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Family Law-I
Created @September 14, 2022 11:17 PM

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Type Lecture

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Reviewed

Describe briefly the different kinds of sources according to Hindu law

& different schools of Hindu Law.
A. SOURCES- PRIMARY
1. SHRUTI
The word “Shruti” starts from the root word ‘shru’ which means to hear or to be heard. It is a direct revelation of the words by the God.
These words and concepts are being applicable for a person who belongs to Hindu by religion. In other words, the Shruti is called as Vedas.

Vedas are of 4 types-

1. Rig Veda

2. Yajur Veda

3. Samveda

4. Atharva Veda

Again the vedas are divided into 2 theories-

1. SAMHITA- consists of the rules and regulations relating to ceremonies, rituals, customs, sacrifices, norms of pinda daan and rules
relating to inheritance and succession, etc.

2. BRAHMANA- Sanskrit term- means ‘methods of application’

The second part of Shruti is upanishads. - definition- some specific portion of vedas are known as upanishads and when it is narrated in a
gist and summary form, it is known as ‘vedanta.’

2. SMRITI
[to be remembered]

‘Smri’ means to remember. Smriti divided into 2 parts-

1. Dharmasastras- def- written in poetry form (shlokas)

2. Dharmasutras- def- written in prose form.

This compilation of Smritis has been handed down and compiled by the sages and munis of Hinduism in ancient times.

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 3. COMMENTARIES & DIGEST
1. MITAKSHARA was written by Vijnyanshwar. DAYABHAGA is written by Jimutabahan.

4. CUSTOMS
These are the habitual practices .

Sulekha Chand v Satya Gupta AIR 2008 SCC Pg 119

According to case law the term custom has been derived by court of law as a rule of law which is applied particularly to a family, a group, a
sect, community, etc. and obtained by force of law.

DIFFERENT TYPES OF CUSTOM

Har Prashad v. Sheodayan 1876

The Privy Council drawn down the different types of custom such as specific custom, general custom, family custom, local custom, regional
custom, guild custom.

ESSENTIAL FEATURES OF CUSTOM

1. Custom should be always in ancient form

2. Custom should be always in continuous mode

3. Custom should be always in reasonable condition

4. It should not be against morality, public policy, against law and society.

B. SECONDARY SOURCES OF LAW OR MODERN SOURCES

1. LEGISLATION
“Legis” and “law” E.g. HMA 1955, SMA 1954, etc.

2. PRECEDENTS
Judge made laws.

3. EQUITY JUSTICE & GOOD CONSCIENCE

SCHOOLS OF HINDU LAW

Two parts-

1. DAYABHAGA-
Only the state of West Bengal and Assam come under dayabhaga. Rest of the states- Mitakshara.

2. MITAKSHARA
Mitakshara is divided into 4 sub-schools -

1. BANARAS SUB-SCHOOL : State of Uttar Pradesh, certain parts of Madhya Pradesh, Haryana and Rajasthan.

2. MITHILA SCHOOL: State of Bihar and certain parts of UP.

3. DRAVIDA : State of Andhra Pradesh to Kanyakumari.

4. BOMBAY: State of Maharashtra and Gujarat.

There are 2 main concepts which is coming under Mitakshara school.

1. HINDU JOINT FAMILY: HJF system is a group of members related by blood relation. Comprises of - married male and female,
Unmarried male and female, adopted child, widow, divorcee, legitimate and illegitimate child.

2. COPARCENARY - 4 generation rule

DESCRIBE BRIEFLY DIFFERENT SOURCES AND SCHOOLS OF MUSLIM LAW

PRIMARY SOURCES OF MUSLIM LAW

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 1. QURAAN-
This is the primary source of Muslim law which is derived from the Arabic word “Quarra” which means the direct revelation of words by
God/Allah which is given to Prophet Muhammad through an angel named Gabriel.
This Quran is known as the holy book for Muslim community which consists of 114 chapters which includes the rules relating to concept of
family- obligations, duties, components of niqaah, acknowledgement of paternity, rules relating to succession and inheritance, rules relating
to wasiyat-nama ……. Every Muslim persons believe that this holy book Quran shows the right path to every Muslim to stay in the Indian
society.

2. SUNNAT/HADITH
It is also called as “Sunnatanabi” which means the practices, sayings, and deeds of Prophet Muhammed.

Sunnat divided into 3 parts-

1. SUNNAT-UL-FAIL: which means the practices and traditions regarding what Prophet Muhammad did himself.

2. SUNNAT-UL-QUAL: The traditions and practices which was commanded by the words of Prophet Muhammed.

3. SUNNAT-UL-TAQUIR: The traditions and sayings of Prophet Muhammed was maintained by the Muslim community in his presence
only.

Hadith is divided into 3 parts-

1. HADITH MUTWATIR- which was received and accepted universally and narrated by a number of companions, senior person of
Muslim community, Muslim jurists, or by a Muslim senior person. These sayings and practices are completely genuine and authentic.

2. HADITH MASHOOR: The sayings and the traditions which are not universally accepted and restricted by a number of person who
belongs to Muslim community.

3. HADITH AHAD: It depends on the testimony of an individual which is always unquestionable and not accepted by all.

3. IJMA
meaning- opinion of the jurist or “consensus of opinion”
The traditions and sayings which are decided after taking the opinion of several persons belonging to Muslim community and linked with
question of law. It should not be contrary to law and it should adhere to what is laid down in Quran.

Ijma is divided into 3 parts-

1. Ijma of companions of Prophet Muhammad which is universally accepted and cannot be repealed.

2. Ijma of jurists- The opinion of the jurists have been recognized and the views and decisions are taken into consideration which will be
binding and the jurists must have sufficient knowledge on that particular concept before drawing down to a particular decision.

3. Ijma of a Muslim person- It is related to fasting i.e., Roja, Haj pilgrimage, prayers, etc. and this ijma of the people is given more
importance in this modern society.

4. QIYAS
Analogical deduction. And the practices are based on subtle questions, reasons and logic is applied wherever needed.

The concept in which the analogical deduction is used-

1. Law of inheritance and succession

2. Acknowledgement of paternity

3. Concept of talaq

4. Paying of nafaqa

5. Observing iddat period by your wife

SECONDARY SOURCES OF MUSLIM LAW

1. PRECEDENTS
Any decision given by Muslim council, SC, HC and Privy Council. E.g. - 1. According to S. 125 of CrPC maintenance 2. Concept relating
to triple talaq are certain landmark judgements

2. LEGISLATION

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 1. Shariat Act 1937

2. Dissolution of Muslim Marriage Act 1939

3. Protection of Muslim Marriage Act 1939

4. Protection of Muslim Women incase of Dissolution of Rights 1986

3. JUSTICE, EQUITY & GOOD CONSCIENCE

4. CUSTOM [urf]

5. FATWA ALAMGIRI
It is a non-binding legal opinion on a point of Islamic law which is given by a qualified jurist in response to a question which is raised by a
private individual.

SCHOOLS OF MUSLIM LAW

1. SUNNI
A. HANAFI SCHOOL-

This is first and foremost school in Muslim law in India. The school was named in the name of a city - Koofa - which is situated in Iraq.

The founder of this school was Abbu Hanafi and he believed on the customs and decisions taken in the Muslim community. The majority
of Muslims are the followers under this school from countries like India, Pakistan, Turkey, etc. belongs to this Hanafi school.

Authoritative book- Hedaya- written by Ali Bin Abu Baker.

This book provides provisions related to inheritance of property of a Muslim person.

SAYINGS OF HANAFI SCHOOL

1. Low dependency on traditions

2. More faith on qiyas

3. Low extension in the scope of Ijma

4. Recognizing local custom and usages

B. MALIKI SCHOOL (or MEDINA SCHOOL)

The founder of this school was Imam Malik Bin Anas and this school gives more importance to Sunnat and Hadith. No followers under
this school belong to India. In this school more importance was given to the provisions relating to Dissolution of Muslim Marriage Act
1939.

Authoritative book- Muatha- which was written by Imam Malik.

SAYINGS OF MALIKI SCHOOL

1. More acceptance to traditions and according to the opinion of Imam Malik the traditions were authentic and genuine.

2. More acceptance to customs and usages for the people of Medina.

3. This school initiate one source of law, principle of public welfare.

C. SHAFI SCHOOL

The founder of this school was Md. Bin Idris Shafi. He was the student of Imam Malik. The sayings and practices of this school has been
taken from Hanafi and Maliki School. This school considered Ijma as the main source of law.
Authoritative book - Al Risala - which was written and there was interpretation of Ijma included with Qiyas. This was practiced in countries
like Egypt, Malaysia and Indonesia.
D. HANBALI SCHOOL

The founder of this school was Ahmad Bin Hanbal and he was the student of Imam Saifi and he supports Hadith as the main source of law.
Practiced in countries like Syria and Saudi Arabia.

2. SHIA
A. ITHANA ASHARIS

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 The followers of this school are found in Iraq and Iran and this school was initiated with an Arabic term “Twelvers” and in India most of the
followers are from Kashmir, Lucknow and Murshidabad.

SAYINGS- After the disappearance of Imams they will return as a Messiah.

B. ISMAILIYAH SCHOOL
In India there are 2 groups under this school - KHOJAS and BOHRAS. Bohras- 1. DAUDIS 2. SULAGMANIS. Khojras and Bohras are
found in Maharashtra and certain parts of Gujarat.

SAYINGS- Gives more emphasis on special knowledge of religious doctrine.

C. JAIDY SCHOOL

Founder- 4th Imam- Imam Zainul Abidin

Authoritative Book- Zayd.

Book was written on political activism and it was interpreted by Majnu-ul-Fiah.

D. IBADI SCHOOL
Neither Sunni/Shia. Followers of this school gives more preference to Quran.

E. AHMADIYA SCHOOL

Founder- Imam Ahmad who was alive in 19th century and do not follow the sayings of Prophet Muhammad.

After death of Imam Ahmad the school was taken over by Mirza Gulam Khadiani and this school was named in the name of a village
Khaidiyan which was situated in Punjab and Pakistan border.
Main sayings and sources- Equity and Absolute good.

RIGHT TO MARRY
CONCEPT OF MARRIAGE IN INDIA + DESCRIBE BRIEFLY IF RIGHT TO
MARRY IS A FUNDAMENTAL RIGHT OR AN ABSOLUTE RIGHT IN INDIA.
1. POLYGAMY-
concept in which a man marries 2 or more females. Polygamy divided into 2 theories -

A. SORORAL- wives are related by blood.

B. NON-SORORAL- according to this theory the wife belongs to different family.

2. POLYANDRY-
one female, many husbands. 2 theories:

A. FRATERNAL- when several brothers marry 1 woman.

B. NON-FRATERNAL- at a same time with the consent of the wife, the wife can stay with one brother and other brothers would not have
any complaints.

3. MONOGAMY-
1 male and 1 female

4. SOLOGAMY

CONCEPT OF MARRIAGE IN DIFFERENT RELIGIONS

HINDU
According to Hindu law, the marriage is considered as a sacramental relationship between 2 parties followed with all the shastric and all the
vedic terms and conditions according to hinduism.

To consider a valid marriage both parties must undergo the formalities and provisions relating to HMA 1955.

MUSLIM

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 According to Islamic law, the nikkah is considered as a civil contract as both the parties has to fulfill both the customary practices named as
Ibadat (Ijab- offer, Qubool- acceptance, mehr- dower).

CHRISTIAN
According to Christian law, the marriage between 2 Christian parties has been considered as civil contract as both of the parties has to
register their marriage in presence of the minister of religion.

PARSI
According to Parsi law, the marriage between 2 Parsis is considered as a civil contract as both of the parties has to compulsorily undergo the
customary practice ‘Ashirvadam’ and registration of formalities has to be fulfilled in front of society.

SPECIAL MARRIAGE ACT 1954

According to SMA 1954, the marriage between 2 parties is considered as a civil contract because both of the parties have to register their
marriage in front of court of law, registrar and sub-registrar. Both of the parties have to fulfill the registration formalities as per SMA 1954.

IS RIGHT TO MARRY AN ABSOLUTE RIGHT OR FUNDAMENTAL RIGHT IN

INDIA?
In India according to Indian Constitution, Right to Marry is one of the component relating to article 21 which says that no person shall be
deprived of his life/ personal liberty according to the procedure established by law.

Article 21 is right to life and personal liberty in which every citizen in India has the liberty and right to stay in the society freely and to start
a family.

According to UDHR [Universal Declaration Human Rights, 1948], article 16 gives 3 essentials in response to right to marry-

1. Every male & female of full age without any limitation in relation to race, caste, religion, nationality have the right to marry and can
find a family.

2. The marriage between 2 parties must be entered with free and full consent of the intending couple.

3. Being family as a fundamental and natural unit of the society, the couples must be entitled to be protected by the state and society.

Mr. X v. Ms. Y AIR 1999 SC Pg 495

Judgement- The SC ruled out that right to marry is not one of the absolute right nor a fundamental right, it is one of the right between 2
parties based on their consent to enter into the institution of marriage.

Facts- Mr. X, doctor, Nagaland State Service- donated blood- relative in Chennai- norm of blood bank to test the blood- X was suffering
from HIV- Doc returned to Nagaland- marriage fixed with Ms. Y- fact of illness was not revealed- Ms. Y came to know- Y called off the
marriage- when asked by X, Y told the reason- X filed petition against the hospital- on grounds that it was a secret- breach of right to
privacy- hospital said it was X’s duty to reveal that fact and as per Section 269 and Section 270 of IPC it was hospital’s duty to disclose
about X’s condition to Y.

Lata Singh v. State of U.P. AIR 2006 SC Pg 2522

Facts- Parties belonged to different caste- in love- started living under one roof- staying was restricted by society- breaking society’s
reputation- parties registered their marriage- valid marriage.
According to this case law, the Apex Court laid down that if both the parties intended to enter into the institution of marriage without any
biasness relating to race, caste, religion they can stay freely in society by registering their marriage following rights and duties laid down by
society and state.

SHAFIN JAHAN v. KM ASHOKAN 2018

Facts: Akhila Ashokan, a Hindu girl from Kerala moved to Chennai to pursue MBBS. Her hostelmates were twin sisters from a Muslim
family. Akhila was attracted to Islam as a religion and started practicing it. K.M. Ashokan called her home due to death of her grandmother,
and it was noted that she was reluctant to perform Hindu rituals. Following this she returned to Chennai. One day, a known person informed
K.M. Ashokan that his daughter had attended college in a Burqa. Akhila confirmed the same and stated that she had converted to Islam, had
changed her name to Hadiya and had married Shafin Jahan. When Hadiya refused to meet K.M. Ashokan and was unable to be contacted,
he stated to the police that his daughter had been kidnapped. Hadiya was found to be fine but unwilling to return home. A writ was filed by
K.M. Ashokan where it was held that Hadiya was to be returned to her family. Shafin Jahan filed an SLP stating he wanted his wife to be
returned. Hadiya reiterated that with her own consent she had chosen her partner without coercion by her husband.

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 Judgment: If both parties had entered into marriage with free consent of their own will and choice, they have to be protected by the state and
society

………………………………………………………………………………………………………………………………………………………

CONCEPT OF MARRIAGE RELATING TO HINDU LAW

APPLICABILITY OF HMA, 1955
1. It applies to all the persons who are Hindu by religion

2. The provisions of this act is applied to every citizens and it extends to all the states of India except Jammu and Kashmir.

3. It is applicable to those Hindus who have the domicile in India but staying outside India.

4. It is also applicable to the persons (Hindus) who belongs to sub-communities of Hinduism (eg arya samaj, brahma samaj, prarthana
samaj, virashaiva samaj, lingyat)

5. It is applicable to the person who belongs to Jainism, Buddhism and Sikhism

6. It is not applicable to Muslims, Christianity and Parsis.

7. It is also applicable to those persons who belong to schedule tribe community but following sufficiently and practicing Hinduism.

8. It is also applicable to those person who are legitimate and illegitimate person.

1. SONDUR GOPAL v. SONDUR RAJINI AIR 2013 SC Pg 2678

(provisions relating to HMA 1955 is applicable to those persons who belongs to India and have the domicile of India but staying outside the
territory of this country.)

2. CENTRAL BANK OF INDIA LTD. v. RAM NARAYAN AIR 1955 SC Pg 36

(according to this case law, provisions relating to HMA, a person related to Hinduism, also to persons of sub-community of Hinduism, not
applicable to Muslims, Christians and Parsis.)

3. SAPNA v. STATE OF KERALA AIR 1993 KER 75

Husband - ST, Wife- Christian, Child claimed to be ST and Hinduism but court denied because neither the parents nor the child practiced
hinduism.

WHO IS KNOWN AS A HINDU PERSON?

1. By birth of a person.

2. By conversion/ re-conversion.

3. If the father and mother are following Hindu religion and the child is framed to follow all Hindu customary practices.

HISTORICAL BACKGROUND OF MARRIAGE BEFORE ENACTMENT OF HMA

1955
8 kinds of marriage, 4 are approved, 4 are unapproved
According to the historical background of concept of marriage taken from Griyasustras and it was written by Manu.

According to Manu, there are 8 forms of marriage and 4 are approved.

1. BRAHMA MARRIAGE- According to this marriage with the father’s consent a boy is being chosen for the girl who is well-versed in
Vedas and a priest. This is one of the approved form.

2. DAIVA MARRIAGE- In this marriage girl is given by the father in the name of daan and dakshina.

3. ARSHA MARRIAGE- In this kind of marriage, a pair of cow is given by the bride-groom to the girl’s father in return of the girl.

4. PRAJAPRATYAY- No essential gifts are allowed only the blessings is given by the father to the couples to lead a better life forever
and to fulfill all the religious and secular duties of the family.

4 unapproved marriages-

1. ASURA MARRIAGE- This marriage was in the Sudras community and the daughter is being sold for a consideration from the boy.

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 2. GANDHARVA MARRIAGE- In this marriage, only the consent of the parties is taken into consideration and on unapproval the
consent of the family members is not present.

3. RAKSHASHA MARRIAGE- prevaled at the time of King’s rule, women were captured or abducted without undergoing the marriage
process.

4. PISAKA MARRAIAGE- unfair advantages- In this kind of marriage, girl is intoxicated and taken with unfair advantages and the will
of the girl was not there.

HINDU MARRIAGE ACT 1955

ESSENTIALITY RELATING TO VALID MARRIAGE

SECTION 5-
In case of Section 5, there are 5 essentialities-

A. Monogamy

1. At the time of marriage both the parties must be hindu by religion and neither party must have a living spouse (concept of monogamy)

Chamundamma v. Laxmi AIR 2015 KAR HC Pg 21: court of law decided that if a spouse from a previous marriage is living at the time of
marriage and it is not dissolved lawfully the new marriage is considered void ab initio.

Sarla Mudgal v. UOI 1995 SCC 635

Lily Thomas v. UOI AIR 2005 SCC 224 : SC stated that if a person is not following the concept of monogamy then the act of remarriage
will be considered as bigamy which is a crime under Section 484 of IPC.

2. Neither parties must have a spouse living.

B. In relation to mental disorder or free consent between both the parties-

Sharda v. Dharampal AIR 2003 SC 3450: Husband alleged his wife suffered from mental disorder. Here, court of law laid down that the
party who files the petition of mental disorder has burden of proof.

C. According to HMA 1955 female must have attained the age of maturity i.e., 18 years and male must have completed 21 years.
D. Both the parties must be beyond Sapinda relationship. [Sapinda- person who is eligible to give pind daan to the father.]

i. 3 generations of mother side for both the parties

ii. 5 generations has been taken into consideration from father’s side.

E. Beyond prohibited decrees- father and daughter, mother and son, uncle and niece.

Shakuntala Devi v. Amarnath AIR 1982 P&H Pg 22 - facts: paternal aunt and nephew were married but marriage was held void as it was a
prohibited decree. prohibited relationship must be there for both the parties to consider marriage as a valid marriage.
If section 5 is followed then either section 7 or 8 or both can be followed for a valid marriage.

SECTION 7 - CEREMONIES OF HINDU MARRIAGE

4 CEREMONIES-
1. SAPTAPADI [seven steps] : both parties have to perform it at the time of marriage.

2. KANYADAAN- daughter is given to a person in the name of daan or dakshana, is a punya, is an essential ceremony for valid marriage.

3. PANI GRAHAN- single parties take oath to become a couple to fulfill marital ties and obligations.

4. BIVAHA HOMA- the sacred fire

Darbar Singh v. Jaswant Kaur AIR 2014 P&H Pg 100

Balvinder Kaur v. Gurumukh Singh AIR 2007 P&H 74

In both the cases, Court of Law laid down that the performance of marriage ceremonies according to hindu customs is one and only
evidential proof to consider a marriage as a valid marriage.

SECTION 8 - REGISTRATION OF MARRIAGE

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 The State Government has made the provisions under Hindu Marriage Act 1955 that every parties has to register their marriage in the court
of law to justify their marriage as valid marriage under HMA 1955.
Sima v. Ashwini Kumar AIR 2006 SCC 587- According to this case law, the marriage of every Indian citizens has to be registered under
Section 8 of Hindu Marriage Act to justify it as a valid marriage.

Sudhir Mohan v. Jyoti Devdas DMC Pg 24 - court of law laid down that the registration of marriage and generating certificates is one of
the evidential proof to declare their marriage as a valid one and protecting it.

SECTION 9- RESTITUTION OF CONJUGAL RIGHTS

It gives the provisions relating to restitution (Restriction by the parties, Restoration by court of law) of conjugal rights.
Requirements relating to Section 9 of HMA, 1955 are:

1. The petitioner can be either husband or wife

2. The respondent withdraws from the petitioner’s society

3. Withdrawing is on unreasonable grounds

4. The petitioner should file a petition in the district

5. The court to be satisfied with the truth of the statements and finds that no other reason is there for withdrawing from society

6. Burden of proof for reasonable excuse is on the respondent

Ranjana v Vinod Kumar AIR 1997 BomHC 380: court laid down that if there is concealment of fact relating to previous marriage, if the
other party files a petition for restitution of conjugal rights, it will be granted and the marriage will be declared a bigamous marriage

Pallavi Bharadwaj v Pratap Chauhan AIR 2007 Del HC 2: court stated that only in a case of valid marriage the parties can file a petition
of restitution of conjugal rights.
Hardeep singh v Dalip Kaur AIR 1970 Punj 284: court of law laid down that in case of unreasonable grounds by the petitioner, then it will
not be granted.
Any party having a drinking habit and not maintaining conjugal rights is considered valid grounds for filing petition. On the other hand, if
the person with a drinking habit maintains marital relations, it will not be considered a valid ground
Arun Narayan Rao v Varsha 2016 DMC 869: Court demarcated justified and unjustified grounds to be filing a petition for restitution of
conjugal rights in the court of law. Justified can be extramarital affairs by the spouse, unjustified can be alcoholism of the spouse
Teerath Kaur v. Kripal Singh 1975 PLT 572: court made decision in favour of husband that consent by husband towards wife to work
provided she fulfilled marital duties. However, nonmaintenance marital duties were there so court granted the petition.
Maffi v. Mandil Kaushik 2017 P&H 440: court laid down that there can be a transfer of cases/jurisdiction of court can be transferred as per
comfort of parties.

CONSTITUTIONAL VALIDITY OF SECTION 9

T. Shareetha v. T Venkata Subbaiah: AIR 1983 AP 356: Upcoming Tollywood actress was staying away from matrimonial home and
unable to perform conjugal duties. The petition here was seen as a breach of Art.21 and 14, since wife wanted to delay pregnancy for a few
years. Court held that wife was not a tool for procreation, and must give consent, otherwise it would amount to marital rape.
Harvinder Kaur v. Harmander singh AIR 1984 DelHC 66: court stated that filing a petition is not a violation of Art. 14 and 21, it is a tool
for the court to restore a family.
Saroj Rani v Sudarshan Kumar AIR 1984 SC 1562: the apex court laid down that if there is no emotional attachment between husband and
wife, then application of alternative dispute resolution is not a tool to restore the relationship. Breakdown theory of divorce is applied here.

SECTION 11- PROVISIONS RELATING TO VOID MARRIAGE

According to Section 11 of HMA, 1955 gives 3 provisions to declare a relationship or marriage to be void. According to void marriage there
is no status in the eyes of law and hence it is called as a null relationship between 2 parties.
The 3 components are -

1. Breach of concept of monogamy

2. If the parties are sapindas of each other

3. If both of the parties are within prohibited relationship

M.M. Manutra v. Union of India AIR 2006 SC Pg 80 - According to thus case law, SC of India laid down that if any marriage takes place
under Section 11 of HMA 1955, then that kind of relationship or marriage will be called as void ab initio. There is no marriage in the eyes of
law at the time of dissolution of marriage, the parties have no right to move to the court of law.

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 Mohanlal Sharma v. Parveen 2009 HLR Pg 581- The court of law laid down that in case of void marriage no declaration is required to call
each other husband and wife since it is considered no marriage and at the time of dissolution of marriage, either party has no right to move
to the court of law taking any ground of divorce for dissolving the reltationship.

SECTION 12 - VOIDABLE MARRIAGE

It can be considered as a valid form of marriage at the option of the parties or it can be dissoluted by the mutual consent of husband and
wife.
GROUNDS OF VOIDABLE MARRIAGE

1. IMPOTENCY OF HUSBAND AND WIFE - Impotency is the first ground to declare the marriage as voidable and the parameter
relating to impotency is non-consummation of marriage and unable to procreate a child.

a. Physical Impotency- either party is unable to procreate child. If wife is unable to bear or procreate a child, as said by a gynaecologist, the
marriage is considered valid, however if marital dispute is caused due to this the husband has the option to dissolve the marriage. If the
husband is impotent, wife also has an option to dissolve the marriage.
b. Psychological/Mental impotency: husband or wife is suffering from mental disorder/insanity causing non consummation such as phobia
of sex
Sharda v. Dharam Pal AIR 2003 SC 3450- According to this case law if any of the parties has been identified with the mental and physical
impotency then to declare as voidable, the burden of proof liues on the petitioner for other party.

2. MENTAL DISORDER - CONSENT OBTAINED BY FRAUD OR FORCE-

Unsoundness of mind is another ground to declare the marriage as voidable but before declaration of voidable marriage, the medical reports
and curability of disease must be identified and verified by the court of law.

3. CONSENT OBTAINED BY FRAUD AND FORCE

Sunaina Devi v. P4rashant Kuymar AIR 2014 PAT HC 288 According to this case law the court of law laid down that if any marriage
takes place in case of compulsion or by force and if there is any kind of fraudulent act then that marriage will be called as a voidable
marriage. (girl intoxicated and married- no free consent)
Mr. X v. Hospital Z AIR 1999 SC 495: According to this case law the spouse was suffering from HIV + which was not disclosed to the
partner which amounts to matrimonial fraud and becomes one of the grounds for divorce.

4. FRAUD

Raman v. Ravi Ramnathan AIR 2015 CAL HC 248 - According to this case law, if there will be any type of concealing material facts
between both of the parties then it amounts to matrimonial fraud in the marriage.

5. CONCEALMENT OF EARLY MARRIAGE & DIVORCE- If the party has concealed previous marriage and enters into 2nd
marriage and if the partner comes to know that the person was married then the marriage becomes voidable. Ground for dissolution of
marriage.
Ramakant v. Mohindra Lakshmi Das AIR 1995 HLR 315: According to this case law the court of law laid down that if there will be
concealment of fact relating to dissolution of previous marriage then it will also amount to matrimonial fraud and one of the grounds of
voidable marriage.

6. NON-DISCLOSURE OF AGE- if a person is of 45 years of age and he has given wrong info as 35 and girl is 30 and later wife gets to
know the real age, it counts as non-disclosure of age.
Somdutt v. Rajkumari AIR 1986 P&H 191: Girl was 45 and she concealed and said she was 25yrs of age. The lady was highly
qualified and doing a govt. job. Guy was only 23. Compulsion from family side as she is earning well get married. It is not free consent
and matrimonial fraud. Force from family. If there will be non-disclosure of proper age of party to enter into institution of marriage then
marriage will be voidable marriage.

7. CONCEALMENT OF JOB: If earning or job not disclosed then it becomes voidable.

Vindu Sharma v. Ram Prakash AIR 1997 All HC 429: Void at time of marriage he qualified IAS but after marriage came to know he is
only somehow graduated

8. CONCEALMENT OF RELIGION & CASTE

9. CONCEALMENT OF IDENTITY

10. CONCEALMENT OF PRE-MARITAL PREGNANCY: This is the most appropriate ground to determine the relation as a voidable
marriage and the requirements are that the wife is pregnant when she gets married. The child conceived does not belong to husband.
The conceived child belongs to a person out of the marriage.

Family Law-I 10
 Mayaram V. Kamal Devi AIR 2008 HP 43: 6 months of marriage child born. Mother did not give DNA test. Restitution of conjugal
rights as wife started living with parents. Then marriage got dissolved by mutual consents.

DIFFERENCE BETWEEN VOID AND VOIDABLE MARRIAGE.

Ground VOID MARRIAGE VOIDABLE MARRIAGE

SECTION 11 12

Void marriage is a type of marriage between two parties

In case of voidable marriage, from the beginning, this marriage is
which is called no marriage in the eyes of law. According
considered a valid marriage, and due to certain grounds, it is an
DEFINITION to law this marriage is a null marriage in which, at the time
option of the parties to dissolve the marriage or to stay in that
of dissolution of relationship, no ground for dissolution
marriage
will be applicable.
Impotency of Husband or Wife Consent obtained by fraud and
Breach of Monogamy If the parties come under sapinda force Concealment of earlier marriage and divorce Concealment
GROUNDS
relationship If both parties are in prohibited relationship of job Concealment of religion and caste Concealment of identity
Concealment of pre-marital pregnancy
STATUS OF
No marriage Valid marriage
MARRIAGE
DIVORCE Not applicable Applicable

SECTION 16: LEGITIMACY OF CHILDREN

Any child born out of a void or voidable marriage is a legitimate child.
Widow remarriage- Legitimate for both parents in new marriage. But no biological rights toward father or mother. Depends on their
consideration. Can maintain custodial or welfare rights.
Child from extra-marital affair. Legitimate for biological parents. Illegitimate for family of present spouse and spouse.

SECTION 17: PUNISHMENT FOR BIGAMY

Sections 494 and 495 of IPC

SECTION 10: JUDICIAL SEPERATION

Lays down provisions relating to judicial separation. Judicial separation is one of the matrimonial reliefs provided under the HMA, 1955.
Dr N. Shivamohan v. Apanna Reddy AIR 2005 Alt 44: Laid down the meaning of Judicial Separation that it is a process relating to
dissolution of marriage in which the court of law gives and order to both of the parties to stay separate. The main intention of passing an
order from the court of law in the name of Judicial Separation is to give an alternative way to retain the family.
Essentials of Judicial Separation have been given below as follows:

1. There is no dissolution of marriage.20

2. The marital ties are just suspended by court of law.

3. They continue to live with the same status as husband and wife.

4. The parties are prevented for cohabitation by the court of law.

5. Both of the parties are not allowed to marry during this period.

6. Maintenance can be claimed by either spouse during this period

7. During this period the mutual rights and obligations are suspended

SECTION 13: DIVORCE

Divorce is the last process relating to the dissolution of marriage in which the relationship between both parties ends.
GROUNDS AVAILABLE TO BOTH PARTIES

1. Adultery: this is the first ground in case of dissolution of marriage, and adultery means one party has wilfully and intentionally
committed sexual intercourse with a party out of the marriage. Section 497 of the IPC laid town the essentials of the act of adultery with
fine and punishment. Since 2018, adultery has been decriminalised, however it still remains a ground for divorce. A husband alleging
his wife has had relationship with third person and filing petition for same has the burden of proof. The various types of evidences are
given below as follows
a. Circumstantial evidence: photos, witness accounts, etc.

Family Law-I 11
 P v. R, AIR 1982 BomHC 498: circumstantial evidences are no direct evidences to prove the act of adultery of the party, it will be
properly enquired into and investigated by the court.
b. Giving birth to a child; proof of non-access from side of husband
Anandidevi v. Raja Khali, AIR 1973 RajHC 14: Husband was declared impotent, later wife became pregnant, thus proof of adultery. If
there is non-access from side of husband, and wife gives birth to a child, then adultery is applicable.
c. Admission by the party
d. Artificial Insemination: burden of proof is on wife to provide documents relating to artificial insemination
Oxford v. Oxford, 58 O.L.R. 251 (1921): wife failed to provide documents of artificial insemination and was held to have committed
adultery.
Mclean v. Mclean, TT 2016 HC 343: there are different grounds which have to be proven for adultery suggested by the court.

2. Cruelty: it is included in case of the fault theory or guilt ground of dissolution of marriage according to Hindu Marriage Act S.13
Russell v. Russell, (1897) 395: cruelty is divided into mental and physical.
P. L. Sayal v. Sarla, AIR 1961 PunjHC 125: parties married in 1948 and dispute was there about matrimonial home as wife was
suffering mental cruelty. Wife went to ashram and got medicines to give to husband to control him. The medicines made husband
become sick. Husband filed petition for divorce on grounds of cruelty. Wife admitted in court that she committed a mistake. Husband
stated he had suffered both mental and physical cruelty. The
marriage was dissolved.
Dastane v Dastane, AIR 1975 SC 1534

3. Desertion: it is the abandonment of the spouse without any reasonable ground or consent of the party. Two types are:
a. Actual desertion: party has left without any reason
b. Constructive desertion: husband and wife are under same roof but they do not perform marital duties towards each other
Elements of desertions are:
a. Factum of seperation: this fact of abandonment is in the knowledge of the spouse without reasonable ground or mutual consent.
b. Animus deserendi: it means intention for seperation. The spouse has separated from the party for a reason. Gives the party right to
file petition.
c. Without consent of petitioner: one who filed petition did not allow spouse to leave home
d. Without any reasonable cause
e. For a continuous period of two years immediately before presentation of petition
Archana Aggarwal v. Suresh Jindal, AIR 2017 DMC 110: fact and intention of seperation were differentiated.

4. Conversion to another Religion: if one party converts to another religion, the marriage dissolves automatically or the other party may
file a petition for dissolution.
Nita Ben v. Dhirendra, AIR 1984 MLR 187: husband converted to Christianity leading wife to file petition, after which marriage was
dissolute.

5. Unsoundness of mind: if one party is suffering chronically from a mental disorder and
doctors state it is incurable, it becomes a ground for dissolution of marriage.
Krishna Bhatt v. Srimathi, AIR 1995 P&H 4330: incurable mental disorder posed danger to family.

6. Leprosy: In 1955 leprosy was a valid ground for dissolution as it was considered incurable and communicable but as per a decision of
2009, MCI declared leprosy to
be non-communicable and curable, and a special organisation has been created to take care of them, it remains a ground of divorce.
Swarogya v. Dr. G. G. Padmarao, AIR 1974 SC 165: marital dispute as wife was suffering from leprosy and thus marriage was
dissolved.

7. Venereal Disease: includes diseases like HIV and AIDs

Mr. X v. Hospital Z, AIR 1995 SC 495

8. Renouncement from world: party should have renounced the world and entered into a particular holy faith or order. Dissolution
happens automatically or through petition.
Maintenance can be demanded.
Deverawa v. Gangawa, AIR 2006 KarHC 535

9. Presumption of death: if a party has no information about spouse for a continuous period of seven years, then the party is presumed
and assumed to be dead,
henceforth, it becomes an automatic ground for dissolution of marriage, or the party has an option to file a petition in the court of law
for dissolution, taking presumption as a ground.

GROUNDS AVAILABLE TO WIFE:

1. Polygamous Marriage: wife in polygamous marriage has right to file petition for dissolution if more than one wife is alive.

Family Law-I 12
 2. If the husband has committed rape (§375 of IPC), sodomy or bestiality (§377 of IPC)

3. Repudiation of Marriage/Option of Puberty: girl of age 15 years married under consent of marriage upon completion of 18 years
decides to repudiate marriage will
be granted dissolution regardless of consummation. Muslim marriage only allows repudiation if consummation not done.

SECTION 13B: DIVORCE BY MUTUAL CONSENT

1. Both parties should move to district court for presentation of petition

2. Parties should have lived separately for one year or more

3. They have mutually consented to dissolve the marriage

4. After filing petition, both parties must wait at least 6 months and not later than 18 months for withdrawal of petition
Sureshtha Devi v. Om Prakash AIR 1997 SC 1266
Ashok Hurra v. Rupa Hurra AIR 2010 SC 229

SECTION 14: DIVORCE PETITION CANNOT BE APPLIED IN FIRST YEAR OF

MARRAIGE
In first year, they can apply for annulment, judicial seperation or restitution of conjugal rights but not divorce

SECTION 15: REMARRIAGE AFTER DIVORCE

Parties have to wait 1 year after divorce before remarriage

DIFFERENCE BETWEEN JUDICIAL SEPERATION & DIVORCE

GROUND JUDICIAL SEPERATION DIVORCE

SECTION S. 10 S. 13

Process relating to dissolution of marriage in which the

Divorce is the last process relating to the dissolution of
DEFINITION court of law gives and order to both of the parties to stay
marriage in which the relationship between both parties ends
seperate
CONJUGAL TIES Conjugal ties can be resumed End of conjugal duties

STATUS OF MARRIAGE Valid marriage No marriage

SECTION 24 & 25 : MAINTENANCE

Provides for maintenance. Maintenance is the final amount paid to divorced spouse decided by court. Whoever is ordered to pay
maintenance by child also has to pay child support
Section 24 provides for Interim maintenance, which is to be paid until final decision by court regarding seperation, i.e., during court
proceedings
Section 25 provides for permanent maintenance; it is the final amount decided by the parties in front of the court of law. It can be paid in
two ways:

1. Court of law has given order to pay a certain amount each month

2. Spouse demands a lump sum amount for lifetime at once

According to section 125 of CrPC,

1. Maintenance to wife/husband

2. Maintenance to children

3. Maintenance of aged parents

Alimony amount is related only to matrimonial dispute and only paid to and by spouses, while maintenance is applicable in other
circumstances.

THEORIES OF DISSOLUTION OF MARRIAGE

The grounds relating to dissolution of marriage and the initiation of theories were taken from the act, The Matrimonial Causes Act 1857
which prevailed in the Act of Parliament of England. So, in this case the theories relating to Fault Theory, Consent Theory and Breakdown
Theory were enforced with certain resolutions in regards to dissolution of marriage according to SMA 1954, HMA 1955, Parsi Marriage

Family Law-I 13
 and Divorce Act 1956, Indian Divorce Act 1969. And in case of Muslim law, the grounds relating to Talaq, it has been taken into
consideration as uncodified laws.

FAULT THEORY OF DIVORCE

3 grounds- 1. Adultery 2. Cruelty 3. Desertion

According to Fault theory, one party has committed the act of any kind of mistake or wrong and the other party is the innocent party, the
party has to be given justice by the Court of law.
ADULTERY - This is the most appropriate ground for divorce because the act of adultery destroys the foundation of marriage and one party
must have willfully and knowingly with his or her consent have sexual intercourse with another party outside the marriage.
CRUELTY- The act of cruelty undermines and degrade the basic assumptio of marriage that the parties start living in a disturbed
environment. In this case, one party is being physically and mentally suppressed and harrassed by other party in the institution of marriage.

DESERTION- One party is prohibiting and restricting cohabition with a partner for a long time period.

CONSENT THEORY OF DIVORCE

If both parties give their mutual consent to dissolute the relationship, then this becomes one of the grounds related to divorce. Muslima
lawKhula and Mubarat, mutual consent divorce
Ammini v. UOI AIR 1995 Ker HC 252: The court laid down that the consent theory is the best ground for dissolution of marriage which has
been taken into consideration in relation to all the personal Acts.

BREAKDOWN THEORY OF DIVORCE

Both parties have acted badly towards each other/both parties have committed same act leading to breakdown of marriage, but mutual
consent is not there.
Gollins v. Gollins, 1963

Williams v. Williams, 1963

The court laid down that: the main purpose of divorce is to give justice to the innocent party; both the parties have committed the same act;
in W v. W both parties were cruel to each other so they were granted divorce.
Masarati v. Masarati, 1969: If both of the parties have committed the same act and have no mutual consent to cohabit with each other then
the court of law will not apply the ADA mechanism to the family but will apply this theory for proper dissolution of marriage.

UNIT IV- MUSLIM MARRIAGE LAWS

INSTITUTION OF NIKAH

Solemnizing marriage is an act of Ibadat (offer and acceptance). According to the tradition of Prophet Muhammad niqah is an act which is
one of the component of the Sunnat and Hadith (deeds and works of Prophet Muhammad) and if a Muslim person does not undergo the
institution of marriage then the person is not known as the follower of Prophet Muhammad.
General definition of Nikah-

1. Niqah is an Arabic term which means a marriage between two Muslim parties underlying a permanent relationship which is based
mutual consent and for proper procreation and legalizing the children.

Shohrat Singh v. Jafri Begum 1986 BOM HC Pg 13

According to this case law, nikah is a religious ceremony in which the Muslim female is given the status of wife and the children borne out
of the relationship are known as the legitimate one.

2. According to Muslim jurist, Abdul Rahim the institution of Nikah is considered as the nature of Ibadat
(offer+acceptance+consideration) and Muamlat (proper discussion relating to nikah, dealings in relation to the amount and fixation of
‘mehr’)

3. According to Justice Mahmood in the case of Abdul Qadir v. Salima 1880 ALL Pg 1049 the marriage in case of muslims is not a
sacramental relation between two parties it is purely a civil contract as there is payment of mehr, one of the main component of
Nikah.

4. According to Justice Mittar, nikah has been defined as a contract of sale and a civil contract as a payment of mehr in terms of property
and money is taken into consideration as the bride price.

Types of Nikah

Family Law-I 14
 Sahi Nikah (Valid)
GROUNDS RELATING TO SAHI OR VALID NIKAH (9)

Ijab (offer)- The offer or the proposal is given by one party to another party

Qubool (acceptance)- The party accepts the offer or the proposal

The offer and acceptance to be made in one meeting

It must be in the presence of both the parties, Qazi and in the presence of society.

It must be in the presence of the witnesses.

Witness Shia Sunni

At the time of nikah not mandatory atleast 2 witnesses

At the time of dissolution of marriage mandatory not mandatory

[1. In case of the Sunni law, it is mandatory at the time of Nikah that the performance of the nikah must be in the presence of
atleast 2 witnesses. But in case of Shia law, it is not mandatory at the time of nikah. 2. At the time of dissolution of marriage, in
Sunni law, witnesses are not mandatory. In case of Shia law, it is mandatory.]

The consent of the parties must be free.

The parties should be competent to enter into the marriage contract.

The parties should not suffer from any type of legal disabilities e.g. prohibited relationship

Registration of Nikah is not mandatory, only the nikahnama has to be framed in the presence of Qazi, parties and the society. In other
words, this nikhanama is also called as qazinama.

Alamgir v. State, ILR 1986 Pat 53: in case of a valid nikah, it must be performed with the main components (offer, acceptance, and
consideration) in one meeting
Hakim Habibur Rehman v. Majid Khan, 1977 MahLJ 2: a valid marriage is necessary to recommend the child born out of that relationship
as legitimate.25
Rashida Khatoon v. S. K. Islam AIR 2005 OriHC 57: framing of nikahnama in the presence of parties is one of the evidenciary proofs of a
valid nikah

Under Muslim law, there are 3 stages of a Muslim person’s life.

1. Saghir - a Muslim boy or a girl is below the age of seven years and during this age they are not allowed to enter into the institution of
marriage.

2. Sariri- the age of the Muslim boy or the girl is above 7 years and below 15 years in which both of the parties have no right to enter into
the institution of marriage with their own consent, they can do so only with the consent of their parents.

3. Balugh- When a Muslim person has completed the age of 15 years and has attained the age of maturity/puberty, then with his or her
own consent, the parties can enter into the marriage contract.

Khair-ul- balugh: option of puberty

The female is entitled to repudiate her marriage if 3 conditions are fullfilled-

1. if the marriage is performed below the age of 15 years.

2. she has the right to repudiate the marrriage before completion of 18 years

3. the marriage has not been consummated

Sakina v. F. Sher AIR 1950 LAH Pg 45- The Court of law decided that if a marriage has been contracted with the supervision of the father
and grandfather then, a Muslim female has the right to repudiate the marriage with her own consent before attaining the age of 18.

[Prohibition of Child Marriage Act- if a girl is below 15, she cannot marry. When a girl needs any kind of custodial rights, then this act will
take precedence.]

Abdul Khadar and Ors. v. K. Pechiammal 1986 ALL HC Pg 86- It was laid down that the option of puberty of a girl below 18 years of age
and entering into the institution of marriage is not against the provisions of prohibition of Child Marriage Act but it is in favor of the protect,
custodial and welfare rights of a child. But it is not against the Muslim Personal Law.

Batil Nikah (Void)

PROHIBITED DECREES- 3 parts

1. Blood relationship - 3 PARTS -

Family Law-I 15
 full blood- brother and sister must be of same marriage

half blood- when the parties are genetically related to each other by blood relationship (mother different)

uterine blood- mother same but different father

2. Relation by affinity - relationship which arises in the name of love, care and affection. e.g. daughter-in-law and father-in-law, mother-
in-law and son.

3. Relation by Fosterage - if the foster age relationship arises between a female and a child/person/party if she feeds her milk to the
party/child/person then there arises a mother and child relationship and any child born out of that female creates a prohibited
relationship with that person.

Fasid Nikah (Irregular)

GROUNDS RELATING TO FASID MARRIAGE OR IRREGULAR MARRIAGE

1. Limitation on the number of wives- Under muslim law, a man can have 4 wives at a given time period if the person marries for the 5th
time then the 5th nikah is called the irregular nikah [Zubaida v. Sardar Shah AIR 1943 LAH 310]

2. Number of husband- Concept of polyandry marriage is not allowed under Muslim law. If a muslim female has more than one husband
then the nikah will be not considered as one of the regular marriage or valid marriage.

3. The marriage of a Muslim with a non-muslim- If a muslim male marries a non-muslim female, then according to Sunni law this will be
called as an irregular marriage and incase of Shia law, this will be called as a void marriage.

4. Marriage during Iddat period- In case of muslim law, every muslim wife has to observe the Iddat period during dissolution of marriage
and after death of husband.

By death of husband- 4 MONTHS 10 DAYS

By dissolution of marriage- 3 MONTHS

Iddat period is a time duration in which a muslim female is prohibited to enter into the institution of nikah

According to Sunni law, this kind of marriage- irregular marriage and in Shia law- void marriage.

5. Marriage during pilgrimage- Every Muslim person (male)

Muta (Temporary form of marriage)/ Nikah Halala

Describe briefly the legal conditions relating to Muta marriage and bring out a difference between Muta mariage and Nikah.

Muta marriage is a temporary marriage which is prevalent among the Shias in the sub-school of Ithana Asahris. In case of Sunni law,
this mariage is not an approved marriage.

This marriage can be fixed for one day, one week, one month or some months. The fixation of duration or fixation of the dower has to
be mentioned on the nikahnama in the presence of the parties, qazi and the society. If the duration is fixed but ‘mehr’ is not fixed then it
is called invalid muta marriage.

If mehr is fixed but duration is not fixed then this muta marriage is called a a void marriage. whereas, if duration is fixed but mehr is not
fixed then it is called invalid muta marriage.

It does not create any mutual rights and obligations relating to inheritance of property between the husband and wife.

Any child conceived and born out of the Muta marriage is known as legitimate one but the child does not have any right to claim for
inheritance of the person’s property.

A muta marriage dissolutes automatically after the expiry of the time period.

Dower is necessary condition which has to be paid immediately after the performance of muta nikah.

The wife has no right or entitled with the maintenance right from the husband in case of muta marriage

DIFFERENCE BETWEEN SAHIH NIKAH & MUTA NIKAH

GROUND Sahih Nikah Muta Nikah

TIME PERIOD Undefined Defined

MAINTENANCE Can be demanded Cannot be demanded

INHERITANCE OF PROPERTY Child can inherit Child cannot inherit

DISSOLUTION Through talaq Automatic dissolution

PREVALENCE Accepted in both Shia and Sunni Accepted only in Shia

Family Law-I 16
 MAHR OR DOWER
EXPLAIN BRIEFLY THE CONCEPT OF MEHR ACCORDING TO MUSLIM PERSONAL LAW + EXPLAIN BRIEFLY THE
DIFFERENT KINDS OF MEHR + EXPLAIN BRIEFLY THE FIXATION OF DOWER IN CASE OF SHIA LAW AND SUNNI
LAW

Definition - Mahr or Dower is a sum of money or consideration which is given to the wife by the husband at the time of performance of
nikah and this mahr can be considered in terms of money or property.

In the pre-islamic time period sadaqa was given to the wife by the husband during the performance of nikah and mahr was known as an
amount which was given to the bride’s father as a compensation in return of the marriage.

In India, mahr is known as a marriage gift and one of the valid component of nikah which is given by the husband to the wife during the
performance of nikah

CASE LAW- Hamira Bibi v. Zubaida Bibi AIR 1916 PC Pg 46 - it has been drawn down that dower is known as one of the essential
components which has to be fullfilkled at the time of nikah.

KINDS OF MAHR/DOWER

1. SPECIFIED- Specified dower can be fixed either before the marriage or at the time of marriage and specified dower is called as al-
mahr-al-musamma.

CONDITIONS-

The amount of dower must be fixed and written on nikahnamain presence of the witnesses, qazi, parties and the society.

Where the amount of mahr has been specified then it is the duty and obligation of the husband to pay the whole amount as demanded by
the wife.

If a minor nikah has been contracted under the supervision of the guardian in case of Sunni law this is the obligation of the husband to
pay the mahr after attainment of the age of majority. But in case of Shia law, it is the obligation of the guardian to pay the mahr
immediately after the performance of nikah.

Specified Dower is divided into 2 parts -

i. Prompt- i. it is payable immediately after the marriage when it is demanded by the wife before or after the consummation of marriage.
ii. in case of non-payment of the dower, then the wife has the right to leave the husband and stop cohabition if the husband is filing a
petition for RCR (restitution of conjugal rights). iii. if prompt is not paid to the wife and the wife dies then the legal heirs of the wife
have the right to demand the dower within a time limitation of 3 years from the date of demanding.

ii. Deferred- this is a kind of mahr which is payable immediately after the dissolution of marriage or after the death of the husband.

2. UNSPECIFIED
or, Proper Dower/ Mahr-al-mithl: When the amount of the dower has not been settled at the time of nikah then the amount of mahr is
considered looking towards the educational qualification and beautiness of the girl or looking towards the social background of the bride’s
father.

FIXATION OF MAHR/DOWER
In case of Shia law, if the dower is not fixed at the time of nikah, then the whole of the amount is considered as prompt dower. Under Shia
law, the amount of the mahr can exceed upto 500 dirhams.

In case of Sunni law, if the mahr is not fixed at the time fo nikah, then partly is considered as prompt and partly is considered as deferred.
And the minimum amount of dower in case of Sunni law is must not be less than 3 dirhams in case of Maliki School and 10 dirhhams in
case of Hanafi School.

INCREASE OF MAHR
At any point of time in duration of tghe nikah the husband can increase the amount of dower. The husband has no right to decrease the mahr
amount without the consent of the wife. Incase of payment of dower, the wife has no right to demand to convert the deferred dower into
prompt dower

REMISSION OF THE DOWER

i. The wife may remit the dower wholelly or partially looking towards the financial condition of the husband.

ii. If the wife is in mental distress due to the death of the husband then, the decision for the remission for the dower is not taken into
consideration.

Family Law-I 17
 If the wife wants to remit the dower or to lower the dower amount wholly or partially with free consent then she can do so. The remission
made by the wife with mental distress due to the husband’s death is not taken into consideration for the remission of the meher.
Meher-al-Mithi: it is referred to as proper dower, this is the amount of the dower which is fixed looking towards the educational
qualifications, beauty, knowledge of the girl or it has been taken into consideration looking towards the social position or background of the
bride’s father.

TALAQ
Talaq is an arabic word which means untying and undoing of a marital relation.

CONDITIONS RELATING TO VALID TALAQ

i. the Muslim husband who is of sound mind and attained the age of majority can validly pronounce the talaq.

ii. the husband need not to assign fany reason for the pronouncement of talaq.

iii. while pronouncement of talaq, the husband must pronounce the talaq with free consent. Shia law: if the husband pronounces the talaq
without free consent then that kind of dissolution is called as void talaq. Sunni law: if the husband gives the talaq without free consent
then it is taken into consideration as partly valid and partly invalid.

iv. pronouncement of talaq in case of intoxicated condition: under shia law, it has been taken into void talaq and under sunni law: hanafi
scool: valid form of talaq

v. the talaq can be pronounced in orally and written form and then it can be converted to a written deed which is called as talaq-nama.

vi. presence of witnesses: shia law- atleast 2 witnesses must be present at the time of pronouncement of talaq ; sunni law: presence of
witnesses not necessary

TYPES OF TALAQ
A. BY HUSBAND

→ Talaq-ul-Sunnat-

Talaq-ul-Ahsan: This is known as the best form of talaq according to Muslim law. According tot his talaq, there is a single
pronouncement of talaq by the husband to the wife during the operiod of Tuhar (when the wife is free from mentrual cycle). If the
cohabition takes place during Iddat period then the talaq is revocable in nature, if wife maintains 3 months of Iddat period without
cohabition then it is irrevocable.

Talaq-ul-Hasan: The pronouncement of the talaq by the husband to the wife must be 3 times in 3 months consecutively, if the wife
observijg iddat period the cohabition takes place then the talaq is revocable in nature and if there is no cohabition between the three
times pronouyncement of talaq as well as betweent he iddat period then it is irrevocable in nature.

→ Talaq-ul-Biddat

→ ILLA
→ Zihar

B. BY WIFE

→ Talaq-ul-Tafweez (Delegated Talaq)

→ Lian

C. BY MUTUAL CONSENT

→ Khula
→ Mubaraat

D. FAKSH (By Court of Law)

E. GROUNDS RELATING TO DISSOLUTION OF MUSLIM MARRIAGE ACT 1989

Family Law-I 18