SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY)

(Established under Section 3 of the UGC Act 1956)

Re-accredited by NAAC with ‘A’ grade (3.58/4) Awarded Category – I by UGC

Program: BBA LLB (H)

Batch: 2020-25
Semester: III
Course Name: FAMILY LAW-I
PRN: 20010126253
Name of the Student: MOKSHHA SHARMA

INSTRUCTIONS
1. Mention your details only in the space provided above. If any other details
name, contact detail etc. are written anywhere else in the answer script it
will be treated as adoption of unfair means.
2. Use diagrams and sketches wherever required.
3. Submission must be done by the student through google form link provided
by the examination department and all submissions must be in the word
format only(.doc/.docx). Submission of any other format will not accepted.
4. Submission will not be accepted beyond the deadline given by the
examination department in each subject. Student will be marked absent in
case of late submission.
5. Formatting guidelines: Font size & name: 12 & Times New Roman; Line
spacing 1.5; Justified; Page size: A4; No borders
6. Write your answer in your own language and do not copy paste from any
source. Read the question carefully and write your answer fulfilling the
requirements of the question.
7. If the students copy from each other’s assignment, it will be considered as
unfair means case and performance will be treated as null and void for the
entire examination.
ANSWER 1:
Desertion as a ground for divorce is addressed in Section 13(1) (ib) of the Hindu Marriage
Act, 1955, which states: "The expression "desertion" means the desertion of the petitioner by
the other party to the marriage without reasonable cause 1 and without the consent of or
against the wish of such party, and includes the willful neglect of the petitioner by the other
party to the marriage, and its grammatical variations and cognate expressions shall be
construed accordingly.”  There are primarily four key essentials that must be met in order for
desertion to occur. The first two must be present in the spouse who has deserted.

1. Factum deserdendi or the fact of separation.

2. Animus deserdendi or the intention to desert.

Desertion can only exist when both of these factors are present. If one of these two elements
is missing, the petition for divorce on the grounds of desertion will be denied. Desertion is an
unusual phenomenon in that one of the ingredients might occur before the other; nevertheless,
desertion will only occur when both elements coincide. One of the important sub-elements in
desertion that distinguishes it from voluntary separation is the quality of permanency in the
intention to depart the matrimonial home. There is no desertion if the separation is only
temporary and there is no intention of leaving permanently.

It's also worth noting that, in order to get matrimonial relief on the grounds of desertion, you
must establish that the required term of two years has passed and that the time has been
continuous. Only after two years has passed since the co-existence of animus and factum has
begun may a petition for divorce on the grounds of desertion be submitted. Desertion is
referred to as a continuing offence because the element of permanence necessitates that the
factum and animus must remain constant during the statutory period preceding the
presentation. If the spouse returns before the two-year waiting period expires and then departs
again, the two-year waiting period begins all over again from the moment he departed. If
such a time is interrupted, the broken periods may not be joined together to produce a two-
year total.

In Dundappa v. Renuka, while deciding an appeal filed under Section 28 of the Hindu
Marriage Act, 1955, a Division Bench comprising of L. Narayana Swamy, J and Dr. H.B.
PrabhakaraSastry, J. dissolved the marriage solemnized between the appellant-husband and

1
Rajini v. Ram Swaroop (1995) 2 Civ LJ 74 (All).
the respondent-wife holding that the wife deserted the husband for a continuous period of not
less than two years.

So basically, for Nitesh’s petition to be successful, he needs to prove that firstly, Neena and
him were separated for a continuous period of not less than two years, and secondly, that
Neena had the intention to desert him throughout the period of desertion.

From the facts, we can clearly establish that they weren’t separated for a period of at least
two years since Nitesh drove Neena out of the matrimonial house in January 2016 and filed
the divorce petition in November 2017, so it had only been 23 months. Moreover, it was
Nitesh who drove Natasha out of the house. Natasha had made several efforts for
reconciliation which shows that she didn’t intend to desert him, rather it was Nitesh who was
preventing her from returning to their matrimonial house. So, none of the above mentioned
essentials are met by Neena, who will be construed as the deserter in this case as Nitesh is the
petitioner.

Apart from these characteristics, the deserting spouse must possess two more characteristics:

1. Lack of consent
2. The lack of action that caused the other spouse to leave the marriage.

Therefore, Nitesh (who filed the petition) must establish plainly that the desertion was against
his will by proving and providing proof for his actions. Courts have ruled that it is not enough
for the petitioner to prove that he did not want the respondent to stay away; rather, he must
have expressed his intentions to the deserting spouse or made it plain that the absence was
against his preferences.2 However, Nitesh did no such thing, rather, he didn’t even respond to
the efforts made by Natasha and her family to reconcile.

Moreover, even if Nitesh somehow manages to establish lack of consent, in arguendo, there
is reasonable cause for Neena to desert him as he used to physically and mentally torture her.

CASE LAWS:

In Bipinchandra Shah v. Prabhawati, AIR 1957 SC 176, the court observed that:

2
Dave Kantilal v. Bai Indumati, AIR 1956 SC 115.
 "For the offence of desertion, so far as the deserting spouse is concerned, two
essential conditions must be there, namely, (1) the factum of separation, and (2) the
intention to bring cohabitation permanently to an end animus deserendi).

Similarly, two elements are essential so far as the deserted spouse is concerned;

(1) the absence of consent, and (2) absence of conduct giving reasonable cause to the
spouse leaving the matrimonial home to form the necessary intention aforesaid.”

In K.C. Sikroria v. SarlaSikroria, 1990 (1) WLN 520it was held that desertion is a matter of
inference drawn from the facts and circumstances of each case, which can include certain
facts that may not be capable of leading to the same inference in another case, that is to say,
the facts must be viewed in light of the purpose revealed by those acts or by conduct and
expression of intention.

ANSWER 2:
Parsi law for marriage and divorce is regulated and monitored by the Parsi Marriage and
Divorce (Amendment) Act, 1988 under Section 32B. This act covers various provisions
regulating the practice of marriage and divorce of Parsis. Judicial separation is guaranteed
under Section 34 of the Parsi Marriage and Divorce Act, 1936 and further the grounds for
both matrimonial reliefs that is judicial and divorce are similarly aligned.

Under Parsi personal law marriage is considered to be a contract performed through a

religious ceremony known as Ashirvad and it is an essential component for a valid marriage.
The term Ashirvad means a prayer, blessing or a divine exhortation between the two parties
in order to observe their obligations of marriage with true faith and respect. In the case
of Parshottam v. Meherbai it was held that Ashirvad means blessing and is essential to prove
the validity of a marriage. Further the court held that it means an exhortation or prayer that
the parties recite before the marital observations. Under Parsi Personal law both sexes are
given equal treatment and remedies and rights are available to both the parties. The essential
and valid conditions required for a valid marriage are given under the Parsi Marriage and
Divorce Act, 1872. Another important aspect is the marriage regarding the Jews and it is also
believed to be a contract and is validated by a written contract known as Katuba executed
between the parties intending to marry. Further to validate the marriage religious ceremonies
should also be followed. Further the Special Marriage Act, 1954 contends that a marriage is a
civil contract. According to the same a marriage can be held void by non-age and lack of
consent of either parties.

Marriages between Parsis are legal if the following conditions are met:

i. Marriage is null and void if both parties are consanguineous, that is, descendent
from the same ancestor.
ii. A Parsi marriage must be solemnised by a priest in the presence of two Parsis to
be legitimate.
iii. If the guy is under the age of 21 and the woman is under the age of 18, the
marriage will be rejected.
iv. Every kid born to a marriage that is not real, as indicated above, is valid.

Pre-wedding customs encompass a wide range of colourful and entertaining customs.

1. Rupia Peravanu: When both families consent to marry, it is known as Rupia

Peravanu. The bride's family pays a visit to the groom's family on this day. With the
conventional shagun, the bride receives a silver coin as a present. The groom's family
departs after refreshments. The bride's family now adds more silver coins to the
presents, and the procedure is repeated at the groom's residence.

2. Madhavsaro: The wedding is four days away. The bride and groom's families each
plant a young tree in a pot at their front door, accompanied by prayers by the family
priest. This is a mango tree, which is a sign of fertility. Before planting the tree, a
mixture of three metals (gold, silver, etc.) is mixed into the soil. The plant is watered
every morning until it is transplanted on the eighth day.

3. Adarni: The gift-giving day is the third day before the lagan. The groom's family
pays a visit to the bride's residence on this day to give her gifts. The rite is known as
Adarni. The bride may attend this ritual at her husband's home, but the groom is not
permitted. Sev and dahi, boiled eggs, and bananas are fed to family, neighbours, and
friends.
 4. Supra nu Murat: The Hindu mehndi-haldi process is identical to this pre-wedding
custom. A supra comprising auspicious commodities like as paan, supari, haldi, dates,
and a coconut is given to each married lady. The ladies switch supras seven times
crosswise, lengthwise and widthwise, during ceremonial songs. Khalbatto and dried
turmeric are held by a fifth lady. The five women join hands after the four females
finish the supras to produce a paste of turmeric, milk, and blessings for the groom and
bride.

5. Nahan: Before the wedding, the bride and groom go through the Nahan ritual. The
man or woman is figuratively bathed and cleansed by the family dastur. The bride and
groom are not permitted to touch anybody outside their family or caste after the
Nahan ritual. The groom, on the other hand, wears the customary Parsi dagli and feta
(white kurta-like gown with a black hat).

RITUALS OF THE BRIDE AND GROOM

1. A baug or an agiary is the most common location for a Parsi lagan (Fire Temple).
Marriage is considered fortunate whether it occurs just after sunset or very early in the
morning. The majority of weddings take place at 6.40 p.m. Every stairway and
doorway on Parsi lagan has a chalk or rangoli design. The wedding venue or baug's
gates are adorned with colourful designs.

2. Achumichu: A ceremony called achumichu is performed before the bride and

husband take the stage. On a dish, the bride's mother places a raw egg, supari, rice,
coconut, dates, and water to begin the procedure. She first circles the groom's head
seven times with the coconut before crushing it on the suitable floor. Except for the
water, everything else on the dish is flung to one side or the other. On stage, the bride
joins her future mother-in-law for the same procedure.

3. Ara Antar: In order to perform the Ara Antar rite, the two must face one other. Their
vision of each other is obstructed by a cloth. After that, they each receive rice. When
the seventh round finishes, the priests circle the couple seven times on opposite sides
of the curtain, and the couple showers each other with rice. The spouse who throws
the rice first is believed to have the upper hand!

4. Chero Bandhvanu: A rite known as Chero Bandhvanu is now taking place. The
seven thread strands bind the two together. Witnesses sat on either side of them,
holding diyos or lighted lamps. Priests begin an hour-long marital prayer and
sprinkling ritual with rice and rose petals. The bride and groom exchange rings once
the procedures are completed. The priests are now wishing them var and bairi. The
fire of the agiary is transferred to them.
 5. Haath Borvanu: There are celebrations once the lagan is completed. First, the
bride's sister-in-law asks her new husband for money. She makes the groom put his
hand in a glass of water in order to pay. If the groom does not pay, he will be
threatened with milk on his shoes. The chero chorvanu ceremony follows. The sister-
in-law removes the seven strands that bind the pair upon payment. Finally, the
newlyweds seek blessings at the fire temple.

ANSWER 3:
A marriage is a conjugal union between a man and a woman which arises from the free
consent of each spouse giving rise to ‘conjugal rights’ which literally means the ‘right to stay
together’. The restitution of these conjugal rights is another anachronistic remedy dating right
back to time of feudal England, where marriage was no less than a property deal and the wife
was considered her husband’s possession.

Section 9 of the Hindu Marriage Act 1955, provides for the remedy of Restitution of
Conjugal Rights stating that

“When either the husband or the wife has, without reasonable excuse, withdrawn from the
society of the other, the aggrieved party may apply, by petition to the district court, for
restitution of conjugal rights and the court, on being satisfied of the truth of the statements
made in such petition and that there is no legal ground why the application should not be
granted, may decree restitution of conjugal rights accordingly.”

The following requisites are to be followed in order to gain from section 9:

i. Parties to the Marriage must NOT be staying together

ii. There must be no reasonable ground for withdrawal of a party from the other
iii. Remedy of Restitution of Conjugal Rights must be applied for by the grieving
party.

Incorporation of the provision of Restitution of Conjugal Rights as a relief in the Special

Marriage Act, 1954 and the Hindu Marriage Act, 1955 was subject to a series of debates and
controversial discussions on the floor of the Indian Parliament and raised questions on the
constitutional validity of Section 9. Although this remedy is gender neutral, however over a
period of time it has turned to be biased against women as it affects them disproportionately.
Moreover the provision is being misused as a shield in order to escape divorce proceedings
and alimony claims. Often when the aggrieved party files for a decree of divorce from the
respective place of residence, the other spouse counter files for the decree of Restitution of
Conjugal Rights in their place of residence. In such a scenario, mostly women unwillingly
have to return to their matrimonial home which exposes them to undefined crimes such a
‘marital rape’ as they succumb to such coerced habitation. The question here of prime
importance is that whether the State enjoys such a privilege to protect the institution of a
broken marriage to an extent that it allows a legislation which compels spouses to cohabit on
expense of grieving spouse’s willingness to stay married.

The provision of Restitution of Conjugal Rights was first challenged in the Andhra Pradesh
High Court in the case of Sareetha v. T. Venkatasubbaiah declaring it as unconstitutional as
section 9 is a savage and barbarous remedy, which flagrantly violates the right to privacy and
human dignity guaranteed by Article 21 of the Constitution by denying a women her free
choice as to when and how her body is to become the means for the procreation of another
human being.

In another old case of Shakila Banu v. Gulam Mustafa, 1970, the Hon’ble High Court
observed that “The concept of restitution of conjugal rights is a relic of ancient times when
slavery or quasi-slavery was regarded as natural. This is particularly so after the
Constitution of India came into force, which guarantees personal liberties and equality of
status and opportunity to men and women alike and further confers powers on the State to
make special provisions for their protection and safeguard.”

However, the Supreme Court in Saroj Rani v. Sudharshan gave a contrary judgment which
was in line with the Delhi High Court views, upholding the constitutional validity of the
Section over-ruled the decision given in the Sareetha v. T. Venkatasubbaiah case. It was
reiterated that the prime objective of the provision of Restitutiuon of Conjugal rights was to
bring about cohabitation between estranged spouses for them to revive their marriage and
thus in the privacy of home and married life both Article 14 and 21 find no place.

In the recent judgement of Joseph Shine v Union of India 2019, the Supreme Court has
put great emphasis on the right to privacy and bodily autonomy of married women, stating
that marriage is not supposed to take away one’s sexual freedom and choice. Moreover if
the constitution grants everybody their bodily autonomy, choice, and right to privacy, it is
redundant that a court mandates two adults to cohabit if one of them is unwilling to do the
same.
Over viewing the Constitution’s notion on gender equality and the gender-neutral quality of
its laws and provisions, it is quite evident that women are still at a disadvantage in the
Indian society and this provision capitalizes on it. Dowry deaths are a plague on the society
and women being emotionally and mentally manipulated and tortured for dowry are
aplenty. When these mentally and physically exhausted wives approach the courts of law in
order to free themselves from the clutches of such cruelty, a decree of restitution of
conjugal rights acts as a noose around their necks. It's now time for the Indian judiciary and
society to turn to a more progressive approach towards the theories of marriage and the
remedies for its revival in a way that respects the autonomy and freedom of two individuals
who agree to share them with each other.

ANSWER 4:
Traditional Hindu Law takes inspiration from Dharma laying down several principles, morals
and guidelines governing one’s personal life including the institution of Marriage. After the
enactment of HMA 1955, Hindu Law underwent drastic changes and codified various
provisions for marriage and divorce in Hindu Law. Sapinda Relationship and Degrees of
Prohibited Relationships are one of the two essentials of a valid Hindu Marriage.

SAPINDA RELATIONS:
Sapinda relationship refers to extended relationships through generations such as father,
grandfather etc. Two different legal commentaries provide for two ditict definitions
associated with the sapinda relationship. One of them is by the Mitakshara and other is by the
Dayabhaga. As per Mitakshara, Sapinda means a person connected by the same particles of
body and as per Dayabhaga it is when a person is connected by the same pinda i.e., ball of
rice or funeral cake offered at sraddha ceremony). However, the Hindu Marriage Act, 1955
have modified the concept of Mitakshara prohibiting the marriage between persons of
Sapinda relationship except for cases where such marriage or union are permitted by valid
custom or usage. The custom must be a valid one as per Section 3 of the Act.

Section 3 (f)(ii) of the Act provides that two persons are said to be ‘sapindas’ of each other if
one is lineal ascendant of the other within the limits of sapinda relationship, or if they have a
common lineal ascendant who is within the limits of sapinda relationships with reference to
each of them two persons are said to be “sapindas” of each other if one is lineal ascendant of
the other within the limits of sapinda relationship, or if they have a common lineal ascendant
who is within the limits of sapinda relationship with reference to each of them.

In the case of Harihar Prasad v. Balmiki Prasad, it was held that a valid custom should be
established by clear and unambiguous evidence, it is only by means of such evidence that the
courts can be assured of their existence and they should possess the condition of antiquity and
certainty for legal recognition. Sapinda Marriages are liable for punishment under Section
18(b) of the Act with simple imprisonment which may extend to one month, or with fine
which may extend to one thousand, or with both.

PROHIBITED DEGREES OF RELATIONSHIP:

There are few relationships under which a Hindu marriage can never be solemnized. This
domain of relationship is known as “degrees of prohibited relationship. If two persons come
under the realm of this ‘prohibited relationship’, then their marriage can never be performed.
This is because the Dharamshastra considered sex relationship with one’s mother or one’s
sister or one’s daughter or one’s son’s wife as highest sin i.e. Mahapataka. Degrees of
prohibited are stated in Section 3(g) of HMA 1955. Two persons are relationship said to be
within the degree of prohibited relationship:

1. If one is a lineal ascendant of the other; or

2. If one was the wife or the husband of a lineal ascendant or descendant of the
other; or

3. If one was the wife of the brother or the father’s or mother’s brother or the
grandfather’s or grandmother’s brother of the other.

4. If two are brother and sister, uncle and niece, aunt and nephew, or children of
brother and sister or two brothers or two sisters. It also includes

i. Relationship by half or uterine blood as well as by full blood;

ii. Illegitimate blood relationship as well as legitimate;

iii. Relationship by adoption as well as by blood.

For a man his prohibited degree of relations are:

i. His lineal ascendant

ii. Wife of his lineal ascendant

iii. Wife of his lineal descendant

iv. Brother’s wife

v. Wife of his father’s brother

vi. Wife of his mother’s brother

vii. Wife of his grandfather’s brother

viii. Wife of his grandmother’s brother

ix. Sister

x. Sister’s daughter

xi. Father’s sister

xii. Mother’s sister

xiii. Father’s sister’s daughter

xiv. Father’s brother’s daughter and (xv) Mother’s brother’s daughter.

Similarly, for a woman her prohibited degree of relations are:

i. Her lineal ascendant

ii. Husband of her lineal ascendant

iii. Husband of her lineal descendant

 iv. Brother

v. Father’s brother

vi. Mother’s brother

vii. Nephew

viii. Sister’s son

ix. Uncle’s son

x. Father’s sister’s son

xi. Mother’s sister’s son and

xii. Mother’s brother’s son.

Section 5(iv) of the Act prohibits solemnization of marriage of persons falling within the
prohibited degree of relationship. Violation of this clause would amount to simple
imprisonment up to 1 month or a fine of Rs. 1000/- or both under section 18(b) of the act.
In Shakuntala Devi vs Amar Nath [AIR 1982 P H 221], Punjab and Haryana High Court
held that two persons can marry within the prohibited relationship but there should be a proof
of established custom i.e. very old and beyond human memory. But in Balusami Reddiar vs
Balakrishna Reddiar [AIR 1957 Mad 97], it was held that the custom must not be against
public policy and morality. In Kamani Devi v. Kameshwar Singh it has been observed that
even where the marriage was void as being within the prohibited degree, the obligation to
maintain the wife would remain.

CONCLUDING REMARKS:
According to the Objects and Reasons for the Hindu Marriage Act, 1955, the phrases
"prohibited relationship" and "sapinda relationship" are defined in accordance with the Rau
Committee's Report. A definition of prohibited degrees was essential because there is much
difference in India over what constitutes a prohibited degree due to the country's diversity.
Further, it was vital to describe the sapinda connection precisely because it had been
understood differently by many authors and philosophers, resulting in considerable
misunderstanding.

Consider the issue of Karewa weddings, which are widespread in some segments of society
in Haryana. This type of marriage is based on a long-standing tradition in which a man
married his brother's widowed wife. Karewa weddings have now been declared invalid, with
the Court observing that the system cannot be defended on the grounds that it is a custom, as
a lawful custom cannot be contrary to public policy. In Gujarat, the term 'Maitri Karar'
refers to a contract between a man and a woman, one of whom is already married. South
India's 'Desa Achara' tradition also enables marriage between two persons who fall inside
the limitations of sapinda.

Thus, despite its complexity, the Sapinda notion is extremely helpful and vital for society.
The Hindu Marriage Act's drafters did an excellent job of recognizing the necessity for and
incorporating a clause controlling weddings between particular degrees of persons.

ANSWER 5:

The Uniform Civil Code (UCC) involves the establishment of a single legislation applicable
throughout India that is appropriate for individuals of all faiths in matters of marriage,
divorce, inheritance, and adoption. The 1954 Special Marriage Act provides for a common or
uniform marriage for all citizens of India, regardless of religion or caste. This is the first step
toward establishing a uniform civil code. The issue here is whether, in the lack of a standard
civil code throughout India, the Special Marriage Act is the best option for safeguarding the
interests of those involved in inter-faith weddings.

SPECIAL MARRAIEG ACT PROVISIONS:

In colonial India there was no special Marriage Act but in present India we have an exclusive
legislation known as special Marriage Act of 1954. It applies to all over India and one of the
main features of this act is that it is also applicable to foreigners as they can register their
marriage in India according to a case which has been decided by a Bombay High Court. The
following is an overview of SMA, 1954.

CONDITIONS FOR MARRIAGE:

Condition for marriage are mentioned in Section 4 of the same, these are as follows:

i. Party should not have any spouse living.

ii. Soundness of mind

iii. The woman should be of 18 years and the Men should be of 21 years.

The process of marriage under special Marriage Act starts by:

1. A notice is given to the marriage officer of the city in which one of the party websites
for more than 30 days. This has been mentioned in section 5 of the act, the condition
to marriage are mentioned in second schedule.

2. As per section 6 of SMA, once the marriage officer has received the notice, it is
necessary that the notice should be published and there after the objection if any can
be raised as per section 7 of the act. It is imperative that the objections must be raised
in writing and can be reached by any person, the ground for objection must be
specifically mentioned and the time period for raising an objection is 30 days.

3. When the marriage officer if the objection that he has to make an enquiry into the
objection within a period of 30 days as per section 8 of the act.

4. Then the marriage officer has to see whether the objection was valid or not and if it
any given case it is valid than the parties can directly approach the district court.

5. The place of marriage has been discussed in section 12 of the act just believe it is in
the marriage officer office but the marriage officer has a right to take the marriage in
some other place.
 6. As per section 13 the certificate of marriage has to be issued because it is conclusive
evidence of the relevant facts of the marriage.

7. If the marriage is not solemnized in the whole new process must be started within 3
months.

8. As per section 15 of the act, a marriage can be registered in other forms, as per this
section, a marriage can even be registered even after the children are also born.

From the preceding discussion, it is reasonable to conclude that while a mainstream India
requires a unified Civil Code, there is no compelling reason to impose any Uniform Civil
Code on an impervious populous. The majority of people are not yet prepared to accept that
mainstream laws are not synonymous with severe customs. The Uniform Civil Code can be
given effectively only after we achieve increased levels of proficiency, mindfulness about a
few socio-political topics and authentic talks, and increased social and strict adaptability.
Until then, the Special Marriage Act is the best option for safeguarding the interests of those
involved in interfaith marriages. The above-mentioned general and legal sections of the
Special Marriage Act are critical not only for individuals who have registered their marriages
under the demonstration, but also for all residents of the country to have a better
comprehension of the law and to regard relationships between various positions and religions
as similarly sacred and favorable as relationships within one's own caste.

ANSWER 6

2. MODERN SOURCES OF HINDU LAW

1. JUDICIAL DECISIONS OR PRECEDENTS: Judicial decisions rendered by the

courts are critical and have developed into a significant source of law. The Oxford
English Dictionary, “A precedent is defined as a past occurrence or case that serves
as, or may serve as, a model or rule for subsequent cases, providing support or
justification for some similar act or circumstance.” According to Gray: 'A precedent is
defined as anything stated or done that establishes a standard for subsequent
behaviour. The idea of stare descisi originated in India during the British colonial
 period. All cases are currently being documented, and new cases are being decided in
accordance with existing case legislation.

2. LEGISLATION: Legislation plays a critical and vital part in the establishment of

Modern Hindu Law. Numerous laws have been adopted and significant changes have
been made to various facets of Hindu Law. Hindus are now controlled by these
enactments.

3. JUSTICE, EQUITY, AND A GOOD CONSCIENCE: The modern source of

Hindu law is believed to be equity, fairness, and a moral conscience. Being equitable
entails being fair in one's dealings, which implies fairness in one's dealings. Modern
judicial systems are distinguished by their impartiality, which is their primary
characteristic.

In the event of a conflict between the smritis, equitable, just, and conscientious
standards should be applied. The origins of equity may be traced all the way back to
the time when jurists and learned academics clarified existing laws and devised
innovative principles of interpretation

4. JUDICIAL SEPARATION:

Judicial separation is viewed as a lesser evil than divorce, since it leaves open the door for
reconciliation. Ordinarily, judicial separation may either lead to reconciliation or divorce. In
exceptional circumstances it may mean permanent separation, such as when parties abhor
each other as much as they abhor divorce.

Judicial Separation and Divorce – A decree of judicial separation does not dissolve the
marriage bond but merely suspends marital rights and obligations during the period of
subsistence of the decree; parties continue to marital rights and be husband and wife. Neither
party is free to remarry. In the event of one of the spouses dying during the subsistence of the
decree of judicial separation, the other will succeed to his property. On the other hand, a
decree of divorce puts the marriage contract to an end; all mutual rights and obligations of
spouses cease. In other words, after a decree of dissolution of marriage. marriage tie is
broken, parties cease to be husband and wife, and are free to go their own ways. There
remains no bond between them. After a decree of divorce, parties are free to remarry. Matters
relating to alimony and maintenance of the wife and maintenance and custody of children
may be agitated both after a decree of divorce as well as judicial separation.

Judicial separation and separate residence – Under Section 18(2), Hindu Adoptions and
Maintenance Act, 1956, a Hindu wife may, on certain grounds, live separate and claim
maintenance from her husband. Two provisions are different though there is some
superfluous resemblance between the two. May be, in a given case, a wife does not want
either divorce or judicial separation, yet she does not want to live with her husband. May be,
no ground for divorce or judicial separation is available to her. If a ground for separate
residence and maintenance is available to her under Section 18(2), Hindu Adoptions and
Maintenance Act, a Hindu wife may sue for it. The remedy of judicial separation and remedy
of separate residence and maintenance are not the same. During the subsistence of decree of
judicial separation, it is no longer obligatory on the parties to live with each other. Bu an
order under Section 18(2) is not of the same quality. A decree of judicial separation is a
judgment in rem and will remain operative till it is rescinded, while this is not so in case of an
order under Section 18(2). A wife living separate under an order made under Section 18(2),
may choose to live with her husband at any time. She need not get the order rescinded. But
for resumption of cohabitation by the parties judicially separated, it is necessary to get the
decree rescinded. In judicial separation proceedings, the court has jurisdiction to make orders
in ancillary proceeding for maintenance of spouses and custody, etc. of children and
settlement of matrimonial property. Under Section 18(2), only order that can be made is of
maintenance wife. Under the Hindu Marriage Act and the Special Marriage Act, if after a
decree of judicial separation, parties have not resumed cohabitation for a period of one year,
either party may seek divorce. This cannot be done when parties are living separate under an
order made under Section 18(2), Hindu Adoptions and Maintenance Act, even if parties have
been living separately from each other for many years.
Grounds of judicial separation.

In all systems of law, judicial separation is granted on some specified grounds. In some
systems, grounds of judicial separation and divorce are the same, while in some they are
different. Under Section 10 of the Hindu Marriage Act, all the fault grounds for divorce are
also the grounds of judicial separation. This is also the position under Section 23, Special
Marriage Act. However, under the Special Marriage Act, there is an additional ground of
judicial separation, viz., a decree for restitution of conjugal rights has not been complied
with. Under Section 34, Parsi Marriage and Divorce Act also, all grounds of divorce are
grounds for judicial separation. Under the Divorce Act, 1869, a decree of judicial separation
may be obtained on the ground of adultery or cruelty or desertion (without reasonable excuse)
for two years or upwards." Under Muslim law, there is no provision for a decree of judicial
separation. Since most of the grounds of judicial separation are the same, or akin to grounds
of divorce, the same will be discussed in Chapter IX Decree of judicial separation in a
petition for divorce.

Since judicial separation is a lesser relief than divorce, in a petition for divorce, the court has
power to pass a decree of judicial separation instead of divorce, even though no such prayer
is made in the petition. It may happen in a case that the petitioner has failed to establish the
ground of divorce alleged by him though a ground for judicial separation is made out.