customs. Digests on the other hand deals w/ interpretation of multiple Smriti’s with repsect to
the Vedas & Puranas. Since, it exetensively deals with a lot of material it is considered to be
better than Commentaries.

PRINCIPLE COMMENTARIES & DIGESTS:

1. Dayabhag: Jimutvahana
2. Mitakshara: Vijnaneshwara
3. Vivada Patnakara: Chandreshwara
4. Dayatatwa: Raghunandan
5. Smrithi Chandrika: Devananda Bhatta
6. Viramitroditya: Mitra Mishra

D. CUSTOMS:
FEATURES:
● Should be accepted by people
● Should be reasonable and continuous
● Should not be against the basic principles of law
● Modern law doesn’t give preference to customs

SECTION 3(A) OF HINDU MARRIAGE ACT considered ‘customs’ and ‘usage’. Custom has three
essentials, it must be continuous, and it must be followed in a uniform manner for a long
period. Parties must prove that the custom is prevalent in the society, tribe, local area,
community. A custom would then have equivalent force of law in society. Thus, customs can
prevail over law.

S.7 OF THE HINDY MARRIAGE ACT 1955 gives recognition to Custom. In many cases customs
are recognized and prevail over legal provisions.
Marriage may be solemnized by either the a) HMA, b) Customs of husband, c) Customs of
Wife. Ex- Saptapadi can be followed or their own customs must be followed but their custom
must be recognized and followed strictly by the families.

HINDU SUCCESSION ACT –doesn’t give recognition to any customs except the Joint Hindu
Family System
In 1956- the doctrine of pious obligation was a custom and was recognized in the HSA. Current
status- in 2005, the doctrine of pious obligation was abolished. Now there is no recognition to
customs

HINDU ADOPTION AND MAINTENANCE ACT- Adoption was considered a religious activity and
the traditional hindu law was used. In 1956, the act came into existence and the traditional laws
were invalidated. The said act also doesn’t give any recognition to customs

HINDU MINORITY AND GUARDIANSHIP ACT- Everyone ws considered a guardian to a child. But
with the enactment of the act, the custom was not recognized and invalidated after 1956.

DIVORCE
● Ancient law- divorce was only considered in very ease and exceptional situations
● Current status- modern law, states that marriage can be only be dissolved under S.13 of the
HMAct- The laws used before 1956 were abolished

CONCLUSION:
 HMA does give recognition to customs but the HSA, HGMA deosnt give recognition to
customs and traditional laws.

SCHOOLS OF HINDU LAW:

1. Mitakshara: A commentary
2. Dayabhaga: Digest

Dayabhaga is considered more developed & modern system with respect to Mitakshara. It gave
new rights to daughters & widows. Sub schools arose because even when Mitakshara
commentary was proposed many people wanted modifications to it, which when made came
up with their own schools. Since Dayabhaga was applicable in smaller parts, no modifications
were proposed. The main difference between the both are Survivorship (M) and
Successhionship (D.)

MITAKSHARA SCHOOL:

● This school is based on the commentary of Vijneshwara amd considered to the supreme
authority throughout India except Norther Easter India and West Bengal.
● It was written in the latter 11 century.
th

● It recognized 8 types of marriages. Thus, the court will try to determine which system you
fall under & determine the validity of that marriage. Earlier, each marriage would fall under
those 8 categories. In this 4 forms of marriages were recognized which gave rights to the
parties while 4 forms were not recognized, where there was no rights.
● It also deals with duties of kings, boundary disputes, interest on loans, contract succession.
The second part deals with common rules of morality and conduct.
● It recognises agnatic relationships. when a relationship is traced solely through a male it is
considered an agnatic relationship. In such a relationship two people are related only
through a male. when a female falls in the chain of relatives, it becomes a cognatic
relationship.
 Husband + Wife 1st Generation
/ | \
S1+W S2+W D1+H 2nd Generation
| | |
S3+W S4+W S 3rd Generation
| |
S5+W S6+W 4th Generation
| |
S7 S8

COPARCENARY PROPERTY
1. Senior-most common ancestor for everyone- all male members upto four generations are
called coparceners and have the right to property
2. Beyond that , the sons only have the right to maintenance- daughters had no other rights
other than did not have right to coparcenary share in the old mitakshara system.
3. Interest in the coparcenary property goes to the common known ancestors and the next
three generations except minors.
4. interest in the property is bestowed by principle of survivorship.
5. When property is partitioned- JHF dies and each individual parties can form their own
JHFs.
6. Rights of coparceners start from the day of birth and lasts till the day of death- thus
a coparcenary’s right to enforce partition is secured by birth. in the mitakshara
system, a party can claim this right at any time.
7. Fluctuation of interest: share of property (rights over property) fluctuate or changes
ono death of a coparcenary. after death- interest of other coparceners increases.
8. In a situation where there are only daughters (no male in the second generation) the property
will continue in the father’s name but can be used by the family without being sold.
9. Children of parties married under the SMA are excluded as coparcenary.

WOMEN AND WIDOWS-

1. Women only have the right to maintenance, necessity, surviviorship etc. Widow has no
right in coparcenary property- but has right to claim maintenance from the karta but has to
continue has an ordinary member.
2. If F dies, W, D1 & D2 will not get any property rights. But, W & D1 are given maintenance
rights and so will D2 if it proven that even after marriage she was dependent on F.
3. The 2005 Amendment to the HSA grants coparcenary rights to daughters irrespective of
marital status (Section 6(3)).
4. Deshmukh Act, 1937:- protection of the right of widows- when a coparcener dies at the
time of his death- whatever interest he has the same will be transferred to his wife. Law
stated that the widow of the deceased would get the rights only for a limited period i.e. only
till her death. After her death, if property is left behind, then it would go back to the
common property of the JHF.
SUB SCHOOLS IN MITAKSHARA:

1. Dravida or Madras
2. Maharashtra or Bombay
3. Mithila – Bihar, Chhattisgarh, Jharkhand
4. Banaras
5. Punjab School

DAYABHAGA SCHOOL:

1. written by Jimutvahana and considered a digest

2. Inheritance is on death. There is no property right from birth.
3. Subsequent generation becomes owner of the property after death. On death of karta-
property is transferred to the immediate next generation- only on death does the next
generation get the right to property. If daughter is the immediate next generation, she
gets right in maintenance
4. Widow of deceased person gets right along with immediate generation. Here the wife of F
gets the property along with sons and daughters. SImilarly where a legal heir is deceased,
his wife and son and daughter will receive the property he would’ve received on his father’
death.
5. If senior-most member in has the absolute right- coparceners do not have the right to
enforce partition- they can only ask for maintenance. ·
6. No preference exists between agnatic and cognatic. Recognises relatives till 7 generations

IS MIGRATION TO ANOTHER SCHOOL POSSIBLE?

The applicable school will depend on the origin of the family irrespective of the geographical
location in which the family or person resides. Migration to another state will result in change
in a change in the school applicable.

Mitakshara Dayabhaga

1. Orthodox Considered developed

2. Equal rights to sons like daughters since Equal rights since inception
2005 HAS amendment in ancestral property

3. Followed in majority states Limited states- WB and North East

4. Commentary, several smritis were referred Digest where only one was referred
to

5. Includes few sub-schools with modifications Smaller territories thus no modifications

6. Basis of survivorship Basis of successionship

7. Rights are vested at birth of a member. At Rights vested at the time of death of
the time of coneption, 4 generations. property holder. Only to next generation.

CODIFICATION OF HINDU LAW

Hindu law is considered of divine origin. Hindus are highly homogenous and diverse. The
Shastras deal with aspects of personal laws. For all personal matters, Hindus were governed by
personal laws, which were dominated by customs which differed from family to family.
Authority of personal laws were derived from the vedas.

BRITISH ERA
Before Britishers, people either followed Dayabhaga or Mitakshara system. When they came
they realized everybody in India had different customs and traditions and thus realized that it
was very difficult to deliver justice. The Courts that were established for dealing with Family
law, took help from Maulvi’s & Pandits to deliver justice as per the traditions and customs.
People did not want any interference in their traditions. In both Hindu & Muslim law they
followed religious scriptures to deliver justice. Shrutis and Smirtis were considered the main
source of Hindu law. This however was problematic as different people interpreted laws
differently, and the court ended up giving different interpretations and judgments for the same
kind of facts. There was a lack of a singular clear understanding of religious texts, and any
interference into the interpretation was opposed.

In 1840 Lex loci report was given by Sir John Paul Grant which considered that the personal
matters should not be codified as people would not be able to appreciate touching their
traditional laws.

In 1928, Hari Singh Gaur (1st VC of Delhi University) wrote an extensive commentary on
Hindu Law: H.S. Gaur Bill (Dissolution of Marriage). Then dissolution was considered to
be against Hindu law when the marriage was performed as per the rules. H.S. Gaur introduced
his bill to permit dissolution of marriage. it was faced with severe opposition as it was
considered against hindu law. Hence it was tabled. [scope for dissolution was given for extreme
cases in Hindu law, in the Narad Smriti such as physical disability, conersion of religion.

In 1929, H.B. Sarda proposed Hindu Widows Right of Inheritance Bill (property rights).
The law given by Sarda was extremely new. It dealt with property rights. People once again
did not accept it because as per Mitakshara system, women did not have property rights. This
bill was opposed as it was against the traditional law.
This bill was reintroduced again in 1930 and 1932. The majority, however refused to accept
any interference in religious matters. The people had been following the direct word of God
and were not ready to accept any other persons, government or country’s. Thus they were not
open to any codification as it would interfere with their religious affairs.

1933- Bill introduced in Constituent Assembly. Bill was opposed by social, religious groups,
as well as those in Bengal. Main causes-
1. Legislation viewed as interference with religion- sudden change not favourable
2. Imposition of Western Culture- concept of codification, divorce, women’s rights etc. were
viewed as foreign ideals which were contrary to the Indian belief of marriage as a pious
obligation.
3. WB groups- while they already provided for most of these rights, they believed that instead
everyone should just adopt Dayabhaga.
Post 1933 saw a lot of progress in terms of social and religious reforms in India. These
movements were often spearheaded by royal families, in particular the queens, Groups working
for female upliftment also joined the cause. This culminated in the 1937 Act.

1937 Deshmukh Act was introduced to guarantee women’s right to husband’s property for
USE/ENJOYMENT ONLY (limited rights: no transfer allowed) Thereafter, several
reformists and social groups arose.
In 1941, the British government appointed a committee under the chairmanship of B.N. Rau
known as the Rau Committee. Agenda was to consult with religious groups nation-wide to
come up with a uniform yet acceptable legislation for Hindu laws. The committee toured the
country and examined witnesses.
The committee was resolve doubts about the Deshmukh Act structure. The Committee came
out with a Report in 1941. As a result of this in 1944 a draft code was prepared by the same
committee dealing with succession, maintenance, marriage and divorce which was given the
name ‘Hindu Code Bill.’ The Bill was published in 12 languages and in 8 parts and was widely
publicised. However, was not accepted by Assembly.
Pursuant to this they published the 1947 report wherein the suggested the following changes:
1. Abolition of joint family property system:
believed to have its sources in the Shrutis and Smritis which makes an indirect reference to
the concept of joint hindu family. Thus, an abolition of this system was considered an
interference. Widows and women were mostly dependent on the JHF and thus by its
abolition, these widows, women and even any individual’s social security was being
forcefully taken away. One person was responsible for all members. No one wanted such a
comfort, privilege and privilege to be taken away. Additionally, a large number of people
were able to avoid income tax through the JHF system. People cold claim or inherit
property when part of a JHF. For these reason such a move failed and the JHF system
prevails.
2. Introduction of daughter’s succession with son to the father’s estate:
People were not ready to accept daughter’s rights because of certain practices eg: son
throws fennel seeds during last rituals of their parents.
3. Inter caste marriages
Report recommended no restriction on marriage and no discrimination on the basis of caste.
Religious groups argued that the varna system and religious schemes dictated such a
prohibition of such a marriage and thus the Bill cannot make such a change.
4. Assimilation of civil concepts of marriage and sacramental essence of marriage
Husband and wife should be treated equally and be given equal rights in all aspects of
marriage. Removed the concept of submission of wife as propagated by the shastras
5. Abolition of child and sacramental marriages.
A fallacy existed as the bill allowed intercaste marriage but restricted the provision of
divorce to the higher caste. Thus there existed an inconsistency.
6. Introduction of divorce for the higher castes.
7. Should not follow survivorship and must follow succession.

DR BR AMBEDKAR COMMISSION 1948

Draft code placed before a committee under the chairmanship of Dr. BR Ambedkar. Ambedkar
mentioned that the codification should take place in phases, which was accepted by the
assembly. Additionally, religious identity as a Hindu was proposed to be made the sole basis
of all personal law and not caste.
In this regard the following questions were discussed and analysed:
1. Who would be considered a Hindu?
An attempt was made to abolish caste system by making the law applicable to all Hindus
irrespective of the caste.
2. Marriage
3. Adoption
4. Guardianship
5. Succession
6. Maintenance
Prescribed maintenance not only after but also during the subsistence of marriage (if
husband fails to take care or is disable>wife should also get maintenance)
Women were entitled to maintenance and separate residence based on the Court’s
satisfaction.
7. Woman’s Property
Women had rights wrt to self-acquired property. However, with regard to ancestral
property, women had no rights. Old law gave no uniformity to woman’s rights. A woman’s
property was divided based on how she acquired such a property.
8. Joint family.
The removed the JHF part of the 1947 report and tried to get the bill to pass. They believed
the code primarily failed due the highly unpopular abolition of JHF and this was the main
 hinderance in creating a legislation on marriage. While the rights of women were
encourages, the JHF were allowed to retain their practices, which would not be interfered
with.
The bill was defeated and BR Ambedkar subsequently resigned.

Amedkar said that the preparation of UCC was easy but the implementation would cause
violence amongst minorities. He thus, recommended implementing it in stages as it is difficult
to leave religious ideologies immediately. He initially excluded Islamic law as for even for the
implementation of UCC for Hindu law it would take a very long time. Thus, he suggested
codification for Hindu law and then Muslim law. A unique combination was made as he
incorporated the concept of divorce, etc. Even Parsi and Christian laws were codified to some
extent.

In 1951-1952, the general election took place and a government was elected in full majority,
yet nothing was done in this regard. In 1955 the Hindu Marriage Act was the first legislation
to be introduced and enacted based on and focussing on all dimensions of marriage, divorce,
maintenance, restitution and all things derived from the institution of marriage this legislation
retained the 1948 recommendation on inter-caste marriage. The recommendation of the 1947
report with respect to inter-caste marriage was abolished and divorce was made available to all
castes.
Observing the acceptance of the 1955 Act, the government in 1956 enacted the Hindu Adoption
and Maintenance Act. The religious sanctity was observed and the Act laid down the
mechanism of adoption and eligibility with respect to who can adopt a child. Additionally, the
Act even laid down the eligibility of a natural parent who could lay his child down for adoption,
along with eligibility of child who is adopted.
For eg: someone who already has a son cannot adopt a son. Under HAMA a Hindu can only
adopt a Hindu child.
The second part of the legislation dealt with maintenance. HMA dealt with maintenance only
in circumstances of a dispute (Section 24, HSA).
Section 18 HAMA: on certain if a female does not want to stay with the husband but does not
want a divorce, or dissolution, she can stay separately and claim maintenance from her
husband, subject to the satisfaction of the Court.

The Hindu Minority and Guardianship Act was the 3rd legislation. It lays down the various
kinds of guardians, how they can be appointed and what their powers are.
● For a legitimate minor child, the father is always the first guardian (custodian and guardian
are different concepts).
● If the child is illegitimate or the father is absent, the mother is a first guardian.
● For a married minor girl, the husband is the first guardian.
● If the husband is a minor he cannot handle any affairs. Thus, his guardian is responsible.
Guardianship extend not only to the person but also to their property. But a guardian can
never sell or transfer unless (with the permission of the court:
● There is a condition of necessity
● The transfer is to the child for his welfare.
Thus, the HAGA provides and exhaustive protection of children.

Lastly in 1956, the Hindu Succession Act was enacted. It did not touch any aspect of JHF.
Under these provisions, the self-acquired property of Hindus were distinguished. Further,
Hindus included both male and female. The JHF was a parallel system that governed ancestral
property. Thus, there were two essential divisions:
1. Self-acquired property – which is governed by Hindu Succession Act
2. Ancestral property – Mitakshara/ Dayabhaga system govern it.

In 2005, Section 6 of the HAS was amended to give women in a Mitakshara system equal rights
to ancestral property and daughters were given coparcenary rights.
Remedy wasn’t given to women and widows directly as coparcenary, but indirectly by allowing
them to claim husbands property after his death.
Initially, the Mitakshara system stated that the dormant coparcenary who did not exercise his
right from birth to death, after death the right is lost and the other members can claim the
property. The amendment extended the right beyond.
The descendants or legal heirs can also claim a right on the property, thus allowing a widow to
also claim, but not as a coparcenary.

CONCEPT OF MARRIAGE

BROAD STRUCTURE
1. Nature of Hindu Marriage
2. Ancient Perspective and Modern Perspective
3. Forms of Hindu marriage
4. Changes brought by the HMA-change from amendments
5. Amendments of 1976, Proposed amendment of 2013 (37)

NATURE OF MARRIAGE
Marriage is considered a contract.
In Muslim Law only a husband can terminate the the marriage through talaq-e-ahsan, talaq-e-
hasan etc. which within three months can be revoked. Triple talaq had immediate effect.
In Parsi Law, Ashirwad ceremony needs to be performed or else the marriage is not considered
solemnised.
In Hindu Law marriage was considered sacrament before 1955. After 1955, marriage between
two hindus retained the sanctity of religion. Bigamous marriage was no longer permitted post
1955. Fraud and concealment made a marriage void. Additionally prohibited degrees of
relationships were introduced. Certain aspects of marriage resembled a contract while still
retaining a sacramental aspect
ANCIENT & MODERN PERSPECTIVE OF MARRIAGE:
● Present Hindu law is amalgamation of both ancient perspectives or shashtric law and
modern perspectives of legislations and judicial pronouncements (for eg. Live in
relationships) Eg- While maintenance can only be given to valid marriages under S.24 and
25 of HMA, in Ramaswamy case it was given even to void marriages. Further. S.18 of
HAMA allows provision of maintenance in the absence of a dispute whereas under HMA
maintenance was confined only to existence of disputes. Thus, changing nature of modern
law and traditional law.
● The basic question that arises while studying Hindu marriage is what is the true nature of
Hindu marriage?
● Before answering in-depth, this is the summary answer for the question above:
1. Ancient law- there was no codified law, thus it was less law and more a religious
sacrament.
2. Introduction of Hindu Marriage Act- this introduced slight resemblance of contract while
still retaining more sacramental values.
3. Current position- Hindu marriage is sacramental but more of a contract.
● The initial belief was that marriage continues for seven lives and hence there is no concept
of divorce or dissolution under this.
● The 1976 amendment to the HMA dealt with legitimacy of illegitimate child.
● In 2016, live-in-relations are also treated as marriage.
● Thus, the institution of marriage has thus changed from time to time. HMA recognized
Hindu marriage as sacramental but w/ terms of contract.
● In Islamic law, it is a purely contract based marriage with little religious basis.

ANCIENT PERSPECTIVE:
● Rigveda (supreme authoity) states that marriage is a Sanskaram (sacrament). An
individual’s life is incomplete w/o it and its and extremely essential part to various religious
activities.
● Manusmriti states that the wife is Ardhangini which means half of man. Thus a man’s life
shall always be half until he marries.
● Shatapatha Bhrahmana states that the wife is half of the husband and the husband is not
complete w/o her.
● Shastras says that the husband is known Bhartri & the wife is known as Jaya because he
needs to support his wife.
● Mahabharta says that a wife is path to achieve – Dharma, Artha, Karma, Moksha.
● Ramayana states that the wife is Grihini (house maker) and is the husbands counsellor and
friend.
● It is this considered an essential part of human life and a religious obligation on ones part
which shall lead up to ultimate salvation.

MODERN PERSPECTIVE ON NATURE OF HINDU MARRIAGE

The question of nature is whether the marriage is a sacrament, a contract or something else?
As a whole it is considered sacrament, but as per codified law has many contractual aspects.
Till 1954 it was only sacrament, post HMA certain contractual aspects exists. Two cases
discuss the modern perspective of marriage –
- Tikait Mummoninti v. Basant Kumar, 1901 ILR 28 Cal 251
- Gopal Krishna v. Dr. Mithisesh Kumari, Air 1979 All 316.
- Bhagwati Singh v. Parameshwari Mohan Singh
- Mithuswami Madaria v. Masiamani
It had been states in these cases that Indian society is a developing society and the society
should develop their thoughts, religious scriptures as per the recent developments. The law
should develop w/ society. Thus, here divorce was allowed.

FEATURES OF MARRIAGE
1. Manusmriti: gift of bride to bridegroom. It is a voluntary act. Not w.r.t. religion. But
eventually, it says a religious act is evolved.
2. Ceremonies: Saptapadi, Kanyadan (elements of contract- offer and acceptance) etc.
3. Divorce: In manusmriti- divorce was not considered but with other smritis, divorce was
recognized. It was a mixed opinion.
4. Maintenance: In marriage the husband has certain obligations towards the wife even after
divorce where he must provide her with maintenance. (specific performance)

Q: If marriage happened before HMA, then will it be valid. There were certain forms of
approved forms of marriage prescribed before 1955. It is essential to check the validity of a
marriage because it ensures three things:
1. Legitimacy of child
2. Maintenance to wife
3. Property right to wife.

APPROVED FORMS OF MARRIAGE:

1. BRAHMA- father gifts the daughter to a man who knows Vedas. This is is the most approved

form of marriage.
2. DAIVA- gift of daughter to priest. No major difference except that the person should
perform acitvities of a priest. Man learned in Vedas may not necessarily be a priest.
3. ARSHA-father gives away daughter in lieu of one/two pair of cow/bull. It is considered to
be religious and pious. Some part of contract.
4. PRAJAPATYA- this is similar to the first type of marriage but instead the bridegroom
approaches the father with offer.

As per ancient texts it is considered as a dissoluble form of marriage.

UNAPPROVED FORMS OF MARRIAGE: (VOID AB INITIO)

1. ASURA- acceptance of consideration by father for marriage.

2. GANDHARVA-both parties enter into marriage w/ mutual consent. Unapproved because no
father consent.
3. RAKSHASA- forceful abduction of bride from her home.
4. PISACHA- marriage of a girl w/ a man who had committed the crime of ravishing her either
when asleep or when made to drink.
CONDITIONS FOR VALID HINDU MARRIAGE:

Yajnavalkya & Manusmriti also dealt with essentials for a valid Hindu marriage. Section 5 &
7 of HMA give the essentials for a valid Hindu marriage.

1. IDENTITY OF CASTE B/W PARTIES i.e. parties must belong to same caste unless sanctioned
otherwise by custom.
i. Anulome marriage: when a man of a higher caste marries a woman of a lower
caste. Such a marriage is permitted and all rights available and recognized under
this marriage
ii. Pratilome marriage: when a man of lower caste married a woman of a higher caste.
Such a marriage is not a recognised form of marriage and rights are not available.

In HMA there is no such mechanism present.

2. PARTIES TO BE BEYOND THE PROHIBITED DEGREE OF RELATIONSHIP i.e. were not of the same
gotra or marry a close cognate or have sapinda relationship. Thus, it was essential to see
the relationship b/w parties. HMA also provided an elaborate list of prohibited relationships
which deals with prohibited degrees and sapinda relationships- drastic change
3. PROPER PERFORMANCE OF CEREMONIES BY PARTIES.
4. Parties SHOULDN’T BE MARRIED TO ANOTHER PERSON EARLIER before entering into
marriage. Ancient law initially recognized bigamy but Smriti’s and Shruti’s they
discourage this practice. Manusmriti which has the highest authority in personal law also
did not permit bigamy.
5. POLYGAMY IS STRICTLY NOT ALLOWED

DIVORCE AND REMARRIAGE

● Manu disapproved for divorce and remarriage. Irrespective of bigamy not being allowed,
it had widespread prevalence during ancient time. Smriti’s allowed remarriage to men but
did not allow women the same. However, since ancient law did not recognize widow
remarriage, the 1956 Hindu Succession states that remarried women will not be entitled to
share in property. Thus, remarriage is a disqualifying ground. After 2005, this ground was
removed. As per HSA, once the husband is dead the property is open for division.
Irrespective if new members are born, the property shall be divided as per the situation
during the time of death and not in future period.
● Ancient law and modern law were amalgamated for divorce mechanism and allows
remarriage when (from Narada and Parashar)
1. Husband is lost
2. On Death of husband
3. Husband has renounced the world
4. Husband is impotent
5. Husband ousted from his caste.

CHANGES BROUGHT BY MODERN PERSPECTIVE OF HMA, 1955:

Codified Hindu law and hence gave it uniformity. Act is given OVERRIDING effect, which
implies that any custom, practice etc. which is contrary to the HMA will not stand.
After the enforcement of HMA the ONLY manner of entering into a marriage recognized by
the law is the one prescribed under the Act.

The following are the changes bought out by HMA:

1. INTER-CASTE MARRIAGE RECOGNIZED, SECTION 29: Anulom-Partilom system abolished. All
caste system in case of marriage abolished and no recognition to caste system. For all
purposes custom could prevail but for marriage, law would prevail over custom.
2. BIGAMY PROHIBITED, Section 5(i) and punishable u/Section 17: bigamy was a ground for
dissolution or divorce. The Husband was held liable.
3. CONDITIONS SIMPLIFIED (SECTION 5 & 7)
Further, although child marriage was prohibited, there was no provision rendering it to be
void. The marriage becomes voidable in the Prohibition of Child Marriage Act. HMA
provides age and punishment but voidability comes from PCM.

HMA gave liberty as far as ceremonies concerned to follow either husband or wife’s
tradition, whereas before only husband’s was taken into account.

4. MATRIMONIAL RELIEFS PROVIDED

5. SPECIFIC PROVISIONS FOR MAINTENANCE, SECTION 25: It was duty of husband in old law to
provide maintenance but not after dissolution, whereas the HMA provided post dissolution
as well. Before 1955, husband was duty bound to maintain his wife- only if its JHF- Karta
has to maintain- Wife is dependent on husband and not vice versa. After 1955- husband
can claim maintenance the same way as the wife can claim- Not restricted only to
 substantive meaning. Thus, maintenance introduced on NEED basis which was no longer
sex-dependent.
6. DIVORCE: New judicial separation, divorce, annulment provisions was introduced. Before
1955, the process was difficult. Post 1955, the process was made easier and grounds were
clearly established.
● RESTITUTION OF CONJUGAL RIGHTS: both parties had the right to demand restitution. the
Court can issue a decree of restitution but on non-compliance parties could not be arrested,
but their properties could be attached.

CHANGES BROUGHT BY MARRIAGE LAWS AMENDMENT ACT, 1976:

In 1964 an amendments w.r.t dissolution of marriage and judicial separation- S.10 and for
divorce under S.13 was passed. In 1976 an another amendment was passed where in the
following changes were made to the HMA:
1. DIVORCE BY MUTUAL CONSENT, SECTION 13B. husband and wife without any reason
interested to come out of marriage, they could do so, with reasonable restrictions. Scope is
given for divorce under S.13(b) with restrictions.
Although, claims for divorce brought within one year of marriage cannot be brought under
Section 13B except through leave of HC. Even if there is mutual consent, time period of
one year must be followed. If difference b/w parties irreconcilable in nature and even when
the grounds are not mentioned, divorce within one year maybe allowed.
Thus it is not TRUE mutual consent as applied in the UK, in India it is conditional.
2. DIVORCE ON GROUND OF ADULTERY MADE EASY. Initially, “single act” of adultery was not
a ground for divorce but a “continuous” act of adultery was necessary. Thus, the word
“continuous” was removed and even a “single act” of adultery could be a ground for
divorce. Earlier, direct evidence was required to prove adultery but after amendment,
circumstantial evidence could be admitted.
3. DIVORCE ON GROUND OF UNSOUNDNESS OF MIND, VULNERABLE DISEASE, MENTAL DISORDER
WAS MADE EASY. As per the old provision, before marriage if the wife was mentally affected

then the husband can seek for annulment on grounds of invalid consent (Section 12). If it
is curable unsoundness then divorce may not be allowed. After 1976 amendment, the
concept of curable/incurable was removed and thus divorce became easy once again but
the obligation existed to ensure that the party was taken care of. If husband knew his
wife was mentally unstable before marriage then divorce shall be u/Section 13 but if he did
not know then it shall be invalid consent and he can approach court u/Section 12.
 Section 13(1) (iii) – continuous unsoundness is not that necessary. In cases of unsoundness,
if any party to the marriage has apprehension that the occasional act of unsoundness will
endanger the health of the person, then divorce maybe given
4. SPEEDY TRIAL (S.21B)
5. Property rights given to illegtimate sons and daughters under S.16

CHANGES BROUGHT BY MARRIAGE LAWS (AMENDMENT) ACT 2010:

This was approved by Cabinet on 17.07.2013.

HSA recognizes property rights of wife after death of husband only if the condition precedent
of husband-wife relationship exists. If they are divorced, no such property rights are given to
wife, only maintenance claims.
Amendment suggested that even if marriage is dissolved, wife would be entitled to the
property. It thus sought to change the succession pattern but this change has not yet occurred.

APPLICATION OF HMA:

- Applies to marriage of parties both of whom are Hindus.

o Hindu by birth
o Hindu by conversion
o Hindu by reconversion
- Applies to any person who is Sikh, Jain, Buddhist by religion.
- Section 1 (2) clarifies that the HMA not only applies to Hindus within the territory of India
but also Hindus domiciled in India and living abroad.
- Any child legitimate or illegitimate whose parents are both Hindus.
- Any child one of whose parent is Hindu and is brought up in accordance to Hinduism as
a Hindu.
- A child adopted by Hindu parents. HAMA does not allow adoption of no hindu child,
whoever adoption of any religion can be done under Juvenile Justice Act.
- Hindu who converts or reconverts.
- Not applicable to ST unless the Central Government by notification decides so.

Examples:
At the time of birth of the child, the fathers religion will be the child’s religion.
If parents change their religion, the child’s religion will be based on upbringing of the child.
Thus, the factors are: birth, conversion, and upbringing.
IMPORTANT TERMS USED IN FAMILY LAW

1. FULL BLOOD: when two children have the same common natural mother and father, the
relationship between the, and their parents is of a full blood.

2. HALF BLOOD:
M2 + F + M1
| |
/ /\
S3 S1 S2

Where the father is common but mother is different. The relationship between S1 and S2, F
and S1,S2, M1 and S1,S2 and F and S3 are full blood. However the relationship between S3
and S1,S2 is of half blood since the mother is different.

3. UTERINE BLOOD:
F2 + M + F1
| |
/ /\
S3 S1 S2

Where the mother is common the relationship of uterine. S3 ad S1,S2 have Uterine blood
relationship.

Half Blood relatives fall within the tier 2 category of relatives while Uterine blood does not fall
within tier 1 or 2, and does not have preferential rights. Full blood will always get preference
over half or uterine.

4. Collateral: Descendants from a common ancestor.

5. Agnate
6. Cognate

CONDITIONS OF HINDU MARRIAGE ACT (SECTION 5):

1. MONOGAMY: neither of parties should have a living spouse at the time of marriage -
Section 5(1)
2. VALID CONSENT: Section 5(2)-
- Soundness of mind
- Mental disorder that makes him unfit for marriage and procreation of children
- Subject to recurrent acts of lunacy
3. AGE OF MARRIAGE (Read with Section 18): it is a punishable offence. Women have the
choice to repudiate the marriage.
4. BEYOND PROHIITED DEGREES OF RELATIONSHIPS

5. BEYOND SAPINDA RELATIOSHIP

Precondition under Section 5: Both parties must be Hindu

Section 7 provides for ceremony of solemnisation of marriage.

DIVORCE, ANNULMENT AND JUDICIAL SEPARATION

Annulment involves a deficiency of conditions necessary at the time marriage. It is allowed on

the key basis that the factor or consent was false or non existent at the time of marriage

Divorce is allowed subsequent to marriage when problems arise and the parties which to no
longer continue in the marriage. Here the marriage was valid to begin with.

Judicial Separation is not a dissolution of marriage, but spouses live apart while attempting to
work on their marriage.

MONOGAMY
Section 5(1) provides for rule of monogamy and prohibits polygamy and polyandry. It
speficifies that hindus can have only one marriage subsisting at a time. In the event of a breach
of this provision, the erring party would fall within the mischief of section 494 and 495 IPC
and can also be punished under Section 17 of HMA. If a spouse is believed to be dead or
missing for 7 years, marriage is valid.
Test wrt Section 5(1)
- Relationship must exist between husband and wife
- Parties should be living
- Marriage should be in subsistence
If at the time of performance of marriage rites or ceremonies, one of the parties has a living
spouse, with whom the marriage has not been set aside by the court, the latter marriage is no
marriage at all. A party to a bigamous marriage can be punished only upon proof of prior
marriage. thus the validity sustenance of the first marriage must be proved.
The Party to the first marriage cannot raise any issue wrt the second marriage. only the dcond
wife can claim annulment on these grounds. First wife can approach the court to punish the
husband. If the first marriage is void, the second marriage will be considered valid. Even an
attempt to enter into a second marriage is punishable.

Varadhrajan v. State of Madras- Party to bigamous marriage could be punished only upon
the proof of the first marriage having been solemnized according to customs and practices

SECTION 7 REQUIREMENT OF RELIGIOUS CEREMONY AND CUSTOMARY RITES:

SECTION 7 allows solemnisation of marriage passed a customs and practices followed by
persons own family.
AN Mukherjee v. State- Parties were married with a son and daughter. Husband was a railway
employee. Wife would visit the doctor after developing some health issues. During the
subsistence of 1st marriage, she had an affair with doctor and he insisted that they get married.
He tried to convince her on the basis of the Gandharva marriage wherein the shastras allow a
woman to have multiple marriages. She finally agreed and they solemnised their marriage with
the moon as their witness To validly solemnise their marriage, they went to kali temple and
exchanged garlands. Thirdly, they completed their marriage before the Guru Grantha Sahib to
give effect to marriage.
Matter came before the court and question was raised as to whether the marriage was valid.
Neither the doctor nor the wife contested the validity of the first marriage.
Analysing the validity of the three instances-
● HMA prescribes proper procedure for marriage. Either parties should follow customs
or follow saptapadi. In this case neither of the parties followed the moon witness
custom- not valid.
● Kali temple marriage too was invalid as it is not a part of the custom of the parties- not
a valid solemnization- invalid.
● Marriage at gurudwara too is invalid as even though it is a part of sikh religion which
comes under the HMA- neither of the parties follow that custom.
Second marriage was thus invalid and only available remedy was divorce.

Santhosh Kumar v. Surjit Singh- wife fell sick and was unable to fulfil duties. Thus she
applied before court to allow husband to enter into second marriage. And husband took an
undertaking to sustain both marriages- is second marriage valid- no it is still invalid. Bigamy
is a crime against a state and thus they are entitled to prosecute even if wife is consented to the
marriage.
Smt. Parvati Singh v. Harbudar Singh- H approached court for Restitution of Conjugal
Rights (separate living is not necessary) because his wife wasn’t staying with him. when matter
was pending in the court, H filed for an injunction to restrain wife on apprehension that she
would enter into a second marriage during the pendency of proceedings. Family Court granted
the injunction holding that w canot enter into second marriage till matter is resolved.
Wife challenged the injunction order on the ground that no provision of the HMA allows for
court to grant injunction. She contended that she did not want to stay with her husband. Issue
before the court was whether court can grant an injuction on marriage. Court held that the HMA
allows for the courts to pass an injunction on marriage. However, the parties must be cautious
if in their opinion the first marriage is valid or be ready for consequences- No possibility of
injunction unless proper evidence of second marriage.
Section151 rw order 39 of CPC not ment for personal and matrimonial relationships however
Hindu Marriage Act is a special Act.
The Court in this case relied on Uma Shankar Prasad Singh v. Smt. Radha Devi and
Trilokchand Modi v. Om Prakash Jaiswal

VALID CONSENT: SECTION 5(2)

Incapacity to give valid consent/unsoundness of mind: At the time of marriage, neither party
(a) is incapable of giving valid consent to it in consequence of unsoundness of mind (b) mental
disorder (c) has been subjected to recurrent attacks of insanity

Section 13 (3): the expression mental disorder means mental disorder means mental illness or
incomplete development if mind, psychopathic disorder or any other disorder or disability of
the mind, including schizophrenia.

- Mental incapacity of any nature

- Affects validity of marriage
- Can exist at the time of marriage or after
- Importance of medical evidence

Section 5 (2) with respect to Section 12/13

i. Mental state of person while giving consent:
ii. Mental state during marriage
iii. Time gap between consent and marriage
iv. Whether the other party was aware of the disorder or illness at the time of obtaining
consent or at the time of marriage.

If parties get married where one party suffers from unsoundness of mind which continues after
marriage is solemnised, and after one year a person raises an issue of invalid consent, the
marriage can be annulled. Essentially a marriage can be annulled on the grounds that one party
was suffering from a mental illness while giving consent. (Aggrieved party has the right to
annul). Where the other party was unaware of the illness, and on finding out does not want to
continue in the marriage, he has rights under Section 12 (thus he is aggrieved). When the party
is aware of the others condisition and still enters into marriage he is not considered aggrieved
and only has the option of divorce under section13.

Thus the applicability of section 12 or section 13 depends on

i. Consent at the time of solemnisation

ii. Time at which the illness occurs
iii. Repetition of illness

Medical Evidence is essential to be brought before the court. Examinations must be conducted
by doctors.

Epilepsy was omitted by Act 39 of 1999 from Section 2 as a ground for dissolution

RAJESHWARI MISHRA V. SIDHARTHA PANDIT

Wife had severe attacks of epilepsy. On being examined by doctors they stated that she suffered
from high levels of epilepsy. Subsequently the husband came to know that she had been
suffering from this for over 10 years. This was not made aware to him at the time of marriage.
he argued that had he known, he would not have consented to the marriage. for two years they
tried to treat it but it could not be cured. He then filed for annulment of marriage under Section
12. The court granted a decree. During this the Act was implemented to remove epilepsy as a
ground. In this regard she appealed against the decree. The Court held that since, at the time
of filing the petition it was a ground, it would be considered a ground even during the decision
making.
AGE OF MARRIAGE (CHILD MARRIAGE)
If we restrict ourselves to HMA child marriage is not absolutely prohibited, nor is it void or
voidable, but parties involved can be punished.
- Section 5 (3): parties should be above 21 for men and 18 years for women
- S.13(2)(iv):If a girl enters into a marriage before 15 years and once she attains 15 years, she
can repudiate before attaining 18 years of age.
- Child marriage restraint act- 1929-: repealed by PCMA 2007, Secular legislation
applicable to everyone except the Muslims.
- Muslims as per Shariat Act 1972 will be governed by their own personal laws according to
which age of majority (Age of puberty) is 15 years.
- Indian Majority Act: provides 18 years as age of majority but for marriage 21 is age of
majority for men.
- Special Marriage Act: solemnised at registrars office. All requirements are to be checked by
the registrar.
- Parsi Law: the priest solemnising the marriage must check the age of the parties and all other
requirement before to ascertain a valid marriage. if certificaste is provided for a child marriage,
the marriage is valid but the priest and parties will be punished, and the marriage is voidable
Prevention of Child Marriage Act:
Section 9: Marriage with a child (even when male is above 18 but below 21)
Section 10: Any person who solemnises child marriage (performs conducts directs or abets)
Section 11: Promoting or permitting (in case of guardian and/parent)- gives the legal
framework for punishing only real parents and real guardians. Ex: grandfather cannot be
punished if parents are alive.
HMGA recognised De Facto: who play the role of guardians but not the natural guardians, ie.
Legally he not the guardian but acts like one. Such a guardian is not punishable under Section
11, but under Section 10 for abetment.
Section.12: Marriage is void in the following cases-
Unlawful guardianship: when the child is not under the lawful guardianship and that guardian
is the main party to the child marriage, then such marriage is void ab initio- a guardian should
be a person under the 1956 legislation- Defective guardian- child must be living with his
paternal uncle- giving basic amenities etc
Force: marriage solemnized under compulsion, force on the guardian, consent is forced - then
the marriage is void ab initio
Sold for marriage: any person having lawful guardianship over a child and for the purpose of
marriage, giving the child for a valid consideration – sale of child for marriage is void ab initi
Section 13: if a judicial magistrate or metropolitan magistrate is satisfied that a marriage is
about to take place in contravention to the Act, an injunction may be issued prohibiting such a
marriage. here, parties have the chance to repudiate.
Child marriage officer is appointed to ensure that people are informed that they are not allowed
to solemnise child marriage (i.e. injunction order is passed under Section 13). If on being
informed parties still solemnise child marriage such a marriage is not valid under Section 14.
Section 4: Maintenance
When in child marriage the marriage is dissolved or repudiated, the party can claim
maintenance through Section 24 & 25 of HMA or Section 18 of HAMA. Maintenance is their
right, but depends on the wife’s needs and conditions (eg: father of girl is dead or very poor).
It also depends on whether the husband can afford to pay maintenance.

Example:

- Marriage between 16 y/o girl and 20 y/o boy, if repudiated, boy must pay maintenance.
- Marriage between a 16 y/o girl and 17 y/o/ boy, since the boy is a minor he cannot pay
maintenance, thus the guardian of the boy must pay maintenance.

Section 5: Custody of Child

The father is always the first natural guardian but such is not the case for custody. It will depend
on the capability of the wife and husband and the needs of the child.

Section 6: Legitimacy
In any child marriage, when a child is born such a child is legitimate irrespective or annulment
or the marriage being void ab initio.

CONVERTS & RECONVERTS:

Convert is someone who converts from one religion to another. Eg: Hindu→Christian
Reconvert is someone who changes from religion to another and once again goes back to the
original religion. Eg: Hindu→Muslim→Hindu. For reconverts the law under which you have
married shall be applicable for dissolution and not the converted religion.
MADHEVI RAMESH DUDANI V. RAMESH K. DUDANI, AIR 2006 Bom 94.
Facts: Hindu Man married a Christian woman. Marriage was solemnised through hindu
rituals.The same evening Christian rituals were also performed in the church. During
 solemnisation in the hindu ceremony she was given a hindu name Madhavi. And all rituals
were complied with. Eventually they had two daughters, both of whom had hindu names. While
they studied at a convent school, they did not take up catholic studies, but opted for general
studies instead. In 1999 wife went to the court of law and asked for judicial separation on the
grounds of cruelty and ill-treatment. She also requested custody of her children. And Rs. 15,000
per month as maintenance and return of stridhan property.
Issue: was in regard to wife’s religion and validity of marriage. question arose as to how
hinduism is adopted
H Contention: W was Christian during the wedding. Since the wife was not Hindu the
marriage is not valid and she is not entitled to any relief claimed.
Contention of W was that- 1) Marriage was solemnized as per Hindu tradition 2) Registered
u/HMA 3) She stopped going to Church and started going to temple (started preaching
Hinduism)
● H said that W’s conversion to Hinduism was not as per the process of “Shudhikaran” which is
the prescribed way for converting to a Hindu.

DECISION: On analysis it was found that there was no prescribed process laid down. It could
not be ascertained that Shudhikaran was the exclusive process, and followed by everyone.
HMA did not recognise any process of conversion. The court considered the following
criterias:
- Intention: as the foundation of conversion
- Conduct: post conversion conduct- lifestyle must support ones intention.
The wife’s conduct post marriage was evidently a Hindu lifestyle ny being involved in rituals,
visiting temples. She stopped going to church or any other Christian activity. She was equally
involved in hindu poojas and rituals. In every aspect she was following a Hindu lifestyle. Even
the children were not associated to Christian studies, even though they went to a convent
school. The conduct in in consonance with the intention and it is clear she converted to
Hinduism. [relied on Perumal Nadar through LRs v. Ponnaswami for process of conversion]
Thus, the marriage was perfectly valid and the Court rejected the husbands contentions. They
issues a divorce so wife did not have to come back after a year of judicial separation for the
same.
GULLIPILLI SOWRIA RAI V. BHANDARU PAVANI
QUESTION BEFORE COURT: The question arose wrt Section 5 of HMA as to whether both the
parties have to be Hindus at time of marriage?
 FACTS: W claimed the marriage was invalid due to fraud and misrepresentation as at the time
of marriage H represented himself to be Hindu. Marriage was registered under HMA.
W argued that their marriage was void as he was not Hindu at the time of marriage (S11). H
argues that the marriage was voidable due to invalid consent (S. 12).
The court consulted Adv V.V. Lalit who argued that the provision states that marriage MAY
be solemnised between two hinduas and therefore it was not a mandatory requirement.
Lower Court: MARRIAGE NOT VALID.
High Court: Marriage not valid because both the parties are not Hindus.
After this judgement, W entered into second marriage w/ another person after 3-4 months. The
Husband then appealed to SC and raised the contention that W’s second marriage is not valid.
ISSUES BEFORE THE COURT:
Marriage b/w Hindus & Non-Hindu:
1. H did not tell W that he is Christian- this is a case of invalid consent where W was unaware of
material facts. Thus, the marriage is voidable
2. Ceremonies were not followed- if ceremonies not followed then the requirements of Section 7
were not followed. So, marriage is not valid. Traditions and customs were not followed like
that of “Saptpadi”, only “exchange of thali” i.e. one tradition was followed.
3. After marriage, H continued to follow Christianity.
[Requirements:
Intention to convert must have been present
All the rituals should be complied with
Conduct post marriage should be as per Hinduism]

2. Essentials as u/Section 5 of HMA:

H’s lawyer said that the 5 essentials laid down in Section 5 were fulfilled eg: (i) bigamy (ii)
sapandi relations or prohibited degrees. Since, its H’s first wife and the marriage is not under
prohibited degrees, it is a valid marriage.
He further contended that the opening paragraph of Section 5 reads “marriage b/w two Hindus
maybe solemnized...” The usage of the word “may” implies HMA does not give mandatory
requirements with respect to the parties of the marriage. It thus means that the marriage may
or may not be solemnized.
S.11 overrode S.5 and 7 because the word “may” applies to marriage and not the parties.
Conditionals are optional.
W contented that the word MAY is applicable to the marriage part and not the conditions of
the marriage. It is a mandatory requirement as there is no liberty wrt conditions of marriage.

Court held that the bifurcation done by H is not acceptable and Section 5 had to be read as a
whole. MAY is with respect to marriage. But, the parties have to be Hindu and the 5 conditions
of marriage have to satisfied.
0. Section 11 of HMA-
Wife at best can ask for voidability of marriage as u/Section 12 but not u/Section 11 as husband
does not fall under it. It’s not a void-ab-initio marriage. If there is an issue u/Section 12 then
the marriage is voidable and thus can continue
Courts held that even though H does not fall u/ the given criteria, the court has discretion to
decide. The connection b/w Section 7 and Section 11 is not explicitly established as to the
validity of marriage. Thus, Section 7 makes the marriage invalid.
0. Registration and validity of Marriage:
Registrar issued certificate as u/Section 8. Importance of registration was given and it was
stated that registration of marriage should be mandatory. Thus, H contended since the registrar
itself had certified their marriage, the marriage would be valid and thus the HC has erred in
declaring otherwise.
Court held that the certificate by the registrar maybe a conclusive proof of marriage but it can
be challenged before the court. It is a conclusive proof only when taken w/ free consent and by
revealing all facts to the registrar.
0. Preamble of HMA:
It clearly states that it is applicable to Hindus only; otherwise registration of marriage certificate
cannot be issued.

Court finally decided that the parties should be Hindus at time of marriage. But, in order
to be a Hindu no proper conversion procedure is required and the conduct of the party
is enough. Subsequent, conversion to Hinduism after marriage shall also help constitute
a valid marriage.

Random bit: In Islamic law, if a person married a Hindu, then the marriage is invalid marriage.
If Sunni Muslims marries Katabia woman then irregular marriage, which can be treated with
conversion
SARLA MUDGAL V. UOI

FACTS: Case filed by an NGO, president of which was Sarla Mudgal. The NGO clubbed 4
petitions together. One of the petitions was about a Medha Mathur who was married to Jitendra
Mathur and had three children. The husband then converted to Islam and married another
woman (Hindu but converted to Islam before marriage). The first wife challenged the 2 nd
marriage on the ground of bigamy.

Husband- contended that he didn’t violate any law as he had converted to Islam before second
marriage. He stated that the Shariat law 1937- will be applicable as he now converted to Islam-
and hence his second marriage is invalid under Islamic law.
Wife- Even if he converted to another religion, he is obligated to his first wife and children
according to hindu law

ISSUE arose as to whether after conversion the first marriage is void or the husband committed
an offence of bigamy under s. 494 IPC.
I. What is the validity of 2nd marriage of the husband?
II. Which law will be applicable on the 1 st marriage?
III. Has the husband committed an offence under Section 17 of HMA rw 494 of IPC?

FINDINGS OF THE COURT

Article 44 of the Const. is an unequivocal mandate, a decisive step towards consolidation of
personal matters. The OCurt was unhappy with the little progress the Parliament had made in
this regard. SC referred to constitutional debates and quoted J Nehru’s speech. UCC cannot be
applied as the country is not ready for a single code. As of today, 8- percent of the population
is under codified law, the remaining 20 percent can also be governed- SC observed. Even after
so many years post independence- no govt. is ready to implement act 44.

1st issue- Institution of marriage under personal law is a sacred institution which has to
preserved therefore religion is not a commodity to be exploited, it is matter of faith. The
intention of the husband was not bonafide as he converted to islam only to get married.

There is an open inducement to a hindu husband , who wants to enter into 2 nd marriage while
1st marriage is subsisting, to become a muslim. The court said everyone will be encouraged to
get married more than once. Hence, this practice allowed.
In India, there has never been a matrimonial law of general application. Apart from SMA and
ISA which is applicable only at the parties choice, a marriage was governed by the personal
law of the parties. Personal law in India is always attached to religion. There is no common
law- religion for the application of personal law of the parties. Thus, to deal with such a issue
that falls within the vacuum/grey area of law, the Court recommended that a UCC is required.

2ND ISSUE: 1st marriage is valid and will be governed by the precious law, i.e. the law under
which the person got married. The law in which you enter into marriage will apply throughout
the lifetime of the marriage. Conversion does not lead to automatic dissolution of marriage
immediately If a person is masked under Hindu Law and then he converts to Islam and marries
the 2nd time, them Hindu law will always govern the 1st marriage. The court held that while
entering into second marriage, husband violated provisions of the 1st marriage. Just by virtue
of conversion, the apostate or converted isn’t absolved of his duties bestowed on him by the
HMA.

3RD ISSUE: The laws of the country do not restrict conversion. The conversion in the present
case is valid however he is not discharged from his obligstion under HMA. Conversion is a
ground for divorce under the Hindu Law. He cannot violate the provisions of Hindu Law. Thus
the first marriage is to be dissolved before entering into the second marriage.if he does not do
so he can be punishes under Section 17 rw Section 494 of IPC.

PROHIBITED DEGREES AND SAPINDA RELATIONSHIPS: SECTION 5(4) AND SECTION 5(5)

The Hindu Marriage Disabilties Removal Act, 1946 was the first legis. To abolish the gotra
system. Under Section 29 (1) of HMA a marriage solemnised before the commencement of
the abovementioned act will not be deemed to be invalid by virtue of the fact that the parties
belong to the same gotra, pravara, different religion, caste or sub caste of the same caste. After
1946, strict conditions wrt prohibited relationships where introduced. HMDRA removed
certain disabilities unless the customs allowed for them to exist.

Section 3(g) of the HMA: degrees of prohibited relationships.

Two persons are said to be within prohibited degrees of relatioships if:
- One is the lineal descendant of the other
- One was a spouse of the lineal descendant of the other
- One was the wife of the brother, or father’s or mother’s brother, or grandfather’s or
grandmothers’ brother
- They are siblings, or uncle and niece, or aunt and nephew cousins.
 F
|
B – F – S
/\ /\ /\
D S D S D S
| | | | | |
D S S D S DA
Sapinda Relatioship
It extends as far as the third relationship in the line of ascent through the mother and fifth in
line of ascent through the father. Two persons are said tp be sapindas of each other if one is the
lineal ascendant of the other within the limits of the sapinda relationship or if they have a
common lineal ascendant who is within the limits of the sapinda relationship with reference to
each other.

CONDITIONS OF VALID MARRAIGE AND REGISTRATION OF MARRIAGE

● Parsi Law- Priest has to ensure that all conditions are getting fulfilled- Issue certificate
and same has to be produced before registrar. Parties don’t have to do anything. Parsi
Marrage and Divorce Act, 1936 is considered to be one of the best legislations as it lays
down things in clear terms and there is no scope for ambiguity.
Registration of divorce- when any court issues a decree of dissolution of marriage, it is the
duty of the court to inform the registrar everywhere. Married in X city dissolved in Y
city- family court of Y has to inform registrar of X regarding the dissolution.
a. Section 2- Definitions:
a. Marriage: Marriage between parsis
b. Priest: means a parsi priest
c. Wife: a Parsi Wife
d. Husband: a parsi husband

b. Section 3- essential conditions of marriage

1. Shouldn’t be among the prohibited degrees of relationship (list given in
schedule1: 33 entries for malesand females each)
Consanguinity: Any relationship arising out of blood relations.
Affinity: Any relationship Arising out of marriage.
 Includes Ascending, descending and collateral lines.
2. The ‘ashirvad’ ceremony is an essential solemnization ceremony to be
performed by the recognised parsi priest. (2 Parsi Witnesses required.)
3. Age limit for marriage- follows the PCMA
Compare this to S.7 HMA
HMA is silent on conversion, re-conversion and re-marriage. Hence, the court had to intervene
by way of Sarla Mudgal Case. Parsi Law covers such situation.

c. Section 4- Bigamy & Conversion

1. In case of conversion, irrespective of the new religion (even if bigamy is
allowed in the new religion), the party will be governed by parsi law for the first
marriage.
2. Second marriage will be void if the 1st marriage is not terminated. (Even if the
domicile or religion is changed.
d. Section 5- Punishment
Remarriage is not lawful if a person marries for the second time during the
subsistence of the first marriage- punishable under S.494 and 495 of the IPC

e. S.6- duty of priest to issue certificate to the parties- marriage certificate

1. Parties don’t have to go to get their marriage registered
2. After issuance of certificate, the priest goes to the registrar to inform that the
marriage has been officiated.
f. Section 11-
1. When parsi priest conducts a parsi marriage- s/he has to issue a certificate of
marriage which completely validates it- duty of the priest to inform the registrar
about the solemnization of marriage. It is priest’s duty to ensure fulfilment of
conditions and also to see that if it is the second marriage of both the parties.
2. If priest issues certificate for a marriage which is prohibited under S.4-
parties and the priest will be punished for 6 months and fine.

g. S.12- penalty for priests neglect- moreover, if he fails to inform the registrat,
the priest is at fault
h. S.10- registration of divorces- court will inform the registrar.
 i. S.17- irregularity w.r.t to certification and effect of vaidity of marriage
j. S.18- State gvt. Can establish special courts

● SMA- Parties go to the registrar to and get it registered. A marriage solemnized by the
registrar. There is no consideration of of caste, religion, sapinda relationships and
ceremonies. Solemnization and registration takes place side by side. Marriage needs to
registered even if not solemnized.
Section 4- Essential conditions (Some Principles are similar to HMA)
a. Monogamy (Whether there is a living spouse of either of the parties.)
b. Free consent- (unsoundness of mind, mental disorder and insanity,
unsoundness)
c. Stipulated minimum age
d. Prohibited degree of relationship (schedule 1: 37 entries for males and females)

a. S.5- Notice of intended marriage- register where the parties resided for at least 30
days
b. Notice to be put in Public Domain.
c. Publication of notice and objections- anyone can go tell this to the registrar.
Registrar will examine only if it is related to the essentials of marriage:
1. Bigamy
2. Unauthorized consent
3. Prohibited degrees of relationship
Valid objection leads to enquiry by the registrar.
d. S.6- maintenance of notice book- intention to enter into marriage
e. S.11- Decalration of witnesses is a must- 3 witnesses
f. S.12- Place and form of solemnization.- registrars office- however, the registrar has
the power to conduct the marriage anywhere. Marriage can be officiated by any
person apt. on the behalf of the registrar.
g. SMA does not prescribe any religious ceremony of marriage- can be registered
within 30 days of filing of an application for registration
h. S.13- certificate of marriage- It is a conclusive evidence that a marriage under this
act has been solemnized and the formalities of the same have been complied with.
 a. Section 19 and 20- Non Hindu girl in a JHF
1. If any member of JHF marries under this act- that person would be expelled
from the HUF from that year. Divorce of that person will be governed by the
SMA.
2. When the party is expelled from the HUF, his interest in the property still stands
strong.
b. Section 21A- When a hindu member of JHF marries a girl who is a hindu, he will
retain a status in the JHF with all rights reserved.
1. Effect of JHF after S.19,20,21A- succession to property of a person married
under this act will be governed by the indian succession act (this and succession
to property in issue in such a marriage). Further, if a son who is governed by
ISA marries according to Hindu Customs, his property will now be governed
by the HSA.
c. S.22 - children of those married under SMA- governed by indian succession act.
In the case where 2 hindus/muslims/Christians/parsis choose to get marraid under
SMA, their personal laws will not apply wrt to succession and divorce.

2 Hindus: ISA will be applied to their personal property, but if they are a part of
JHF, wife will be inducted into the JHF.

H: Hindu W: Non Hindu: Since Shastric laws prohibit marriage with a non-hindu
girl, husband will not enjoy the maintenance and coparcenary benefits of a JHF.
Only right to property is applicable since it is a birth right.

Descendant’s Property (of parties married under SMA) to be governed by ISA,

provided he or she she does not get married under their personal laws. The law in
which marriage was entered will devolve property except 4 provisions (19, 20, 21,
21A)

● Christian law
Age: As per PCMA
Monogamy
a. S.5- By whom the marriage can be solemnized- three persons can
1. Marriage registrar
2. Person who received episcopical ordination
3. Scottish churchman
 4. Licensed person for that purpose
5. Minister/clergyman/churchman.
All of these individuals need to issue certificate of registration.
b. S.10- Marriage has to be done between 6am and 7pm
1. Exception- churchman can allow relaxation in line with an exception
2. churchman can relax the rule (persons under S.5)
c. S.1- Place of Marriage
1. Either the church, or sometimes even get it registered directly.
2. If there is no church within 5 miles of residence of both parties- churchman can
relax the rule (persons under S.5)
Part IV: Marrage of Indian Christians must be certified under this part (S.60)
d. S.25- forms of marriage
1. Discretion- churchman has to determine methodology of marriage- like s.7 of
hma
Two ways of registration
1. directly to registrar
Registration through a registrar

a. S,38- notice of marriage by registrar

b. S.41- issuing of certificate by registrar
c. S.51- solemnization of marriage after issuing certificate of presence of marriage
registrar
d. S.54- registration Duty of the registrar to check if the conditions are fulfilled.

2. churchman will register and officiate marriage and produce it before a registrar
(S.9)-
Parties intending to enter into the marriage have to inform the churchman-
notice given- once the churchman is informed, he has to publicize in the church.
If parties gave an intended notice of marriage- the churchman has to move a
certificate of acceptance for the intended marriage.
Complying with the condition of marriage- duty of churchman to ensure that
the parties follow the required conditions. Otherwise he would be punished, if
knowingly or willingly done. Solemnization of marriage within 30 days-
 marriage must be solemnized within 30 days on the issuance of a certificate of
acceptance upon receiving no objections.
e. S.69
1. Solemnzing marriage out of proper time and limitation. If provisions of S. 10
and 11 or availaibiluty of witnesses are not fulfilled, but other essentials like
that of S. 5 are fulfilled, the marriage is considered valid.

Registration: Parsi and Christian Law have automatic registration i.e., along with
solemnization. Hindu marriage can be registered at any point of time. Registration under SMA
is a necessity. Under Muslim Law: Solemnization and Registration are separate aspects
(Muslims can register under SMA to avoid application of personal laws).

Q. Why is registration not Compulsory in India:

A. [Adopted by UNGA in 1979 and ratified by India on 09.07.1993] Convention on

elimination of all forms of discrimination against women 1979- S.16(2)- makes marriage
registrations compulsory. However, India has put a reservation on this clause, stating that it is
not practical in India to execute all forms of marriages. National Commission for Women came
up with a Bill for compulsory registration of marriages.

● Hindu Marriage Act

a. Marriage not registered automatically
b. S.8- for purpose of facilitating proof of marriage- state government may make rules
C- Seema v. Shravani Kumar, 2006- [Q.: Validity of Marriage?] (No evidence of
solemnization and no marriage certificate)
Court has issued direction that marriage of all persons who are citizens of India belonging
to various religions should be made compulsorily registrable in respective states
where the marriage is solemnized.
If marriage Is registered despite lack of solemnization, dispute concerning solemnization is
avoided. (within 3 months of this judgment, central govt. has to give notification.
After this judgement central govt. issued notification to states to register marriages
compulsorily. All states have these provisions, but non-registration only leads to a
fine and no serious punishment and the marriage is still considered to be valid.
a. Compulsory registration of marriage bill, 2005- National Commission for women
1. S.12- compulsory registration
2. S.13- time line
3. S.18- Certificate of registration of marriage to be compulsory proof of marriage.
4. S.20- effect of non registration
5. S.8(5)- validity of any marriage not registered

Central govt. in 2011- trying to achieve goal of mandatory registration- difficult

because of socio economic conditions-

C- Margaret Palai v. Saruti Palai 2010: Wife claimed share of ancestral property
of husband in response to which the husband and his brother claimed that there was
no proof the marriage was solemnised. The wife could not prove otherwise. Court
directed the government to make stricter rules with respect to registration of
marriage.

270th Law Commission Report: LCI suggested that at local levels, mechanism
and resources for registration of marriage should be provided. Producing of
marriage certificate should be made mandatory when anyone writing the name
of the spouse in any application or to get any benefit on behalf of H/W.
[Database & Welfare Schemes]

● Muslim Marriage
a. No provision that talks about registration- however, the contract of marriage under
muslim law, the ‘nikahnama’ bears the sign of the bride and groom, the parents and
guardians and the sea and sign of the officiating kazi.
b. The nikahnama doesn’t prove validity of marriage- only shows solemnization of
marriage.
c. Witnesses
1. Sunni- no need for witnesses
2. Shia- no need at time of marriage, but two witnesses needed for divorce.