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7/13/2022 FAMILY LAW – 1

SEMESTER – V

meentchipriya2001@gmail.com
Table of Contents
Module – 1 ............................................................................................................................... 1

Application of various personal laws .................................................................................. 1

Ancient and Modern Sources of Hindu Law ....................................................................... 6

Sources of Muslim Law in India ....................................................................................... 14

The Different Schools of Hindu law .................................................................................. 20

Schools of Muslim Law ..................................................................................................... 27

Module – 2 ............................................................................................................................... 1

Concept of Marriage under Hindu Law ............................................................................... 1

Evolution and History of Hindu Marriage ........................................................................... 4

Forms of Marriage under the Hindu Law .......................................................................... 11

Ceremonies to be performed in a Hindu Marriage ............................................................ 17

Conditions for validity of a Hindu Marriage ..................................................................... 18

Modern Changes: ............................................................................................................... 27

Definition of marriage (Nikah) .......................................................................................... 29

Nature Of Muslim Marriage .............................................................................................. 30

Scope of Muslim Marriage ................................................................................................ 34

Aspects of Muslim Law in India ....................................................................................... 34

Essential Conditions for Muslim Marriage in India .......................................................... 37

Classification of Marriages under the Muslim Personal Laws .......................................... 43

Difference between Hindu and Muslim marriages ............................................................ 50

Special Marriage Act ......................................................................................................... 55

Same sex marriages in India under personal laws ............................................................. 84

Living together relations .................................................................................................... 92

Dowry ................................................................................................................................ 97
Module – 3 ............................................................................................................................... 1

Restitution of conjugal rights............................................................................................... 1

Judicial Separation ............................................................................................................... 4

Nullity of Marriage Under the Indian Personal Laws ......................................................... 8

Divorce under Hindu Personal Law .................................................................................. 12

Jurisdiction and Procedure of Family Court ...................................................................... 18

Family Courts .................................................................................................................... 21

Module – 4 ............................................................................................................................... 1

Maintenance under personal laws ........................................................................................ 1

Maintenance Under The Special Marriage Act, 1954 ....................................................... 11

Maintenance Under Hindu Adoption and Maintenance Act, 1956 ................................... 12

Maintenance under Criminal Procedure Code ................................................................... 16

Maintenance of parents and senior citizens ....................................................................... 21

Module – 5 ............................................................................................................................... 1

Legitimacy of the children born out of void marriages and voidable marriages ................. 1

Adoption .............................................................................................................................. 3

Inter-country Adoption ...................................................................................................... 29

Adoption under the Juvenile Justice Act of 2015 .............................................................. 36

Module – 6 ............................................................................................................................... 1

Overview of the Hindu Minority and Guardianship Act, 1956 ........................................... 1

Minor and Guardianship under Muslim Law ...................................................................... 7

Guardianship in Muslim Laws........................................................................................... 11

Minority and guardianship under the Guardian and Wards Act, 1890 .............................. 19
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Module – 1
Application of various personal lawsi
Introduction

In India Young Lawyers Association v. State of Kerala (“Sabrimala Temple case”), Justice
D.Y. Chandrachud observed that the rationale used by the Bombay High Court in the State of
Bombay v. Narasu Appa Mali, which held that personal laws are inconsistent with the fundamental
rights, Justice D.Y. Chandrachud overrules the ratio of Narasu on the point that customs are not
subject to fundamental rights.

For a law to be valid, it should be in consonance with the Constitution of India otherwise the
aim drafted by the Constituent drafter will be in vain. With time various judicial precedent has
seen a transformative change regarding the question whether personal law comes within the ambit
of Part III of the Constitution or can be counted as law, thereby leading to various discussion and
debates.

What are the personal laws

The Personal Laws of Hindus and Muslims find their fundamental source respectively from
the Hindu and Muslim scriptural texts in India. There was a time when every aspect of human
conduct revolves around them. Because of their religious origin, they were untenable by any
legislation. However, during the colonial era, a separate space came into existence for certain
religious laws governing family matters such as succession, inheritance, guardianship, marriage,
adoption and divorce came into being due to socio-political rather than religious reasons. ‘Personal
laws’ derive their validity from the state rather than religion. In the colonial state male elites of
each religious community shaped personal laws.

Historically speaking many contexts of the Hindu and Muslim laws have remained untouched
due to socio-economic upheavals and political vicissitudes. However, Independent India
implements drastic amendments to Hindu Personal Law by considering the followers of Buddhists,
Jains, Christians, Parsi and Sikhs. Although the Muslim personal laws are unaffected in
comparison with Hindu personal laws. Considering the present scenario many personal laws are
made to promote the subordination of women and other minorities. It is important to view from
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the constitutional aspect, ‘personal laws’ has to fall under the definition of ‘law’ or a ‘law in force’
stated in Article 13 of the Constitution.

Personal laws and fundamental rights

The idea of personal laws consistent with the fundamental rights is cited by the Supreme Court
in various landmark cases in the coming part of the article.

Personal laws inconsistent with the fundamental rights

In State of Bombay v. Narasu Appa Mali,1952, the petitioner challenged the validity of
the Bombay Prevention of Bigamous Hindu Marriages Act, 1946, which states that bigamous
marriages void and criminalize bigamy among Hindus. The judgement was pronounced by the
rationale of the two-judge bench which stated that personal law is beyond the scope of Part III of
the Constitution. While deciding the case the court had to look into various issues below-mention:

1. Whether personal law comes into the ambit of Article 13 of the constitution of India?

2. Whether there is any reasonable basis for creating the Muslims as a separate class to which
the State law is not applicable?

3. Whether it is for the Legislature to decide what constitutes social reform?

While determining the fact that Muslim polygamy is valid, the court applied the principle
of ‘Expressio Unius Exclusio Alterius’ which states that the expression of one excludes the other,
and its present application. The court relied on Article 112, which states that personal laws cannot
be defined as laws under Article 13, and also various State-regulated provisions in the Constitution
that relate to personal law as under Article 17 which abolishes untouchability, Article 25 which
guarantee freedom of religion to its citizen the constitution drafters where redundant to include
personal laws within the definition of under Article 13. Further Article 44, which implements the
state to build a Uniform Civil Code and Entry V of the Concurrent list suggest that the drafter
intent was to give the power to different personal laws to the legislation and not the judiciary.

It is a historic fact that both the Muslims and Hindus’ personal laws are derived from their
respective religious texts embodied with their own distinctiveness and backgrounds.
However, Article 44 of the Constitution recognises separate and distinctive personal laws
irrespective of race or religion consequently the legislature has the power to introduce a social
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reform in respect of a particular community having its own personal law, in this case, the Hindus
Bigamous Marriages Act. The State plays an important role in considering the institution of
marriage, divorce and educational reforms of the two communities. As per Article 14, the State
may rightly bring social reform at different stages, territorial or community-wise. Hence,
the Hindus Bigamous Marriages Act does not follow any discrimination against the Hindus on the
ground of religion or race. Although the act is not uniform it is not arbitrary or capricious, there is
a reasonable basis for creating a separate class for Muslims.

Marriage is a social institution and the State of Bombay is vitally interested to compel Hindus
to become monogamists as a measure of social reform for the welfare of the state. The State inherits
this power under Article 25(2)(b) which states the right of a citizen to freedom of religion. In a
democracy, the legislature is constituted by the will of the people and responsible for the welfare
of the state and lays down the policy to achieve the objective inherent in it. Hence, the legislation
in its wisdom decides the social reform and not the court of law.

Transformative approach towards personal laws

The ratio of Narasu Appa Mali case has never been challenged in the Supreme Court as it
extends to uncodified religious law which has not been modified by either customs or usage.
However, the previous decision by the Supreme Court in Sant Ram v. Labh Singh, where it was
held that customs are subject to fundamental rights and the decision in John Vallamottam v. Union
of India, subjecting personal laws to fundamental rights only dealt with codified personal law.

While re-evaluating the Narasu Appa Mali case, some literature provide contrary views such
as Article 13(3)(a) does not use the word “common law” yet it is subjected to fundamental rights.
While drafting Article 17 the constituent drafter considering the pervasive nature of caste
discrimination prevailing in the society incorporate a specific article prohibiting untouchability to
leave no stone unturned. Further, the scope of Article 25 is broader than personal laws as it protects
an individual’s right to practice her religion rather than protecting norms or rules. Article 44 comes
as stated in Part IV of the Constitution casting no positive obligation on the citizen as it is non-
enforceable in the court of law.
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However, it should be read as a transformative document to value constitutional morality over

societal morality. The observation on the importance of personal laws is subjected to fundamental
rights is made by Justice D.Y Chandrachud in the Sabrimala Temple Case-

“Customs, usages and personal laws have a significant impact on the civil status of
individuals. Those activities that are inherently connected with the civil status of individuals
cannot be granted constitutional immunity merely because they may have some associational
features which have a religious nature. To immunize them from constitutional scrutiny is to deny
the primacy of the Constitution.”

Subjecting personal laws to constitutional scrutiny is an important step in the direction of

constitutional vision. Hence, the decision in Narasu Appa Mali case, concerning immunisation
uncodified personal laws and distinctive customs and usage should be reconsidered in an
appropriate case in the future.

Landmark judgements

In India Young Lawyers Association v. State of Kerala (“Sabrimala Temple case”), the
Supreme Court held the Sabarimala Temple’s custom of prohibiting women in their menstruating
years from entering to be unconstitutional and violative of female worshippers right to equality
under Article 14 of the Constitution and freedom of religion under Article 25 of the Constitution.
However, the learned judges, in this case, differs from the Narasu case on whether the expression
“laws in force” in Article 13(1) read with Article 13(3)(b) includes “custom or usages” by taking
a closer look on the dissent adopted by Justice Rohinton Fazi Nariman in the case of A.K. Gopalan
v. State of Madras, 1950, which dealt with the constitutionality of the Preventive Detention Act,
1950. The fundamental rights are not isolated, and separate but they are protected by a common
thread of liberty and freedom. Hence, Article 19,20, 21 and 20 do not overlap each other.

The dissent opinion of Justice Fazi Ali was endorsed in the case of Rustom Cavasjee
Cooper(Bank Nationalization) v. Union of India, 1970 holding the Banking Companies
(Acquisition and Transfer of Undertakings) Ordinance, 1969, and the Banking Companies
(Acquisition and Transfer of Undertakings) Act, to be unconstitutional as it is against Article 14,
19 and 31 of the Constitution. These rights are protected by one thread to seek to protect the rights
of the individual or groups of individuals within specific limits. Similarly, in the case of Maneka
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Gandhi v. Union of India, 1978, while challenging the Section 10(3)(c) of the Passports Act,
1967 violating Article 14 held that freedom to move freely cannot be carved out of personal liberty
as they have many attributes found in Article 19.

In the case of Shayara Bano v. Union of India, 2017, a Constitutional Bench in a 3:2 verdict
ruled that talaq-ul-biddat or triple talaq is not legally valid and the Muslim Personal Law (Shariat)
Application Act, 1937 is a law made by the legislation before the Constitution and it falls within
the expression “laws in force” in Article 13(3)(b) and would be hit by Article 13(1) as the practice
of triple talaq is against the provision of Part III of the Constitution. Further, it was concluded that
the rights guaranteed under Part III of the Constitution have the common thread of individual
dignity and protection, even if a degree of overlap in the Articles of the Constitution must be read
in the widest sense possible recognising fundamental human freedom. All the Articles in Part III
of the Constitution share an inseparable connection and it is in their coexistence that the vision of
dignity, liberty and equality is realised.

Required changes

Considering the various landmark cases by the Supreme Court, the judgement in the Narasu
Appa Mali case is necessary to relook and redefine the definition of “law” and “laws in force” as
it is not a good law. In Syedna Taher Saifuddin Saheb v. State of Bombay, 1962, the court has laid
down that a practice implemented on an obnoxious social rule or practice maybe with the ambit of
social reform that the legislation may carry out. The legislation should aim to bring social reform
by placing constitutional morality over societal morality and to carefully scrutinise claims to deny
constitutional protection in the name of religion. It is the duty of the legislation to strike at the
heart of the social evil and provide protection of the fundamental right of every person to freedom
of religion under Section 25.

Conclusion

The role of the constitution as a document is for social transformation and not merely based
on socio-political or religious reasons. At the heart of transformative constitutionalism is a vision
and potential to change considering personal laws to be consistent with fundamental rights by
acknowledging minorities like women and lower castes as equal members of the society. The
feasible nature of the constitution and the dynamic and ever-growing change in society, the idea
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of constitutionalism is redefining through judicial precedents. The idea of courts is to transform

society by placing individual dignity at the forefront and value constitutional morality over societal
morality and hoping whenever the challenge to personal laws are raised these grounds will be
considered.

Ancient and Modern Sources of Hindu Lawii

Introduction

Source of Law means “the roots of the law”, “cause of the law”, and “the things from which
the laws have been taken”. In the context of jurisprudence, the Sanskrit word Sindhu has been
considered the origin of the word ‘Hindu’. A Hindu is an adherent of Hinduism.

The personal laws which governed and are even now governing the social life of Hindus (such
as marriage and divorce, adoption, inheritance, minority and guardianship, family matters, etc.)
are compiled in the form of Hindu Law. It is believed that Hindu law is a divine law.

It was revealed to the people by God through Vedas. Various sages and ascetics have
elaborated and refined the abstract concepts of life explained in the Vedas. The sources of Hindu
law are ancient as well as modern sources.

Representation of the various sources of Hindu Law

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I. Ancient Sources of Hindu Law

A. Shruti[1]

The word is derived from the root “shru” which means “to hear”. In theory, it is the primary
and paramount source of Hindu law and is believed to be the language of the divine revelation
through the sages. The material heard by people constitutes Shruti.

It is believed that Shruti contains the very words of the Deity. The Shruti comprise the four
Vedas (Rig-Veda, Sum-Veda, Yajur-Veda and Atharva-Veda), the six Vedangas and
eighteen Upanishads. Rigveda is first and foremost among the Shrutis for the knowledge of the
law. It comprehensively deals with the duties of a king. Among Vedas, Rigveda distinguishes itself
for its jurisprudential value.

It is believed that the Rishis and Munis had reached the height of spirituality where they
revealed the knowledge of Vedas. Vedas primarily contain theories about sacrifices, rituals, and
customs. Since Vedas had a divine origin, the society was governed as per the theories given in
them and they are considered to be the fundamental source of Hindu Vedangas.

The Upanishads are known as Vedantas or concluding portions of the Vedas and embody the
highest principles of Hindu religion. Vedas do refer to certain rights and duties, forms of marriage,
the requirement of a son, exclusion of women from inheritance, and partition but these are not very
clear-cut laws.

B. Smriti[2]

The word Smriti is derived from the root “smri” meaning “to remember”. Traditionally,
Smritis contain those portions of the Shrutis which the sages forgot in their original form and the
idea whereby they wrote in their own language with the help of their memory.

According to jurisprudence, the words remembered are those which were heard but were
forgotten. Through a series of meditation, the words were recollected by the Rishis.

So, the basis of the Smritis is Shrutis but they are human works. The rules laid down in
Smritis can be divided into three categories viz. Achar (relating to
morality), Vyavahar (signifying procedural and substantive rules which the King or the State
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applied for settling disputes in the adjudication of justice) and Prayaschit (signifying the penal
provision for commission of a wrong).

There are two kinds of Smritis. Their subject matter is almost the same.

Dharmasutras (Early smritis)

Dharmasutras are written in prose, in short maxims (Sutras). The Dharmasutras were written
from 800 to 200 BC. They were mostly written in prose form but also contain verses. It is clear
that they were meant to be training manuals of sages for teaching students.

They incorporate the teachings of Vedas with local customs. They generally bear the names
of their authors and sometimes also indicate the shakhas to which they belong. Some of the
important sages whose Dharmasutras are known are: Gautama, Baudhayan, Apastamba,
Harita, Vashistha, and Vishnu. They explain the duties of men in various relationships.

Gautama – He belonged to Samveda school and deals exclusively with legal and religious
matters. He talks about inheritance, partition, and stridhan.

Baudhayan – He belonged to the Krishna Yajurveda school and was probably from Andhra
Pradesh. He talks about marriage, sonship, and inheritance. He also refers to various customs of
his region such as marriage to maternal uncle’s daughter.

Apastamba – His sutra is most well-preserved. He also belonged to

Krishna Yajurveda school from Andhra Pradesh. His language is very clear and forceful. He
rejected Prajapatya marriage.

Vashistha – He was from North India and followed the Rigveda school. He
recognized remarriage of virgin widows.

Dharmashastras (Later smritis)[3]

Dharmashastras are composed in poetry (Shlokas). Dharmashastras were mostly in metrical

verses and were based on Dharmasutras. However, they were a lot more systematic and
clearer. However, occasionally, we find Shlokas in Dharmasutras and Sutras in the
Dharmashastras.
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“Smriti” means “what is remembered”. With Smritis, a systematic study and teaching of
Vedas started. Many sages, from time to time, have written down the concepts given in Vedas. So,
it can be said that Smritis are a written memoir of the knowledge of the sages.

Immediately after the Vedic period, a need for the regulation of the society arose. Thus, the
study of Vedas and the incorporation of local culture and customs became important. It is believed
that many Smritis were composed in this period and some were reduced into writing, however, not
all are known.

From the history above, the fact which becomes obvious is that the Vedas were divine laws,
while the Smritis were more of secular laws dealing on morality and religion. The Smriti were
accepted as statements of laws and they became an effective source of Hindu Law. The laws laid
down in Smritis included law on morality, procedural and substantive rules applied in the
adjudication of disputes and penal provisions meted out as punishments on wrong doers.

Smritis are the foundation of Hindu Law. Juristically they occupy an important position. They
contain a vivid exposition of all such laws which are generally relevant for regulating the conduct
of man in various areas in modern times also. The rules incorporated in these Dharmashastras bear
distinct reflections of the changing needs of society.

C. Custom

Customs are a principle source and their position is next to the Shrutis and Smritis but usage
of custom prevails over the Smritis. It is superior to written law.

Custom is regarded as the third source of Hindu law. From the earliest period custom
(‘Achara’) is regarded as the highest ‘dharma’. As defined by the Judicial Committee custom
signifies a rule which, in a particular family or in a particular class or district has from long
usage obtained the force of law.

Most of the Hindu law is based on customs and practices followed by the people all across the
country. Even smritis have given importance to customs. They have held customs as transcendent
law and have advised the Kings to give decisions based on customs after due religious
consideration.

Customs are of four types:

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Local Customs: These are the customs that are followed in a given geographical area. In the
case of Subbane v. Nawab[4], Privy Council observed that a custom gets it force due to the fact
that due to its observation for a long time in a locality, it has obtained the force of law.

Family Customs: These are the customs that are followed by a family for a long time. These
are applicable to families where ever they live. They can be more easily abandoned that other
customs. In the case of Soorendranath v. Heeramonie and Bikal v Manjura[5], Privy Council
observed that customs followed by a family have long been recognized as Hindu law.

Caste and Community Customs: These are the customs that are followed by a particular
caste or community. It is binding on the members of that community or caste. By far, this is one
of the most important sources of laws. For example, most of the law in Punjab belongs to this type.
Custom to marry brother’s widow among certain communities is also of this type.

Guild Customs: These are the customs that are followed by traders.

Requirements for a valid custom[6]

Ancient: Ideally, a custom is valid if it has been followed for hundreds of years. There is no
definition of ancientness, however, 40 years have been determined to be ancient enough.

Continuous: It is important that the custom is being followed continuously and has not been
abandoned. Thus, a custom may be 400 years old but once abandoned, it cannot be revived.

Reasonable: There must be some reasonableness and fairness in the custom.

Not against morality: It should not be morally wrong or repugnant. For example, a custom
to marry one’s granddaughter has been held invalid. In the case of Chitty v. Chitty[7], a custom
that permits divorce by mutual consent and by payment of expenses of marriage by one party to
another was held to be not immoral. In the case of Gopikrishna v. Mst Jagoo,[8] a custom that
dissolves the marriage and permits a wife to remarry upon abandonment and desertion of the
husband was held to be not immoral.

Not against any law: If a custom is against any statutory law, it is invalid. Codification of
Hindu law has abrogated most of the customs except the ones that are expressly saved. In the case
of Prakash v. Parmeshwari[9], it was held that law means statutory law.
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Certainty: The custom has to clearly defined, it cannot be vague and confusing.

Consistency: There should be consistency between customs. Two customs that have opposing
viewpoints cannot be considered valid.

D. Digests and Commentaries[10]

Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period of more than a
thousand years from the 7th century to 1800 A.D. In the first part of the period, most of the
commentaries were written on the Smritis but in the later period, the works were in the nature of
digests containing a synthesis of the various Smritis and explaining and reconciling the various
contradictions.

After 200 AD, most of the work was done only on the existing material given in Smritis. The
work done to explain a particular smriti is called a commentary. Commentaries were composed
in the period immediately after 200 AD. Digests were mainly written after that and incorporated
and explained material from all the Smritis. In the evolution of Hindu legal and social institutions,
according to N.R. Raghavachariar, “Commentaries and Digests have played an important part and
have in effect superseded the Smritis in a large measure.”

Some of the commentaries were, Manubhashya, Manutika, and Mitakshara. While the
most important digest is Jimutvahan’s Dayabhaga which is applicable in the Bengal and Orissa
area.

“Mitakshara” literally means “New Word” and is the paramount source of law in all of
India. It is also considered important in Bengal and Orissa where it relents only where it differs
from Dayabhaga. It is a very exhaustive treatise of law and incorporates and irons out
contradictions existing in Smritis.

The Dayabhaga and Mitakshara are the two major schools of Hindu law. The Dayabhaga
School of law is based on the commentaries of Jimutvahana (author of Dayabhaga which is the
digest of all Codes) and the Mitakshara is based on the commentaries written by Vijnaneshwar on
the Code of Yajnavalkya.
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The basic objective of these texts was to gather the scattered material available in preceding
texts and present a unified view for the benefit of society. Thus, digests were very logical and to
the point in their approach. Various digests have been composed from 700 to 1700 AD.

II. Modern sources of law

A. Principles of equity, justice and good conscience[11]

Our judicial system greatly relies on being impartial. True justice can only be delivered
through equity and good conscience. Occasionally it might happen that a dispute comes before a
Court that cannot be settled by the application of any existing rule in any of the sources available.

Such a situation may be rare but it is possible because not every kind of fact or situation that
arises, can have a corresponding law governing it.

The Courts cannot refuse to settle the dispute in the absence of law and they are under an
obligation to decide such a case also. For determining such cases, the Courts rely upon the basic
values, norms, and standards of fair play and propriety.

This is known as principles of justice, equity, and good conscience. They may also be
termed Natural law. This principle in our country has enjoyed the status of a source of law since
the 18th century when the British administration made it clear that in the absence of a rule, the
above principle shall be applied.

In the case of Kanchava v. Girimalappa (1924) 51 IA 368, (before the passing of the Hindu
Succession Act, 1956) it was laid down by the Privy Council that the murderer was disqualified
from inheriting the property of the victim. The rule of English Law was applied to Hindus on
grounds of justice, equity, and good conscience, and this was statutorily recognized in the Hindu
Succession Act of 1956.

B. Precedent

The doctrine of stare decisis started in India under British rule. All cases are now recorded
and new cases are decided based on existing case laws. After the establishment of British rule, the
hierarchy of Courts was established.
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The doctrine of precedent based on the principle of treating like cases alike was established.
Today, the judgment of the SC is binding on all courts across India and the judgment of the HC is
binding on all courts in that state, except where they have been modified or altered by the Supreme
Court whose decisions are binding on all the Courts except for itself.

C. Legislations

Legislations are Acts of Parliament which have been playing a profound role in the formation
of Hindu law. The Legislations have the effect of reforming the law and in certain respects have
superseded the textual law. After India achieved independence, some important aspects of Hindu
Law have been codified. Few examples of important Statutes are The Hindu Marriage Act, 1955,
The Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu
Minority and Guardianship Act, 1956, etc.

After codification, any point dealt with by the codified law is final. The enactment overrides
all prior law, whether based on custom or otherwise unless an express saving is provided for in the
enactment itself. In matters not specifically covered by the codified law, the old textual law
contains to have application.

Conclusion

Hindu law does not bear a very modern outlook on society. There are many areas where the
Hindu law needs to upgrade itself, for example, the irretrievable breakdown theory as a valid
ground for divorce is still not recognised under the Hindu Marriage Act, 1955, and even the of
Supreme Court has expressed its concern about this.

Most of the ancient sources of Hindu law are written in Sanskrit and it is well known that in
the present times there is a dearth of Sanskrit scholars. There is hardly any importance left of the
ancient sources since the time the modern sources have emerged and been followed.

It can be said that proper codification of Hindu law without room for ambiguity is the need of
the hour. It can be said that where the present sources of Hindu law are uninviting, the Legislature
could look into sources and customs of other religions and incorporate them into Hindu law if it
caters to the need of the society and meets the test of time.
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Sources of Muslim Law in Indiaiii

Introduction

Islam is one of the most followed religions in the world. (According to a study in 2015, Islam
has 1.8 billion adherents, making up about 24.1% of the world population. Source: Wikipedia) The
religion entered India with the Delhi sultanate and remained intact. Today India is a secular country
with more than 15% of the population being Muslims who regulate themselves according to their
personal laws. This article aims to understand the sources of Muslim personal laws in India.

‘Source’ means the origin, a place from which a person or thing has emerged. Muslim law
has emerged from several traditional sources and these sources are the governing pillars of this
religion because even today, in the 21st century, most of the Muslim personal laws are uncodified
and some which are codified are not being followed because of conflict with their traditional
sources.

Legally speaking, there can be only one source of law and that is the Indian parliament and
the State legislatures which are the law-making body of our nation. Nevertheless, since personal
laws are based on customs and practices of the religion, it is not possible to do away with them
and frame laws completely adverse to religious beliefs. Hence, even the legislations base itself on
certain aspects of traditional sources. The sources of Muslim law can be classified into two
categories, i.e. (a) Primary Sources and (b) Secondary Sources.

I. Primary Sources of Muslim Law

Primary sources are those sources that are based on religious beliefs mentioned in holy
scriptures or books. These sources are universally accepted as authentic and they are primary
which means these sources shall be relied on before any other source.

It means that for any question relating to their personal life or family, the Muslims shall resort
to these primary sources of law to understand the legal opinion in such situations. The known five
primary sources of Muslim law are:

Holy Quran

Every religion emanates from one person who is believed to be the child or messenger or
incarnation of God sent from above to imbibe virtues in people. These founders of religion usually
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store all their teachings and preaching to be followed and adhered to in future in certain holy books
written by themselves or through another. The Holy Quran is the holy book of Islam which is
believed to contain the direct words of God as perceived by Prophet Muhammad.

The Quran is like a Constitution for the Muslims and it contains all principles to be used in
personal laws including marriage, divorce, succession, etc. In case of any question with respect
to personal laws of Islam, the Quran is the first source which needs to be looked into.

The book contains 6000 verses divided into 30 parts and 114 chapters. For instance, the book
contains a chapter titled marriage and it contains verses on how to get married, the procedure of
marriage (nikah), divorce, etc.

It is believed that Prophet Muhammad received the commandments of God from Angel
Gabriel in two places; Mecca and Medina. The commandments revealed at Mecca mostly dealt
with philosophical and theological issues, i.e. study about the religion, its origin and development.
On the other hand, the messages received by the Prophet in Medina were mostly socio-economic
in nature and dealt with the regulation of society and the people thereof.

All these preachings were compiled in the Holy Quran after the demise of the Prophet. The
Quran is the final authority on any issue related to Muslim personal law. In a strict sense, the Quran
cannot be called a legal code and Muslim jurists agree that it contains verses explaining the way
of living and the morals of life and it is not a legal code backed by sanctions.

Sunnah

Sunnah is another primary source of Muslim law but comes after the Quran. After the demise
of Prophet Muhammad, the Muslims were divided into two sects on the issue of a worthy and
competent successor; first being Shia Muslims and the second being Sunni Muslims.

One sect believed that the one elected by the people as the Caliph would be the successor of
the Prophet while the other sect believed that only the descendants or relatives of the Prophet could
be worthy successors. The division of the religion also led to several books and scriptures become
sources of Muslim law. One such source is the Sunnah.
 16

Sunnah is followed by the Shia Muslims in their day to day lives to comprehend answers to
questions that they face. Sunnah is believed to be the customs and traditions followed by the
Prophet Himself and his words, actions and assertions.

According to the Quran, the Prophet preached that his traditions and his actions should be
followed even after his death and therefore, the actions of his daughter and the Shia Imams after
the Prophet are also counted in the Sunnah.

The word Sunnah basically means ‘path’. It connotes that the path that the Prophet followed
should be followed by his people after him. Sunnah is second in priority after the Quran. Therefore,
whenever there is a situation where the Holy Quran is silent and the people are unable to make a
decision, Sunnah, i.e. the actions of the Prophet are followed.

It means Sunnah teaches people what Prophet would have done himself if he was in a situation
like this. Since people believe that his actions are motivated by God’s grace and his actions are
those of God Himself, adherence to Sunnah became popular. The main difference between Quran
and Sunnah is Quran is the words of Allah enumerated in a book whereas the Sunnah is practice
and language of the Prophet.

Hadith

Hadiths are the books containing the Sunnah. It means that Sunnah is the actions and words
spoken by the Prophet and Hadith is the Scripture where these are recorded.

It is believed that the Prophet forbade his followers from writing his preaching and his actions.
He believed that writing what was being done might cause confusion between his actions and the
words of the Quran. Therefore, no hadith has been discovered from the time of the Prophet.
Nevertheless, it is believed that after his death, the Sunnah were written down in several books
and all compiled together are called the Hadiths.

The question, therefore, emerges that if Hadiths were written after the death of Prophet
Muhammad, what is the authenticity of such documents. This question was also considered by the
early Islam scholars who wrote the Hadiths. To ensure the authenticity of the books, the Muslim
scholars wrote the Hadith with the reference of their source and the reference of the reference so
 17

that all the references link in some way to the Prophet or an Imam. All measures were taken to
maintain the veracity of the wordings in the Hadiths.

Generally speaking, Hadiths are not different from Sunnah and therefore, there is no
hierarchy between them. Sunnah is what is being followed while Hadith is the book containing the
Sunnah like the texts contained in the textbook.

Ijma

The term ijma means a consensus, i.e. the agreement between all on a particular point of fact
or law. When all the judges in the Supreme Court unanimously agree to a point and pronounce
judgment on that point, it becomes a precedent and a binding law. Similarly, Ijma is a concept of
law made by consensus of all Islamic jurists or other persons of knowledge and skill.

There are three kinds of Ijma

Ijma of companions

Ijma of jurist

Ijma of people

It is based on the belief that when all the most revered persons of the society having maximum
knowledge of the Quran have together taken a decision, it should be for the benefit of the Muslim
community.

Like Sunnah were mostly founded and followed by Shia Muslims, Ijma is followed by the
Sunni sect. Ijma comes after the Quran and Sunnah as a source of Islamic law. The Sunni Muslims
believed that Ijma is as important as the Quran or the Sunna because it constitutes the united and
congruent opinion of all Muslims. However, the Shia sect believed that the Ijmas are not free from
errors and cannot be relied on.

Qiyas

As Islam spread in different parts of the world, they rendezvous with several other
communities such as Byzantines and Persians and with the passage of time new difficulties arose.
The Holy Quran was not capable of dealing with new emerging difficulties arising from contact
with the outside world.
 18

To resolve this problem, the Muslim jurists commenced referring to Quran and Sunnah to
compare the situations and deduce an answer to the problem on the basis of some analogy. When
the answer is found and all the jurists together agree to it, it was called the Qiyas.
Thus, Qiyas are Ijmas based on deductive logic. They are the analogical deductions from the
existing sources. Qiyas can only explain or interpret the law but cannot change the law.

II. Secondary Sources of Muslim Law

Now, as aforementioned, the legislatures and judiciary ought to be the primary source of any
law. Nevertheless, since Muslim personal law is a law based on religious ethics and principles, the
legislature takes a back stand. The following are the secondary sources that have led to the
development of Muslim personal law:

Custom

Customs are basically practices that people follow continuously for a long period of time and
because of that, it becomes a source of law.

So there are two important conditions of custom-

Continuous

Without any influence

In the case of Abdul Hussain v. Bibi Sona Dero (1918), 20 BOMLR 528 Plaintiff claimed
property on the basis of the custom that in their family women were denied inheritance if married.
The judges were convinced that the custom was prevalent and gave the judgment which preferred
custom to the Islamic law of Inheritance.

Legislations

Legislations mean statutes enacted by the Parliament or the State legislature for the regulation
of human actions in a particular aspect. There have been several legislations enacted by the
Parliament to lay the foundation of Muslim law in India. The first law that was passed was the
Shariat Act, of 1937. In Islam, the entire body of law that governs their day-to-day personal laws,
marriage, divorce, etc. are collectively called the Sharia.
 19

Thus, based on Sharia and with the object to make it a complete body of Muslim laws, the Act
was titled the Shariat Act. It contained only six provisions dealing mainly with:

Law relating to the succession of a Muslim person dying intestate. i.e. without a will or a
testament.

Law relating to vesting of properties and gifts on females of the Sect.

Law relating to marriage, divorce, grounds of divorce, Mehr, guardianship and maintenance.

Law relating to wakfs i.e. any trust created for the Muslim religion.

The issue of divorce has been a major drawback in Muslim personal law because the Holy
Quran gives the right to divorce a woman to her husband but is silent on divorce by a woman. This
has led to struggle by a woman in an unhappy marriage and affected by domestic violence and
cruelty.

In 1939, an attempt was made to allow the woman to divorce their husbands through the
Dissolution of Muslim Marriage Act, 1939. The woman could divorce their husband on three main
grounds, viz.

refusal from maintaining the wife, financially and emotionally,

ill-treatment in the matrimonial house, and

desertion by the husband.

Another issue that came after the divorce was the maintenance of the divorced wife. Since
women in India are still fighting for their right to work and equal opportunity in employment,
women needed certain financial security for their livelihood and their children’s well-being.
Hence, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted that gave
them the right to maintenance from their husband.

The most recent development in legislations has been the Triple Talaq Bill (The Muslim
Women (Protection of Rights on Marriage) Bill, 2019) that prohibited any form of an oral or
written declaration of divorce to be illegal unless it is executed with the due procedure of law.

Judicial Pronouncements
 20

It is said that the law protects only the vigilant. This is very much right in the case of Muslims
in India. the development of Muslim law by the judiciary came to its full development in the 1980s
because till then, Muslim men and women have been sleeping on their rights or were ignorant
about their rights.

The first landmark judgment that deals with Muslim personal law was the 1986 judgment
in Shah Bano Begum v. Md. Ahmed Khan[1]. In this case, the apex court held that Muslim women
have a right to maintenance under Section 125 of the CrPC even if the Quran or their personal
laws have provided for an alternate remedy. The same ratio was upheld by the apex court in Daniel
Latifi v. Union of India[2].

Recently, in the leading case of Shayara Bano v. Union of India[3], the apex court held the
system of instantaneous divorce by the utterance of the word ‘talaq’ thrice orally unconstitutional
because the right to instantaneous divorce is only with the men and not women. Further, the system
is arbitrary and hence, violative of Article 14. Therefore, the judiciary has assisted in the
development of Muslim personal law.

Equity justice and good conscience

If nothing works i.e. if the existing sources are not sufficient to solve the problem arising with
the change and development in society then judges use their own reasoning and give judgment
based on equity, justice, and good conscience.

The Different Schools of Hindu lawiv

Introduction

Hindu Law is the most ancient law in the world. Originally Hindu Law was created to satisfy
every need and welfare of the people. The sources of the concept for Hindu Law are Shruti (words
of God), Smriti(text), customs (old practices), commentaries, and digests.

The codified law and uncodified law are two types of Modern Hindu Law. Codified law
administers every Hindu. The concepts of schools of Hindu Law does not exist in codified law,
however, it exists in uncodified Hindu Law. Vedas and Smritis were the form of sources in which,
many scholars all around India, wrote the commentaries which formed the basis for schools of
Hindu Law.
 21

With the development of the Smriti came the disparity in opinion amongst commentators and
interpreters. There was no authoritative position of law, although various codes were developed.
An authority could be accepted in one part of India and totally rejected in other parts of India.
Persons who accepted one authority were likely not to accept other authorities. Thus, different
schools of thought emerged.

Schools of thoughts refer to the divided opinions on a subject matter. Thus, schools of
thoughts on Hindu law refers to the varied and divided opinions on the rules and principles of
Hindu Law. Unlike statutes, they are not codified. They do not have the force of law. However,
they impact the minds of the legislature or lawmakers.

Schools of Hindu law are commentaries and the digestives of the smritis. These schools have
widened the scope of Hindu law and explicitly contributed to its development.

The two major schools of Hindu law are as follows-

Mitakshara

Daya Bhaga

Mitakshara and Dayabhaga are the two important schools of Hindu Law which have given us
the required information about the present legislated laws.

How these schools came into existence[1]

Originally there were no schools of Hindu Jurisprudence. Schools of Hindu Law came into
being when different commentaries appeared to interpret the Smritis with reference to different
local customs in different parts of India.

In Rutcheputty v. Rajendra[2], it has been observed that the different schools of Hindu Law
have originated due to different local customs prevailing in different provinces of the country. The
commentators of the Smritis could not ignore the local customs and usages while interpreting the
texts, and therefore, they eventually incorporated local customs. The local conditions and customs
of the different provinces have, therefore, gone to mould the principles of law prevailing in each
province.

Process of development
 22

In the case of Collector of Madras v. Mootoo Rantalinga[3], the Privy Council has held that
“the remoter sources of the Hindu Law (Smritis) are common to all the different schools. The
process by which those schools have been developed seems to have been of this kind.

Works universally or very generally received, became the subjects of subsequent

commentaries. The commentator put his own gloss on the ancient texts, and his authority having
been received in one and rejected in another part of Indian schools with conflicting doctrines arose.
The variances between the subdivisions of the Mitakshara school are comparatively few and slight.

The reasons for these differences are as follows:

One reason which used to be given for this division is that “the glosses and commentaries
upon the Mitakshara are received by some of the schools but are not by all”.

Another reason given for this division into schools is that the commentaries in a particular
province which follow the Mitakshara put a particular gloss on it and are agreed upon it among
themselves.

Mitakshara School

Mitakshara is one of the most important schools of Hindu law. It is a running commentary
of the Smriti written by Yajnvalkya. This school is applicable in the whole part of India except
in West Bengal and Assam. The Mitakshara has a very wide jurisdiction. However different parts
of the country practice law differently because of the different customary rules followed by them.
Every sub-school under the Mitakshara preferably acknowledged the authority of certain treatises
and commentaries, written in a particular region.

Mitakshara is further divided into five sub-schools namely as following:

Benaras Hindu law school

Mithila law school

Maharashtra law school

Punjab law school

Dravida or Madras law school

 23

These law schools come under the ambit of Mitakshara law school. They enjoy the same
fundamental principle but give preference to certain treaties and commentaries which control the
certain passage of Mitakshara.

Benaras law school

This law school comes under the authority of the Mitakshara law school and covers Northern
India including Orissa. Viramitrodaya, Nirnyasindhu, and Vivada are some of its major
commentaries.

Mithila law school

This law school exercises its authority in the territorial parts of Tirhoot and north Bihar. The
Mitakshara was kept in high esteem here and the law laid down by it was fully acceptable to them
except in a few matters. The principles of this law school prevail in the north. The major
commentaries of this school are Vivadaratnakar, Vivadachintamani, and Smritsara.

Maharashtra or Bombay law school

The Maharashtra law school has the authority to exercise its jurisdiction over the territorial
parts including Gujarat Karana and the parts where the Marathi language is proficiently spoken.
The main authorities of these schools are Vyavhara Mayukha, Virmitrodaya, etc.

Madras law school

This law school tends to cover the whole southern part of India. It also exercises its authorities
under Mitakshara law school. The main authorities of this school are Smriti Chandrika, Vaijayanti,
etc.

Punjab law school

This law school was predominantly established in east Punjab. It had established its own
customs and traditions. The main commentaries of this school are Vramitrodaya and its established
customs.

Dayabhaga School

Dayabhaga school predominantly prevailed in Assam and West Bengal. This is also one of
the most important schools of Hindu laws. It is considered to be a digest for the leading smritis.
 24

Its primary focus was to deal with partition, inheritance and joint family. According to Kane, it
was incorporated in between 1090-1130 A.D.

Dayabhaga school was formulated with a view to eradicating all the other absurd and artificial
principles of inheritance. The immediate benefit of this new digest is that it tends to remove all the
shortcomings and limitations of the previously established principles and inclusion of many
cognates in the list of heirs, which was restricted by the Mitakshara school.

In Dayabhaga school, various other commentaries were followed such as:

Dayatatya

Dayakram-sangrah

Virmitrodaya

Dattaka Chandrika

Effect of migration

Although it was held in Moolchand v. Mrs Marita Bai that personal law moves with whom
it covers, however, it is important to know that migration plays a huge role in determining what
school of thought governs a person. From case laws, the conclusion that can be drawn is that where
a Hindu migrates, he is likely to be governed by the school of thought predominant within his new
location.

He, therefore, has the option to adopt the law of the new place where he resides – this was
held in Notraz v. Sunbathing Raya. However, before this can be obtainable, there must be an
actual migration. A mere temporary relocation does not count. And as observed in Keshavarao
v. Swadeshrao, migration is moving to another place. If a place is divided into two administrative
areas, that will not be regarded as migration. In Gope v. Manjura Goralin[4], it was held that the
burden of proving migration lies on him who pleads it.

Difference between ‘Mitakshara’ and ‘Dayabhaga’ Schools of Hindu Law[5]

Mitakshara and Dayabhaga differ at certain positions.

Important Differences are as follows:

 25

On the basis of Succession

Under the Mitakshara school, inheritance is governed by the rule of consanguinity, i.e. blood
relationship, whereas under the Dayabhaga school inheritance is governed by the rule of spiritual
efficacy.

Under the Mitakshara, cognates are postponed to agnates but under the Dayabhaga some
cognates like sister’s sons are preferred over several agnates.

This means that if the Hindu dies leaving his son and a daughter, the daughter will be excluded
from the inheritance, and the son will get all the property. Likewise, if the Hindu dies leaving his
son’s son and daughter’s son, the son’s son will get the succession.

Under the modern Hindu Law, the difference between two main schools is no longer reliable.
Under the Hindu Succession Act, 1956, there is one uniform law of succession for all Hindus.

On the basis of Joint Family

Under the Mitakshara, the right to property for the son arises by birth; hence the son is a co-
owner with the father in ancestral property. This means the moment a son is born in the family, he
receives the right in the joint family property.

Under the Dayabhaga, the right to property appears after the death of the last owner.
Therefore, the son has no right to ancestral property during his father’s lifetime. Under the
Mitakshara, the father has the limited power of separation for an ancestral property, while the
father has absolute power of separation for ancestral property under the Dayabhaga School.

Under the Mitakshara, the son can demand partition of the joint family property even against
the father, whereas under the Dayabhaga, the son cannot demand partition against the father.

The concept of joint family property under the Mitakshara school implies the belief for
the community of ownership and unity of possession. This expression means that before
partition, no individual co-parcener can say that he owns such a share within the joint family
property.

The interest of co-parceners is much variable, it lowers on birth and increases on death in the
family. But there’s no concept of birthright under the Dayabhaga school, interest of co-parceners
 26

remain constant, not affected by death or birth within the family. Under both, the school of unity
of possession is the same.

On the basis of Partition

While both the Mitakshara and the Dayabhaga schools hold that the true test of partition is in
the intention to separate, the manifestation of this intention is different in each of the schools. In
the case of the Mitakshara School the intention, it involves holding the property in defined definite
shares while in the Dayabhaga School there has to be a physical separation of the property into
specific portions and assigning of separate share to each coparcener.

In the Mitakshara system none of the members of the coparceners can claim a definite physical
share of the joint property. So, partition in this system involves in ascertaining and defining the
share of the coparcener i.e. In the numerical division of the property.

In the Dayabhaga system, each of the coparcener has a definite share in the joint family
property even though the family is joint and undivided and the possession is common. So, partition
in this system involves the physical separation of the joint property into the separate shares of the
coparceners and assigning to each of the coparceners the specific portion of the property.

On the basis of Rights of Woman[6]

In the Mitakshara system the wife cannot demand partition. She, however, has the right to a
share in any partition effected between her husband and her sons. Under the Dayabhaga, this right
does not exist for the women because the sons cannot demand partition as the father is the absolute
owner.

In both the systems, in any partition among the sons, the mother is entitled to a share equal to
that of a son. Similarly, when a son dies before partition leaving the mother as his heir, the mother
is entitled to a share of her deceased son as well as share in her own right when there is a partition
between the remaining sons.

Conclusion

The Mitakshara system is Conservative. It provides good security in times of difficulties as a

member can rely on the joint family. However, sometimes a member can become a parasite. The
 27

Dayabhaga system is more liberal. Among the two the Dayabhaga is more likely to last in modern
times with the growth of individualism, individual enterprise and economic compulsions.

Schools of Muslim Lawv

Introduction

To understand the division of Schools of Muslim law, it is essential to delve into the fathoms
of Islamic history. Muslims are headed by a Prophet. He is the guider and ultimate interpreter of
the Muslim law. He holds the power that the Supreme Court of India has while interpretation of
the Constitution is required. Thereby being the supreme authority to understand and guide Muslims
in the understanding of the Quran.

The problem found its roots when it came to figuring out the successor to Prophet Mohammed.
Prophet Mohammed in sued great command and dominance over the Muslim people and therefore,
required a person who could fill the same shoes.

The third wife of Prophet Mohammed was Ayesha Begum. While she envisioned the
election of a successor. Thereby opted for a just manner to choose another leader and successor.
And since, this was what the people also wanted.

In Urdu, the word ‘sunnah’ meant tradition and when the prophet suggested something it was
called the sunnah. The prophet willed an election as well. As a result of the election Abu Bakr was
elected and he became the first caliph and successor to Prophet Mohammed. He was also father
to the third wife of prophet Mohammed i.e. Ayesha Begum.

Hence, this Sect or group of Muslims was called Sunnis also called the Ahle-Sunnat-Wal-
Jammat.

On the other hand, the minority group of Muslims believed that the successor or the prophet
can only be succeeded by a person who is related to the prophet by his bloodline. The reason
behind this belief was that, that a person can hold such a holy and sacred position only if he is
related to the prophet by bloodline.

And therefore, this Sect of people was first led by Fatima the daughter of Prophet Mohammed
and later, her husband, the son-in-law of Prophet Mohammed, Ali who was also her cousin.
Thereby this Sect discarded the idea of voting and strongly believed that organizational power was
 28

not of more importance than the divine ship. Thereby did not adhere to the idea of voting but to
the bloodline. And hence, this Sect resorted to their idea and then the first Imam of Muslim law
and this group constituted a separate Sect called the Shia Muslims.

Schools of Muslim Law

There are further four sub-Sects to the Sunni Muslims i.e., The Hanafis, the Malikis, the
Shaefi, and the Hanbalis, these were the four Schools.

I. The Hanafi School

The founder of this School was Abu Hanafi. This man was of principle and was well known
for his deduction skills. He did not blindly follow all the customs by the virtue of the majority
following them. He strongly relied upon his deductions from the Quran. His judgments were clear
and straight analogical subtractions of the Quran. His deductions were not a result of unsighted
reliance on customs. He further understood the vitality of tradition and gave it the status quo of
law.

His contribution also was in the areas of Ijma and Ithesan and hence he was very well reputed
and beloved. Thereby there was an immense number of followers of this School. This School
found its emergence in Iraq and was later also followed in India, Pakistan, and Egypt.

II. The Maliki School

This School was prevalent in areas like Spain and North Africa. The founder of this School
was Imam Anas Bin Malik. He was a strong believer in traditions when it came to the judgment
of modern rules or rules suitable for the time period he believed Quiyas and Ijmas were sources to
be resorted to as last resort. More so, he had a very different and unprecedented view of a
matrimonial home. Maliki fiqh also considers the also considers the consensus of the people of
Medina to be a valid source of Islamic Law.

He believed that in a marriage a wife was incapable of owning and maintaining her personal
properties and therefore, according to him all the property of the wife in the marriage should be
owned and maintained by her husband due to this disability. This School had a very different and
unique view with regards to the property and no other Schools had such an outlook.

III. The Shaefi School

 29

This School is followed in places like Indonesia, Malaysia and the Philippines. The founder
of this School was Mohammed Ibn Idris Al-Shaefi. He strongly believed that all the issues and
disputes have their answer in the Quran. He also placed reliance on Quiyas however, it came after
Quran seconded by traditions and Ijmas. He was a devotee of the Quran and believed that the
Quran had all the answers either directly in the words or through analogical deductions from the
words of the Quran. But ultimately, the Quran was his roots and solutions to all things.

This School further stated that the wife in the matrimony was not a free tool or device.
However, in cases of marriage and all even if she is an adult she needs to take the permission of
her parent or guardian to guide her in such matters.

IV. Hanbali School

This School is the most recent and has the least followers. Mainly the followers of this School
are in Katar and Saudi Arabia. The founder of this School was Ibn Hanbali. He was also known
to be strictly adhering to the customs laid down by the prophet, commonly known to be very
conservative. He hardly placed any of his judgments and interpretations to the other sources of
Muslim law. Rather, only Ijmas were followed in very small cases as a supplement to the teachings
of the Prophet. Sources like the traditions and Quiyas were not much relied upon.

After the Sunni Sect comes to the Shia Sect which was similarly divided into Imamiyah
School, Ismailiya School, and the Zaidiyah School.

I. Imamiyah School

The followers of this School can be found in India, Iran, Iraq and Pakistan. This School was
also called the School of Ithna Ashriyah. Unlike, other Schools this School was very unique. This
School believed in a Muta. The word ‘Muta’ means ‘temporary marriage’.

This School further subdivided itself into two sects:

Akbaris Sect– They follow a modern form of legal deductions and reasoning when there
requires an interpretation. The traditions of the Imams hold vital importance while following this
Sect. This Sect as the name suggests come from the word Akhbari which is derived from the word
news and newspaper.

On the other hand,

 30

Usuli Sect – Which is quite a dominance as compared to the Akbaris. This School believed in
the true sources of Muslim Law. The Quran, the hadiths, and the Ijmas. The word Usuli essentially
means theory of jurisprudence. Meaning that the School relies on jurisprudential principles.

II. Ismailiya School

The followers of this School can be found in Pakistans, India, and Syria. The School refers to
the Nizaris who acknowledged Aga Khan the fourth as a true Imam. However, there was a division
in this Sect since the ‘Khojas’ who were actually Hindus and ‘Bohras’ the other sub-sub Sect
believed that the true Imam was different from the two Sects. The issue arose when Jafar inherited
his eldest son and therefore did not believe him to be the true and divine Imam.

This Sect as a whole believed that God is one and the teachings of the prophet were vital and
followed the same as well.

III. Zaidiyah School

The followers of this School are majorly found in Yemen only. The name of this School is
from Zayd Ibn Ali who was the son of the fourth Imam. The name of the fourth Imam was Ali Ibn
Husain. This School believed in responsibility and political uprise. It was believed that untrue and
un-divine leaders should be revolted against.

This School is very similar to the teachings of the Sunni Muslims. Also, they believed that the
Muslims should follow the true successor of the Prophet Mohammed and since Faithma was the
surviving daughter only her sons should be true Imams of Muslim community.

Motazila School

The followers of this School are in minority and can be found in Iran. This School arose out
of a different Sect. It does not co-relate itself to either of the two Sect either Sunni Sect or the Shia
sect. These Muslims were although defectors of the Shia sect. This Sect was founded by Al-Gazzal.

The followers of this Sect believed in true divine justice and unity and believed that evil could
be overpowered by the good and that the Quran itself can only be the truest and divine source to
overcome evil from the society

Conclusion
 31

From the above article, we can see the gradual development in the different schools of Muslim
law. From Sunni Sect to Shia Sect which was further divided into Sub Sects and further subdivided.
And lastly, an emergence of an entirely new Sect that did not wish to relate to either the Sunnis or
the Shia during the Ninth A.D.
 1

Module – 2
Introduction

Hindu Marriage refers to kanyadan which means gifting a girl to the boy by the father with all
the tradition and rites or custom. Hindu marriage is an ancient tradition which is prevailing from
the Vedic periods to the modern world with different modifications that have occurred until now.
There are 16 sacraments in the Shastri Hinduism in which marriage is one of the important
sacraments of Hinduism.

Section 2 of the Hindu Marriage Act 1955 states that this act applies to any person who is a
Hindu by birth or who has changed his/her religion to either any of its forms such as Virashaiva, a
Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. Any person who is a Buddhist,
Jain, or Sikh also comes under this act. It also applies to any person living outside this territory
except who is a Muslim, Christan, Parsi, or Jew by religion or it is proved that such person is being
governed by Hindu law. It is believed that it is the strongest bond between husband and wife. It is
an unbreakable bond that remains even after death. The importance of marriage is not to the extent
of one generation but it is an in-depth belief of Hinduism. Without a wife, a person is considered
incomplete while performing any rites of Hinduism. It is very important to perform all the rites
with the wife.

Concept of Marriage under Hindu Law

For a long period, Hindu marriage rites have been changed accordingly due to the needs and
convenience of the people from time to time. It is the relationship between husband and wife.
According to Hinduism, this sacrament is one of the most important sacraments out of 16
sacraments in Hinduism. It is a sacred tie that can’t be broken. It is a relationship from birth to
birth, it is a bond that continues after rebirth and death. According to Veda, a man is incomplete
until he gets married and meets with his partner.

Marriage is a religious institution intended to fulfill religious duties and to achieve the higher
ends of life, namely, Dharma, Artha, Kama and Moksha.

I. Who are Hindus?

A. Hindu by Religion
 2

The Medieval period of Hinduism lasted from 500 to 1500 AD. Hinduism is the oldest religion
which contains a wide range of tradition and culture which are followed by all the Hindus across
the globe. Any person who is a Hindu by religion or born in Hindu family with Hindu father or
mother in any of its forms such as Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana
or Arya Semaj or any person who is a Buddhist, Jain, or Sikh is also a Hindu by religion. Thus,
any person except a follower of Muslim, Christen, Parsi, or Jew religion is a Hindu.

B. Hindu by birth

Any person born in a Hindu family or has a Hindu father or mother such a person is considered
as a Hindu by birth. Any person born in any community apart from Muslim, Christian, and Jews
is also a Hindu. Any child, legitimate or illegitimate if either of his parents is Hindu if he is brought
up by the parent who is Hindu shall be considered as Hindu by birth.

Mahatma Gandhi believed that the word “Hindus” didn’t originate from Vedas but when the
Greeks invaded India and started using the same for the country and people living beyond the
Indus River. This belief is well established by many historians and is widely accepted among the
academicians.

II. Marriage as Sacrament

Marriage is one of the most important of all Samskaras under the Girah Sutras. Among the
Hindu, the marriage was considered as a sacrament. In Hinduism, the ultimate goal of human life
is to attain Moksha. Marriage was meant for doing a good deed and for the attainment of Moksha.
It was obligatory for every Hindu through which his well-conducted life progresses to its appointed
end.

In ancient times, there was no need for the girls’ consent. Fathers have to decide the boy
without asking for her advice or consent. It is the sole duty of the father to find a suitable boy.

Therefore, Religious sacrament in which a man and a woman are bound in a permanent
relationship for the physical, social, and spiritual purposes of dharma, procreation, and sexual
pleasure.” The Vedas hold marriage to be one of the important sacraments sanctifying the body.
That is why marriage is given great importance by the Hindus. It is said, a man who does not win
a wife is really half, and he is not the full man as long as he does not beget an offspring.
 3

Hindu marriage is deemed valid and complete only when certain religious rites like (Home,
Panigrahana, Saptapadi, etc.) are duty performed by a Brahmin with Agni devata taking
cognizance of the rites. If not performed the legal validity of the marriage itself may be called into
question.

The Hindu Marriage Act a marriage of a minor or unsound person is voidable and not void.
So, although consent is necessary for the absence of consent, marriage becomes merely voidable
and party to the marriage can treat their marriage as a valid marriage. Hindu marriage is not purely
a contract.

Moreover, in the case of Tikait v. Basant[1], the court held that marriage under Hindu law
was a sacrament, an indissoluble union of flesh, bone with a bone to be continued even in the next
world.

In the case of Shivonandh v. Bhagwanthumma[2], the court observed that the sacraments
marriage among Hindus has three main characteristics:

It is a permanent union.

It is an eternal union.

It was a holy or sacrosanct union.

III. Marriage as Contract

A Hindu marriage cannot take place without the performance of sacred rites. But after the
enactment of the Hindu Marriage Act, 1955 Hindu marriage is no longer a sacrament but it is a
contract.

Section 12 of the Hindu Marriage Act 1955 lays down that when one’s consent is not obtained,
the marriage is considered void. It shows that despite the absence of consent of the bride, the
marriage is valid and legal.

The nature of modern marriage is contractual. Thus, it accepts the idea of equality and liberty.
It has been adopted due to western Ideas. There must be an agreement of voluntarily entering into
it by both parties. Thus, the Hindu marriage is not a contract and neither is it a sacrament. But it
can be said it is a semblance of both.
 4

The first fundamental of sacrament marriage has been affected by section 13 of the Hindu
Marriage Act, 1955 for Hindu marriage can be dissolved on certain specified grounds. And
the Widow Remarriage Act, 1856 also affected the sacramental marriage.

Section 5 and 12 of the Hindu Marriage Act, are the pertinent provisions to determine whether
Hindu marriage is sacrament or contract. Clause 2 of section 5 of the Hindu Marriage Act deals
with the mental capacity of the parties. It says that neither party to the marriage must be incapable
of giving a valid consent in consequence of unsoundness of mind. Further clause 3 of section 5
enumerates that the bridegroom has completed the age of twenty-one years and the bride, the age
of eighteen years at the time of the marriage.

Prohibition of Child Marriage (Amendment) Bill 2021, if converted into law, will delay the
daughters’ marriage for two to three years. The legislation that seeks to raise the minimum legal
age of marriage for women to 21 from the present 18 has been sent to a parliamentary committee
for deliberation.

Moreover, in the case of Bhagwati Seran Singh v. Parmeshwari Nandar Singh, [3] the court
held that Hindu marriage is not only a sacrament but also a contract.

In the case of Anjona Dasi v. Ghose[4] Court observed that the marriage, whatever else it is,
sacrament and institution, is undoubtedly a contract entered into for consideration with correlative
rights and duties.

In most of the Hindu marriage, a religious ceremony is still the sine qua non. Viewed from
side one may conclude that Hindu marriage has not remained purely a sacrament and at the same
time, it has become complete a contract.

Evolution and History of Hindu Marriage

This article deals with the evolution and history of Hindu Marriage in Indian society. It is
divided into several sections for better understanding. The historical point of view from the
nomadic lifestyle to the present laws and relevant provisions of the Hindu Marriage Act has also
been covered within this article.

Different types of marriages, across civilizations, rituals, traditions, and core beliefs of Hindus
towards marriage have been discussed as well. Lastly, the caste system and rules and traditions
 5

which are expected to be adhered to by Hindu society as a whole, including the man and the woman
are also included.

Historical Aspect of Evolution of Hindu Marriage

The men and women of ancient times lived in a nomadic lifestyle. They didn’t spend their
lives looking to find marriage or companionship. However, the society became an agricultural-
oriented one with time, following that shift in culture and way of life.

The sense of true self and ownership eventually became crucial to humanity. Sexual activity
and having a progeny had nothing to do with parentage, as it was hard to ascertain the child’s
paternity due to lack of legislation. But the need for boundaries arose, with changing times.
Ownership and possession became significant because they gave a sense of security.

After that, there was a need to ascertain the paternity which would require an exclusive
relationship between the man and woman. The men’s goal in society became to track down their
seeds of life and, consequently, created the need for marriage institutions.

Men and women then started living together, procreating and having their bloodline, and
instilling, among many other values, not only ancestry but also a sense of responsibility and unity.
Marriage now plays an extremely vital part in the life of a person. The concept itself has become
more individualistic in modern times, but it upholds a sense of stability and companionship in life
since its inception.

It also instills the feeling of being. This marriage institution limits itself not only as an
agreement and contract between man and woman but also as a social institution for the couple to
live in a society with specific values and behaviour.

Definition of marriage

Several scholars have defined marriage in their several distinct ways. These are the
perspective of some of these:

According to a sociologist named H.T Mazumdar “marriage is a socially sanctioned union

for a male and female to establish (a) household (b) sexual relations (c) procreation and (d) care
of offspring.”[1]
 6

George Andrew Lunderberg said it was to ensure that each party, the man and the woman,
should know their right and also their marriage duties and responsibilities. He treated the marriage
institution more like a means or method of providing man and wife with rules and regulations.[2]

In Shobha Rani v. Madhukar Reddi[3] the Indian courts have defined marriage in which
the need for such an institution was more crucial as marriage also has its legal implications. It
helps to ascertain different aspects of conflicts and protect a child’s rights. Besides, a union also
illustrates cultural values and ideologies and also helps to safeguard them.

There is one commonality, according to various other scholars, where it is observed that
marriage failure and instability in the union could be causing financial stress. It could also be called
one of the major contributors to poverty, a hunger that ultimately leads to robbery.

In the case of Indira Sarma v. V.K. Sharma[4], the Supreme Court has observed that
marriage is often described as one of the basic civil rights of man and woman which is voluntarily
undertaken by the parties in public in a formal way and once concluded recognize the parties as
husband and wife. There are three elements of the common law of marriage firstly, agreement to
be married, secondly living together as husband and wife, thirdly, holding out to the public that
they are married, and both sharing a common household and electing to live together and afford
each other reasonable marital privileges and rights and be honest and faithful to each other.

Hinduism and marriage under it

Hindu contains a very diverse range of people in it. It’s like a bigger umbrella with a wide
range. It is followed by millions of people but has no unique faith or deity. It encompasses a
diversity of followers. It is an Indian Personal Law. Where personal life matters and shortcomings
can be resolved through them. Hindu law in India includes wedlock, guardianship, divorce,
maintenance, and much more.

Hinduism isn’t like Islam or Christianity. It’s more of a way that one leads one ‘s life.
Hinduism is like cultural identity and not religion.

Despite technically being non-Hindus, all Sikhs, Jains and Buddhists are included under the
definition of Hindu under the 1955 Hindu Marriage Act. Section 1 of the Act signifies that all
 7

Hindus in the Indian union, including Jammu and Kashmir, are subject to the application of this
Act. That will include those Hindus who are not residing in India as well.

In India, the marriage concept explores a much fuller insight. It doesn’t just involve the idea
of marriage. But that is seen as a sacrosanct entity. It is an integral part of Hindu cultures and
traditions. It is a part of the Indian ‘Sanskaar.’ A matter of two families and individuals being
united in holy union.

Matrilocal marriages: Indus Civilisation

The marriages between man and wife were matrilocal during the civilisation of the Indus
Valley. Meaning it was a matriarchal society where, after getting married, the man would live next
to the house of the women’s parents. Their off-springs would live there, too. A whole clan of
female descendants would thus be living together.

Cross-Culture

In the year 2011, there was a discovery where it was observed that there have been people
who also had marital relations during the Harappa Civilization. The people of Harappa provided
the Chacolith people with finished goods which is another modern civilization.

Polygamy and Polyandry

There is enough evidence to reflect that plural marriage or polygamy (how we know it in
common parlance), and polyandry relationships existed in those eras. A reflection of that can be
seen in the religious texts such as the Mahabharat where five Pandavas were married to ‘Draupadi.
The principle was based on the idea that if the woman of the family or wife were unable or unable
to perform the religious rites and ceremonies, then the husband or man was entitled to re-marry
another woman.

However, with the passage time, this was also replaced. Polygamy and Polyandry practices
lost their significance and Monogamy came into force. Monogamy was given preference later
since the union of two people was now considered holy and spiritual in mature. Hence it became
high in virtue.

Roots of Patriarchal norms

 8

This patriarchy found its roots from the Vedic period. Women were considered property
during this time and became men ‘s responsibility. Women have begun to lose their independence
and their rights as an independent individual have now been placed upon the shoulder of patriarchy.
Moreover, the men know where those who were thought capable of assuming responsibility were.

Women were now either their father’s responsibility until marriage, and after marriage, they
became their husband’s responsibility.

Marriage Rituals

The rituals of the marriage were to be conducted and blessed by a Vedic priest. This holy
sacrament then wove the man and the woman in holy matrimony. After this, the family life of the
women and men would begin. Following which they have offspring for their family. Thus, this is
how society evolved from ancient times to the present scenario. It shifted from an unregulated
society to a modern society where monogamous marriages have prevalence.

The ceremony of the marriage itself is quite a long and tedious process. It includes several
cultures and traditions which are performed by both the families i.e., the grooms and the bride’s
family. This is a celebration in Hindu culture, which is shared with family, friends, and neighbours.

Core principles of a Hindu’s life

A man who has renounced the world for taking up renunciation. This man should get married
and lead a family life. It is the Dharm meaning it is his responsibility to get married and live that
life.

The man’s life has been divided into four stages. i.e. Bramhacharya, Grishasta,
Vanaspratha, Sannyasa. Out of all the stages, the Grishasta which means home and family
includes the stage where a man is expected to get married and live a family life. He is also supposed
to do it as a matter of dharma. The concept of marriage was first discovered in Smritis and Vedas.

If one is married under the Hindu tradition it is expected of the man and woman to lead their
entire life together and to be only devoted to each other. This also reflects the value that the
marriage is not just a contract but a sacred and holy union of two souls.
 9

Furthermore, it is also believed that marriage is supposed to last even afterlife and for the next
seven births of the couple. The concept of divorce is a modern tradition included in the Hind
marriage act.

According to the Act, marriage can take place between two adults and the man should be the
age of 21 years old and the woman can be 18 years or above. The concept of child marriages has
been prohibited and so is the concept of polygamy.

On December 15, 2021, the Union Cabinet of India proposed to raise the legal marriage age
of women from 18 years to 21 years, the same as that of men. A task force was set up by the
Ministry for Women and Child Development to look into the relation of women’s marriage age
with anemia, infant mortality rate, maternal mortality rate, nutrition, health, and related issues.

The Prohibition of Child Marriage (Amendment) Bill, 2021 proposes to amend ‘The
Prohibition of Child Marriage Act, 2006 (PCMA)’ for making the age of marriage equal at 21
years for both males and females, which is presently 21 years for males and 18 years for females
and consequential amendments in laws relating to the age of marriage i.e. ‘the Indian Christian
Marriage Act, 1872’; ‘the Parsi Marriage and Divorce Act, 1936’; ‘the Muslim Personal Law
(Shariat) Application Act, 1937’; ‘the Special Marriage Act, 1954’; ‘the Hindu Marriage Act,
1955’; and ‘the Foreign Marriage Act, 1969’. Also the laws namely ‘the Hindu Minority and
Guardianship Act, 1956’; and ‘Hindu Adoptions and Maintenance Act, 1956’ pertain to this
context. Once the law is amended, the legal marriageable age for both men and women would
become the same, i.e. 21 years.

In Hindus, the woman is considered holy and sacred whose role in the marriage is to take up
household chores and live a simple and decent life. Furthermore, she is expected to live her life
with her husband and his parents. And to enjoy the care and protection of her husband.

Caste System

The Hindu’s have been divided into many castes. Law of Manu includes major categories:

Brahmin

Kstariya

Vaishya
 10

Shudras,

Marriage is allowed within one’s caste and marriage in the caste system is usually not
accepted. According to Manu, to produce legitimate offsprings, a man should marry within the
next lower caste itself. This caste system has been prevailing since time immemorial and is still
pretty relevant and adhered to by the Hindus in Modern India also.

Sacramental Nature of Marriage

Characteristics of the Sacramental Nature of a Hindu Marriage

Hindu marriage is “a religious sacrament in which a man and a woman are bound in a
permanent relationship for the physical, social and spiritual need of dharma, procreation and sexual
pleasure.”

There are three characteristics of the sacramental nature of marriage:

• It is an enduring bond of the husband and wife which is permanent and tied even after death
and they will remain together after the death.

• Once it is tied cannot be untied.

• It is a religious and holy union of the bride and groom which is necessary to be performed
by religious ceremonies and rites.

Hindu marriage is considered as one of the most important sacraments. In ancient times, there
was no need for the girls’ consent. Fathers have to decide the boy without asking for her advice or
consent. It is the sole duty of the father to find a suitable boy. If the person was of unsound mind
or minor at the time of the marriage, it was not considered as a void marriage. But in the present
world, consent and mental soundness of the person are a very essential part of the Hindu Marriage,
without the absence of any such element marriage will be annulled or void or no legal entity.

Section 12 of the Hindu Marriage Act 1955 lays down that when one’s consent is not obtained,
the marriage is considered void. It shows that despite the absence of consent of the bride, the
marriage is valid and legal.
 11

The nature of modern marriage is contractual. Thus, it accepts the idea of equality and liberty.
It has been adopted due to western Ideas. There must be an agreement of voluntarily entering into
it by both parties.

Thus, the Hindu marriage is not a contract and neither is it a sacrament. But it can be said it is
a semblance of both.

Forms of Marriage under the Hindu Law

Manu’s description of the eight forms of marriage is given below:

(1) Brahma form of marriage:

Brahma form of marriage is said to be the best and mostly practiced throughout India. It is
considered an advanced stage of social progress. Manu, the Hindu law-giver, laid so much
importance on this form of marriage that he placed it even above divine marriage. Manu described
this Brahma form of marriage as “the gift of a maiden spontaneously after clothing and reverencing
her, to one learned in the Vedas and of good character,”

Thus the “gift of the daughter, clothed and decked, to a man learned in the Vedas, whom her
father voluntarily invites and respectfully receives, is the nuptial rite called “Brahma” C.D.
Banerjee is of the view that this form of marriage was called so because it was fit for the Brahmans.
But in the Mahabharata it is also found that the Kshatriyas practiced the Brahma form of marriage.

The Hindu Sastrakaras have considered it the highest, purest and most evolved method of
marriage as it was free from physical force, carnal appetite, imposition of conditions and money.
In the Brahma form of marriage social descency was fully maintained and the religious rites were
fully observed. It also implies an advanced stage of social progress as the form appears to have
been intended as a reward for learning in the Hindu scriptures and thought to be an impelling force
for the study of the Vedas. The Brahma form of marriage resembles the “Confarreation.” marriage
practiced in Rome Manu and Yajnavalkya held that the son born of a Brahma marriage redeems
form sin, ten ancestors, ten descendants and himself.

(2) Daiva form of Marriage:

The Daiva form of marriage was slightly different from the Brahma form of marriage in the
sense that the suitor was an official priest. Special qualities like good character, scholarship in the
 12

Vedas or good family background of the bridegroom were not emphasized in selection. “The rite
which sages call ‘Daiva’ is the gift of a daughter whom her father has decked in gay attire when
the sacrifice is already begin, to the officiating priest, who performs the act of religion. The Daiva
form of marriage was described by Manu as “the gift of a daughter, after having adorned her, to a
sacrificial present rightly doing his work in a sacrifice begun.”

Manu and Jajnavalkya hold the view that the son born of such a marriage is said to redeem
from sin seven parental ascendants and seven male descendants and himself. This from of marriage
is exclusively for the Brahmins, because the Brahmins can only officiate in the sacrifices, as
priests. But this form of marriage was rated lower than the Brahma form of marriage because here
the father or other guardians of the bride took into account the services of the bridegroom. On the
contrary, in the Brahma form of marriage, the bride figured as an object of ‘dana’ or gift by her
father or guardian to the bridegroom.

(3) Arsha form of Marriage:

“When the father gives his daughter away after having received from the bridegroom one pair
of kine, or two pairs for uses prescribed by law, that marriage is termed Arsha”. This form of
marriage is called Arsha because it was current mostly in the priestly families as its very name
suggests. In this form of marriage, the pair of kine, or two pairs, constitute the price of the bride.
Sir Gooroodas Banerjee holds the view that” it means the ceremony of the Rishis and is perhaps
indicative of the pastoral state of Hindu society, when the free gift of daughters in marriage was
not common and cattle formed the pecuniary consideration for the gift.” The epics and Puranas
contain many examples of this form of marriage, one such being the marriage of sage Agastya
with Lopamudra.

The number of persons redeemed by the male offspring of such marriage is only six (three
male descendants and three female ascendants), Nevertheless, the importance of this form of
marriage has been highlighted in the Visnu Purana and the Matsya Purana. It is said in the Visnu
Purana that the person who gives a maiden in this form of marriage earns the competence of
reaching the region of Vishnu in heaven.

Briefly speaking, this Arsha form of marriage symbolizes the pastoral stage of the Hindu
society where cattle were considered indispensable. This form of marriage was also peculiar to the
 13

Brahmins. However, the Arsha form of marriage could not be practised in the later period due to
the decline of sacrifices and conception that marriage is a pure gift by the father is an offence to
the religious sentiment of the Hindus.

(4) Prajapatya form Marriage:

In this form of marriage, the father gives away his daughter with due honour saying, distinctly:
“May both of you perform together your civil and religious duties “You two be the partners for
performing religious and secular duties. The very name Prajapatya indicates that the pair enters
the solemn bond for repayment of debts or rinas to Prajapati for procreation and upbringing of
children. The basic condition in this form of marriage is that the bridegroom is to treat the bride as
a partner for secular and religious purposes and the proposal comes from the bridegroom who is a
suitor for the damsel.

The Prajapatya form of marriage is an orthodox form where the parental approval figures and
the economic complications of betrothal are bypassed. The prajapatya form of marriage is
construed to be inferior to the first three forms because here the gift is not free but it loses its
dignity due to conditions which should not have been imposed according to the religious concept
of a gift. This form of marriage may have fallen into disuse due to the practice of child marriage.
This form of marriage was also peculiar to the Brahmans only.

(5) Asura form of Marriage:

In the Asura form of marriage, the bride was given to the husband in payment of a
consideration called ‘sulka” or bride-price. When the bridegroom, having given its much wealth
as he can afford to the father or paternal kinsmen and to the damsel herself, takes her voluntarily
as his bride ‘ it Is called the Asura Marriage.

The Ramayana mentions that a fabulous amount of bride price was given to the guardian of
Kaikeyi for her marriage with king Dasaratha. The Mahabharata also contains descriptions
regarding purchase of a maiden through the offer of a great amount of wealth as an act of
allurement for the kinsmen of the bride. Iravati Karve writes that Madri was obtained by King
Pandu by means of a lavish amount of money, paid to the king of Madra.
 14

The Asura form of marriage was prevalent in ancient India when the bride had a value or she
was construed to be an article of merchandise. He who wished to procure her had to pay for her.
Thus this form of marriage is based on an agreement between two families as a commercial
transaction.

It was called the Asura form of marriage, as being the ceremony of the Asuras, or the
aboriginal non-Aryan tribes of India. But a marriage was not construed as ‘asura’ form of marriage
by the mere fact of the bridegroom giving the bride or her father a present as a token of
complement.

(6) Gandharva form of marriage:

The Gandharva form of marriage is the union of a man and a woman by mutual consent.
According to Manu “The voluntary connection of a maiden and a man is to be known as a
Gandharva union which arises from lust”. Thus “the reciprocal connection of a youth and a damsel
with mutual desire is the marriage denominated “Gandharva”, contractual for the purpose of
amorous embraces and proceeding from sensual inclination.” “To some extent this form of
marriage appears to be like “Gretna Green” marriages.” “Gretna Green” marriages are the run-
away marriages by persons governed by the English Law at “Gretna Green” or elsewhere in
Scotland to evade the provision of that law against ill-advised and clandestine marriages.

It is believed that this form of marriage is called ‘Gandtarva’ because of its wide practice by
the tribe called ‘Gandharva’ living on the slopes of the Himalayas. However, Manu and Narada
prescribed this form of marriage to all the caste groups. The Mahabharata contains several
instances of this Gandharva form of marriage. King ‘Dusyanta’ induced ‘Sakuntala’ to accept him
in the Gandharva form of marriage. Even the ‘Swayamvara’ marriages as found in the epics and
puranas may be conceived as the Gandharva form of marriage.

The Gandharva marriage somewhat resembles the ‘Usus’ form of marriage in Roman Law.
Though the Gandharva form of marriage was prevalent in the ancient Hindu social system, the
frequency of solemnization of such marriage was very low on account of a couple of reasons. First,
the individual taste was not given any emphasis in the Hindu ideology and this did not result in
love and mutual consent.
 15

Moreover, love, emotion or mutual consent were discouraged by the Hindu society. Secondly,
in the ancient days, romantic attachment between partners could not develop due to the rare
possibility of physical proximity. However, the ancient Hindu Juridical literature empowered a
maiden to select a husband of her own caste, provided that she was not given in marriage by her
father or guardians within three months or three years of the attainment of puberty.

A minor girl is incompetent to contract this ‘Gandharava’ form of marriage as she is incapable
of giving her consent. This form of marriage indicates that the parties must be adults so that they
will be capable of sexual enjoyment. This form of marriage was prevalent among the Rajbanshis
and in Manipur.

Gradually this form of marriage declined due to the child- marriage practice in the Hindu
society. But later on, along with the introduction of post-puberty marriage, it has been practiced in
the name of love marriage.

(7) Rakshasa form of marriage:

In simple terms the ‘Rakshasa’ form of marriage may be described as marriage by capture,
resembling the right of a victor to the person of the captive in war. Manu holds, “The seizure of a
maiden by force from her house while she weeps and calls for assistance, after her kinsmen and
friends have been slain in battle or wounded, and their houses broken open, is the marriage styled
Rakshasa” According to P.V. Kane, this form of marriage is called Rakshasa because ‘Rakshasas
(demons) are known from the legends to have been addicted to cruelty and forceful method.

Traditionally, this form was allowed to the Kshatriyas or military classes. The Gonds of Berar
and Betul also practiced this form of marriage. The Gonds also practiced the marriage by capture
in the name of ‘posisthur’. About Rakshasa form of marriage, says Westermarck among no people
it is known to have been usual or normal mode of conducting a marriage. It is chiefly found either
as an incident of war or as a method of procuring a wife when it is difficult or inconvenient to get
one in the ordinary manner.” In the modern Indian society this Rakshasa form of marriage has
been banned, and its practice is a punishable offence vide section 366 of IPC.

(8) ‘Paishacha’ form of marriage:

 16

It is the worst form of marriage among the Hindus. When the lover secretly embraces the
damsel, either sleeping of flushed with strong liqueur, or disordered in her intellect, that sinful
marriage, called paishacha is the eighth and the lowest form. This form of marriage was the most
abominable and reprehensible, originating from a sort of rape committed by man upon a damsel
either when asleep or when made drunk by administering intoxicating drug. P.V. Kane thinks that
this marriage is called paishacha because in it there is action like that of pisachas (goblins) that are
supposed to act stealthily at night Vatsyayan’s ‘Kamasutra’ places the paisacha form of marriage
as the seventh, before the Rakshasa and thus considers it better than the Rakshasa form of marriage.
According to Sir G.D. Banerjee the paishacha form of marriage has been enumerated as a form of
marriage only out of regard for the honour of the unfortunate damsel.

The difference between the ‘Paishacha’ and the ‘Rakshasa’ forms of marriage lies in the fact
that whereas in the latter there is the scope of display of bravery and force at the same time, in the
former the maiden is taken by deception and fraud. Therefore, Sternabach considers the
‘Paishacha’ form of marriage as a part or a special branch of the ‘Rakshasa’ vivaha. However, in
the modern socio-cultural matrix, this form of marriage is a punishable offence under the I.P.C. as
rape as the principle of law holds that a culprit should not be allowed to be benefited for any wrong-
doings caused by him.

Out of the eight forms of Hindu marriage, the first four, i.e. ‘Brahma’, ‘Daiva’, ‘Arsha’ and
‘Prajapatya’ were the approved forms of marriage and the last four, such as, ‘Asura’, ‘Gandharva’,
‘Rakshasa’ and ‘Paisacha’ were unapproved forms of marriage. In the first four forms of marriage,
the dominion of the father or guardian over the maiden is fully recognised. The dominion of the
father is completely undermined in the ‘Gandharva’, ‘Paishacha’ and ‘Rakshasa’ forms of
marriage.

In the present Indian scenario, considering from the socio-legal point of view, three forms of
Hindu marriage appear to be existent. These are the Brahma, Asura and Gandharva forms of
marriage. The higher caste Hindus solemnize the Brahma form of marriage in the most cultured
form. The Asura form of marriage is commonly practised among the lower castes and the
Gandharva marriage is gaining momentum among the modern youths in the form of love marriage.
 17

Ceremonies to be performed in a Hindu Marriage

Marriage in the Hindu religion is a sacred tie performed by certain ceremonies and rites which are
necessary for a valid marriage. There are three important stages wherein certain ceremonies are to
be performed.

• Sagai -Hindu engagement is an important pre-wedding ritual in Indian culture, it is a type

of culture in which the bride and groom come face to face and are engaged with a religious
bond by each other’s families. The Hindu tradition of “Vagdanam” dates back to Vedic
period where the groom’s father gives their words to the bride’s father that they will accept
their daughter and will be responsible for their future well being. There are various terms
which are used instead of engagement in different places like Mangi, Sagai, Ashirbad,
Nishchayam etc.

• Kanyadan– The word kanyadan consists of two words- Kanya which is maiden or girl and
daan which means donation. It is the donation of a girl. It is an age-old tradition where the
bride’s father presents his daughter to the groom, giving him responsibility for her future
wellbeing. It is an emotional and sentimental laden ritual which recognizes the sacrifice a
father makes in order to ensure her daughter’s happiness. It is followed till now from the
Vedic times. It is an integral part of traditional Hindu marriage.

• Saptapadi– Saptapadi is a very important and integral component of a typical Hindu

marriage. It is an activity which is undertaken by the bride and groom in front of the fire
god, where couples go around the sacred fire seven times while reciting certain vows. This
movement is also known as phera. Fire or Agni is considered highly sacred in the Hindu
religion, vows taken in front of the Agni are unbreakable. The god of fire, Agni deva is
considered to be a witness to be solemnization of the marriage as well as a representative
of the supreme being to provide his blessing to the newlywed couple. Section 7 of the
Hindu marriage act 1955 states the solemnization of the Hindu marriage, a Hindu marriage
may be performed by all the ceremonies and rituals of both the party or either anyone. It is
concerned with the Saptapadi which means that taking seven rounds around the fire with
their partner; after its completion, marriage becomes complete.
 18

Conditions for validity of a Hindu Marriage

Section 5 A valid marriage shall be solemnized between two Hindus if the following conditions
are fulfilled:

• Any person doesn’t have a spouse living at the time of the marriage. According to the
Hindu Marriage Act, It is not permissible to have two living wives at the same point in
time, which amounts to bigamy. It is punishable under Section 494 of the Indian Penal
Code.

• The groom shall attain the age of 21 and the bride attains the age of 18. It is necessary at
the time of marriage the person shall attain the specified age given in this Act.

• The consent shall not be given by coercion or threat. In the modern world, a father can’t
get the girl married to any without a girl’s consent. Marriage will be void.

• They don’t fall under the Sapinda relationship, or within the degree of prohibited
relationship unless it is allowed by their custom or tradition.

• The person shall be not suffering from any insanity or mental disorder at the time of the
marriage.

Bigamy

Section 5 (i) of The Hindu Marriage Act,1955 prohibits bigamy. Bigamy includes both
polygamy and polyandry which have been abolished and monogamy has been made the rule for
all Hindus. This section provides a condition precedent to every marriage that neither should have
a spouse living at the time of marriage.

Section 11 of The Hindu Marriage Act, 1955 makes a bigamous marriage void and Section
17 of the Act makes it a penal offense for both males and females under Section 494, IPC.

The offense of bigamy is committed only if the required ceremonies of marriage are
performed.[1] It was by The Supreme Court in M.M. Malhotra v. Union of India[2] that, where
a husband had married a woman, whose marriage was in substance then his subsequent marriage
would not be bigamous, his first marriage being void. In the case of a bigamous marriage, the
 19

‘second wife’ has no status of wife, but in case she files a petition for nullity, she can claim both
interim and permanent maintenance.[3]

If a husband (or wife) is about to take a second wife (or husband), the first wife (or husband) can
ask for an injunction from the court.[4] It was held in the landmark judgment of the Supreme Court
where it was held that, when one is already married under the Hindu Law, he by embracing Islam
cannot solemnize a second marriage under Muslim Law, which permits polygamy.[5]

The Supreme Court in Smt. Yamuna Bai Anant Rao Yadav v. Anant Rao Shiva Ram Adhava
AIR 1988 SC 644 has laid down that in the event of a breach of the first condition specified in
Section 5(1) the marriage is rendered null and void under Section 11(1) of the Act and since it is
void ab initio, the wife cannot claim maintenance under Section 125 of the Code of Criminal
Procedure.

Mental Capacity

Section 5 (ii) deals with the mental capacity to consent and some mental disorder. It lays down
that neither party to the marriage should be an idiot or lunatic at the time of marriage.

The three clauses to Section 5(ii) lay down the rules as to unsoundness.

Clause (a) contemplates rules as to unsoundness which should be such which incapacitates a
person from giving a valid consent to marriage. The unsoundness if not persistent will be a
sufficient ground if exists just before marriage.

Clause (b) to Section 5 where the words ‘has been suffering’ is being used indicates that it
postulates the existence of a mental disorder that has been there for some time.

Clause (c) of the same section includes recurrent episodes of insanity or epilepsy into its ambit
making it wider. These conditions specified in the clause relate to pre-marriage conditions and not
to post-marriage mental conditions.[6] A marriage that is in contravention of these conditions is
voidable under Section 12(1)(b) of The Hindu Marriage Act, 1955.

In R. Lakshmi Narayan v. Santhi (AIR 2001 SC 2110), it was held that to brand the wife as unfit
for marriage and procreation of children on account of a mental disorder, it needs to be established
that the ailment suffered by her is of such a nature that, it is impossible to lead a normal married
life with her, making the standard of proof quite strict.
 20

Age of Marriage

Section 5 (iii) of the Hindu Marriage Act, 1955 prescribes the age of the bridegroom to be
twenty-one years at the time of marriage and the bride should be of eighteen years at the time of
marriage. Earlier child marriages were normal in India but, the first attempt to raise the age of
marriage was made in 1929 with the Child Marriage Restraint Act, 1929 which prescribed 15
years as the minimum age for girls and 18 for boys. Later, with the Child Marriage Restraint
(Amendment) Act, 1978 the minimum age of marriage was raised to what it is now.

However, the marriage performed in violation of this condition is valid.[7] The Child Marriage
Restraint Act was later repealed in 2006 by the Child Marriage Prohibition Act, 2006 which
made underage marriages voidable at the instance of a minor spouse and even void under certain
circumstances.

The Prohibition of Child Marriage (Amendment) Bill, 2021, which seeks to raise the legal age
of marriage for Indian women from 18 to 21 years, was sent to a parliamentary standing committee.
The Bill aims to eradicate child marriage and bring about parity in the marriageable age for men
and women. If the bill becomes law it would bring a positive change in the lives of women thus
bringing equality and also women empowerment along with economic development.

Degrees of Prohibited Relationship

Section 3(g) defines ‘degrees of prohibited relationship’ wherein two persons are considered to
be in the degree of prohibited relationship:

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

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

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

iv. If the two are brother and sister, uncle and niece, aunt and nephew, or children of brother
and sister or of two brothers or of two sisters;
 21

As per the rule of exogamy, persons were not permitted to marry within one’s gotra as it meant
family or class. The Smritis and Grihyasutras prohibit sagotra marriages. The three lineal male
ancestors of the founder of the gotra are referred to as pravara denoting the ancestors.

During the British period, in many parts of India, marriages performed in violation of this norm
were made valid.[8] The Hindu Marriage (Removal of Disabilities) Act, 1946 validated sagotra
and sapravara marriages, and the Hindu Marriage Act, 1955 also validated such marriages
providing the list of prohibited relationships in Section 3(g) of the act wherein –

▪ When one is a lineal ascendant (ancestor in an unbroken line of ascent) of the other,
marriage is prohibited with all ancestors or ancestresses.

▪ One cannot marry the wife or husband of one’s lineal ascendant or descendant and there is
no limit to the degree.

▪ One can’t marry the wives of – brother, father’s brother, mother’s brother, grandfather’s
brother (paternal and maternal side), grandmother’s brother (paternal and maternal side).

▪ The following relationships also come under the degree of prohibited relationship as
provided under the Section 3(g)(iv) – brother and sister, uncle and niece (both on the
paternal and maternal side), aunt and nephew (both paternal and maternal sides), and
children of two brothers or two sisters or a brother and sister.

Sapinda Relationship

The prohibitions of sapinda marriage are based on the rule of exogamy. The Dharmashastras
consider any sexual relationship with one’s mother, one’s sister, or one’s daughter or with son’s
wife as the highest sin.[9] The rule consequently established was that one cannot marry a person
related to him within five degrees on the mother’s side and seven degrees on the father’s
side.[10] The Hindus believe in pinda i.e offerings made to the departed soul and by the virtue of
‘pinda-daan‘, one is believed to be connected to one’s six ancestors on the paternal side and four
on the mother’s side.[11]

Section 5(v) of the Hindu Marriage Act, 1955 lays down that, the parties to the marriage should
not be sapindas to each other.
 22

Section 3(f)(i) defines sapinda relationship wherein it states that one person will be sapinda to the
other i.e if he is in direct degrees of ascent within five degrees to the other through the father or
three degrees of ascent to the mother.

Therefore, reducing the earlier existing or believed norm of the sapinda relationship by two
degrees on either side. Rules regarding sapinda relationship are as follows[12]

▪ The sapinda relationship is always traced upward i.e in the line of ascent and not downward
i.e in the line of descent.

▪ The computation of degrees is inclusive of the person concerned and the common ancestor.

▪ If both the persons are sapindas to each other and, in case one of them is not sapinda to the
common ancestor, they will not be sapindas to each other.

▪ In determining whether two persons are sapindas or not, the relationship of the two to each
other or to the common ancestors may be by legitimate relationship, or illegitimate
relationship may be by full blood or half-blood, or maybe by natural birth or adoption as
provided under the Explanation to Section 3.

Some other essential provisions for a Hindu Marriage

Solemnization of Marriage (Section 7)

Section 7 of the Hindu marriage act 1955 states the solemnization of the Hindu marriage, a
Hindu marriage may be performed by all the ceremonies and rituals of both the party or either
anyone. It is concerned with the Saptapadi which means that taking seven rounds around the fire
with their partner; after its completion marriage becomes complete and binding.

• Each party to the marriage declaring in any language shall be understood by each of the
parties.

• Each party to the marriage shall put the ring upon any finger of the other.

• tying of the thali.

The marriage renders to be valid if it is performed between Hindu couples according to the
customary ceremony and rituals of each party or any one of them. Any child born after performing
the marriage according to this section will be legitimate. The beginning of the child before the
 23

dissolution of the marriage is not the cause to dissolve the marriage. It is one of the most important
duties of the father to bring up the girl child, find a suitable boy for her and do Kanyadan for the
girl. Girl leaves their gotra and enters into the gotra of the boy. It is an unbreakable bond that is
tied for the generation to generation. It is a sacrament, not a contract.

Registration of Marriage

The registration of marriage as provided under Section 8 of the Hindu Marriage Act, 1955
has is an attempt by the legislature to create a mode of proof of marriage. The concept of
registration of marriage amongst the Hindus has come with the Hindu Marriage Act and no such
provision was mandatory for the Hindus traditionally.[1] Even the Hindu Marriage Act does not
make the registration of marriage compulsory though it stipulates that the facility for registration
of marriage may be provided.

Under the Act, marriage between two Hindus can only be registered. It was held in the case
of M. Vijayakumari v. K. Devabalan, AIR 2003 Ker 363 that, a marriage between a Hindu man
who converted as Christian and a Christian lady in a Hindu form is not a valid marriage. According
to Section 5 of the Act, marriage can be solemnized between two Hindus.

There are certain ceremonies that can be followed for entering into a marital union. These
ceremonies may vary according to the customs of a community. These are ceremonies known and
recognized by communities and persons. After the marriage ceremony, this act provides for
registration of the marriage. After the marriage ceremony, this act provides for registration of the
marriage.

As per the decision and recommendation of the Supreme Court in Seema v. Ashwin
Kumar[2] the desirability of compulsory registration was recommended. It was recommended
by the Supreme Court in this case, that marriages of all citizens of India belonging to various
religions should be made compulsorily registerable in the States where they are solemnized. The
Supreme Court also gave directions to all the States and Union Territories to file a compliance
report and granted three months as the period of compliance.

In the case of V.D. Grahalakshmi v. T. Prashanth AIR 2012 Mad. 34, the court observed
that the registration of the marriage would not go to show a marriage was solemnized as per the
conditions laid down in Section 7 of the Act. Because the registration of marriage is not a
 24

substantial proof of Hindu marriage if one party repudiates his marriage. The effects of the
production of a certificate are only to the extent that the parties have made statements before public
authority. Such marriage registration is only for the purpose of facilitating the proof of the
marriage.

Section 8 of the Hindu Marriage Act, 1955 enacts that the state government may make rules
relating to the registration of marriages between two Hindus solemnized in the ceremonial form.
The advantage of registration is that it facilitates proof of the factum of marriage in disputed
cases[3]. The Act does not lay down any rules relating to registration but merely empowers the
state government to make rules providing for the registration of Hindu marriages. It also empowers
the state government in its discretion to provide that such registration shall be compulsory[4].

Procedure for Registration

The rules can provide that the parties to any Hindu marriage may, and where registration is
made compulsory, shall have the requisite particulars relating to their marriage entered into in the
Register of Marriages. Sub-section (1) speaks of the “parties to the marriages” and sub-section
(2) speaks of “any person” contravening any rule made on behalf and it seems that the duty of
giving particulars relating to the marriage may be cast on persons other than the parties, for
instance, the parents of the parties or the priest who officiates at the marriage ceremonies[5].

For the registration of marriage presence of both the parties before the Registrar is not
necessary. If the Registrar doubts the identity of one of the parties, only then it is
needed.[6] The Madras High Court in Kagavalli v. Saroja[7] has also opined that the
registration of marriage should be made compulsory. Section 8 lays down that the State
Governments may make rules for keeping of marriage registers and for compulsory entries of all
marriages or some specified marriage therein.

Section 8(5) specifically lays down that failure to register a Hindu Marriage shall in no way,
affect its validity. It deals with only marriage registration that has already been solemnized. For
solemnization, conditions must be fulfilled.

In a decision rendered by the Kerala High Court, it was held that registration of marriages
was only to be done at the Marriage Registration office and directions were issued in this
regard[8]. In a similar judgment by the Orissa High Court where it was held that a document
 25

styled as a deed of marriage would not prove the marriage[9] where a Christian lady claimed
having been married to a Hindu. In the peculiar facts of a case, registration of marriage through a
power of attorney was permitted as the spouses lived abroad and could not travel to India with
their young child[10].

A marriage registered even before the actual marriage ceremony, violates the statutory
provisions[11]. The Register of Marriages is to be open for inspection by any member of the public
and entries made in it are admissible as evidence. A certificate of marriage is no proof of validity
if the marriage is otherwise void, it can however be proof of identity of parentage of offspring of
such marriage[12] It has now been held that it is desirable that all marriages should be
compulsorily registered in the State where they are solemnized [13].

The first step in this marriage registration process is to apply to the sub-registrar under whose
jurisdiction the marriage has been solemnized, or either party to the marriage has been residing.
Both partners will need to fill in the application form duly signed submitted along with two
photographs of the marriage ceremonies, invitation card of marriage, age and address proof of both
parties, affidavit of notary/Executive Magistrate to prove that the couple is married under Hindu
Marriage Act 1955.

Two Hindus, whose marriage is solemnized in accordance with the provisions of the Act can
get their marriage registered under Section 8 and the effect of such registration is stated in Section
18 of the enactment.

All the documents should be attested by a Gazetted Officer and the parties will have to deposit
a fee with the cashier at the sub-registrar and attach the receipt with the Application Form. Once
the application has been submitted and the documents verified, the concerned officer will assign a
date of registration when the marriage certificate document will be issued.

Under the Hindu Marriage Act, 1955, certain conditions have to be fulfilled to consider the
marriage between the parties legal and valid. These conditions have been specified under Section
5 and Section 7 of the Act. Under section 5 of the Hindu Marriage Act 1955, a marriage is
considered valid only if both the parties to the marriage are Hindus. If either of the party to the
marriage is a Muslim or a Christian, then the marriage will not be a valid Hindu marriage.
 26

After due verification of all the documents that have been submitted by the parties, for the
concluding process, a day is fixed for the registration which is communicated to the parties. Both
the parties are required to be present on the said day before the Sub-Divisional Magistrate, along
with the Gazetted Officer. Once the marriage registration process is done, and the SDM is satisfied
with the proceedings, the certificate is granted on the same day.

Consequences of non-registration and penalty for failure to register

Registration of Hindu marriages under the Act is only for the purposes of preserving a record
of the same and facilitating their proof. Omission to do so does not, even when registration is made
compulsory by the state, affect in any manner the validity of the marriage, but will invite the
penalty of a fine, which may extend to Rs 25[14]. Sub-section (4) gives an unrestricted right to
any member of the public to obtain a certified copy of an entry in the register on payment of the
prescribed fee.

Void Marriages (Section 11)

Section 11 of the Hindu Marriage Act 1996 states that any marriage solemnized after the
commencement of the Hindu Marriage Act 1955, if it contravenes any of the provisions of this act,
the marriage will be void. The marriage will have not any legal entity nor will it be enforceable.

Voidable Marriages (Section 12)

Any marriage solemnized after or before the commencement of this will be voidable on the
following grounds:

• No sexual intercourse has been done after the marriage due to the impotence of the
Husband.

• Marriage is in contravention of Section 5 (ii) of this Act which states that the bride shall
attain the age of 18 and the groom shall attain the age of 21.

• There shall be a consent of the bride.

• If the husband has pregnant another woman other than the wife.

• The wife has filed a request for annulling the marriage.

 27

Modern Changes:
The important modern changes are:

• In Hindu society, marriage was considered absolutely compulsory for both men and
women. According to the Hindu scriptures, a person who does not father a child through
marriage cannot reach heaven. No man could perform “yajña” without a wife. Marriage,
therefore, was necessary even for religious purposes. But, due to the influence of Western
culture, many men and women do not consider marriage necessary these days. Due to
financial difficulties, some people also do not get married. The Hindu girl with modern
education is not ready to accept the slavery of men. Educated men and women do not
believe in ancient religious values and therefore do not consider marriage necessary.

• Ancient Hindu tradition forbids the marriage of persons belonging to the same Gotra and
Pravar. This greatly restricts the field of choice of partner. Therefore, at present, educated
people are gradually violating the restriction. It has also been rejected by law.

• After the passage of the Sarada Law, child marriages have become illegal. Another factor
leading to the restriction of child marriage in Hindu society is a huge increase in the
education of women. The boys do not marry early due to the delay in their careers.

• Previously, inter-caste marriage was considered wrong in Hindu society. It is now legally
permitted. With the rise of coeducation, the education of women, and the democratic ideal
of equality and freedom, inter-caste marriages are now seen as signs of advancement.

• Due to the tireless efforts of social reformers and educated person, the remarriage of
widows is no longer considered bad in Hindu society. Consequently, its incidence is now
decreasing.

• Previously, a man was allowed to marry multiple women to have a child. With the
increased education of women, women are demanding equal rights in marriage. The Hindu
Marriage Act of 1955 has made polygamy illegal. No one can marry a second time while
the ex-spouse is alive.

• The Hindu Marriage Act 1955 has made a significant change to the institution of Hindu
marriage by allowing divorce in certain specific circumstances.
 28

• More and more couples are seeking live relationships, not just celebrities, but even middle-
class couples who choose to live together for various personal or social reasons. Some of
these reasons are: society and families no longer disapprove of the “living together
relationship” as much as they used to and couples who do not want to make life-long
commitments prefer to live together before getting married. Others say they need to get to
know each other better before getting married. However, others live together due to
circumstances such as job requirements or to save money by keeping one house instead of
two. Finally, young men and women live together because they no longer believe in the
traditional sanctity of marriage.

Conclusion

This article discusses the concept of Hindu marriage; to whom Hindu marriage act 1955 applies,
how many forms of marriage are valid in Hindu marriage and different ceremonies performed
before the marriage, validity of a marriage, who is sapinda, ritual, and customs of the marriage.

Muslim Marriage & It’s Nature

Marriage i.e. (Nikah) in pre-Islamic Arabia, meant different forms of sex relationship
between a man and a woman established on certain terms. In pre-Islamic days, women were treated
as chattels, and were not given any right of inheritance and were absolutely dependent. It was
Prophet Mohammad who brought about a complete change in the position of women. He placed
women on a footing of almost perfect equality with men in the exercise of all legal powers and
functions, which stand in bold relief when compared with the state of law amongst the ancient
Arabs of the pre-Islamic days.

Under the Muslim law marriage is considered as civil contract. After marriage, a woman does
not lose her individuality. She remains a distinct member of the community; her existence of
personality is not merged into that of her husband. The contract of marriage gives no power to
anyone over her person or property beyond what the law defines. Woman remains the absolute
owner of her individual rights; even after marriage, she can alienate or transfer her property in
any way she pleases without any extraneous control of her husband. She can enter into binding
contracts with her husband and proceed against him in law courts, if necessary.
 29

Definition of marriage (Nikah)

The Arabic word Nikah (marriage) literally means the union of the sexes and in law there are
various sources and texts under Muslim law which defines the context of Marriage. Some of them
are as follows-:

Under section 2 of Muslim Women (Protection Of Rights On Divorce Act 1986)–

Marriage or Nikah among Muslim is a “Solemn Pact” or “Mithaq-e-ghalid” between a man and
a woman, soliciting each other life companionship which in law takes the form of a contract.

In Baillie’s Digest- Marriage has been defined to be a contract for the purpose of legalizing
sexual intercourse and procreation of children.

In Hedaya- “Nikah” in its primitive sense means canal conjunction. Some have said that it
signifies conjunction generally. In the language of law it implies a particular contract used for the
purpose of legalising generation.

Ashabah says- Marriage is a contract underlying a permanent relationship based on mutual

consent on the part of a man and women.

The Prophet Of Islam is reported to have said: “Marriage is my sunna and those who do
not follow this way of life are not my followers”, and that ” There is no monckery is Islam”.

In the case of Shoharat Singh v. Jafri Begum, the Privy Council said that nikah (marriage)
under the Muslim law is a religious ceremony.

Justice Qureshi quoted that “The sanctity attached to the institution of marriage in the Islamic
system has neither been comprehended nor sufficiently appreciated by outsiders. Marriage is
recognised in Islam as the basis of society. It is a contract but it is also a sacred covenant.
Marriage as an institution leads to the uplift of man and is a means for the continuance of the
human race. The main aim of the institution of marriage is to protect the society from foulness and
unchastity. It has also been said that marriage is so holy a sacrament, that in this world it is an
act of ibadat or worship, for it preserves mankind free from pollution”.

Also, according to Kefaya– Marriage is a contract which has for its design or object the
procreation of children; it was also instituted for the comfort of life, and is one of the prime or
original necessities of man.
 30

Thus, we can say that marriage according to Muslim Law, is a contract for the purpose of
legislation of intercourse, procreation of children and regulation of social life in the interest of
society by creating-

• The rights and duties between the parties themselves and,

• Between each of them and the children born from the Union.

Objects Of Marriage

Objects of marriage.-A glossary on Tarmizi sets out five objects of marriage :-

(1) the restraint of sexual passion;

(2) the ordering of domestic life;

(3) the increase of the family;

(4) the discipline of the same in the care and responsibility of wife and children.

(5) the upbringing of virtuous children.

Hedaya on the other hand speaks of the ends of marriage as-:

(i) cohabitation,

(ii) society,

(iii) equal friendship.

The Prophet also says: “Men marry women for their piety, or their property, or

their beauty, but you should marry for piety” and the purposes of marriage are perpetuation
of human race and attainment of

chastity, continence, mutual love, affection and peace.

Nature Of Muslim Marriage

There are divergence of opinion with regard to the nature of Muslim marriage. Some jurists
are of the opinion that Muslim marriage is purely a civil contract while others say that it is a
 31

religious sacrament in nature. In order to better appreciate the nature of Muslim marriage it would
be proper to consider it in its different notions.

Muslim Marriage as a Civil Contract

Muslim marriage, by some text writers and jurists, is treated as a mere civil contract and not
a sacrament. This observation seems to be based on the fact that marriage, under Muslim law, has
similar characteristics as a contract. For instance-:

1. As marriage requires proposal (Ijab) from one party and acceptance (Qubul) from the
other, so is the contract. Moreover, there can be no marriage without free consent and such consent
should not be obtained by means of coercion, fraud or undue influence.

2. Just as in case of contract, entered into by a guardian, on attaining majority, so can a

marriage contract in Muslim law, be set aside by a minor on attaining the age of puberty.

3. The parties to a Muslim marriage may enter into any ante-nuptial or post-nuptial
agreement which is enforceable by law provided it is reasonable and not opposed to the policy of
Islam. Same is the case with a contract.

4. The terms of a marriage contract may also be altered within legal limits to suit individual
cases.

5. Although discouraged both by the Holy Quran and Hadith, yet like any other contract,
there is also provision for the breach of marriage contract.

In the case of Abdul Kadir vs Salima (1886), the analogy of marriage contract with contract
of sale can also be emphasized to be taken as the contractual aspect of Muslim Marriage. Justice
Mahmood while describing the nature of Muslim marriage observed :

“Marriage among Mohammedans is not a sacrament, but purely a civil contract; and though
it is solemnised generally with the recitation of certain verses from the Quran, yet the
Mohammedan law does not positively prescribe any service peculiar to the occasion. And though
a civil contract, it is not positively prescribed to be reduced to writing, but the validity and
operation of the whole are made to depend upon the declaration or proposal of and the acceptance
or consent of the other contracting parties, or of their natural and legal guardian before competent
 32

and sufficient witnesses; as also upon the restrictions imposed, and certain of the conditions
required to be abided by according to the peculiarity of the case.”

From the above observation Justice Mahmood could not be held to have taken the view that
Muslim marriage is nothing but purely a civil contract. Yet its obiter dicta carries the legal
sanctity of ratio decidendi .Also when he approves of Baillie’s view that marriage is also for
the solace of life, he is himself highlighting another aspect of marriage, that is, its social aspects.

In the same case, Justice Mahmood also cautioned that Dower (Mahr) in Muslim marriage
should not be confused with consideration in the context of civil contract. He says that “Dower,
under the Mohammedan law, is a sum of money or other property promised by the husband to be
paid or delivered to the wife in consideration of the marriage. “

In Hedaya ,it is laid down, “The payment of dower is enjoined by the law merely as a token
of respect for its object (the woman), wherefore the mention of it is not absolutely essential to the
validity of a marriage, and, for the same reason, a marriage is also valid, although the man were
to engage in the contract on the special condition that there should be no dower.”

Thus, we see that the similarities of a Muslim marriage to a contract are so pronounced that
some jurists have treated it entirely as a civil contract.

Muslim Marriage As A Religious Sacrament

Another view is that marriage is not purely a civil contract but a religious sacrament too.
Though the sacramental nature of marriage is considered as an Orthodoxy view, it is also supported
by the Judiciary. Taking religious aspects into account muslim marriage is an Ibadat (meaning a
devotional act).

The Prophet is reported to have said that marriage is essential for every physically fit Muslim
who could afford it. The Prophet says “O assembly of youths, whoever among you is able to
have, he should marry, for it is a restraint to the looks and he who is not able let him keep
fast.”

Moreover, the following traditions may also highlight as to why marriage among Muslims is
sacrament in nature.
 33

Prophet Mohammed says- “He who marries completes half of his religion; it now rests with
him to complete the other half by leading a virtuous life in constant fear of God.”

He also says- “There is no act of worship except marriage and faith, which has continued from
the days of Adam and which will continue in paradise as well.”

Many Judicial precepts have also supported the sacramental nature of muslim marriage. In the
case of Anis Begum vs Mohammed Istafa, (1933), where CJ Sulaiman has tried to put a more
balanced view of the Muslim Marriage by holding it both a civil contract and a religious
sacrament. While reviewing Abdul Kadir’s case, he observed : “It may not be out of place to
mention that Maulvi Samiullah collected some authorities showing that marriage is not as a mere
civil contract but as a religious sacrament.”

Justice Mahmood’s observation i.e., marriage is a civil contract cannot be appreciated only
because that upto some extent marriage resembles with civil contract.

After observing minutely it will be found that besides some similarities there are so many
basic differences between the two. For instance :

• Unlike civil contract, it cannot be made contingent on future events.

• Unlike civil contracts, it cannot be for a limited time (Muta marriage is an exception).

• Unlike civil contract, the analogy of lien cannot be applied to a marriage contract.

• Also the contract of sale of goods may be cancelled by an unpaid seller. He may resell the
goods by rescinding such contract, whereas in a contract of marriage, the wife is not entitled
to divorce her husband or to remain with a third person if a part of her dower remains
unpaid.

• Lastly taking into account the view of Justice Mitter that marriage among Muslim is
nothing but a contract for sale of goods. There are buyers and sellers in a contract of sale
and the subject-matter is goods; whereas, in a contract of marriage, the wife herself is to
receive dower and not her parents then who is the seller and what has been sold. If suppose
that woman is a seller and woman’s personality is being sold then this is against the basic
principles of natural justice.
 34

Scope of Muslim Marriage

The Mohamedan law provides for religious and legal aspects to Islamic marriage. Because
along with the Quran and Ijmas also the legal principles laid down are followed in India.

Justice Mahmood in Abdul Kadir v. Salima (1886) ILR 8 All 149 said,

“Marriage among Mohammedans is not a sacrament, but purely a civil contract.”

Aspects of Muslim Law in India

So there are four aspects to Muslim law in India:

Legal aspect

In Muslim law, marriage is not a sacrament, it is a contract as was also reiterated in the case
of Abdul Qadeer v. Salima[1]. This is one of the vital judgments which has been given by the first
judge of the High Court of Allahabad. This judgment also highlights the importance of it being a
religious sacrament.

The Mohammedan Law provides for very rigid implementation of nikah as an institution of
marriage. Anciently, marriage was dealt as a measure for providing security to the women in a
marriage. With the evolution of time, from securing to purchase to the acquisition of a woman by
way of the property was in vogue.

This acquisition of women as property by the mode of accepting the dower given by the man
to the woman and once the woman accepts the dower, it is deemed that she has accepted the nikah
as well. Mahmood J. also stated that though the Mohammedans site their verses of the Quran while
carrying out the nikah, it is still in the nature of the civil contract.

He further stated that this contract of marriage has a purpose and this purpose is to carry on
the lineage of the family. This is the strength of marriage also called the ejab-o-kabool.

There are three conditions under which marriage shall not hold well, i.e.

when there is no consent between the parties,

where there is a breach of provisions in the contract and

the marriage contract should be legal.

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When it comes to marriage in Islamic law, there are two things kept juxtapose to each other.
On one hand, Mahmood J. stated that it is a civil contract and on the other hand, it is also a
sacrament. So we can see that on one hand, there are principles of contract law that is applicable
and on the other hand the principles of Quran.

To fathom this dichotomy, we also need to bring aspects into consideration like the object of
marriage, its aims and purposes and for that,

we need to understand that the Quran and the principles laid down by the Prophet. However,
an institution of marriage is based on love, affection, togetherness between the man and the
woman, sexual relations and the lineage.

Religious Aspect

Marriage is an institution that helps a man to become a better human and for lineage. This is
something which has been said by the Prophet. It is a devotional act between the man and the
woman which is called ibadat and the Prophet expects each and every Muslim man if he is capable,
to provide for healthy livelihood and be a party to the marriage and the man and the woman should
strictly have affection and respect each other. According to certain scholars, Prophet had also stated
that one who is a fit person should be in this contract or else it becomes jihad or sinful.

Prophet believed that one who marries fulfils half his duty as a Muslim by the virtue of
marrying to secure his chastity to defend the almighty and his cause and to be free and one who
marries will be blessed by the almighty. The arguments made in the legal aspect for a marriage to
be a contract is partially incorrect because according to the teachings of Islam, a man who marries
fulfils half the duties of his religion.

Amir Ali stated that it is incorrect to state that marriage is only to protect one’s lineage but it
for the betterment of society and to ensure that people do not indulge in the foulness of chastity.
That is the reason why the Holy Prophet believed that marriages should be conducted in mosques
with the blessings of the almighty and treated nikah to be sunnah which means the marriage was
treated as a tradition.

Prophet further delves into the fathoms of marriage by stating that marriage uplifts the
spirituality and morality of a man and also determines the status of a woman because according to
 36

him, a nobleman shall ensure that the authority and the permission is taken for marriage. The one
who does not pray, stay awake, and fast shall be scolded by the Prophet.

Social Aspect

Now, marriage is a union of two people, a man and a woman, obviously has a social impact
to it. The Mohammedan law puts a woman after marriage on a higher pedestal. The concept of
unlimited polygamy has been restricted in modern times, unlike the ancient era. That the Prophet
expects every Muslim man capable to earn a livelihood and able to maintain a family to be married.

So according to Sulaimaan CJ[2], marriage in Mohammedan law is not only a civil contract
without any religious and moral customs because it also believes in the union of two souls together
by the virtue of love, affection and togetherness.

Ordinary Contract kept Juxtapose to Marriage Contract

In this aspect, Sulaimaan CJ. has a different point of view than Mahmood J. According to
Mahmood J., he drew a parallel of a marriage contract by stating that a contract is an agreement of
sale of goods. He further also applies the right of lien when it comes to an unpaid seller by making
a comparison to an unpaid dower and that a woman can deny the restoration of conjugal rights in
such cases. Sulaimaan CJ.

Further stated that a marriage should not be regarded as sale of goods and that the wife should
not be considered as consideration for the dower paid by the man.

On the other hand, compared the contract of marriage to lien and sale of goods which may
have consequences as follows:

When it comes to the sale of goods in contract law and there is non-payment by the buyer then
the seller has the right to breach the contract and sell the goods to a third party. However, when it
comes to marriage, the wife cannot leave or divorce her husband if the dower is unpaid.

The right to lien applies when the goods are agreed to be sold by the seller to the buyer and
these goods are sent to the buyer and are in transit. The right accrues when the seller has parted his
ways and goods are in transit. However, this concept cannot be applied in case of marriage since
the woman cannot just deny the restoration of conjugal rights until the dower is not paid.
 37

Right to lien also applies in cases of partial fulfilment or partial delivery of the goods.
However, when it comes to marriage and a partial payment of dower is paid, it doesn’t mean that
the woman will go back to the husband’s house and then decide to deny the restoration of conjugal
rights till the dower is not fully paid.

There are two parties to a contract; the one who is selling and the one who is buying and the
goods or the product is the subject matter. However, in a marriage, the wife herself receives the
dower and not her family. This concept helps us to understand the fact that a woman is treated as
a chattel. Before the Prophet, the principles of Mohammedan law stated that the woman is a chattel
and the dower was consideration for the acquisition of women in the marriage and she was treated
as an inheritance after her husband died. But after the Holy Prophet, a woman has been given a
higher pedestal in society.

All arguments made by Mahmood J. are incorrect because dower is treated as a mark of honour
and respect which is given to a woman as a wife.

Further, Muslim marriage is different from a civil contract because a civil contract cannot be
valid by the virtue of future promises and in a civil contract there comes the concept of limited
time. It may be argued that Muta, a type of marriage is one such example. However, Muta marriage
is an exception to a general rule.

Essential Conditions for Muslim Marriage in India

It was Prophet Mohammad who brought a complete change in the status of women. He
advocated for almost equal rights for women in the exercise of all legal powers and functions.
In pre-Islamic Arabia, women were treated as movable possession of men and were not given any
right of inheritance, and were totally dependent on men. Just like Hinduism, Islam is also a strong
advocate of marriage.

Marriage or ‘nikah’ under Muslim law bears much resemblance to a civil contract. Its
essential conditions involve:

• A clear offer and acceptance, which must be given in the same meeting

• A consideration from the husband’s side to the wife’s known as mehr or mahr,

• Between parties competent to contract

 38

• Following Islam as a religion, or even those devoted to similar scriptures in the Sunni
sect.

This is subject to certain prohibitions under the law, such as –

• Bar to marriage during the period of iddat

• Bar by Consanguinity

• Bar by Affinity

Offer & Acceptance

It has been observed by the court in the case Abdul Kadir v. Salima and Anr. that a Muslim
marriage is in the form of a civil contract and therefore the concept of offer and acceptance applies
to a Muslim marriage just like a civil contract. An offer is called ijab in Muslim law and an
acceptance is called qubul.

The offer is made by the husband. It can be either made by the man or a person who has been
authorised by the man. Now, since a Muslim marriage is a contract, it is allowed to have certain
pre-conditions to the marriage and on the fulfillment of the same, the marriage can be accepted by
both the parties. It further needs to be asserted that these terms and conditions should be in
consonance with legal principles and public policy.

What also needs to be understood is that these terms and conditions are to ensure that the
rights of the woman in the marriage are safeguarded. Because, in a Muslim marriage, the man has
the right to divorce the woman by way of talaq which is wider in effect than a Muslim woman’s
right to divorce, called ‘khula’.

The instant talaq by way of uttering the word or the talaq-e-biddat has now been invalidated
by the Hon’ble Supreme Court in the triple talaq case[1].

The acceptance needs to be carried out in a way, where the man or someone on his behalf and
the woman or someone on her behalf needs to give their acceptance to the marriage. This needs to
be taken in the presence of at least one male and two female witnesses who should be adult, sane
Mohammedan.
 39

The Shia sect of Muslims does not mandatorily require the norm of witnesses and it can be
done away with. Moreover, if there is no witness to the marriage, it becomes a mere irregularity
and not invalidation.

Moreover, acceptance can also be made by way of accepting the dower. Once the man offers
the dower to the woman and she accepts the same, it means that the marriage is accepted.

An important condition regarding the offer and acceptance is that both must occur in the same
meeting. Also, the offer of marriage should begin the marriage immediately i.e., an offer of
marrying someone the next month is not a valid offer.

Consideration

Consideration under contract law simply means ‘something for something’. Hence, it is
construed in a Muslim marriage that the woman must receive as a matter of right, a sum of money
from the husband’s side called mehr or dower.

According to the prophet, this dower is a form of honour and respect given to a woman when
she agrees to marry a man by way of accepting the dower. The practical purpose is to ensure the
financial security of the woman in and after marriage.

The right to the dower of a woman can be exerted before cohabitation. The Allahabad High
Court has said in the Nasra Begum v. Rizwan Ali AIR 1980 All 118 case that a woman’s family
can refuse to send her to her matrimonial home if dower is not given. Once the dower is accepted
by the woman, she in return agrees to marry the man. Therefore, the contract is complete.

The contract is, however, subject to the following conditions and prohibitions:

The Competency of Parties

Two factors decide the competency of parties to enter into a marriage under Muslim law – the
age, and soundness of mind.

Once the girl and boy have attained puberty, they become competent to be a party to the
institution of marriage.
 40

This also means that when the girl and the boy are sexually competent to consummate a
marriage, they are allowed. Now, since it is based on physical and emotional features, it becomes
difficult to ascertain the exact age at which it would be a valid marriage.

Throughout history, the usual age is 9 for a girl and 12 for a boy. With the passage of time,
the Privy Council in the case Muhammad Ibrahim v. Atkia Begum & Anr. has set the maximum
age at fifteen years and this age criterion applies to both the man and the woman[2]. The Privy
Council gave two conditions:

1. Attainment of the age of 15 years of the woman

2. Attainment of puberty, whichever is earlier.

And once puberty is attained, the power of authorization either by self or to whoever is
accepting on their behalf arises.

The other consideration is soundness of mind, where it must be seen whether it is a case of
idiocy, i.e., consistent and permanent unsoundness, or lunacy, i.e., acquired unsoundness with
periods of sanity in between. The former is entirely incompetent to contract but the latter may
marry by giving consent in the period of sanity.

In the case of a minor or a lunatic person who is not capable to authorise, then the power of
guardians, parents and family can be regarded. The offer and acceptance on their behalf can be
given by the guardian.

The guardians who are allowed to authorise the marriage of a minor are:

1. The father,

2. The paternal grandfather or anyone higher

3. Brother

4. Mother

5. Maternal uncle or aunt or someone from the family. This is the hierarchy that needs to
be adhered to when the marriage of a minor comes into question.
 41

6. But when none of the guardians mentioned above is there, then a qazi or any
government authority can assume the position of a guardian in the case of a minor
child.

The Religion of the Parties

In Muslim law, the religion of the parties plays a vital role. Since the marriage will be
governed by Muslim laws, it needs to be given a certain status. However, the rules
and sunnah (tradition) differ in the communities of Sunni Muslims and Shia Muslims:

1. Sunni law

In the case of the Sunni sect, when a man marries a woman from another sect, for example, if
a Sunni man marries a Shia woman, then such a marriage is purely an inter-sect marriage. Such
marriages are perfectly valid.

However, there is a difference when a woman is a Christian or a Jew. These are called
the kitabia communities. The word ‘kitabia’ is derived from the word ‘kitab’ which means book.
When there is a marriage which is between a Muslim and a kitabia, then such marriages are allowed
and are valid as well.

However, if the woman is a non-Muslim and also does not belong to the kitabia community,
then the marriage is a ‘Fasid’. This means the man has either married a Hindu or a non-Muslim
nor from the kitabia community. Such marriages are irregular though they are not void. This
irregularity can also be done away with if the woman converts into a Muslim woman. Thereby,
the irregularity is removed and the marriage automatically becomes a valid marriage.

2. Shia law

Shia law is very conservative as compared to Sunni law. The Shia man traditionally can only
marry a Muslim girl. Yes, this would include inter-sect marriage. Meaning a Shia man can marry
a Sunni woman as long as she is a Muslim.

However, unlike Sunni law, a Shia man cannot marry a kitabi or a Hindu girl. And if such
marriage takes place, then it automatically becomes void in Muslim law. However, if the girl
converts into a Muslim, this deformity can be removed.
 42

Shia law allows muta marriages. Muta marriage is one that is temporary or for a limited period
of time. Traditionally, such marriages could be solemnized when the man in the marriage was
travelling for long distances. In that case, a muta marriage could be performed to validate a
marriage between a Shia man and a non-Muslim woman.

Free Consent

For a valid marriage, the free consent of the parties is a must. If the consent is obtained by
means of coercion, fraud, or mistake of fact, it is considered invalid and the marriage is considered
void. In the case of Mohiuddin v. Khatijabibi, the Court held that a marriage is invalid if it is held
without the free consent of the parties.

Certain Prohibitions to Marriage

Marriage during Iddat

Iddat is a time period after the divorce or death of the husband in which the wife (widow or
divorcee) is not allowed to marry anyone else. The purpose behind this is to see whether the woman
remains pregnant with that husband’s child or not, so as to avoid any doubts regarding parentage.
The period is 3 months in case of divorce, and 4 lunar months and 10 days in case of death.

The status of marriage entered into during iddat differs in the case of the Sunni and the Shia
sects of Muslims.

The Sunni men are not allowed to marry during the iddat period. However, if they do, then
the marriage shall assume the status of a mere irregularity and the validity of such a marriage
cannot really be questioned. What this means is that the marriage will be deemed as invalid till the
irregularity, i.e., till the period of iddat exists and upon its end, the irregularity will be removed
and the marriage will become valid.

On the other hand, in the Shia sect, men are prohibited to marry during the iddat period. If a
man does so, then such a marriage is considered void. This disability cannot be removed.

It needs to be highlighted that the period of iddat is only for a specific period of time. As soon
as the expiry of this period, the women are allowed to re-marry and there is no prohibition or
restriction for the same either in the Sunni sect or in the Shia sect.
 43

Consanguinity

Marriage between people within the prohibited degree of blood relation is barred in Muslim
law as well. This means that marriage between people in blood relation up to a certain number of
generations is invalid. For example, a man cannot marry his mother, grandmother, daughter, sister
and niece.

Affinity

Some other relationships are also considered void based on the closeness of the relationship.
For example, a man cannot marry his wife’s grandmother.

Similarly, relationships based on fosterage are also barred to some extent. A man cannot
marry one’s foster grandmother or foster sister. Under Sunni law, some relationships in fosterage
are allowed. In the Shia sect, fosterage and consanguinity are on the same pedestal and both render
a marriage invalid.

Classification of Marriages under the Muslim Personal Laws

Marriage in Islam is considered to be a social contract. The husband and the wife and their
respective families enter into an agreement whereby the husband’s family pays an amount of
money called the dower (mehr) to the girl and her family and in return, the girl agrees to marry the
boy. Therefore, this is a social arrangement which is called nikah in Islam.

Classification of Marriage under Muslim Law

There are two sects of Muslims all over the world divided by their beliefs and traditions, viz.
Sunni Muslims and Shia Muslims. Marriages in both the sects are conducted in different ways
with different traditions and customs and because of which there are several forms of marriage
under Islamic law.

Moreover, as aforementioned, Islamic marriages are social contracts and are legally binding
upon the parties. Hence, since this is a contract, it is classified accordingly.

The classification of marriages under Muslim laws are:

Sahih Nikah (Valid Marriage)

Batil Nikah (Void Marriage)

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Fasid Nikah (Irregular Marriage)

Muta Marriage

1. Sahih Nikah (Valid Marriage)

The term sahih is an Urdu term for the word ‘correct’ or ‘valid’ and as already
explained, nikah means marriage. When all the essential conditions of a Muslim marriage are duly
fulfilled, it is called a sahih nikah or valid marriage.

It means if two Muslim persons (one being the man and the other a woman) enter into an
agreement by way of offer and acceptance and the groom has paid the Mehr for the marriage to
the bride, it is a valid marriage. There are certain social and legal implications of a valid marriage
which can be enlisted hereunder as follows:

The spouses become legally married owing to which they can legally consummate their
marriage.

Due to the marriage, the parties acquire the rights of inheritance over the properties which can
be inherited.

Although, the Muslim law does not allow maintenance to the fie in case of a divorce because
it is believed that the dower paid at the time of marriage is sufficient for her well-being.
Nevertheless, the Supreme Court has made it clear that after a valid marriage, the wife has to right
to alimony and maintenance for her and the children.

The right to maintenance is an independent right beside the right to receive the promised
dower.

The spouses have to be loyal and faithful to each other. However, a Muslim man is allowed
to commit polygamy, so it is only the wife who needs to be loyal to the man after the marriage.

The Quran allows a man to reprimand or chastise his wife by reasonable means if the wife is
disobedient or disloyal towards him.

The kids, if any, who are born due to the consummation of a sahih marriage are considered to
be legitimate children.
 45

In case of the wife being a widow or being divorced by her husband, she is obliged under the
Muslim law to perform the ritual of Iddat under which the wife cannot remarry any other person
before a period of 90 days from the date of death of the husband expires. This is to ensure that the
woman was not pregnant at the time of the husband’s death.

2. Batil Nikah (Void Marriage)

According to the Indian Contract Act, 1872, an agreement that is not legally enforceable is a
void agreement. Similarly, an agreement between a prospective bride and a groom which does not
meet all the essential conditions of a Muslim marriage is a void agreement and any marriage that
takes place in furtherance of a void agreement is called a void marriage or Batil nikah.

In Munshi v. Mst. Alam Bibi[1], the court observed that when there is a permanent or
perpetual prohibition from marriage due to non-adherence of a condition, it is void marriage.

When one or more of the pre-requisites to a valid marriage mentioned above are not fulfilled
by the spouses before marriage, the marriage is void and not binding. The following are certain
situations in which a Muslim marriage is void.

When a marriage takes place between persons who are absolutely incapable.

When a person marries the wife of another man when the marriage of the lady was subsisting.

Marrying more than four wives. In such a case, the fifth marriage and so on becomes void.

Marriage with a Non-Muslim.

In Tanjela Bibi v. Bajrul Sheikh[2], the court held that a marriage with a woman who is
pregnant from before the marriage is void.

The above-mentioned list is mere examples and not an exhaustive list of void marriages. The
essential social and legal implications of void marriage are:

The marriage is void-ab-initio, i.e. void from the very first day of the marriage even if the
marriage is consummated.

A void marriage does entitle the parties to any legal right or bestow any legal duties upon
them.
 46

If the marriage turns out to be void, the right to receive maintenance after divorce is lost.

The kids, if any, born from the consummation of a void marriage are considered illegitimate
and have not right of succession or inheritance.

The spouses do not require to obtain a decree of divorce in case of void marriages. They can
simply part without any legal formalities.

3. Fasid Nikah (Irregular Marriage)

In Ata Mohammed. v. Saiqul Bibi[3], it was observed that when a marriage is temporarily
prohibited and not certainly restricted it is merely irregular or fasid and not void. An irregular
marriage has several aspects involved and various points of view.

Irregular marriages exist only in the case of Sunni Muslims whereas an irregular marriage,
under Shia law, is void marriage. When a marriage is conducted by violating certain or partial
conditions of a valid marriage, it is called an irregular marriage. The best instance of an irregular
marriage is the marriage between a Muslim and a Christian or a Jew.

In general, an irregular marriage is voidable marriage and not void-ab-initio. If the irregularity
can be removed from an irregular marriage, the marriage becomes valid when it is removed. So, if
a Muslim man of the Sunni sect marries a Jewish woman but gets her converted to Islam, the
marriage is valid. The social and legal implications of an irregular marriage depend upon the
question of whether the marriage was consummated or not. These implications are:

• Unless the marriage is consummated, the wife has no right to receive a dower from the
husband in the case, he divorces her.

• The wife is not bound to follow the rule of iddat, i.e. prohibition from remarriage
within 3 months of divorce if the marriage is not consummated.

• The wife has no right to claim maintenance from the husband during the iddat period
of three months.

• If the irregular marriage is consummated and results in the birth of children, the
children will be considered legitimate and shall have all rights of inheritance of
properties.
 47

• According to Shia Law, marriage may be either valid or void. Those marriages which
are irregular under Sunni law are void under Shia Law. However, under Shia Law
marriage contracted without witnesses is valid. it is not void.

4. Muta Marriage

Muta marriage is the fourth kind of marriage that occurs only in Shia Muslims and not Sunni
sect of Muslims. To understand this marriage, it is essential to know the background of this
marriage. Most of the Arabian countries such as Abu Dhabi, Dubai, etc. have Shia sects of
Muslims.

The people usually called the Sheikhs were involved in the business of oil-producing, refining
and exporting. Due to business agreements, they were required to travel far places and stay there
for several days or even months. During this period, the Sheikhs were required to fulfil their sexual
needs and desires but, however, Islam does not allow cohabitation with any woman other than a
person’s own wife.

Therefore, the Sheikhs used to marry the women for a temporary period till they were in that
town and at the time of leaving, they get divorced and the dower was paid as the consideration for
marrying. This concept of marriage was recognized in Muslim personal law by the Shia sect and
is called Muta marriage.

Muta marriage is a temporary marriage between a Shia Muslim man and a woman of Islam,
Jew or Christian religion for a fixed period of time and in return of the payment of a fixed amount
of dower at the time of divorce. The time period and the dower must be informed and accepted by
the bride as well. This marriage is not followed in Sunni Muslims which consider marriage to be
a permanent union and not a temporary affair.

Comparison of Sunni and Shia Marriages

A significant part of the non-Islamic world might see Shias and Sunnis as pretty much the
equivalent. Be that as it may, these are two unmistakable sects of Muslims and ought not to be
mistaken for one another. Both the sects independently have a remarkable arrangement of customs,
conventions and wedding ceremonies.
 48

The manner in which a Shia and Sunni marriage are solemnized varies incredibly. Owing to
the glaring distinction between the ceremonies and traditions of these sects, there are very few
intersect marriages, i.e. marriage between a Sunni and a Shia.

On the basis of procedure

Shia and Sunni’s relationships comprise altogether different wedding capacities. In a Sunni
wedding capacity, it is crucial to have two grown-up consenting guys present for the whole length
of the function as witnesses. Such observers are not required according to the standards of Sunni
separate.

It very well may be done within the sight of just the spouse and the wife. The instance of a
Shia wedding is totally unique as for this situation where the observers are commanded to be
available on account of separation and not when the wedding happens.

On the basis of traditions

Another remarkable contrast between a Shia and Sunni wedding is that in a Shia nikah
function, an aggregate of six stanzas must be conveyed openly. This factor is absent in a Sunni
wedding function. A Sunni nikah service accordingly has a shorter period of time. On account of
a Shia wedding, there is an exceptional shower related function that the lady of the hour and
husband to partake in. There is no such impulse in a Sunni wedding. This function generally
happens before the real wedding.

A significant purpose of contrast between these two organizations is that Shias put stock in a
transitory course of action of marriage. As per such a plan, it is legal for the lady of the hour and
lucky man to go into a marriage for a pre-concurred time allotment. After this time has passed,
the marriage consequently reaches a conclusion except if the lady of the hour and man of the hour
need to at present stay in the marriage.

This arrangement is absent in a Sunni marriage. Sunnis put stock in going into a perpetual
type of marriage as it were. A separation isn’t required when Shias go into a short-lived marriage
understanding. The date when the settlement will reach a conclusion is unmistakably referenced
on the papers relating to the marriage that is occurring.

On the basis of types of marriage

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There are three types of marriage recognized under Muslim personal law all over the world.
These are valid marriage, void marriage and irregular marriage. However, the fourth category
of marriage has emerged in both sects.

Muta marriage is the fourth kind of marriage that occurs only in Shia Muslims and not Sunni
sect of Muslims. To understand this marriage, it is essential to know the background of this
marriage. Most of the Arabian cities such as Abu Dhabi, Dubai, etc. have Shia sect of Muslims.
The people usually called the Sheikhs were involved in the business of oil-producing, refining and
exporting.

Due to business agreements, they were required to travel far places and stay there for several
days or even months. During this period, the Sheikhs required to fulfil their sexual needs and
desires but, however, Islam does not allow cohabitation with any woman other than a person’s
own wife.

Therefore, the Sheikhs used to marry the women for a temporary period till they were in that
town and at the time of leaving, they get divorced and the dower was paid as the consideration for
marrying. This concept of marriage was recognized in Muslim personal law by the Shia sect and
is called Muta marriage. The time period and the dower must be informed and accepted by the
bride as well. This marriage is not followed in Sunni Muslims which consider marriage to be a
permanent union and not a temporary affair.

On the other hand, for over 10 years, the concept of pleasure marriage, called misyar marriage,
has come in vogue and is of extreme relevance in any Muslim marriage, especially in Saudi Arabia
and the other Gulf nations. In such relationships, the lady surrenders a portion of the rights that
Islam allows her, for example, the privilege to a home and to monetary help from her better half,
i.e. the husband considered to be the better half in Islam and, on the off chance that he has different
spouses, the privilege to an equivalent piece of his time and consideration.

Most of the time, these relationships are mystery, without the information on the man’s
different spouses – despite the fact that a marriage contract is drawn up within the sight of
witnesses, and in spite of the fact that assent is generally acquired from the lady’s gatekeeper, and
the marriage is enlisted and archived at the town hall.
 50

Because of the generous increment in the number of misyar relationships as of late, and
considering the contentions over this issue among pastors just as among people in general, the
Institute of Islamic Religious Law, which is a piece of the Muslim World League in Mecca, chose
to address the issue. In a fatwa gave on April 10, 2006, the foundation allowed relationships in
which the lady gives up a home, monetary help, and her part [in joint life] with her significant
other, or part of it, and agrees to the man’s going to her home at whatever point he needs, day or
night.

Difference between Hindu and Muslim marriages

I. Hindu marriage

Marriage in the Hindu religion is in the nature of Sacroscant which are also called samskaras,
basically, the word denotes that it is in the form of a religious rite. Unless a Hindu man takes up a
life of devoting it to the god which is called the ‘Brahmachari or of a ‘sanyasi’, devotees of God.
Samskaras, this word is taken from the word ‘Sam’ which means the significance of a set of
religious rites.

Every person who is a Hindu man ought to marry. People following Hinduism perceived
marriage as a sacrosanct union and a sacrament that is a holy togetherness. It connotes that the
wife in a marriage is created to become a mother and the husband to be a father of a child; as
given in the Manusmriti[1]. Hence, it is often understood as a man and a woman can only be
perfect when they join together in holy matrimony.

In this kind of marriage, there lies an obligation to have a child who can pay off the debt of
the anc3stors and perform all the rituals of a son in the family. There lies great responsibility on
the son because he has to perform many spiritual and religious rites. A wife in a Hindu marriage
is given utmost respect in the family, she is called the ‘Dharam Patni. The word ‘dharma means
religion.

More so that the man and woman are a sacred union and they are united in not only life which
they live on earth but the afterlife as well. In Hindus, the concept of remarriage in the older times
was not recognized. Because there is a belief that a true woman, a wife to the husband shall
preserve herself and will not lay another man in her husbands’ place. Because like already iterated
the concept of togetherness not only limits itself to life but also to the afterlife. It is followed by
 51

the belief that the widow who does not sully the bed of her husband shall go to heaven even if she
does not have a boy child to carry out the rites.

Hence, unlike a Muslim marriage which a contract between the man and the woman, a Hindu
marriage is a sacrament union of two souls in religious rites. Be it in the Manu period or the
contemporary times it still hold goods, that marriage is a sacrament and a union of the two. Though
there was a patriarchal society.

In the holy book called the Shastras, the man is the protector of the family and his wife and
on the other hand the woman, the wife is the ‘jaya’ who is caused on herself. Another source of
Hindu traditions is the dharma where it is believed that the man’s half is the woman he marries.

And the wife is like a true friend of the man. She is also known to be the source of solace to
the soul and the woman who runs the house. She is the friend, confidant and an ultimate supporter
to her husband according to the Hindu scholars it is also believed that the man is also the master
of his wife and she is to obey.

There is a difference of opinion amongst the Hindu scholars, one that there is no scope of
remarrying, since it is believed that the wife is the constant support, householder and that she shall
be his ‘ardhanagi’ for the next seven lives. Thereby, any Hindu woman shall not let another man
lay in the place of her husband. However, parasra and Nadra state that a woman can leave or move
on from her husband under a few circumstances namely;

When he not alive anymore

Under circumstances where he has been thrown out of his community

When he is unable to conceive a baby/ heir

When the woman was coerced into marriage by abduction

If the man has died before consummation of the marriage

For the men in the society, however, there are no such restrictions. He is allowed to marry
another woman as soon as his wife is no more.

II. Muslim marriage

 52

The concept of Muslim marriage and laws are very distinct. The major reason is because of
the nature of the marriages are different. A Muslim marriage is often called a ‘Nikka’ the word
denotes the ‘togetherness of sexes’. Nikka basically means two things, firstly togetherness and
secondly, a contract of marriage between two parties.

The Quran specifically prohibits the man to marry a woman who has been involved with his
father and it is meant to be against nature and despicable.

The reason for marriage amongst Muslims is the uniting of two sexes to ensure a family and
a lineage. A mutual sense of love and devotion amongst the partners who are bound by the contract.
Therefore, it is not only about togetherness but a contractual obligation as well.

The man and woman when divorce cannot get together to marry again until the woman has
married another man. Only after this marriage is there can they marry each other again.

The Quran states that the matrimony amongst them is to ensure that the man and woman can
consummate the marriage.

Therefore a marriage would ensure that:

That the union of the man and woman has meaning to it and not against the law.

That the woman could then have her husbands’ children and procreation is a very important
aspect.

That the lineage of the man can be carried forward by the child.

Therefore this clearly shows that this union of the man and wife is legalised by the way of
marriage such that it clearly is a civil contract between the two. The marriage along with being a
contract also is a sacred and religious union.

In a legal sense the nature of a Muslim marriage also fulfils the conditions imposed by
contract law that are:

Offer and acceptance:

It states that the man may offer the woman the proposal of marriage by way of offering a
dower. And once the dower is accepted by the woman or by someone who has been authorised by
 53

her then the marriage is deemed to be accepted by the woman. So here, we see the fulfilment of
the basics of a contract.

Consideration:

The consideration of the man is the offering of a dower to her and her family and in return,
the woman is offering herself. In contracts, the seller offers the goods to the consumer and the
consumer in return pays a sum of money to attain the goods. Similarly here the man offers a dower
and the woman agrees to marry him. Hence, the second condition is met.

Nature of Marriage:

Muslim women observe “Iddat” after the dissolution of marriage but Hindus do not observe
“Iddat” for contracting marriage Muslim widow is allowed to remarry after waiting for the period
of “iddat” but in the Hindu community though widow remarriage is legally accepted, in practice it
is looked down upon by the Hindu community. Thus, it is clear that Muslim women have not been
given equal rights in marital status as the husband has the right to marry several women at the
same time whereas the wife can marry only one man.

Legal capacity of the parties

In contract law, persons who are minor ( not attained majority) or insane persons are not
allowed to enter into a contract. And such a contract becomes void ab initio. Similarly, the man
and woman need to have attained a majority if not should either be married by the consent of the
guardians or are physically mature to consummate the marriage.

There are certain terms and conditions which can be decided between the couple which is also
called a pre-nuptial agreement between the parties, similar to terms and conditions imposed upon
the buyer and seller while trade between the parties is carried out.

Lastly, if there is a violation of such terms and conditions such that they are not observed by
the agreeing parties then the marriage can be brought to an end. Similarly when there is a breach
of contract between two parties.

This is one side of the belief system in Islamic law with regards to marriages interpreted
strictly upon the writings in the Quran.
 54

However, it is also believed that a Muslim marriage is also a religious and sacred act and are
governed by Sunnas which means traditions.[2]

The prophet advocated the position of women and strongly encouraged the men to marry a
suitable wife to ensure that the man has completed at least half of his duties by the virtue of being
a Muslim man.[3] Also that the man should avoid living an unmarried life without any proper
explanation or devotion to Allah. The religious aspects of this marriage is that it also is for the
society to accept the couple and to ensure that the mans’ lineage is carried forward. It also qualifies
a man to live a purposeful and fulfilled life. And consummation and procreation are vital aspects
of this marriage.

The matrimony further upholds the honour of the man and the woman in the society and gives
rights to the baby out of the marriage to have rights over the property of the family. In older times,
the woman was considered to be property or rather chattel. And it was the duty of the father to
ensure that this chattel is handed over to another man by way of marriage. So the status of the
consummation and procreation of children is legally recognized.

Therefore, as a whole, we understand the Muslim marriage is a civil contract between

competent parties for consideration and can further have certain terms and conditions before
entering into the contract but also has a certain religious aspect to it. The consummation of
marriage and the child is legitimized by virtue of such marriage, the matrimony further stabilises
the status of the domestic life and legacy.

From the above explanation, we can understand that Hindu and Muslim marriage are similar
in only one aspect. That is a religious aspect, where both marriages are legalised by virtue of the
togetherness and union of two souls. However, the major difference is that Muslim marriage is a
civil contract between two parties.

Conclusion

One may conclude the nature of Muslim marriage by the observation of M.C.

J. Jung : “Marriage is an institution of Ibadat clothed in the legal form of contract regulating
sexual intercourse; but its continuance is dependent upon the maintenance of conjugal affection.
 55

In the ultimate analysis it can be said that marriage is Islam is neither purely a civil contract not
as a sacrament. It is devoid of none but the blending of two.

Special Marriage Act

Introduction

The Special Marriage Act deals with inter-caste and inter-religion marriages. Inter caste
marriage is a marriage between people of two different castes. The days had gone by when people
used to marry wherever their parents decided to blindly. The youth now have their own saying and
choice and prefer to marry someone who is more compatible with them than marrying someone
who belongs to their caste or religion. It is them who have to live for the whole of their life with
their partner and therefore, caste or religion is not a matter of utmost consideration now at all. Love
is a beautiful emotion, and something like caste or religion should not weigh it up. All religions
are equal, and marriage shouldn’t be a big deal among them. We are conferred on caste or religion
by birth and not by choice, so why are people of the lower castes seen with shame and disdain?
India is a diverse country, and it is a pity to see things like this happening here. The Special
Marriage Act is, therefore, a special law enacted to provide for a unique form of marriage by
registration wherein the parties to the marriage do not have to renounce their religion.

Applicability

This information is the most important for every Indian to know how they can use it. This Act
includes Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists marriages. This act applies to
all Indian states, except Jammu & Kashmir. This Act applies not only to Indian citizens who belong
to different castes and religions but also to Indian nationals who live abroad.

Requirements

Since Indians believe in marriages with proper rituals, customs, and ceremonies that include
pomp and show & extravagant celebrations, none of them is required by the Special Marriage Act.
The fundamental requirement under this Act for a valid marriage is the consent of both parties to
the marriage. If both parties to the marriage are willing to marry each other, that’s enough; caste,
religion, race, etc. can’t act as a barrier to their union here. For marriage under this Act, the parties
must file with the district’s Marriage Registrar a notice stating their intention to marry each other
in which at least one of the parties to the marriage has lived for at least 30 days prior to the date
 56

on which such notice is filed. After the expiry of 30 days from the date that such notice was
published, the marriage is then said to be solemnized. But if any person related to the parties
objects to this marriage and the registrar finds that it is a reasonable cause of objection, on such
grounds he can cancel the marriage. For a valid marriage, the parties must also give their consent
to the marriage before the marriage officer and three witnesses. These are the basic requirements
for a valid marriage under the Special Marriage Act that every Indian must know about.

Conditions for Marriage

For this special form of marriage, the conditions that must be followed are not very different
from the requirements of other normal marriages that happen within the caste.

These are the conditions to qualify for a marriage under this Act:

The bridegroom must be at least 21, and at the time of the marriage, the bride must be at least
18 years of age. This is the minimum age limit respectively for a boy/girl to marry.

At the time of their marriage, both parties must be monogamous; i.e., they must be unmarried
and at that time should not have any living spouse.

In order to be able to decide for themselves, the parties should be mentally fit, i.e., they must
be sane at the time of marriage.

They should not be related to themselves through blood relationships; i.e. they should not be
subjected to prohibited relationships that otherwise act as a ground for dissolving their marriage.

Changes with the Emergence of Special Marriage Act in India

Succession to the Property

Another important point that why every Indian should have knowledge of SMA (Special
Marriage Act) is that the succession to the property of persons married under this act or any
marriage registered under this act and that their children will be governed under the Indian
Succession Act. But if the parties to the marriage belong to Hindu, Buddhist, Sikh, or Jain
religions, then the Hindu Succession Act will govern the succession to their property.

In 2006, India’s Supreme Court made it necessary to enrol all relational unions. A marriage
can be registered in India either under the Hindu Marriage Act, 1955 or under the Special Marriage
 57

Act, 1954. The Hindu Marriage Act is relevant to Hindus, although the Special Marriage Act is
suitable for all Indian residents regardless of their religion applicable to the Court marriage.

Registration of Marriage under the Special Marriage Act in India

In India, all marriages can be registered either under their respective personal laws (Hindu
Marriage Act, 1955/Muslim Marriage Act, 1954) or under the Special Marriage Act,1954. A
marriage under the Special Marriage Act, 1954 enables people from two distinct religious
backgrounds to unite in the marriage bond. Unlike personal laws, the Special Marriage Act’s
applicability extends to all Indian citizens regardless of their religion. Although marriage laws
allow only the registration of an already solemnized marriage under personal laws, the Special
Marriage Act provides for both solemnizations and legal registration. The Special Marriage Act
has designed a simple means of legally registering a marriage between two people of different
religions, but even if both the concerned parties belong to the same religion, they may choose to
register the marriage under this Act. This is a step-by-step procedure to apply in India for a Special
Marriage Act.

Step-1: Eligibility Check

All the given eligibility criteria should meet before applying for the Special Marriage Act:

Both the intending parties must be Indian citizens.

At the time of the marriage, neither of the parties must have a living spouse. Where either or
both of the parties have been involved in an earlier marriage, it is essential that the earlier marriage
is dissolved legally before applying under this Act.

Both parties must be in a position to grant free and full consent to the marriage.

The intending parties shall adhere to the age limit laid down in this Act. At the time of applying
for marriage, the female should be at least eighteen years old, and the male must have completed
the age of twenty-one.

The Act prohibits marriage solemnization if the intending parties fall within the degree of
prohibited relationships as per the customs governing any of the parties. The degrees of prohibited
 58

relationship vary from custom to custom. The Act’s First Schedule provides for a comprehensive
list of relationships that may be considered prohibited. However, the rule is that it may be
solemnized if a custom governing at least one of the parties allows marriage as intended.

Step-2: Reach out to the concerned Marriage Officer

The district jurisdiction may be invoked in which either of the two parties has a permanent
residence (must live there for at least 30 days prior to the notice being submitted). To apply, reach
the chosen district marriage officer (either the intending husband or the intending wife resides).
The application should be written in accordance with the format set out in the Second Schedule.
For reference, the format is also set out below:

NOTICE OF INTENDED MARRIAGE

To Marriage Officer for the ………………District. We hereby give you notice that a marriage
under the Special Marriage Act, 1954, is intended to be solemnized between us within three
calendar months from the date hereof.

A, B. Unmarried

Widower

Divorcee

C.D. Unmarried

Widow

Divorcee

Witness our hands this …………………………………………..day of ………………….19.

(S.d.) A.B. (S.d.) C.D.

Step-3: Public Notice and Objections

Once such an application has been received by the marriage officer, duly signed by both
parties, the officer shall then issue a thirty-day public notice to raise objections to the intended
marriage if any. The objections generally relate to non-compliance with the conditions referred to
in Section 4 of the Act (also referred to in Step 1). If the conditions are duly met and no such
 59

objections are raised, a marriage certificate should be entered in the Marriage Certificate Book.
Here, both the intending parties and the witnesses are required to sign.

The marriage under this Act can be said to be duly solemnized and registered after having
completed all of the above steps. Please note that you may also need certain documents along with
three witnesses on the day of solemnization. An illustrative list has been provided here:

Proof of Age

Address Proof

Affidavit with regard to Marital Status

Non-Relationship between the parties within the degree of prohibition.

Passport size Photos.

Notice of Proposed Marriage

Any couple wishing to make use of the fruits of this Act is required to issue a written notice
to the district’s “Marriage Officer” where for the last thirty days at least one of the parties to the
marriage has resided. The marriage is usually scheduled to take place within three months from
the date of issue of notice. The notice thus received will be published by displaying it in a
noticeable place in the office of the Marriage Officer. A copy of the notice must also be attached
to a “Marriage Notice Book” that anyone can inspect.

Special Marriage Act 1954 Application Form

Period of Objection

Any objections to marriage regarding age, consent capacity, incest, etc. may be addressed to
the Marriage Officer within 30 days of the notice being published. The Marriage Officer is
mandated to conduct an inquiry into its validity within a 30-day window period of time, during
which the marriage can not be solemnized in case of any objections. If the marriage officer finds
that the objection is valid and decides against the marriage of the parties concerned, the bride or
groom may, within thirty days of such refusal, appeal to the district court. If all the objections
concerned are dealt with, a declaration must be signed by the bride, groom, and any three witnesses
 60

in the presence of the Marriage Officer, who would then countersign it. The marriage will be
solemnized upon the cessation of the objection period in the absence of any objections.

Power of Enquiry

In receiving an objection, marriage officers are granted the following rights:

1. Summoning and enforcing witnesses’ attendance.

2. Examining the witnesses on oath.

3. Demanding documents to produce.

4. Demanding the evidence on affidavits.

5. Issue of commissions for the witness scrutiny.

Unreasonable Objections

If the marriage officer believes that the objection he/she has received is not reasonable and is
not made in good faith, the person making the objection may be on the receiving end of objective
costs of up to Rs. 1,000. The sum received will be awarded to the parties of the proposed marriage
for this purpose.

Objections in Jammu & Kashmir

Any objections regarding a proposed marriage made in Jammu and Kashmir State will be
addressed by the respective Marriage Officer to the Central Government. The Central Government
inspects the case on its own conditions and communicates its decision to the Marriage Officer,
who then implements the decision ordered by the governing body.

Solemnization of Marriage

After clearing objections, the marriage may be solemnized at the expiry of 30 days, if any
field. The notice is valid for 3 months. Before the marriage is solemnized, the parties and three
witnesses should sign declarations in the prescribed form in the presence of the marriage officer.

In whatever form the parties may choose to adopt, marriage can be solemnized. The marriages
can be solemnized either within a reasonable distance from the office of the marriage officer or at
such other place as the parties may wish.
 61

Registration of Marriage Celebrated in Other Forms

Any marriage celebrated, with the exception of those solemnized in accordance with these
provisions, may be registered by a marriage officer under Chapter III of the Act, subject to the
condition that a marriage ceremony has been conducted for the parties under any of the Acts and
that the couple has since led a marital life. Besides that, the conditions for the conduct of marriage
specified in this Act shall apply.

Implications on Family Membership

Any member of an undivided family who professes the religion of Hinduism, Buddhism,
Sikhism or Jainism would be forced to separate from such a family, i.e. a family member married
under this Act would not be considered a part of the family hierarchy after the marriage
proceedings under this Act were terminated.

Restitution of Conjugal Rights

On marriage, it is the parties ‘ primary duty to live together in order to fulfill their marital
obligations. This right to cohabit with one another is called the’ consortium’ right. Husband and
wife have the right to each other’s society, comfort, and affection. The origin of the action seems
to lie in the husband’s early concept of law having a quasi-proprietary right over the wife. It
included the society of his wife as well as its services. The consortium notion presumed a distinct
footing of mutuality with the passage of time. Conjugal rights can not be enforced by either party’s
actions, and by force, a husband can not seize his wife and detain her. If a spouse makes an
infringement of this obligation without any justifiable cause, the other may go to court to restore
his conjugal rights.

Section 22 of Chapter V of the Special Marriage Act, 1954, sets out the conditions under
which a petition for restitution of conjugal rights would be based.

Restitution of conjugal rights – When either the husband or the wife has, without reasonable
excuse, withdrawn from the society of the other, the aggrieved party may apply to 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.
 62

Explanation: Where a question arises as to whether there was a reasonable excuse for
withdrawal from society, the burden of proving a reasonable excuse is on the person who withdrew
from society.

The section’s elements are as follows:

1. The respondent withdrew from the petitioner’s society.

2. Without reasonable cause, the respondent has withdrawn.

3. The burden of proving a reasonable cause lies with the respondent.

In the district court, the petition is filed.

The court is satisfied with the truth of the statement, and there is no other reason to deny the
relief.

Corresponding Law

This section is consistent with Section 9 of the Hindu Marriage Act, 1955, Section 36 of the
Parsi Marriage and Divorce Act, 1869, Section 32 of the Divorce Act, 1869, and Section 13 of the
Matrimonial Causes Act, 1965.

Withdrawal from Society

The word ‘society’ that occurs in the section means the same thing as consortium or
cohabitation, i.e. living together as husband and wife in a place called ‘matrimonial home’. It is
therefore evident that withdrawal from the other’s society would mean withdrawal from the
matrimonial home by either spouse that would involve a total loss of consortium such as desertion.
Society withdrawal involves two elements: animus and factum. This means that the withdrawing
spouse intends to put an end to the cohabitation and, secondly, the mere intention of withdrawal
would not amount to withdrawal unless it is combined with the factum of separation on the part of
spouse’s withdrawn.

Cohabitation

Cohabitation does not necessarily mean that parties live together under the same roof, but
there may be cohabitation states where they see each other as much as they can and yet are not
separated.
 63

Kay v. Kay, (1904), A man may cohabit with his wife even if he is away or on a visit or on
business because it does not determine the conjugal relationship in any form.

G v. G, (1930), A husband can not be considered to have deserted his wife without reasonable
cause because he is forced to live away from her because of his work in life.

Matrimonial Home

Shastri law was based on the principles that the wife is bound to live with her husband and
submit herself to his authority. This rule of law that gave the husband the right alone to set up a
matrimonial home in preference to the wife was based on a custom that reflected the condition of
the age in which the custom was practised. Moreover, the husband’s right to establish a
matrimonial home is not a law proposition; it is simply a proposition of ordinary good sense arising
from the fact that the husband is usually the bread earner and has to live near to his work. It
becomes quite natural in such circumstances that the husband should have the right to choose a
matrimonial home. India’s Constitution gives both sexes equal status, so both have equal rights to
pursue their careers. Now the casting vote on the choice of the matrimonial home is not with the
husband or wife, but it is a matter that has to be decided in a friendly manner between them.

Case Reference

In several cases, the question as to what amounts to withdrawal from society came to our
courts in an interesting way: does the refusal of the wife to give up her job in the husband’s case
amount to withdrawal from the husband’s society? In several cases, the question came before the
Punjab High Court for consideration and in the affirmative, it was answered. In the cases Tirath
Kaur v. Kirpal Singh AIR 1964 Punj 28, Gaya Prasad v. Bhagwati AIR 1966 MP 212 (DB), and
Kailashwati v. Ayodhya Prakash 1977 HLR 175, The courts held that the husband had the right to
decide the matrimonial home and that the wife had to resign and live with him. The other view,
which is contrary to this extreme opinion, as held in S. Garg v. K. M. Garg, AIR 1978 Del 296, is
that the wife can not be prevented from taking up employment in the present social scenario and
can not be forced to live in the same place where her husband lives. None of the parties shall have
a casting vote, and the matter shall be settled by agreement between the parties, by process of
giving and taking and by reasonable accommodation.

Without Reasonable Excuse

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The burden of proving that he/she has withdrawn with a reasonable excuse would be on the
respondent once the petitioner proves that the respondent has withdrawn from his/her society. A
restitution petition will fail if the respondent is found to have withdrawn from the petitioner’s
society with a reasonable excuse to do so.

It will be a reasonable excuse or reasonable cause under the modern matrimonial law:

If there is a reason for this, the respondent may claim any matrimonial relief. So if the
petitioner is found to have another wife (Parkash v. Parmeshwari, AIR 1987 P & H 37), is guilty
of cruelty (Bejoy v. Aloka, AIR 1969 Cal 477), or is adulterous (Laxmi Malik v. Mayadhar Malik,
AIR 2002 Ori. 5) the petition will fail.

If the petitioner is guilty of any matrimonial misconduct, then it is not sufficient to be the
ground for matrimonial relief but sufficiently weighty and serious.

If the petitioner is guilty of such an act, omission or conduct that makes a living with him
impossible for the respondent.

Jurisdiction

The jurisdiction under the section to entertain a petition for restitution of conjugal rights rests
with the district court. The District Court has been defined in S. 2(e) the Act. It means the principal
civil court of original jurisdiction and a civil court of the city where such court exists. An aggrieved
party may invoke the jurisdiction of a district court if any of the following qualifications are
fulfilled:

1. The marriage has been solemnized within that court’s local limits.

2. The husband and wife both live together within that court’s local limits.

3. Both the husband and wife last lived together within that court’s local limits.

Judicial Separation

Under English law, before the Reformation, the church considered the marriage as a sacrament
which made it impossible to obtain a divorce. The ecclesiastical courts in the case of a marriage
validly contracted granted ‘divorce a men’s et thoro,’ i.e. divorce from bed and board, which did
not allow the parties to remarry. This solution was not divorce, i.e. it didn’t dissolve the marriage.
 65

This solution is now called judicial separation, allowing the parties to live separately from each
other, without dissolving the marriage bond, with the option of re-uniting and re-living together if
conditions change subsequently.

Section 23 of the Special Marriage Act provides for the relief of judicial separation.

(1) A petition for judicial separation may be presented to the District Court either by the
husband or the wife:

(a) on any of the grounds specified in sub-section (1) and sub-section (1A) of Section 27 on
which a petition for divorce might have been presented, or

(b) on the ground of failure to comply with a decree 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 judicial separation
accordingly.

(2) Where the Court grants a decree for judicial separation, it shall no longer be obligatory for
the petitioner to cohabit with the respondent, but the Court may, on the application by petition of
either party and on being satisfied of the truth of the statements made in such petition, rescind the
decree if it considers it just and reasonable to do so.

Corresponding Law

This section is in accordance with Section 10 of the Hindu Marriage Act, 1955, Section 34
Parsi Marriage and Divorce Act, 1936, Section 22 of the Divorce Act, 1869 and Section 12 of the
Matrimonial Causes Act, 1965.

Grounds for Judicial Separation

A district court shall lodge a petition for judicial separation from either the husband or the
wife on any of the grounds that the respondent:

1. Has committed adultery.

2. Has deserted the spouse for a period of two years immediately prior to the petitioner’s
submission without cause.
 66

3. Is imprisoned for an offence as described in the Indian Penal Code for seven years or
more.

4. Has the petitioner treated with cruelty?

5. Has been of unsound mind incurably.

6. Has been suffering from the communicable form of venereal disease.

7. Has suffered from leprosy that the petitioner has not contracted.

8. Has not been heard for at least seven years as being alive.

Where the petitioner is the wife, on the additional ground, she can file a petition for judicial
separation:

That since the solemnization of marriage her husband has been guilty of Rape, Sodomy, or
Bestiality; or

That there has been no cohabitation between her and the husband for not less than one year
after passing a decree or maintenance order against her husband in her favour, or

That her husband has failed to comply with a decree to restore conjugal rights.

The aforementioned grounds are similar to divorce grounds under Section 27 of the Act.

Power of the Court

The District Court must be satisfied with the truth of the statements made in such petition
upon presentation of the petition. If the court is satisfied, a judicial separation decree will be
passed. The parties are free to live apart from one another after the passing of the decree. However,
if it considers it fair and reasonable to do so, the court may rescind the decree of judicial separation
upon subsequent application by either party. In a petition for divorce, if the petitioner fails to
establish the alleged ground for divorce, although facts establish a ground for judicial separation,
the court has the power to pass a decree for judicial separation, even though no such prayer has
been made in the petition, as held in Bhagwan v. Amar Kaur, AIR 1962 Punj 144.

Effect of Decree
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The decree of judicial separation entitles the parties to live separately, and cohabitation is not
compulsory on either party as the essential of the marital relation. But it does not break husband
and wife’s marital status. No one is able to remarry until the divorce decree. Each party may submit
a divorce petition to the district court on the ground that there has been no resumption of
cohabitation as between the parties for a period of one year or upwards after passing a judicial
separation decree.

Nullity of Marriage

The law of nullity refers to impediments to premarriage. The subject matter of impediments
to marriage is covered under the capacity to marry. If there are certain impediments, parties are
unable to marry each other. If they get married, despite impediments, their marriage may not be
valid. These impediments are generally split into two:

1. Absolute impediments: If there are absolute impediments, a marriage is void ab initio,

i.e. from the start it is an invalid marriage.

2. Relative impediments: If there are relative impediments, a marriage is voidable, i.e.

one of the parties to the marriage may avoid it if he or she wishes.

These impediments classify the marriage into Void and Voidable Marriages.

Void Marriage

A void marriage is not marriage, i.e. from the beginning, it does not exist. It is called marriage
because there are two people who have undergone ceremonies of marriage. Since they absolutely
lack the capacity to marry, they can not become husband and wife just by undergoing marriage
ceremonies. In other words, avoid marriage does not give rise to any legal consequences. No court
decree is required in respect of void marriages. Even when a decree is passed by the court, it simply
declares the marriage to be null and void. It is not the court’s decree that makes such a marriage
void. It is an existing fact that the marriage is void and the court is merely making a factual judicial
statement. In accordance with Section 24 of the Special Marriage Act, 1954, either party can make
a petition for nullity to marriage.
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Void marriage- (1) Any marriage solemnized under this Act shall be null and void and may,
on a petition presented by either party thereto against the other party, be so declared by a decree
of nullity if –

(i) any of the conditions specified in clauses (a),(b),(c) and (d) of section 4 has not been
fulfilled, or

(ii) the respondent was impotent at the time of the marriage and at the time of the institution
of the suit.

(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized
under this Act within the meaning of Section 18, but the registration of any such marriage under
Chapter III may be declared to be of no effect if the registration was in contravention of any of the
conditions specified in clauses (a) to (e) of Section 15:

Provided that no such declaration shall be made in any case where an appeal has been
preferred under Section 17, and the decision of the District Court has become final.

Corresponding Law

This section corresponds to Section 11 of the Hindu Marriage Act, 1955, Section 18 and 19
of the Indian Divorce Act, 1869 and Section 9 of the Matrimonial Causes Act, 1965.

Grounds for Void Marriage

A marriage may be declared void by a decree of nullity on the following grounds:

Any of the conditions stated in clauses (a), (b), (c) and (d) of section 4 of the Act have not
been fulfilled. Such conditions are as follows:

1. At the time of marriage, neither party has a spouse living. The first marriage ought to
be a valid marriage.

2. Neither party is unable to give valid consent.

3. The male should have 21 years of age, and the female should have 18 years of age.

4. The parties are not within the degrees of prohibited relationship.

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5. The defendant was impotent at the time of marriage and at the time of the institution
of the suit. The initial responsibility in the case of impotency is on the petitioner’s wife
to prove the respondent husband’s impotence.

Voidable Marriage

So long as it is not avoided, a voidable marriage is perfectly valid. Only one of the parties to
the marriage may request it to be avoided. If one of the parties refuses to demand the annulment
of the marriage, the marriage will remain valid. If one of the parties dies before the annulment, no
one can challenge the marriage, and it will remain valid forever. All the legal implications of a
valid marriage flow as long as it is not avoided. The grounds for voidable marriages are set out in
Section 25 of the Special Marriage Act.

Voidable marriage: Any marriage solemnized under this Act shall be voidable and may be
annulled by a decree of nullity if:

(i) the marriage has not been consummated owing to the willful refusal of the respondent to
consummate the marriage, or

(ii) the respondent was it the time of the marriage pregnant by some person other than the
petitioner, or

(iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined
in the Indian Contract Act, 1872 (9 of 1872);

Provided that, in the case specified in clause (ii) the Court shall not grant a decree unless it is
satisfied-

(a) that the petitioner was at the time of the marriage ignorant of the facts alleged.

(b) those proceedings were instituted within a year from the date of the marriage. and

(c) that marital intercourse with the consent of the petitioner has not taken place since the
discovery by the petitioner of the existence of the grounds for a decree.

Provided further that in the case specified in clause (iii), the Court shall not grant a decree if:

(a) proceedings have not been instituted within one year after the coercion has ceased or, as
the case may be, the fraud had been discovered, or
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(b) The petitioner has with his or her free consent lived with the other party to the marriage as
husband and wife after the coercion had ceased or, as the case may be, the fraud had been
discovered.

Corresponding Law

This section corresponds to Section 12 of the Hindu Marriage Act, 1955, Section 19 of the
Divorce Act, 1869, Section 32 of the Parsi Marriage and Divorce Act, 1936 and Section 9 of the
Matrimonial Causes Act, 1965.

Grounds for Voidable Marriage

Non-consummation of marriage: Due to the respondent’s willful rejection, the marriage has
not been consummated. In Sunil K. Mirchandani v. Reena S Mirchandani, where the parties had
lived together for about 5 months, and a letter written by a husband to wife indicates his satisfactory
sexual relationship with her, there could be no basis for an annulment of marriage under Section
25(1) of the Act.

Pre-marriage pregnancy: The presumption of law is that a child born during the continuity of
a valid marriage or within the gestation period of 280 days after the dissolution is legitimate unless
there is strong evidence to prove otherwise. The petitioner’s right is somewhat limited to initiate
proceedings on this ground of the respondent’s pregnancy at the time of marriage by an individual
other than the petitioner. In such cases, the court shall not issue a nullity declaration unless it is
satisfied:

1. That at the time of marriage, the petitioner was quite unaware of the fact of pregnancy.

2. The proceedings were initiated within a year of the date of the marriage.

3. That no marital intercourse has happened with the petitioner’s consent since the
alleged facts were discovered.

Coercion or fraud: if either party’s consent to the marriage has been obtained by coercion or
fraud as described in Section 15 and 17, respectively, of the Indian Contract Act 1872, the marriage
can be avoided.
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Section 15 describes coercion as committing or threatening to commit, any act forbidden by

the Indian Penal Code or any unlawful detention or threat of detention of any property, to the
prejudice of any person, with the intention of causing an individual to enter into an agreement.

Section 17 of the Indian Contract Act describes fraud, which implies and involves any of the
following acts committed by a party to a contract or his connivance, or by his agent, with the
intention of deceiving or inducing another party or his agent to enter into the contract:

1. A statement as to a fact that is not true by anyone who does not believe that it is true.

2. The deliberate concealment of a fact by someone who has knowledge or belief of the
fact.

3. A promise made without any intention to perform it.

4. Any other deception-fitting act.

5. Any such act or omission as stated by law to be specifically fraudulent.

In Gitika Bagchi v. Subhabrota Bagchi, AIR 1999 Cal 246, where the wife concealed the fact
that she was 3 years older than her husband, it amounted to fraud as provided in Section 25(iii) of
the Act. In Asha Qureshi v. Afaq Qureshi, AIR 2002 MP 263, hiding of fact by the wife that she
was previously married and widowed at the time of the second marriage is a material fact, and as
such, it amounts to fraud committed on her second husband, he is entitled to a decree of nullity.

The court should not issue a decree of nullity in case of coercion or fraud unless proceedings
were not initiated within one year after the coercion had ended or the fraud had been detected.

The petitioner lived with the respondent with his or her free consent after the coercion been
ended or the fraud had been detected.

In such cases, the petitioner’s acquiescence to such an act or omission will be assumed, and
the petitioner’s right to such scores will be waived.

The legitimacy of Children of Void or Voidable Marriages

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Section 26 aims to give the children begotten a status of legitimacy before the nullity decree
is passed. Where a decree of nullity is issued for void or voidable marriage, it shall be considered
to be a decree of dissolution for the specific purpose of conferring the status of legitimacy on the
children begotten before the decree is issued. But the child from such a union shall have right on
the parents’ property but no rights in or to the property of any person. In those cases, the child is
considered not to be a legitimate child of his parents by a legal fiction.

Divorce

Divorce puts an end to marriage; the parties return to their unmarried status and are free to
marry again. The grounds for divorce are set out in Section 27 of the Act.

Grounds for Divorce

The District Court is the proper forum for filing a divorce petition on any of the following
grounds:

Adultery

The respondent to the case has committed adultery since the solemnization of the marriage.
Adultery is the matrimonial offence in which a married person and a person of the opposite sex,
other than the wife, have consensual sexual intercourse during the subsistence of the marriage, as
held in Dawn Henderson v. D Henderson, AIR 1970 Mad 104 (SB). In view of provision (a) of cl.
(1) of s. 27 of the Act, a single act of adultery may constitute an adequate ground for divorce. As
required in Section 13 of the Hindu Marriage Act, 1955, it is not necessary to prove that the
respondent was ‘living in adultery’.

In the case of adultery, the court must be satisfied that adultery has been committed, beyond
a reasonable doubt. But adultery can, if ever, be proven very rarely by direct evidence of the
witness. Therefore, in most cases, the evidence must be circumstantial in nature and depends on
the probabilities of the situation. However, as in the case of Jyotish Chandra Guha v. Meera Guha,
AIR 1970 Cal 266 (DB), in the absence of wife’s reciprocity, the mere production of love letters
written by a person to a wife will not prove adultery.

Desertion
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The respondent must have deserted the petitioner without cause for at least 2 years before the
petition was submitted. In essence, desertion means intentional permanent forsaking and
abandonment of one spouse by the other without the consent of the other and without reasonable
cause. It is a complete repudiation of the marriage obligations. Desertion is not a withdrawal from
a place, but from a state of things that are necessary for marital life. It is a continuing offence and
must exist for two years immediately before the petition is presented. The essential elements of
desertion are factum or intention to desert or physical separation and animus. All these ingredients
must remain in place during the statutory period. The Doctrine of Constructive Separation is one
when one spouse is compelled to leave the matrimonial home by the conduct of the other. The
spouse that drives out is guilty of desertion. There is no significant difference between the case of
a man who intends to stop cohabitation and leaves his wife and the case of a man who compels his
wife to leave him with the same intention through his conduct.

In Geeta Jagdish Mangtani v. Jagdish Mangtani, 2005 SC 3508, on the ground that the
husband had inadequate income, the wife had abandoned him after seven months of marriage. She
began to live with her parents and gave birth to a child. She did not attempt to rejoin the husband
and continued her job as a teacher. She knew about the husband’s income status before marriage.
Desertion on her part has been proved under the circumstances. Due to the unpalatable atmosphere
in the matrimonial home, the wife left the matrimonial home in Sunil Kumar v. Usha, AIR 1994
MP 1, and the reign of terror that prevailed there drove her out. She was held not guilty of desertion.

Imprisonment

The respondent is subject to a seven-years or more imprisonment decree for an offence laid
down in the Indian Penal Code. On this ground, however, no decree for divorce shall be granted
unless the respondent has already been imprisoned for at least three years out of the said period of
seven years or more prior to the petition being presented.

Cruelty

Since the marriage solemnization, the petitioner must have been treated with cruelty by the
respondent. The term’ cruelty’ was not defined in the Act and could be attached to it as such a
broad meaning. Russell v. Russell, [1897] AC 395, laid down the legal position of cruelty in
divorce proceedings. The legal concept of cruelty is usually described as the conduct of such a
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character as to have caused risk to life, limb or health (physical or mental) or to give rise to a
reasonable apprehension of such danger.

In a divorce proceeding on the grounds of cruelty, the petitioner must prove that the
respondent has behaved in such a way that the petitioner can not be called upon to endure in the
circumstances and that misconduct has caused injury to health or a reasonable apprehension of
such injury. The standard of proof required is the preponderance of probability and not beyond all
reasonable doubt as in criminal proceedings.

Unsoundness of mind

The respondent must be of unsound mind, which is incurable. The burden of proof lies with
the petitioner that the respondent is of unhealthy mind or has suffered from such a kind of mental
disorder continuously or intermittently and to such an extent that it is not reasonable to expect the
petitioner to live with the respondent. The petitioner will also need to prove that the unsoundness
of mind is incurable. If the court finds that the respondent’s unsoundness of mind is incurable, it
does not interfere with the degree of unsoundness of mind for decision-making purposes, as stated
in Lock v. Lock, [1958] 1 WLR 1248.

Venereal Disease

The respondent must be suffering from venereal disease in a communicable form. Where it is
not contracted from the petitioner who provides evidence that he or she has not had any intercourse
with any person other than the respondent, it is a prima facie case that the respondent had
committed adultery. It is then up to the respondent to refute the prima facie case against him by
calling for medical evidence to demonstrate that:

1. The respondent did not suffer from the disease, or

2. The respondent innocently contracted the disease, or

3. The respondent had not committed adultery.

4. The doctor who examined the respondent personally can only provide evidence to this
effect.

Leprosy
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The respondent should have been suffering from leprosy and the disease must not be
contracted from the petitioner. Proving the disease have a communicable nature is not necessary.

Not heard as being alive

The respondent has not been heard by people who are closely related to the respondent as
being alive for not less than seven years. If the person is not heard of for 7 years by those people
who would naturally have heard of him being alive, then it is presumed that the person is dead.
The burden of proving that the respondent is alive lies with the person who asserts it.

Husband is guilty of Rape, Sodomy or Bestiality

The wife can make a petition at the District Court on the ground that her husband has been
guilty of rape, sodomy, and bestiality since the solemnization of marriage. These are also grounds
for prosecution on criminal charges. However, the husband’s conviction on these grounds of
criminal offence is not enough to grant a divorce decree. The commission of the offense must be
proven de novo either by the petitioner calling witnesses or by the respondent admitting guilt; the
court will decide whether any evidence is desirable to be corroborated.

Decree or order of maintenance obtained by the wife

The wife can also file a divorce petition on the ground that she has obtained a decree or
maintenance order and since the passing of such decree or order, she has been living apart and has
no resumed the cohabitation between her and her husband.

No resumption of cohabitation after a decree of judicial separation

The parties have not resumed cohabitation for at least one year after the passing of a decree
of judicial separation. The legislature’s intention to give such space and time to the parties so there
would be a possibility of reconciliation between the parties. In the absence of any such change of
mind of the parties, the legislature believes that for any further period there is no justification for
keeping the right of cohabitation available to the parties. Based on their peculiar facts and
circumstances, each case has to be decided. A single act of cohabitation does not mean the
resumption of cohabitation.

Non-compliance with a decree for restitution of conjugal rights

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There has been no restitution of conjugal rights between the parties for a period of not less
than one year after the decree of restitution of conjugal rights has been passed.

Divorce by Mutual Consent

Under section 28 of the Act, which deals primarily with provisions relating to obtaining a
divorce by mutual consent in respect of a marriage solemnized and/or registered under the Act, a
petition for divorce may be filed with the District Court by mutual consent. The following are
some key points to consider when seeking a divorce by mutual consent:

1. Both parties must present a petition for divorce to the District Court together.

2. There must be a petition on the grounds,

They lived separately for a period of one year or more.

That they were not able to live together.

That they agreed to dissolve the marriage mutually.

3. Only after one year from the date of entering the wedding certificate in the Marriage
Certificate Book then only the petition can be presented. However, in instances where
the petitioner suffers extraordinary hardship or in instances of extraordinary depravity
on the part of the respondent, relaxation may be provided.

4. The petition seeking divorce by mutual consent could be submitted to a district court
within its jurisdiction, either,

The marriage was solemnized.

The respondent resides, or where the wife resides, in the case where the wife is the petitioner.

The parties to the marriage last resided together. or

The petitioner resides, in cases where the respondent is residing outside the territories to which the
Act extends.
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5. Between 6 months after and within 18 months, the date of filing of the petition for
seeking divorce by mutual consent, both parties must make a motion together for
seeking a decree of divorce.

6. Among other aspects, the District Court considers the following, before passing a
divorce decree,

• That the petition has not yet been withdrawn.

• That under the Act, marriage has been solemnized.

• That the petitioner’s averments are true.

• The divorce consent was not obtained through force, fraud or undue influence.

• That there was no unnecessary or inappropriate delay in commencing the proceedings.

Thus, the provisions and procedures under the Special Marriage Act for acquiring divorce by
mutual consent are relatively straightforward and fairly simple.

However, parties wishing to obtain a divorce by mutual consent must bear in mind that the
Act also contains provisions dealing with the granting of alimony and maintenance, both
permanent and during the pendency of the proceedings. In cases of divorce by mutual consent, the
parties may agree on the terms relating to the payment of alimony or maintenance and the same
may be incorporated in the pleadings before the Court. However, care must be taken to incorporate
the appropriate provisions in the pleadings in order to avoid future misunderstandings or litigation.
Therefore, while discussing the various issues related to seeking a divorce by mutual consent with
their advocates, it is advisable that the parties should specifically discuss their arrangement and
alimony and maintenance arrangements, and take appropriate steps to ensure that their interests
are safeguarded.

Restriction on Divorce during 1st year of the marriage

Any person who is married under the Special Marriage Act must be aware of this important
provision of the Act. Unless and until one year has expired from the date of their marriage as
recorded in the marriage books, the parties may not apply for divorce in the District Court.
However, in cases where the court considers that the petitioner has suffered exceptional hardship
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or the respondent has shown exceptional depravity on his part, a request for divorce would be
retained, but if there is any misrepresentation on the part of the petitioner to apply for divorce
before the expiry of 1 year, the court may, if any order has been passed, state that order to take
effect only after the expiry of 1 year, as mentioned in Section 29 of the Act.

Can they remarry?

Speaking of the option of remarriage available for marriages of persons registered under the
Special Marriage Act, 1954, one important thing to bear in mind is that, where the marriage has
been dissolved, and there is no right of appeal available, or there is no petition for it within the
required period, or where the appeal is dismissed, the parties may remarry as provided by the
parties.

The General and Legal understanding

The general understanding is that only marriages are sacred and auspicious which are done in
one’s own caste, whereas the legal aspects of it as discussed above doesn’t make marriages any
less sacred or valid under this act. Our Law, under its provisions, gives every citizen the right to
marry and have a happy life with any person of their choice. But many support this opinion and
criticize it. Some people think it’s valid; some don’t. The effect of arranged marriages on love
marriage has brought about this situation which, even after judgments and laws have been passed
more frequently in this regard, has not brought about a major change in the mindsets of people
who support marriages within religion and caste.

Difference between the Hindu Marriage Act and Special Marriage Act

The Hindu Marriage Act only applies to the Hindus, whereas the Special Marriage Act extends
to all Indian citizens.

The Hindu Marriage Act was enacted in 1955 by the Parliament of India Act. The Hindu
Marriage Act allows for an already solemnized marriage to be registered. It does not provide for
Registrar for solemnization of a marriage. Parties to the marriage must apply to the Registrar in
whose jurisdiction the marriage is solemnized or to the Registrar in whose jurisdiction either party
to the marriage has resided for at least six months immediately before the date of marriage. Both
parties must appear with their parents or guardians or other witnesses before the Registrar within
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one month from the date of marriage. There is a provision for the Registrar, and subsequently, the
District Registrar concerned to condone delay for up to five years.

The Special Marriage Act, 1954, is an Act of the Parliament of India enacted to provide the
citizens of India and all Indian nationals in foreign countries with a special form of marriage,
regardless of the religion or faith practised by either party. The Special Marriage Act provides for
marriage solemnization as well as registration by a marriage officer. The parties to the intended
marriage must notify the marriage officer in whose jurisdiction at least one of the parties has
resided for at least 30 days prior to the date of the notice. It should be put in his office at some
conspicuous place. If either party lives in another Marriage Officer’s area, a copy of the notice for
similar publication should be sent to him. If no objections are received, the marriage may be
solemnized after the expiry of a month from the date of publication of the notice The Marriage
Officer has to enquire into them if any objections are received and make a decision either to
solemnize the marriage or to refuse it. Registration will be made after the marriage has been
solemnized.

Any marriage already celebrated, subject to certain conditions, may also be registered under
the Special Marriage Act after giving a 30-day public notice.

Maintenance For Wife & Children: Under Special Marriage Act, 1954

Alimony During The Pendency Of The Case In The Court

Where, in any proceeding under the Special Marriage Act, 1954, it appears to the District
Court that the wife does not have enough independent income for her support and the required
expenses of the proceeding, the wife may, at the request of the court, order the husband to pay her
the costs of the proceeding and, in the course of the preceding proceeding, weekly or monthly,
such amount should regard to husband’s income, which the court may seem reasonable.

Permanent Alimony and Maintenance

Any court exercising jurisdiction under the Special Marriage Act of 1954 may, at the time of
the passing of any decree or at any time after the decree, order the husband to secure the wife’s
maintenance and support, if necessary, by charge on the property of the husband, such gross sum
or such monthly or periodic payment of money for a period of time not exceeding her life.
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If the District Court is satisfied that there is a change in the circumstances of either party at
any time after it has rendered an order pursuant to subsection (1), it may, in either party’s case,
alter, adjust or cancel any such order in such a manner as it may appear to the Court to be
reasonable.

(3) Where the District Court is satisfied that the wife for whom an order has been made
pursuant to this section has remarried or has not lived a chaste life, it may, in the case of the
husband, change, alter or cancel any such order and in such a manner as the Court may deem
appropriate.

Amount of Maintenance

The maintenance amount shall be purely the Court’s discretion. The court shall take due
account of the following factors in deciding the amount of maintenance, namely:

• The position and status of the parties;

• The fair preference of the claimant;

• If the claimant resides separately, whether the claimant is justified in doing so;

• The value of the claimant’s estate and any income derived from that property or from
the claimant’s own income or from any other source;

Any other relevant facts and circumstances.

By its very nature, the captioned subject is complex. In such cases,after reviewing the relevant
provisions of the law, i.e. the Special Marriage Act, 1954, The Code of Civil Procedure, 1908, The
Limitation Act, 1963, The Evidence Act, 1872, The Code of Criminal Procedure, 1973, Other Acts
& Judgments and Citations of the Hon’ble Supreme Court of India and the High Courts. Even
otherwise, the question of how rules, decisions, and quotations are to be applied is rather more
complicated as it requires a thorough examination of substantive laws, procedural laws and
precedents of the Court in a given set of facts and circumstances.

Case Laws

Maintenance defined
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Maintenance requires — (i) in all cases provisions relating to food, clothes, housing, education
and medical care and treatment; (ii) in the case of an unmarried daughter also the appropriate
expenses and incidents of her marriage, Section 3(b), Hindu Adoption and Maintenance Act, 1956.

Maintenance should also include a residential provision. Maintenance is provided to allow the
lady to live the way she was accustomed to, more or less. Therefore, the definition of maintenance
must include food and clothing provision and the like, taking into account the fundamental need
of a roof over the head, Mangat Mal v. Punni Devi, (1995) 6 SCC 88.

Sustenance defined

Maintaining a wife for her ‘sustenance’ does not mean animal living, but it means leading a
life in the same way that she would have lived in her husband’s house. Bhuwan Mohan Singh v.
Meena, (2015) 6 SCC 353 Husband is obliged to allow his wife to live life with dignity according
to their social status and strata.

Wife defined

“Wife” Contains a woman who was divorced by or obtained divorced from her husband and
not remarried, Section 125(1) Explanation (b), CrPC 1973.

“Wife” means a legally wedded wife under Section 125 CrPC and also involves a divorced
wife, D. Velusamy v. D. Patchaiammal,(2010) 10 SCC 469.

Maintenance only to legally wedded wife

Only a woman who is legally married has a right to maintenance. A Hindu woman who
marries a Hindu male who has a living wife is not entitled to maintenance because the marriage is
void, Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, (1988) 1 SCC 530.

Maintenance to ‘previous wife’

A Muslim husband who contracts another marriage or takes a mistress is liable to pay
maintenance to the previous wife who is also entitled to live separately, which is payable from the
date of the other marriage. Regardless of religion, the husband can not alleviate his liability by
offering to take back the wife and maintain her, Begum Subanu v. A.M. Abdul Gafoor,(1987) 2
SCC 285.
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Wife ‘living separately with mutual consent’ does not include divorced wife

Under Sections 125(1) and 125(4) of the CrPC, the meaning of’ wife’ is different. Section
125(4) refers to a married woman. Wife living separately from a husband with mutual consent
does not mean wife who gets a divorce by mutual consent and lives separately and therefore
maintenance cannot be refused on this ground, Vanamala v. H.M. Ranganatha Bhatta, (1995) 5
SCC 299.

Is an earning wife entitled to maintenance?

Wife having her own school and having wetland is in a better financial position than a husband
who does not do well in his profession and has no land. It is therefore unnecessary for the wife to
pay any maintenance, Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.

Wife’s income to be accounted for determining maintenance

The income of Wife must be taken into consideration in determining the amount of
maintenance payable to her. In Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386, it is not an
absolute right of a neglected wife to get maintenance, nor it is an absolute liability of the husband
to support her in all circumstances.

Maintenance to a woman in a live-in relationship

The Supreme Court expressed its opinion that a broad interpretation of “wife” should include
cases where men and women have lived together as husbands and wives for a relatively long period
of time (live-in relationship/suspected marriage/de facto marriage/cohabitation). Strict proof of
marriage should not be a prerequisite for maintenance under S. 125 CrPC, in order to fulfil the true
spirit and purpose of the beneficial provision of maintenance, Chanmuniya v. Virendra Kumar
Singh Kushwaha, (2011) 1 SCC 141. (However, this decision was referred to a larger bench).

Recently, it is claimed that a woman in a living relationship has an effective remedy for
pursuing maintenance under the Protection of Women from Domestic Violence Act, 2005, even if
it is presumed that she is not entitled to the same under Section 125 CrPC. In addition, the victim
would be entitled to more protection under the Domestic Violence Act than what is envisaged
under Section 125 CrPC, Lalita Toppo v. the State of Jharkhand, 2018 SCC OnLine SC 2301.

Woman knowingly entering in a live-in relationship with a married man

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In the nature of marriage, all live-in relationships are not relationships. There must be some
inherent/essential characteristics of marriage, although not a legally recognized marriage. A live-
in relationship between an unmarried woman who knowingly has a relationship with a married
male can not be defined as a relationship in the “nature of marriage” and her status will be that of
a concubine or mistress and is therefore not liable for maintenance, Indra Sarma v. V.K.V Sarma,
(2013) 15 SCC 755.

Conclusion

Inter-standing marriage segment with respect to the Special Marriage Act. In India, marriage
is considered as a sacred, divine, and was called the holy union. It’s a basic piece of our way of
life. India is a large nation, and thereafter people from different religions and cultures live here.
We know the degree of influence that rank and religion have in our country is still being thought
of in numerous places in our nation as unimaginable. India takes over the position framework after
an exceptionally unbending structure. Individuals are required to marry within their position, and
anyone who marries out of their station and challenges the customary hindrances in the general
public is avoided. There are numerous normal and tragically exposed admiration for killings; they
are proud to do as well. Accordingly, a serious provision for the law came to wed for affection and
to defend the interests of those individuals who transcended those stations and religious partitions.
Thus the Parliament approved the Special Marriage Act of 1954 for individuals of India and for
every single Indian national of outside nations, irrespective of rank or religion. The one of a kind
aspect of the Special Marriage Act of 1954 is that any marriage solemnized in any other manner
under any other law, Indian or nonnative, between any two persons may be enlisted under the Act.

Marriage registration is compulsory under the Indian Christian Marriages Act, 1872. Parsi
Marriage and Divorce Act, 1936 makes significant marriage registration without registration, and
the marriage does not wind up the void. Under Muslim law, a marriage is treated as a traditional
contract, and the Qazi, or cleric administrator, also records the terms of the marriage in a
nikahnama given to the married couple, i.e. there is a provision for private marriage enlistment.
Under Section 8 of the Hindu Marriage Act, 1954 a relational union registry arrangement exists.
Nevertheless, it is left to the contracting gatherings either to solemnize the marriage before the
sub-recorder or to eventually enlist it to perform the task in accordance with Hindu convictions.
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Same sex marriages in India under personal laws

Introduction

Whenever we talk about human as well as civil rights, many of the developed countries have
embraced same-sex marriage. For a long time third genders have been suffering gender-based
discrimination. They have persistently fought for legal recognition of their rights. Protection of
homosexual relationships legally on the equal footing like heterosexuals has now become a
desideratum. The right to marriage is considered a human right. However, there exists no law nor
any legislation which legally enforces such right of transgenders. They were given a hope when
Supreme Court delivered the NALSA judgement. It was the first attempt to legally recognize their
gender and the fundamental rights which conferred to all irrespective of an individual’s sex.

Marriage is considered as one of the important elements of a person’s identity in politico-legal

and socio-economic sense. It is an institution which legally codified under various personal laws
for recognizing the relationship between two parties. It is of great public importance as it gathers
much significance in respect of rights and duties like property, inheritance and those kinds of
related rights. These rights stem from a marriage. In today’s world the institution of marriage is
not only a civil right but it has gained international acceptance. Right to marry is obligatory on the
state. In India, the right to marry is now recognized as a constitutional right, which grants the
freedom to an individual to choose spouse of their own choice.

Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors held, Article 21 confers
freedom of life and liberty, which doesn’t merely amount to physical existence but a qualitative
and meaningful life with dignity. Inherent human dignity is a precondition of warranting the rights
under Article 21 of the constitution. Marriage right is crucial for retaining individual dignity and
also for enjoying meaningful human existence, therefore courts have interpreted marriage to be an
important right under Article 21 of the Constitution.

Although the right to marry according to one’s will have been recognized as a fundamental
right the current scenario doesn’t allows homosexuals to exercise their rights. LGBT community
faces problems for exercising even their most basic rights. The legislators are not making any
efforts to guarantee them their fundamental right of marriage. Most of the developed countries
have recognized same sex marriages in their legislation in order to ensure the legal and social
 85

protection on same footing as heterosexual couples. Various advantages which are available to
heterosexual couples like maintenance, succession, pension rights are denied to homosexual
couples.

After the decision in Suresh Kumar Koushal v. Naz Foundation (hereafter referred as
Koushal) which upheld constitutional validity of section 377 of Indian Penal Code criminalizing
carnal intercourse against nature’s order, most of the argument have focused around the efficient
ways to overturn the decision of the court. This paper not highlights the current social scenario and
position of homosexuals but also argues on the point of significance of legal recognition of
homosexual relationships. It is an undisputable fact that discrimination on the basis of sex is
violative of our fundamental rights enshrined under Article 15.

Sex includes sexual orientation within it and discrimination based on an individual’s sexual
orientation is objectionable under criminal as well as civil laws. The current legislations on
personal laws only recognizes heterosexual marriages, which undoubtedly denies homosexual
couples of the legal and social recognition as well as the benefits which is conferred by these
legislations to married people.

The article concludes that amending personal laws to legalize same sex marriages may not be
a feasible option as it can hurt religious feeling of few sections and subsequently lead to
unfavorable outcomes. Therefore, the viable alternative available to recognize the homosexual’s
rights is to make an amendment in the Special Marriage Act. To do so, one may argue that denial
of marriages rights to homosexuals is violation of their basic right and unfair discrimination against
LGBT (lesbian, gay, bisexual, transgender) community.

The struggle of LGBT community for recognition their rights and against social
discrimination is long and toilsome. The preliminary objective to decriminalize consensual Act of
sex by persons belonging to same class of sex is achieved by most countries by legislations or by
overturning such laws through judiciary. However in West Asia and Africa around seventy-six
countries still holds such conservative laws. India joined them when Supreme Court upheld the
validity of section 377 of the India Penal Code in Koushal.

It overturned the developing decision in Naz Foundation v. Govt. of NCT of Delhi (hereafter
referred as Naz Foundation) by the High Court of Delhi, which decriminalized consensual sex
 86

between adults. The paper focuses on the point that it only decriminalizing same sex acts is not
sufficient for proper recognition and freedom of homosexuals the relevant legal rights should also
be granted to them. It also suggests various alternatives which may be adopted for the recognition.

As it is not just a question pertaining to legal aspects but it is a matter of basic rights which
affects personal lives of many individuals. In a country like India, along with modernization
revivalist and conservative ideas are also at growth. So, opposition because of customs, practices,
religion, tradition acts as an obstruction for liberal legislation. The petition filed by Naz
Foundation was initially dismissed by the High Court of Delhi saying that there existed no cause
of action and it was merely an academic issue. Subsequently it was challenged in a special leave
petition and then the Supreme Court remanded the special leave petition for a fresh
decision. Therefore, considering Koushal it shouldn’t be interpreted that a progressive approach
cannot be adopted.

Homosexuality and the Indian perspective

Homosexuality can be defined as an attraction be it romantic or sexual between two individual

belonging to the same class of sex. It is nothing but enduring disposition to experience sexual
affectionate from people of same sex. To answer the question as to why homosexuality exists in
human scientists have taken on several research. Few biological theories suggest the cause of
sexual orientation of an individual is favoured by either genetic factors or the early uterine
environment or both in combinations. Research shows that it is a normal and natural variation in
which isn’t controlled by an individual. However, even in 21st century some section of society
believes it to be dysfunctional.

In India, it is seen as a taboo since ages. Most personal laws describe marriage as sacrament
and union of two souls between individuals belonging to different sex. Same sex relationships are
considered grossly immoral and violative of custom and religious beliefs. As marriage is a personal
area and is governed by one’s religious faith gay, lesbian marriages are considered unholy. People
in India often believe that it is a part of western culture and it is a bad influence of foreign countries.
However, it is not western practise, because our ancient scriptures and literature reflect somewhat
a similar concept. The Rigveda, one of the sacred texts in Hinduism mentions, ‘Vikriti Evam
Prakriti’ which means what seems to be unnatural is also natural.
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Under Hindu Marriage Act

Hindu Marriage Act governs the marriage and related aspects like divorce etc, of any two
individuals belonging to the Hindu religion. It is applicable to any other person who is by religion
Jain, Buddhist or Sikh within the territory of India. According to the Act marriage in Hindu religion
is considered to have a divine origin and is a sacred union of two individuals for performing
religious duties. In the present environment the most convenient course of action would be to
recognize marriages among same-sex individuals under the personal laws.

The Hindu Marriage Act very specifically states that at the time of marriage the bridegroom
must be of twenty-one years of age bride of eighteen years of age. A similar provision is made in
the Christian Marriage Act using the term man and woman. Almost every Indian personal law
considers marriage as union of heterosexuals. However, same sex marriages are not expressly
prohibited Hindu Marriage Act. In order to recognize them under the personal laws few approaches
that can be possibly made are as follows:

Existing laws can be interpreted so as to allow same sex marriages.

LGBT (lesbian, gay, bisexual, and transgender) can be interpreted as a different community,
the customs of which permits same sex marriages.

Interpretating the Act in such a manner so as to allow same sex marriage, if not then it would
be unconstitutional.

And lastly, make relevant amendments in the Act itself.

Other than using the term bridegroom and bride the Act is neutral in terms of gender. Same
sex marriage can be permissible provided one of them (in homosexual couple) is identified as
groom and another as bride. At one instance the same approach was adopted by a lesbian couple,
one was presented as groom and another was made to be identified as bride.

Although it is opposed to the rules of interpretation of statute and is also not in line with
general understanding of the terms used (bride and groom), the interpretation attempts to mingle
same sex marriage with other traditional forms of marriage. The second approach could be to
recognise LGBT community as a separate community, one which have its own customs and
practices allowing same sex marriage. A similar approach was adopted by Anti-Brahmin and Arya
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Samaj. They started self-respect moment and formed their own ritual and practices for marriage. It
was legally recognized when section 7A was inserted in the Act by an amendment in 1967.

The third approach can be interpretating the Act in such a manner so as to allow same sex
marriage. If not, then the Act may be held unconstitutional on the ground it discriminates on basis
of sex and denies them of their basic right. This argument was supported by Delhi High Court in
the case of Naz Foundation.

However, courts may not be flexible to favor such views after Koushal. In the case of State of
Bombay v. Narasu Appa Mali Bombay High Court held that personal laws cannot be tested on
yardstick of fundamental rights. The last approach is to make desired amendments in the respective
personal laws. It is the most workable solutions among all the above. However, it may prove to be
most difficult and controversial at the same time because of disapproving behavior towards the
LGBT community by a few sections of the society. So, if an amendment is not possible can same
sex marriages happen within the existing legislation?

Interpreting few terms of Hindu Marriage Act

The Hindu Marriage Act lays down certain conditions for a valid marriage, they are:

Union of Spirits- The Act doesn’t use specific terms such as male/female or man/woman. So,
homosexuals can be very well incorporated into it.

Between any two Hindus- The Act mentions, “A Marriage may be solemnized between any
two Hindus…”

No Express Prohibition- The Act doesn’t expressly say marriage can only be solemnized
between two individuals of opposite gender. The Act under section 2 lists down who all are entitled
to marry under it.

Customary rites and Ceremonies- Section 7 says marriage can be solemnized following
customary rituals of either party. The marriage is invalidated if rites are not performed
properly. These ceremonies need to be proved for a legitimate marriage under the Act.

Bride and bridegroom- Only section 5(ii) and section 7(2) uses the term bride and bridegroom.
Rest all other section mentions neutral terms like ‘person’ or ‘party’. The term bride and
bridegroom may be interpretated as roles which parties may prefer in a relationship. Hence, the
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Act is neutral other than using bride and bridegroom in these two sections. Therefore, we can
reasonably contend that same sex can solemnize their marriage if one plays the role of bride and
another plays bridegroom.

Under Special Marriage Act

The Special Marriage Act, 1954 allows for a special type of marriage between parties
irrespective of their faith and religion who don’t wish to be bound by their personal laws. An
alternative which ought not to incite religious hatred is make amendment in the Special Marriage
Act to facilitate same-sex marriages. Marriages under this Act doesn’t requires religious rites and
practices to be performed for a valid marriage unlike marriages under Hindu Marriage Act.

However, the current form of the Act is only applicable to heterosexual couple as it describes
the age criteria by using words such as “male” and “female”. To incorporate homosexual marriages
under the Act an amendment to section 4 (c) is required or it may add a specific provision to
expressly allow the same. Meanwhile, amendment is the best option, it may prove difficult because
of existing BJP govt. While the Congress and the CPI(M) both included de-criminalization in their
manifestos for the Lok Sabha elections, the BJP was clear in its support of the judgment – a party
leader commenting that homosexuality is an unnatural Act that cannot be supported.

At present, many countries have made laws to permit same sex marriages. The Netherlands
was the first to legalize same sex marriage in 2001. However, there were several enactments which
were anti-same sex also. In South Africa, the constitutional court held that same sex marriages are
violation of its Constitution. As section 9(3) of the its constitution states “The state may not
unfairly discriminate directly or indirectly against anyone on one or more grounds, including
pregnancy, gender, marital status, sex, ethnic or social origin, color, race, sexual orientation, age,
disability, religion, conscience, belief, culture, language and birth.”

The decision of Naz Foundation stressed on Article 15 of the Constitution which prohibits
discrimination on the ground of caste, race, sex, religion and place of birth. The court observed
that the term “sex” in Article 15 included sexual orientation within it. Several foreign judgments
were cited in this case for supporting the propositions. It will be discriminating and violative of
Article 15 against homosexual couples if the legislation and personal laws prohibited them based
on their sexual orientation.
 90

Hence, it’s clear that if Special Marriage Act permitted same sex marriages, an argument could
have been made. However, the Suresh Kumar Koushal v. Naz Foundation’s decision may be used
to argue that Special Marriage Act is constitutional as it was enacted after constitution came into
force. After the Supreme Court decriminalized section 377 of Indian Penal Code, there have been
significant of instances where people of homosexual committee are coming out to stand and
demand their rights status. In the case of Shakti Vahini v. Union of India and others the court held
that right to choose a partner is a fundamental right.

Hence, there is not even a single reason as to why same sex marriages shouldn’t be allowed
other than lack of capacity to understand the needs of same-sex couples and blind prejudice There
is significant miscarriage on the government’s part as it is unbale to bring desired amendments in
the existing laws nor it has enacted a separate legislation to address these issues.

The NALSA judgment: a bright side

The decision of National Legal Services Authority v. Union of India & Ors. (hereafter referred
as NALSA) must be praised for criticizing the gender biased discrimination and also for bringing
a ray of hope and the promise which was left outside the legal framework. The division bench
comprising of Justice K.S. Panicker Radhakrishnan and Justice Arjan Kumar Sikri gave legal
identity to all the individuals whose gender doesn’t match with the accepted standards of society.

The judgment proved to be a revolutionary move having great impact on present laws related
to adoption, marriage, inheritance etc. which will now be moved away from general system of
male and female for extending these legal and social rights to third genders. This revolutionary
judgment was delivered just a few months after Suresh Kumar Koushal and another v. Naz
Foundation which gave a regressive decision as it upheld the validity of section 377 of Indian
Penal Code.

Although, the court accepted the discriminating nature of section 377, it also made it clear that
it leaves judgment of Koushal uninterrupted and only focuses on the recognition of third genders.
The court observed “that fundamental rights are available to third gender community in the same
way as it is available to males and females. As of now the hijras community are perceived as third
gender, trans-persons will be having to choose between male or female or continue to be in third
gender category. They will be given the benefits offered by the governmental policies, under
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minorities section as they qualify to be socially backward and disadvantaged class. Majorly these
mandates were made by the court directing Centre and State Governments:

Legal Recognition of Third Gender: Fundamental rights were made available to third genders
like it is available to any other citizen of the country. Not recognizing them in statues (criminal or
civil) like those relating to divorce, adoption, marriage is clear discrimination against the
community.

Social and Economic Rights: Both central and state govts. will be giving the community
several social welfare scheme. The community will be treated as “socially and economically
backward classes” (SEBC) so that they benefit from reservations.

Sanitation and Public Health: Both the govts. are directed to provide proper medical treatment
to the community and they are to be provided with separate toilets in public places. The govts. are
also directed to provide HIV/ Sero- surveillance measures to them.

Public Awareness: Both the govts. are directed to take steps in order to create awareness for
proper incorporation of the community in the society.

Conclusion

The interpretation of marriage varies depending on different cultures. Majorly it is an

institution which seeks to acknowledge personal connections like family and sexual relationship
of an individual. It is clearly visible that homosexuals face discrimination and intolerance, and
exclusion from the normal society. The reasons maybe personal or social. At present 29 out of 195
countries have legalized samesex marriages.

However, still in India it seen as taboo as they are called unholy and unnatural. The anti-
discriminatory judgment in Naz Foundation and NALSA must be built further for overruling
Koushal and achieving the recognition of same-sex marriages legally as well as socially. The most
suitable method would be incorporating homosexual marriages under personal laws. However, it
is indeed a difficult task to amend personal laws to recognize the legality of same-sex relationships
because any intervention in the personal laws may be seen as intervention in religious freedom.
Then another alternative is to make desired amendments under Special Marriage Act on the
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grounds of it being discriminatory to homosexuals by legally not recognizing the “right to

marriage” of the community hence, constitutionally invalid.

If the judgment of Koushal is overruled, then there is great possibility of principle laid down
in Naz Foundation case which prohibits discrimination based on sexual orientation will affirm
prohibition if discrimination under Article 15. Through various judgments like Navtej Singh Johar
v. Union of India, Naz Foundation and NALSA judiciary have taken initial but significant steps
for removing the stigma which is attached to LGBT community. and now it’s the turn of citizens
of the country to address and enforce the principles laid down in these judgments.

Throwing money at hijra community and putting them down every time is an insult to
humanity. These kinds of actions and treatment will only make the struggle of LGBT community
tougher. Therefore, it is extremely essential to make laws in black and white letters for them and
at the same time also enforce them strictly for properly recognizing the human dignity of the
concerned community.

Living together relations

Introduction

There is no particular law as specified with regards to “live-in relationships” in India and no
enactments to define the rights and liabilities of the partners cohabiting in a live-in relationship.
This article deals with the practices necessary for the solemnization of a valid marriage under the
Hindu Law in reference to Section 7 of the Hindu Marriage Act, 1955 and also examines the
status of live-in relationships as recognized by the statues and the courts with regards to the
presumption of marriage as laid down under the Section 114 of the Indian Evidence Act, 1872

Section 7 of the Hindu Marriage Act, 1955 – Ceremonies for a Hindu Marriage

(1) A Hindu marriage may be solemnized in accordance with the customary rites and
ceremonies of either party thereto.

(2) Where such rites and ceremonies include saptpadi (that is, the taking of seven steps by
the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and
binding when the seventh step is taken.

Ceremonies of Marriage under the Hindu Law

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The performance of shastric ceremonies has been deemed to be essential for the solemnization
of marriage under the Hindu Marriage Act, of 1955. The ceremonies and rites as mentioned
under Section 7 of the Act can be classified under two heads[1]:

▪ The shastric ceremonies and rites as prescribed by the Hindu Law, or

▪ The customary ceremonies and rites prevail in the caste or community to which one of
the parties (or both) belongs.

The important shastric ceremonies practiced and performed amongst the Hindus are
– kanyadana (gift of the bride), panigrahan, vivahahoma, and the saptapadi. The most important
and indispensable ceremony to be performed amongst the Hindus is that of saptapadi where the
bridegroom leads the bride for seven steps in the north-eastern direction while reciting the sacred
hymns.

It has been established that it is necessary to perform saptapadi before the sacred fire.
However, the chanting of the mantras is not as necessary when considering the validity of the
marriage and the due performance of the rites would be enough for the solemnization of a Hindu
Marriage.

The Madras High Court in Deivani v. Chindavdram[2] held that the two essential
ceremonies to be performed for the solemnization of a Hindu Marriage are namely, kanyadaan or
the gift of the girl and the saptapadi and if saptapadi is omitted and all other ceremonies are
performed then it cannot be a valid marriage. In a recent judgment by The Calcutta High Court,
Tarapada Jana v. Kumar Bhawani Giri[3] it was held that if Saptapadi is duly performed, the
mere allegations that shlokas were not recited would not invalidate the marriage.

Customary Ceremonies Constituting a Valid Marriage

If there is a customary ceremony prevalent amongst either side of the party and it is performed
with due regard then it will be enough for the validity of the marriage as per the requirement
of Section 7 of the Act. For customary rites and ceremonies to be accepted, it must be shown that
such custom has been followed from ancient times amongst the members of the particular caste,
community, sub-caste, and such ceremony having been received with time the recognition of a
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ceremony being obligatory in nature (Rabindra Nath v. State)[4]. The customary ceremony as
recognized can be non-religious or simple in nature and can consist of only one ceremony.

The performance of saptapadi hence is not a necessary requirement of every Hindu

Marriage. There are many communities in India with their own specific customary
ceremonies which have received valid recognition over the period of time, some are listed
below

▪ Amongst the Santhals, the smearing of vermilion by the bridegroom on the forehead of
the bride is the only essential ceremony.[5]

▪ Amongst the Nayahans of South India, the only ceremony necessary is the tying of a vadu
veeta thali around the neck of the bride.[6]

▪ Amongst the Buddhists, no ceremony is necessary and only mutual consent is enough.[7]

▪ Amongst the Karewa community of the lower caste Hindus, no ceremony is necessary and
if the parties live together as husband and wife with an intention to live as such is enough
to constitute a validly solemnized marriage.[8]

Consequences of Non-Performance of the necessary Rites and Ceremonies

The necessary ceremonies either Shastric or customary as prevalent on the side of the bride or
the groom, must be performed in order to receive the recognition of a valid marriage as per the
Hindu Marriage Act, 1955.[9] It was held by the Supreme Court in Banu Rao v. State of
Maharashtra[10] that the performance of necessary ceremonies has been deemed to be necessary
for the prosecution of bigamy and on the failure of such performance prosecution for bigamy
cannot succeed.

In A.N. Mukerji v. State( 1969 All 489), where a physician was prosecuted for bigamy and
it was alleged that three ceremonies of marriage at three different times were performed i.e one
being the moon ceremony, second being the exchange of garlands in Kali temple after walking
seven steps, an imitation of saptapadi and the third performed before The Guru Grantha Sahib,
an imitation of the Sikh ceremony as the woman was Sikh.

It was held by the court that, the performance of mock ceremonies of marriage does not
constitute valid ceremonies and therefore prosecution for bigamy failed. The question of the
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performance of necessary ceremonies has been held in numerous cases to be important for the
restitution of conjugal rites and if no valid ceremony has been performed the restitution of conjugal
rites cannot be granted.[11]

Status of Live-in Relationships and the Section 114 of the Indian Evidence Act, 1872

There is no particular law as specified with regards to live-in relationships in India and no
enactments to define the rights and liabilities of the partners cohabiting in a live-in relationship.
The law is unclear on this but over the period live-in relationships have been recognized by the
courts. The legal recognition of live-in relationships was for the first time acknowledged in the
Protection of Women from the Domestic Violence Act, 2005 extending protection to those
women who are not legally married but living with a male individual in a relationship.

Section 114 of the Indian Evidence Act, lays down that, the court may presume the existence
of any fact which it thinks likely to have happened, regard being given to the common course of
natural events, human conduct, and public and private business, in a relationship as to the facts of
the particular case. Therefore, where a man and a lady live respectively for a long spell of time as
a couple then there would be an assumption of marriage. Where independent evidence of
solemnization of marriage is not available, it will be presumed to be a valid marriage by continuous
cohabitation between the parties unless the contrary is proved.

It was held in Madan Mohan Singh v. Rajni Kant[12] by the Supreme Court that law
presumes in favour of marriage against concubinage. Therefore, going by the principle, where a
man and a woman have cohabited for a long time they are presumed to be married. It has been also
observed that a long-continued live-in relationship cannot be just a walk-in-and-walk-out
relationship and children out of such relationships are legitimate.

It was held in Anandi v. Onkar[13] that, if a community of neighbours treats a couple as

husband a wife, they are thus reputed to be married and the burden of proof that they were not
properly married lies on the party asserting so.

In a landmark judgment of S. Khushboo v. Kanniammal, The Supreme Court broadened

the horizons and held, that live-in relationships come within the ambit of the right of life under
Article 21 of the Constitution of India and recognized it as a permissible act of two major living
together which cannot be considered illegal or unlawful.
 96

In the case of Indira Sarma v. V.K.V. Sarma(2013), 15 SCC 755 the Supreme Court
observed that a live-in or marriage-like relationship is neither a crime nor a sin though socially
unacceptable in the country. The decision to marry or not marry or to have a heterosexual
relationship is intensely personal. In this case, the court gave out five categories of life in
relationships which can be considered and proved in the court:

▪ Domestic relationship between an adult unmarried man and an adult unmarried woman.

▪ A domestic relationship between a married man and an adult unmarried woman entered
willingly.

▪ A domestic relationship between an adult unmarried man and a married woman entered
willingly. This kind of relationship was punishable under IPC section 497-adultery but this
section has been deemed unconstitutional since 2018. It is still a ground to get divorced.

▪ A domestic relationship between a married man and an adult unmarried woman entered
unknowingly.

▪ Domestic relationships between same-sex partners.

In the case of Tulsa & Ors v. Durghatiya (2008), while referring to Section 114 of the Indian
Evidence Act, 1872 the court held that the provisions under the said section refer to a common
course of natural events, human conduct, and private business. The court shall presume the
existence of facts that are likely to have happened. While interpreting Sections 50 and Section
114 of the Indian Evidence Act, 1872 combinedly, it is evident that the act of marriage is to be
presumed from the view of the common course of natural events.

In a landmark judgment of Dhannu Lal v. Ganeshram(2015), the Supreme Court decided

that couples living in live-in relationships will be presumed legally married. It was also held that
the woman in the relationship would be eligible to inherit the property after the death of her partner.

Conclusion

The essentiality and indispensability of the ceremonies with regards to the valid solemnization
of marriage amongst the Hindus cannot be debated. The Hindu Marriage Act, 1955 has very well
accommodated the needs of different communities amongst the Hindus by giving valid and equal
recognition to shastric ceremonies as well as customary ceremonies important to various
 97

communities. With the evolution of the needs of the times and the practiced social behaviours
where now live-in relationships have become a common phenomenon, an attempt has been made
by the statutes to recognize such relationships in order to facilitate the operation of laws for the
benefit of all.

Dowry
In most of the cultures which are more patrilineal, they expect the wife to live with or near
her husband’s family. Dowries have a long history in Africa, Europe and South Asia. Dowry is
defined, in simple words, as any form of money, goods or estate that a woman brings at the time
of marriage to her husband’s house.

In India, the issue of dowry has prevailed for a very long time now. There are constant changes
that are brought up in the laws. Many people work day and night to spread awareness among
society. Though the situation has enhanced but has not yet been entirely resolved. According to
law, it is illegal to ask or give dowry but does that mean anything given in the form of gifts would
amount to dowry? No, absolutely not.

There is a thin line difference between gifts given under pressure and gifts given out of good
faith, and luckily, we don’t have to use the same word for both of them. Gifts given under pressure,
abuse or in a form of agreement for wedding amounts to dowry but gifts given in good faith,
without any undue-influence are treated as streedhan.

It includes any form of gift or valuables that are only given to the bride. Streedhan is also in
accordance with the Hindu Succession Act, 1956. The husband or his relatives can be held liable
in case they deny to return this when the time comes under Section 405 and 406 of Indian Penal
Code.

Even the courts have ensured that no woman should be denied her right
over Streedhan. In Pratibha Rani vs. Suraj Kumar case, the honourable Supreme court held that a
woman has every right over her Streedhan. A similar case came into the chambers of Punjab and
Haryana High Court. In the case of Bhai Sher Jang Singh vs Smt. Virinder Kaur the court ruled in
favour of the wife and held the husband liable under Section 406 i.e., criminal breach of trust.

Indian laws on the matter

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Section 2 of the Dowry Prohibition Act, 1961 defines the term dowry as “any property or
valuable security given or agreed to give, directly or indirectly.” This can be given by a party to
the other party of the marriage or by the parent of one party to other party or family of the other
party of marriage, at or before or after marriage at any point. Dower or mahr is not included as
dowry in case the person’s marriage falls under Muslim Personal Law (Shariat) Application Act,
1937.

Section 3 of the Act makes accepting as well as giving dowry an offence. This means if the
bride’s family demands dowry and the bridegroom’s family agrees to it, then both parties will be
held liable under this Act.

The person may get imprisonment up to five years and a fine of not less than fifteen thousand
or the amount of dowry whichever is more.

Section 4 of the Act deals with the punishment for demanding dowry. Any person who directly
or indirectly demands dowry from parents, relatives or guardians of the bride or bridegroom shall
be held liable and punished with imprisonment of a minimum of six months to a maximum of two
years and the fine may extend to ten thousand rupees.

In Pandurang Shivram Kawathkar v. the State of Maharashtra, the Supreme Court held that
merely demand without any exchange of dowry amounts to an offence under Section 4 of the
Dowry Prohibition Act.

In another case of Bhoora Singh v. State of Uttar Pradesh, a wife was being ill-treated and
even set on fire. She wrote letters to her father explaining her condition and mentioning her in-
laws’ demands for dowry. The court held that the husband and his family members were liable
under Section 4 of the Act.

Indian Penal Code, 1860 (IPC)

Section 304(B) of IPC deals with matters of dowry deaths. If a wife dies within seven years
of the marriage with any burns or bodily injury or occurs otherwise under normal circumstances
and it is shown that she was subjected to cruelty or harassment by her husband or any relative of
her husband or in connection with, for any demand of dowry, such death will be considered as
‘dowry death’ and such husband or relative or connection of her husband shall be deemed liable.
 99

They can be punished for imprisonment for seven years which may extend to imprisonment for
life.

The definition of “dowry” for this subsection shall be the same as given by Section 2 of the
Dowry Prohibition Act, 1961.

Section 113(B) of the Indian Evidence Act, 1872 covers presumption with regards to dowry
death. When it is questioned whether a person has committed the dowry death of a woman but it
is shown that she was subjected to cruelty or harassment for, or in connection with, any demand
for dowry, soon before her death, the court shall presume that such person is the reason for her
death. The definition of ‘dowry death’ is as mentioned in section 304 (B) of the IPC.

Section 498 (A) of IPC deals with the following:

• Any willful conduct which forces the woman to commit suicide or to cause grave injury or
danger to life, limb or health of the woman; or

• Harassment of women with a view of coercing them to any person related to her to meet
any unlawful demand for any property or any valuable security or is on account of her
failure by her or any person related to her to meet any demands.

Under this Section, a married woman can file a complaint against her husband or in-laws or
any person connected to them when she suffers cruelty at their hands. For this, it is necessary to
understand what kinds of cruelty are covered:

• Cruelty by vexatious litigation.

• Cruelty by deprivation and wasteful habits.

• Cruelty by persistent demand.

• Cruelty by extra-marital relations.

• Harassment for non- dowry demand.

• Cruelty by non-acceptance of girl child.

• Cruelty by false attacks on chastity.

• Taking away children.vi

 1

Module – 3
Restitution of conjugal rightsvii
Marriage under matrimonial laws is a union which binds two people to one another thus
imposing certain marital rights and duties against each other but the most important of which is
that the spouses live together under the same roof and start their family. Therefore, after the
solemnisation of the marriage if either of the spouses without reasonable reason refrains from
fulfilling his/her duty against the other spouse then the latter has a legal right to file a petition for
restitution of conjugal rights. The court after hearing the petition and on being satisfied with the
petitioner may pass a decree of restitution of conjugal rights. Laws in the relation of Restitution of
conjugal rights are of great importance to the Modern matrimonial laws and here in this article, we
will discuss the same.

What is meant by Restitution of Conjugal Rights and by what law is it governed by?

By a bare reading of the phrase, even a layman can understand that it means “the restoration
of the marital rights”. But before diving into what the law means, it is important to know what a
Conjugal Right essentially is. Under Hindu Law, marriage is considered as the most sacred
ceremony. The ceremony of Saptapadi in a Hindu marriage imposes certain rights and duties upon
both the husband and the wife that they have against each other. These rights and duties which are
binding upon both the spouses under Hindu law are termed as Conjugal or Marital rights. Certain
important conjugal rights imposed on the spouses are to reside as Husband and Wife under the
same roof, Procreation, raising a family etc.

Parties to a marriage have great aspirations for their married life but many times things don’t
work and the parties have to go for a divorce. But divorce is a dire step which ends the relation in
its totality therefore when one of the spouses feels that there could be a chance to save their relation,
he/she can file an application for Restitution of Conjugal Rights to have a new start of their marital
relationship. It had its origin in the feudal English Law but was later abolished in the 1970s. An
important note to be made here is that this restitution could be sought for only in the case of a valid
marriage.

A decree of restitution of conjugal rights means that the respondent spouse is ordered to
cohabit with the plaintiff spouse and have to fulfil his/her duty against the other. Under the Hindu
 2

Marriage Act or the Special Marriage Act restitution is the only remedy which could be availed
by a deserted spouse against his/her partner if he/she wants to continue with the marriage.

The decree of restitution of conjugal rights can be enforced through coercive measures in the
form of attachment of property when the party complained against wilfully disobeys the decree
and could also be punished for contempt of court.

Provisions for restitution of conjugal rights is given under Section 9 of the Hindu Marriage
Act, 1955, Section 22 of the Special Marriage Act, 1954 and Order 21, Rules 32 and 33 of the
CPC, 1908.

In Saroj Rani v. Sudarshan Kumar Chadha[i], Hon’ble Supreme Court while validating the
constitutionality of Section 9 of the Hindu Marriage Act dealing with restitution observed that in
cases of restitution of conjugal rights the respondent spouse (here the husband) becomes liable as
per court’s order should cohabit with the aggrieved petitioner and fulfil his marital obligations.

Provisions for restitution of Conjugal Rights under Hindu Marriage Act, 1955 and Special
Marriage Act, 1954

Provision for restitution of Conjugal Rights under the Hindu Marriage Act, 1955 is given
under S. 9 whereas under the Special Marriage Act, 1954 it is given under Section 22. The
provisions read identically and are as follows –

When either of the spouses has, withdrawn from the society of the other without a reasonable
reason, the aggrieved party may file a suit to the district court, for restitution of conjugal rights.
The court, on being satisfied with the petitioner’s arguments in the petition and after confirmation
that there is no legal embargo on such claim can decree restitution of conjugal rights.

This concept is even under Muslim Law which according to Tayabji is as follows –

Where either one of the spouses has withdrawn from the society of the other or has neglected
his duties against the partners without a reasonable reason, the court may interfere and can decree
restitution of conjugal rights.

Therefore, this concept under Muslim Law is directed towards securing the spouse his/her
legal rights. The concept of Restitution of Conjugal Rights in Muslim Law was explained in the
 3

case of Abdul Kadir v. Salima[ii], where the Allahabad High Court held that restitution must be
decreed as per Muslim Law (Sharia) and not based on Judicial Morality or Natural Law.

In Asfaq Qureshi v. Aysha Qureshi[iii], the Chhattisgarh High Court held that in cases of
conversion followed by a marriage where conversion was improper, decree of restitution of
Conjugal Rights cannot be given because the marriage is itself null and void. The court also
observed that a decree of restitution can only be given in case of a valid marriage.

Essentials to file a suit for Restitution of Conjugal Rights

As we have dealt with provisions related to restitution under different laws certain essentials
could be concurred for filing a suit for the same. The essential conditions for filing a suit for
restitution of conjugal rights are as follows –

1. That the respondent has withdrawn from the petitioner’s society.

2. That the withdrawal neither has a reasonable reason nor is legal.

3. That there was no other legal ground for the refusal of relief.

4. That the court is satisfied with the petitioner’s arguments.

Thus, these four grounds form the basis of a suit for restitution under all personal laws. This
was again ratified in the case of Sushila Bai v. Prem Narayan[iv], wherein the court gave an order
of restitution and confirmed the above essentials as a ground for restitution. The court in the same
case also laid down certain situations which could be taken as a defence in a suit of restitution
which is as follows –

1. That the respondent can claim a matrimonial relief as against the suit.

2. That the facts show and it is proven that the petitioner is guilty of misconduct.

3. That due to certain acts or omissions it becomes impossible for the spouses to live together.

Thus, under these circumstances, the suit for restitution is vitiated and the court becomes
bound to a decree for a Judicial Separation followed by a Divorce.

Who has the onus of proof in a suit filed for restitution of Conjugal Rights?
 4

When the court has to decide whether the withdrawal was made on a reasonable excuse, the
burden of proving the reasonability of the excuse is upon the person who has withdrawn from the
society or the respondent. But primarily the onus is on the shoulders of the petitioner to prove the
wrong done against him. Once he/she proves his/her case, the burden shifts over the respondent to
prove the reasonability of his/her excuse. This was also ruled out in the case of P.
RajeshkumarBagmar v. Swathi Rajeshkumar Bagmar[v].

Where can a party move for a suit for restitution of Conjugal Rights?

A party can file a suit for restitution to the District Court in whose jurisdiction – the marriage
was solemnized, the couple stayed or the couple last stayed. Thus, a spouse to file a suit for
restitution of conjugal rights may approach a court with proper jurisdiction.

Can a wife ask for maintenance in cases of suits for restitution of Conjugal Rights?

Section 9 of the Hindu Marriage Act, 1955 in addition to provide for the restitution of conjugal
rights also provides for an opportunity to the petitioner spouse to seek maintenance under Section
25 of the Act. It is to be noted here that maintenance under these provisions could be sought for
even in cases where the action concerning maintenance is still pending. Therefore, a wife who
does not want the disruption of marriage can get maintenance from her husband directly through
these provisions even without actual dissolution. In Seema v. Rakesh Kumar[vi], Hon’ble
Supreme Court held that in cases for decree of restitution of conjugal rights, the petitioner wife
becomes entitled to receive maintenance from her husband if the two are living with each other
and the wife is unable to live a decent life on her own.

Conclusion

As understood from what we have discussed above, it is clear that the restitution of conjugal
rights is a matrimonial remedy which is guided by Indian tradition and custom of sanctity and
purity of marriage. It is aimed at preserving the marriage and not at disrupting it thus promoting
reconciliation and maintenance of the marital bond. It can, therefore, be said that restitution of
conjugal rights is a positive remedy because it is aimed at preserving the noble bond of marriage.

Judicial Separationviii
Introduction
 5

Judicial Separation is an alternative to divorce, through which both the parties to a marriage
are given time to resolve their issues and make efforts to save their failed marriage by living
separately. Judicial separation doesn’t take away the status of a legally wedded husband and wife.
This provision has been adopted by the Indian legislature because marriage is considered as a
‘sacrament’ under Hindu Law and to the Court must prevent the breakdown of such a union.

Hindu Law

Any person who is a Hindu by religion (including a Virashaiva, a Lingayat or a follower of

the Brahmo, Prarthana or Arya Samaj) or who is a Buddhist, Jain or Sikh can apply
for judicial separation under the Hindu Marriage Act, 1955. Once the judicial separation has been
granted, it shall not be obligatory for the parties to cohabit together.

Grounds for Judicial Separation

Either husband or wife may present a petition for judicial separation on any of the following
grounds:

1. Adultery i.e., voluntary sexual intercourse with any person other than his or her spouse

2. Cruelty including both mental and physical cruelty

3. Desertion for a continuous period of not less than two years without reasonable cause and
consent

4. Conversion from Hinduism to any other religion

5. Unsoundness of mind

6. Suffering continuously or intermittently from mental disorder

7. Suffering from a virulent and incurable form of leprosy

8. Suffering from venereal disease in a communicable form

9. Renunciation of the world by entering any religious order

10. Not heard of being alive for seven years or more by those persons

A wife may also present a petition for the judicial separation on the following grounds too
 6

1. Bigamy

2. Guilty of rape, sodomy or bestiality

3. Cohabitation between the parties has not been resumed for one year or upwards after an
order from the court

4. The marriage took place before attainment of the age of fifteen years

Where to file the petition

A petition has to be filed in the District Court of the place where:

1. the marriage was solemnized

2. the respondent resides

3. the parties to the marriage last resided together

4. the petitioner resides under certain circumstances

Islam

A Muslim woman has a right to live separately on the following grounds:

1. Impotency

2. Cruelty

3. Irregular Marriage

4. Failure to perform obligations mentioned in marriage contract

5. Husband has been outcasted

6. Arrangement of marriage by a guardian other than the father

Christianity

Christian couples can obtain judicial separation by filing a petition under The Indian Divorce
Act, 1869.

Grounds for Judicial Separation:

 7

The husband or wife may obtain a decree of judicial separation, on the grounds of:

1. Adultery

2. Cruelty

3. Desertion without reasonable excuse for two years or upwards

Where to file the petition:

Based on the above-mentioned grounds, the aggrieved party can file the petition
for judicial separation before the District Court within whose jurisdiction the marriage was
solemnized, or where the respondent resides, or where the parties last resided together. The petition
shall state, as distinctly as the nature of the case permits, the facts on which the claim is founded.

Difference Between Judicial Separation and Divorce:

Though the grounds and procedure for judicial separation and divorce are the same, there are
certain differences between the two. While divorce ends all the obligations and responsibilities
associated with the marital relationship, judicial separation doesn’t take away the legal status of
wedded husband and wife. Judicial separation doesn’t put an end to the marriage, both partners
are still required to fulfil all the marital obligations except for the fact that they’re allowed to reside
separately. After one year, if there is no resumption of cohabitation, then the couple may be granted
divorce by the Court.

Why Divorce may be considered a better option?

1. Divorce terminates the marriage and puts an end to all the obligations associated with it.

2. Persons who are separated cannot remarry until they formally divorce.

Why Judicial Separation may be considered beneficial?

1. It doesn’t put an end to the marriage and there is still room for reconciliation.

2. It gives both parties time and space to rethink their marriage and make efforts to save their
failed marriage without being compulsorily obliged to reside together.

3. It prevents erratic and hasty decisions of ending marriages.

 8

4. If they fail to overcome differences, they can apply for divorce after one year.

5. During judicial separation, the husband cannot force a sexual relationship with the wife
without her consent, it will amount to rape.

Nullity of Marriage Under the Indian Personal Lawsix

Marriage is a holy arrangement adopted and recognized by society and religion, between man
and woman who are called husband and wife respectively. It is a religious sacrament some time
referred as contract between man and woman to live life together as husband and wife. The concept
of holy wedlock has given it religious sacramental status in religion. In India marriage is also legal
status under different personal laws such as Hindu Marriage Act, 1955, Parsi Marriage and Divorce
Act, 1936, Indian Christian Marriage Act, 1872. There is also Special Marriage Act, 1954 for
certain marriages. Under muslim law marriage is a contract. Though the marriage is a holy wedlock
for life but due to some complexity and prospective development in modern society there are legal
grounds for the end of marriage, or nullify the marriage. Nullity of marriage is a legal declaration
by the court that there was no existence of marriage between two people and marriage was not
valid. It is a declaration that supposed that marriage was never happened.

Difference between nullity of marriage, divorce and judicial separation

Some time people get confused with nullity of marriage, divorce and judicial separation. There
is difference between these three.

Nullity of marriage

Nullity of marriage is a judicial declaration that marriage was not in existence. It refers to the
validity of marriage according to law. It means that there was not a valid marriage has performed
between the parties.

Divorce

Divorce is judicial declaration on the petition of the parties of marriage which led to the end
of valid marriage. In divorce validity of marriage is not questioned but continuation of marriage is
affected and there is end of a valid marriage.

Judicial separation
 9

Judicial separation is judicial declaration on the petition of the parties of marriage to live
separate under the status of marriage. It is not end of marriage. Duties and liabilities remain same
towards each other.

Nullity of marriage under different laws in India

Nullity of marriage under Hindu law

For the hindus according to smrities marriage is an essential sanskar. It is a duty of one to
perform this. Marriage was indissoluble and and essential to perform religious and spiritual
responsibility. Before the parliamentary enactment there was no concept of end of marriage or
nullity of marriage under hindu personal law and marriage it treated as holy and strong wedlock
for whole life. But after enforcement of Hindu Marriage Act, 1955 there are certain grounds on
which marriage shall be declared null and void. These grounds are given under Clause (i), (iv) and
(v) of Section 5 of The Hindu Marriage Act, 1955. These grounds are as follow:

1. If either party has living spouse at the time of marriage i.e. bigamy

2. If marriage between prohibited degree relation unless customs and usage are allowed,

3. If marriage between sapindas unless customs and usage are allowed such marriage

• Sagotra marriage is valid under Hindu Marriage Act, 1955

There are voidable marriages also which are valid until declared null and void. Voidable
marriage shall be annulled by the decree of nullity under section 12 of Hindu Marriage Act, 1955.
It is at the option of the parties to continue with marriage or to annul marriage by decree of court.
Grounds are as follow

1. Impotency of the respondent

2. Incapacity to give valid consent or forced consent of parties or mental illness or person
unfit for procreation of child

3. Under aged marriage

4. If respondent was pregnant by some other person at the time of marriage.

Nullity of marriage under Muslim Personal law

 10

Under islam marriage is a dissoluble contact different from the Hinduism where marriage is
indissoluble. Under Muslim personal law marriage is treated as contract where valid consent of
both the parties is required and ‘mehar’ is also decided. Hence dissolution of marriage is also
permitted in both the sect shia and sunni. Under Dissolution of Muslim Marriage Act, 1939 and
personal law marriage without valid consent by the parties or there guardian is void. There are
some other grounds also on which marriage can be declared null and void. These grounds are as
follow:

1. Interreligious marriage by woman does not have religious status. A muslim male also
cannot marry a female who does not follow Isalm.

2. Marriage between milk relation or ‘maharim’ close blood relatives.

3. Marriage with person who renounce Islam or not having faith in principle of Islam.

4. Temporary or conditional marriage is void in Sunni.

5. Marriage to a woman during the period of iddat.

6. Where conditions of marriage are against the principle of Islam.

Nullity of marriage under Christian law in India

By the evolution of Christianity status of marriage has also changed. In Christianity is also
indissoluble and holy wedlock and made it a public religious ceremony. Hence nullity of marriage
is difficult to grant. But by development of society and to remove the discrimination for the Indian
Christian there is separate marital law Indian Christian Marriage Act, 1872 was enacted and for
their divorce or nullity of marriage Indian Divorce Act , 1869 is also there. This Act was amended
in the year of 2001. According to this Act on following ground marriage can be declared null and
void:

1. Respondent was impotent at the time of marriage and at the time of institution of suit,

2. Either of the party has living husband or wife at the time of marriage and that marriage is
in force i.e. bigamy

3. Marriage between the persons within the prohibited degree of consanguinity or affinity

4. Either party was lunatic or idiot at the time of marriage.

 11

Under Indian Divorce Act, 1896 consent is not a ground for nullity of marriage.

Nullity of marriage under Parsi Marriage and Divorce Act, 1936

In India there is separate marital law for Parsi community. Under this Act under section 30
where consummation of marriage due to some natural causes is impossible, at the instance of the
party marriage can be declared null and void.

Nullity of marriage under Special Marriage Act, 1954

Under section 24 of the Act on the petition of either of the party marriage can be declared null
and void by the decree of nullity on following ground

1. Neither party has living spouse

2. Incapable to give valid consent due to unsoundness of mind or mental illness or unfit to
procreation of children

3. Parties are under aged

4. Parties are in relation of prohibited degree

5. Impotency of respondent

There are some other grounds on which voidable marriage can be declared null and void.

1. Marriage has not been consummated due to willful refusal of respondent.

2. If respondent was pregnant by some other person at the time of marriage.

3. Consent of either party was obtained by fraud or coercion as defined in Indian Contract
Act, 1872

Special marriage Act provides legal status and security to the interreligious marriage
performed according to the provisions of this Act. Any person of any cast or religion may perform
his or her marriage under this Act.

Procedure for obtaining decree of nullity marriage

Procedure is generally same in all personal law for obtaining decree of nullity of marriage.
Petition for nullity of marriage shall be presented before court. The jurisdiction of court is decided
 12

where defendant or respondent has resides or marriage has solemnized or place where the party
has last resized together. Then court issue notice to respondent or defendant to give reply before
court. After hearing and evidence court grant relief accordingly. Under the parsi law court means
court established under the Act. Under Hindu Marriage Act, 1955 and Special Marriage Act, 1954
court is Family court or city civil court. Under the muslim law matter does not decided by court
but matter decided by the religious practice.

Consequences of nullity of marriage

When the declaration of nullity of marriage is made with it court also decides the maintenance
which is to be given to the opposite party either monthly or yearly or lump sum amount. Children
born out of this marriage are deemed to be legitimate. Nullity of marriage is a declaration that there
was no marriage in existence and parties are not husband and wife. They are free to marry to other.
Nullity of marriage declares that there was no status of marriage between two persons. Null and
void marriages have no legal status. They are against the law and not enforceable by law.

Under the statutory provisions there is no need to appoint pleader in family court but for
understanding legal provisions and procedure is helpful to take assistance from lawyer.

Conclusion

In India there are different religion and practices and each having its own personal law related
to marriage. In India marriage is a holy religious sacrament which is essential for the systematic
functioning of society. It should be done without force and for continuation of family in all religion.
Therefore ground for nullity of marriage is also same in India. Nullity of marriage make a person
free from the marriage which is like a Burden over them. The grounds of nullity of marriage are
also legal as well as taking care of religious sentiments.

Divorce under Hindu Personal Lawx

Divorce under the Hindu personal law is recognized under the Hindu Marriage Act, 1955
which applies as per Section 2 of the Act to any person who is a Hindu by religion in any of its
forms or developments, to any person who is a Buddhist, Jain or Sikh by religion, to any other
person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi
or Jew by religion.
 13

Section 13 of the Act provides for the dissolution of the marriage or divorce, for which either
spouse can file an application before the appropriate court for granting a decree. The grounds
which are available under the provision are:

The spouse had voluntary sexual intercourse with any other person.

The partner has treated the applicant with cruelty.

Has deserted the partner for a continuous period of not less than two years.

Has converted to another religion.

Has been of incurable unsound mind or mental disorder making it unreasonable to live with
him.

Has been suffering from a communicable form of venereal disease.

Has renounced the world by entering into a religious order.

Has not been heard alive for a period of seven years or more.

There are two grounds that are based on the ‘break-down’ theory of divorce which either
spouse may avail:

That there is no resumption of cohabitation for a period of one year or upwards after the
passing of decree of judicial separation.

That there is no restitution of conjugal rights for a period of one year or upwards after the
passing of the decree for restitution of conjugal rights.

There are then some specific grounds which are available to a wife who may seek a decree of
divorce on the ground that:

That the husband already married another woman, who was alive at the time the application
for divorce, is filed.

Divorce can also be sought by the wife if the husband is guilty of rape, bestiality or sodomy.

Where a decree for maintenance was passed in favour of the wife and there is no cohabitation
between them for a period of one year or more.
 14

Where the marriage of the wife took place when she was below the age of 15 years
(consummated or not), and where she repudiated the marriage before attaining the age of 18 years.

Section 13-B provides for divorce by mutual consent where both the parties living separately
for a period of one or more years, present a petition for divorce on the ground that they have not
been able to live together and therefore agreed mutually to dissolve the marriage.

Divorce under Muslim Personal Law

The Muslim Personal Law (Shariat) Application Act, 1937, under Section 2 states that
notwithstanding any custom or usages in matters of dissolution of marriage, where the parties are
Muslims will be governed by the Shariat or the Muslim Personal Law. Further, the dissolution of
marriage for a party that is a Muslim can be divided into the following:

Divorce by husband

A Muslim husband can seek dissolution of marriage by pronouncing talaq to the wife. It is a
form of divorce only available to the husband by which he can sever ties with his wife without the
intervention of any court or without seeking prior approval of the wife. Every husband who has
attained puberty and is of sound mind can talaq his wife. There are no grounds or conditions for
pronouncing talaq and is an arbitrary act based on the whims & fancies of the husband.

Under different schools of Muslim law, some additional conditions may or may not be
applicable. Such as under Hanafi law the pronouncement of talaq under coercion, compulsion,
fraud, and voluntary intoxication etc. is valid whereas under other schools, the same is not
applicable and the consent of the husband at the time of pronouncing talaq must be free. The talaq
operates from the day it was pronounced and the words used therein must be clear & not
ambiguous. The Sunni sect does not prescribe any formalities for the talaq whereas the Shia sect
insists that it be pronounced in front of two witnesses and in oral form.

Talaq further can be in a revocable form or irrevocable form also known as Talaq-ul-Sunnat
and Talaq-ul-Biddat respectively. Talaq-ul-Sunnat is considered as a proper form of divorce which
is further categorized into Talaq Ahsan and Talaq Hasan. Talaq-ul-Biddat in any form is
considered improper and is not recognized by majority of the schools except Sunnis. It is also
popularly known as triple talaq which was declared unconstitutional by the Supreme Court in the
 15

case of Shayara Bano v. Union of India. Soon after the judgment, the parliament enacted The
Muslim Women (Protection of Rights on Marriage) Act, 2019 wherein any declaration of Talaq
by the Muslim husband is supposed to be void and illegal. The Act also provides for stringent
punishment in case of any violation of the said provision.

Lastly, a husband can also delegate the power of talaq to any person or even his wife to
pronounce divorce and the same form of talaq is known as Talaq-i-Tafweez.

Divorce by wife

The divorce by a Muslim wife is recognized under the personal law by the Muslim Personal
Law (Shariat) Application Act, 1937.

The first form of divorce available to the wife is called Khula which is a divorce purchased
by the woman from her husband; where compensation is paid by the wife to the husband from her
property in order to dissolve the marriage. When this form of divorce is affected all the rights of
spouses are extinguished and only the right of maintenance during the period of iddat is available
apart from any right expressly agreed between the parties.

The second form of divorce is ila which in literal terms means an oath. In law, it means that,
when a husband takes an oath that he will not have sexual intercourse with his wife for four months
or above on the expiry of four months after making ila, if the husband has abstained from sexual
intercourse during this period, the marriage shall stand dissolved.

The third type of divorce available is in the form of Zihar. It is available when the husband
compares the wife with his female relations who are in the prohibited degree of relationship such
as his mother. The same is recognized under the Shariat Act and enables the wife to seek divorce
in such a case.

Fourthly a divorce can be affected by the wife if the husband accuses her of adultery. If the
accusation levelled by the husband against her is not proved, it gives her a right to file a divorce
suit against the husband.

Divorce by mutual consent

The divorce by mutual consent is known as Mubaraat which means to release from each other
mutually. It is a form of divorce where both the spouses agree to severe their marital ties mutually.
 16

Judicial divorce

After the enactment of the Dissolution of Muslim Marriages Act, 1939, a Muslim woman has
a right to get a divorce through the courts in India on the grounds mentioned in Section 2 of the
act.

Judicial separation

In certain cases, a Muslim wife is entitled to seek judicial separation such as in case of
impotency of the husband, cruelty by the husband rendering it unsafe for her to live in the dominion
of the husband if the marriage was irregular and on the failure of the husband to perform marital
obligations imposed upon him by the contract of marriage, etc.

Divorce under Christian Personal Law

A person professing Christian religion can get a divorce under the Divorce Act, 1869. The act
is applicable if one of the parties to the marriage is a Christian and the marriage can be dissolved
by bypassing a decree by the court under the Act.

The grounds provided by the Act for dissolution of a marriage under Section 10 are as follows:

Where the spouse committed adultery.

The respondent ceased to be Christian by conversion.

Where the respondent is suffering from an incurable unsound mind for a continuous period of
two years.

Where the respondent is suffering from a virulent and incurable form of leprosy for a
continuous period of two years.

Where the respondent is suffering from venereal disease of a communicable form for a
continuous period of two years.

Where the respondent has not been heard alive for a period of seven years or more.

Where the respondent has refused to willfully consummate the marriage.

Where decree of restitution of conjugal rights was passed, the respondent failed to comply
with such decree.
 17

The respondent deserted the respondent for a period of two years or more.

Where it is harmful for the petitioner to live with the spouse on account of cruelty committed
against him/her.

A wife can seek divorce in case the husband is guilty of rape, sodomy or bestiality.

The parties to the marriage can also file a petition together for seeking divorce by mutual
consent under Section 10-B on the ground that they have mutually agreed to divorce after living
separately for a period of two years or more and have not been able to live together.

Under the other special laws

The Special Marriage Act, 1954 provides for the marriage of parties irrespective of the
religion, faith or caste etc. followed by either of the parties. Similarly, the divorce by the parties
who got married under the act is also governed by the same enactment. The grounds for divorce
are mostly similar to those under the Hindu Marriage Act, 1955. Another enactment, the Foreign
Marriage Act, 1969, is availed by parties between whom at least one person is a citizen of India
and the marriage takes place in a foreign country while adhering to the conditions given by this
Act. The divorce between such parties is governed by the provisions of the Special Marriage Act,
1954 subject to the provisions of the Foreign Marriage Act, 1969.

Comparing divorce under different enactments

The grounds for divorce under the statutory enactments of the Hindu Marriage Act, 1955 and
the Special Marriage Act, 1954 are similar. Under both the acts either spouse can file an application
for divorce apart from some specific grounds especially available to the wife. Those specific
grounds include bigamy, rape, sodomy or bestiality etc. They can also file an application mutually
for a divorce under both Acts. They also recognize in some cases, the theory of irretrievable
breakdown of marriage where even after a decree for restitution of conjugal rights or judicial
separation is passed the couple are not able to live together and can file for divorce.

In the case of Muslims, apart from the Personal laws, the Dissolution of Muslim Marriage
Act, 1939 provides for grounds of divorce. The same was enacted since the Personal law of Sharia
is not uniform, unlike the Hindu Personal law which although didn’t provide for divorce since
marriage was considered a sacrament, was largely codified after the independence through
 18

statutory enactments. The different schools under Muslim religion didn’t follow a uniform
approach and some schools such as the Hanafi, didn’t allow a woman to divorce whereas others
such as Maliki allowed women to divorce under certain circumstances. Therefore, Section 2 of the
provided for grounds of divorce to the woman and only on those specified grounds they could seek
divorce unlike men under Muslim Personal law. The grounds available to Muslim women under
the act are conviction of husband for than seven years, failure or neglect to pay maintenance to
wife, impotency, cruelty, insanity etc.

Both under Hindu Personal law or Muslim Personal law, the statutory enactments have
overridden the effects of the customs and usages. The divorce under both religions is governed as
per the statutory enactments which do not recognize any custom or usage. In case of Muslim
Personal Law, the Shariat, as well as the Muslim Dissolution of Marriage Act, governs divorce.

The Indian Divorce Act also provides grounds similar to that under the Hindu Marriage Act,
1955 as well as Special Marriage Act, 1954. In the case of marriage under the Foreign Marriage
Act, 1969 the divorce proceedings are governed as per the Special Marriage Act.

Jurisdiction and Procedure of Family Courtxi

Introduction

Family Courts came into existence with the passing of the Family Court Act, 1984. The history
of the idea of establishment of the Family Courts dated by the year 1953. Smt. Durga Bai
Deshmukh had the opportunity to closely study the workings of Family Courts in China. As a
result, she discussed the need for the establishment of Family Courts in the Indian legal
environment. Gradually, it was pointed out by various women associations, welfare organizations,
and individuals that family-related dispute matters should be resolved quickly and harmoniously.
It was advocated that such matters are fragile and require a non-adversarial method of family
dispute resolution. Further, it was realized that family matters, including divorce, alimony, and
maintenance, custody or financial support to children should not be looked upon as two parties
against each other fighting to win but as a social therapeutic problem needing solution.

It is important to understand why Family Courts were needed in the first place. The root
reasons for the establishment of Family Courts and the passing of the Family Court Act, 1984 can
be narrowed down to two. First, the Indian judiciary system is piled up with numerous civil and
 19

criminal cases which leads to years of litigation before the matter could be settled peacefully.
Keeping in mind the nature of family disputes and the aim of preserving the institution of marriage,
there was a need for speedy trials. In addition to that, it was argued that matters concerning the
family are different and involve different jurisprudence. The courts dealing with family disputes
should aim at ‘conciliation’ rather than ‘confrontation’. The aim is to conserve the family life and
provide maximum fairness and minimum bitterness in case of irretrievable breakdown.

Section 3 of the Family Courts Act, 1984 establishes Family Courts in India for those towns
and cities whose population exceeds one million or other areas if deemed necessary. Among other
things, the act deals extensively with the appointment of judges, the association of welfare
agencies, the duty of the Family Courts, assistance of medical and welfare experts, application of
the Indian Evidence Act, 1872, provisions regarding appeal and judgment and procedures and
jurisdiction of Family Court under Family Court Act, 1984. About the status of the family court,
in Shalinaz v, Shirim, AIR 1995 Bom 30, it was held that the Family Court Act has precedence
over other statutes.

To file a case in Family Court, it is important to understand what is the jurisdiction and
procedure of Family Courts in India. The term jurisdiction can be defined as the extent to which
legal actions and judgment can be made by a court of justice. For instance, it is not under the
jurisdiction of the district court to accept the writ petitions. While the Procedure includes how
proceedings will take place within the courtroom.

Jurisdiction of Family Court

Section 7 of the Family Courts Act, 1984 deals with the Jurisdiction of Family Courts in India.
It was decided that all matters related to the family, such as separation, divorce, alimony and
maintenance, custody, guardianship, education and financial support to children, etc. should fall
under the jurisdiction of the family court. The list of matters concerning the family that can be
filled in a family court is as follows:

For nullity of marriage, restitution of conjugal rights, judicial separation, and divorce.

For a declaration of matrimonial status of a person.

For the property of the spouses.

 20

For a declaration as o the legitimacy of a person

For maintenance

Guardianship or custody of minor

In other words, if there is a matter of any of the above situations then the parties are required
to appeal in the family court. Further, whether the para-family issues should be included under the
jurisdiction of the family court is still controversial. The para-family matters include the issue of
dowry, assault on either spouse, inter-familial contracts, familial assaults, and other criminal
matters. It is argued that the abovementioned concerns should fall under the jurisdiction of the
family court.

The Procedure of Family Court

As discussed earlier, the concept of family court is to transfer from the traditional adversarial
procedure to inquisitorial, wherein judges play an active role in the reconciliation of the parties
concerned. Section 10 of the Family Court Act describes Procedures to be followed in the family
court. It states that the procedure laid down by the Code of Civil Procedure, 1908 applies to
proceedings of family court. It is important to note that the Family Court falls under the branch of
the civil court. Further, section 10 (3) allows the family court to form its own rules of procedures
to arrive at a settlement between the parties. If the family court forms its own rules of the
procedure, then it will override the rules of procedure laid down in Civil Procedure Code, 1908
and Code of Criminal Procedure, 1973.

The proceedings of the family court can take place on camera, i.e., privately. As per section
11 of the Family courts Act, if a party desires it can hold the proceeding in camera and the court
is obligatory to accept such a request. However, confidentiality should not be confused with the
secrecy of proceedings.

Conclusion

In conclusion, family courts were established to eliminate the intimidating and delaying nature
of traditional courts. It was believed that judgment concerning familial matters needs preservation
in nature rather than punitive. The aim is that the two parties should resolve their conflicts and
 21

tensions through the help of learned counsels. The lawyers, social workers, welfare officers, etc.
come together to achieve this aim of the family courts.

Family Courtsxii
The Family Courts Act, 1984 provides for establishment of Family Courts by the State
Governments in consultation with the High Courts with a view to promote conciliation and secure
speedy settlement of disputes relating to marriage and family affairs

Main features:

1. To take the cases dealing with family matters away from the intimidating atmosphere of regular
courts and ensure that a congenial environment is set up to deal with matters such as marriage,
divorce, alimony, child custody etc.

2. To tackle the problem of pendency by improving the efficiency of the system, where courts are
equipped with counselors and psychologists to ensure that while there may be core legal issues to
be dealt with; there is also a human and psychological dimension to be dealt with in these matters.

3. It is mandatory for the State Government to set up a Family Court for every area in the State
comprising a city or a town whose population exceeds one million.

Functioning:

1. Own rules–

The Family Courts are free to evolve their own rules of procedure, which override the rules of
procedure contemplated under the Code of Civil Procedure.

2. Conciliation–

Special emphasis is put on settling the disputes by mediation and conciliation, when the matter is
solved by an agreement between both the parties, it reduces the chances of any further conflict.

3. Away from legal system–

The cases are kept away from the trappings of a formal legal system, which can be a very traumatic
experience for the families and lead to personal and financial losses that can have a devastating
effect on human relations as well.
 22

4. No legal representation–

A party is not entitled to be represented by a lawyer without the express permission of the Court.

5. Appointment of experts–

Conciliators are professionals who are appointed by the Court.

6. Method–

The proceedings before the Family Court are first referred to conciliation and only when the
conciliation proceedings fail to resolve the issue successfully, the matter is taken up for trial by
the Court.

7. Appeal–

Once a final order is passed, the aggrieved party has an option of filing an appeal before the High
Court.

Effective alternative dispute resolution forum:

● Reduce workload on the courts and ensure speedy disposal of cases

● Provides confidentiality for family matters.

● Reverberations of a family dispute are felt in society. Their effective resolution by mediation or
conciliation may provide lasting solutions for overall good.

● The Mediation Cell of the Punjab and Haryana High Court, which attempts to patch up
matrimonial disputes is a successful example.

Issues:

● Continuity

No fixed tenure for counselors. For example, in the family courts at Tamil Nadu, the counselors
are changed every three months. Thus, when cases stretch for a period of time which is longer than
this, the aggrieved person has to adjust with new counselors and their story has to be retold several
times.

● Less power–
 23

It doesn’t explicitly empower Courts to grant injunctions to prevent domestic violence.

● Not perceived well–

Since the Family Court has restrictive jurisdiction and does not have the power to decide issues of
contempt, people do not seem to take the court as seriously as they would a magistrate or a city
civil court.

● Lack of uniformity–

Different High Courts have laid down different rules of the procedure, which is one of the reasons
behind the fact that family disputes are still being heard by civil courts.

● No legal representation–

Parties are not entitled as of right to be represented by a legal practitioner. The fact that the
proceedings are conciliatory does not relieve them of the complicated legal issues which may be
involved in the family dispute.

Family courts have enabled us to take out the burden from courts and preserve the sanctity of
family as a unit. Need is to empower these further and develop the necessary infrastructure.
 1

Module – 4
Maintenance under personal lawsxiii
Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to
maintenance forms a part of the personal law. Under the Code of Criminal Procedure, 1973 (2 of
1974), right of maintenance extends not only to the wife and dependent children, but also to
indigent parents and divorced wives. Claim of the wife, etc., however, depends on the husband
having sufficient means. Claim of maintenance for all dependent persons is limited to Rs 500 per
month. Inclusion of the right of maintenance under the Code of Criminal Procedure has the great
advantage of making the remedy both speedy and cheap. However, divorced wives who have
received money payable under the customary personal law are not entitled to maintenance claims
under the Code of Criminal Procedure.

Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But
she loses her right if she deviates from the path of chastity. Her right to maintenance is codified in
the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956). In assessing the amount of
maintenance, the court takes into account various factors like position and liabilities of the
husband. It also judges whether the wife is justified in living apart from husband. justifiable
reasons are spelt out in the Act. Maintenance pendente lite (pending the suit) and even expenses
of a matrimonial suit will be borne by either, husband or wife, if the either spouse has no
independent income for his or her support. The same principle will govern payment of permanent
maintenance. Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce) Act,
1986 protects rights of Muslim women who have been divorced by or have obtained divorce from
their husbands and provides for matters connected therewith or incidental thereto.

This Act inter alia provides that a divorced Muslim woman shall be entitled to
(a) reasonable and fair provision and maintenance to be made and paid to her within the iddat
period by her former husband;

(b) where she herself maintains children born to her before or after her divorce, a reasonable
and fair provision and maintenance to be made and paid by her former husband for a period of two
years from the respective dates of birth of such children;
 2

c) an amount equal to the sum of mehr or dower agreed to be paid to her at the time of her
marriage or at any time thereafter according to the Muslim Law and

(d) all property given to her before or at the time of marriage or after her marriage by her
relatives or friends or by husband or any relatives of the husband or his friends. In addition, the
Act also provides that where a divorced Muslim woman is unable to maintain herself after the
period of iddat the magistrate shall order directing such of her relatives as would be entitled to
inherit her property on her death according to the Muslim Law, and to pay such reasonable and
fair maintenance to her as he may determine fit and proper, having regard to the needs of the
divorced woman, standard of life enjoyed by her during her marriage and means of such relatives,
and such maintenance shall be payable by such relatives in proportion to the size of their
inheritance of her property and at such periods as he may specify in his order.

Where such divorced woman has children, the Magistrate shall order only such children to
pay maintenance to her, and in the event of any such children being unable to pay such
maintenance, the magistrate shall order parents of such divorced woman to pay maintenance to
her. In the absence of such relatives or where such relatives are not in a position to maintain her,
the magistrate may direct State Wakf Board established under Section 13 of the Wakf Act, 1995
functioning in the area in which the woman resides, to pay such maintenance as determined by
him.

The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to maintenance-both
alimony pendente lite and permanent alimony. The maximum amount that can be decreed by court
as alimony during the time a matrimonial suit is pending in court, is one-fifth of the husband's net
income. In fixing the quantum as permanent maintenance, the court will determine what is just,
bearing in mind the ability of husband to pay, wife's own assets and conduct of the parties. The
order will remain in force as long as wife remains chaste and unmarried.

The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The
provisions are the same as those under the Parsi law and the same considerations are applied in
granting maintenance, both alimony pendente lite and permanent maintenance.

Maintenance under Hindu law:

 3

Maintenance is a right to get necessities which are reasonable from another. it has been held
in various cases that maintenance includes not only food, clothes and residence, but also the things
necessary for the comfort and status in which the person entitled is reasonably expected to live.
Right to maintenance is not a transferable right.

Maintenance without divorce

The Hindu Adoptions and Maintenance Act, 1956.Maintenance, in other words, is right to
livelihood when one is incapable of sustaining oneself. Hindu law, one of the most ancient systems
of law, recognises right of any dependent person including wife, children, aged parents and
widowed daughter or daughter in law to maintenance. The Hindu Adoptions and Maintenance Act,
1956, provides for this right.

Maintenance as main relief: for wife

The relief of maintenance is considered an ancillary relief and is available only upon filing for
the main relief like divorce, restitution of conjugal rights or judicial separation etc. Further, under
matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of wife is
defeated. However, the right of a married woman to reside separately and claim maintenance, even
if she is not seeking divorce or any other major matrimonial relief has been recognised in Hindu
law alone. A Hindu wife is entitled to reside separately from her husband without forfeiting her
right of maintenance under the Hindu Adoptions and Maintenance Act, 1956. The Act envisages
certain situations in which it may become impossible for a wife to continue to reside and cohabit
with the husband but she may not want to break the matrimonial tie for various reasons ranging
from growing children to social stigma. Thus, in order to realise her claim, the Hindu wife must
prove that one of the situations (in legal parlance 'grounds') as stated in the Act, exists.

Grounds for award of maintenance

Only upon proving that at least one of the grounds mentioned under the Act, exists in the favor
of the wife, maintenance is granted. These grounds are as follows:

a. The husband has deserted her or has willfully neglected her;

b. The husband has treated her with cruelty;

 4

c. The husband is suffering from virulent form of leprosy/venereal diseases or any other
infectious disease;

d. The husband has any other wife living;

e. The husband keeps the concubine in the same house as the wife resides or he habitually
resides with the concubine elsewhere;

f. The husband has ceased to a Hindu by conversion to any other religion;

g. Any other cause justifying her separate living;

Bar to relief

Even if one of these grounds exists in favour of the wife, she will not be entitled to relief if
she has indulged in adulterous relationship or has converted herself into any other religion thereby
ceasing to be a Hindu. It is also important to note here that in order to be entitled for the relief, the
marriage must be a valid marriage. In other words, if the marriage is illegal then the matrimonial
relationship between the husband and wife is non-existent and therefore no right of maintenance
accrues to wife. However, thanks to judicial activism, in particular cases the presumption of
marriage is given more weightage and the bars to maintenance are removed.

Other dependents who can claim maintenance

Apart from the relationship of husband and wife other relations in which there is economic
dependency are also considered to be entitled to maintenance by the Hindu Adoptions and
Maintenance Act, 1956. Accordingly a widowed daughter-in-law is entitled maintenance from her
father-in-law to the extent of the share of her diseased husband in the said property. The minor
children of a Hindu, whether legitimate or illegitimate, are entitled to claim maintenance from their
parents. Similarly, the aged and infirm parents of a Hindu are entitled to claim maintenance from
their children. The term parent here also includes an issueless stepmother.

Maintenance Under Muslim Law

Under the "Women (Protection Of- Rights On Divorce) Act, 1986" spells out objective of the
Act as "the protection of the rights of Muslim women who have been divorced by, or have obtained
divorce from, their husbands." The Act makes provision for matters connected therewith or
 5

incidental thereto. It is apparent that the Act nowhere stipulates that any of the rights available to
the Muslim women at the time of the enactment of the Act, has been abrogated, taken away or
abridged. The Act lays down under various sections that distinctively lay out the criterion for
women to be granted maintenance. Section (a) of the said Act says that divorced woman is entitled
to have a reasonable and fair provision and maintenance from her former husband, and the husband
must do so within the period of idda and his obligation is not confined to the period of idda.

it further provides that a woman , if not granted maintenance can approach the Wakf board
for grant as under section (b)which states that If she fails to get maintenance from her husband,
she can claim it from relatives failing which, from the Waqf Board.

An application of divorced wife under Section 3(2) can be disposed of under the provisions
of Sections 125 to 128, Cr. P.c. if the parties so desire. There is no provision in the Act which
nullifies orders passed under section 125, Cr. P.c. The Act also does not take away any vested right
of the Muslim woman.

All obligations of maintenance however end with her remarriage and no claims for
maintenance can be entertained afterwards. The Act thus secures to a divorced Muslim woman
sufficient means of livelihood so that she is not thrown on the street without a roof over her head
and without any means of sustaining herself.

Protection to Divorced Women Sub-section (1) of Section 3 lays down that a divorced
Muslim woman is entitled to:

(a) a reasonable and fair provision and maintenance to be made and paid to her within the
iddat period by her former husband;

(b) where she herself maintains the children born to her before or after the divorce.

Maintenance Under Christian Law

A Christian woman can claim maintenance from her spouse through criminal proceeding
or/and civil proceeding. Interested parties may pursue both criminal and civil proceedings,
simultaneously, as there is no legal bar to it. In criminal proceedings, the religion of the parties
does not matter at all, unlike in civil proceedings.
 6

If a divorced Christian wife cannot support her in the post divorce period she need not worry
as a remedy is in store for her in law. Under S.37 of the Indian Divorce Act, 1869, she can apply
for alimony/ maintenance in a civil court or High Court and, husband will be liable to pay her
alimony such sum, as the court may order, till her lifetime. The Indian Divorce Act, 1869 which
is only applicable to those persons who practice the Christianity religion inter alia governs
maintenance rights of a Christian wife. The provisions are the same as those under the Parsi law
and the same considerations are applied in granting maintenance, both alimony pendente lite and
permanent maintenance. The provisions of THE INDIAN DIVORCE ACT, 1869 are produced
herein covered under part IX -s.36-s.38

IX-Alimony
S.36. Alimony pendente lite. -In any suit under this Act, whether it be instituted by a husband or a
wife, and whether or not she has obtained an order of protection the wife may present a petition
for alimony pending the suit.

Such petition shall be served on the husband; and the Court, on being satisfied of the truth of
the statements therein contained, may make such order on the husband for payment to the wife of
alimony pending the suit as it may deem just:

Provided that alimony pending the suit shall in no case exceed one fifth of the husband's
average net income for the three years next preceding the date of the order, and shall continue, in
case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made
absolute or is confirmed, as the case may be.

37. Power to order permanent alimony -The High Court may, if it thinks fit, on any decree
absolute declaring a marriage to be dissolved, or on any decree of judicial separation obtained by
the wife, and the District judge may, if he thinks fit, on the confirmation of any decree of his
declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife,

Order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum
of money, or such annual sum of money for any term not exceeding her own life, as, having regard
to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks
reasonable; and for that purpose may cause a proper instrument to be executed by all necessary
parties.
 7

Power to order monthly or weekly payments. -In every such case, the Court may make an
order on the husband for payment to the wife of such monthly or weekly sums for her maintenance
and support as the Court may think reasonable:

Provided that if the husband afterwards from any cause becomes unable to make such
payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to
suspend the same as to the whole or any part of the money so ordered to be paid, and again to
revive the same order wholly or in part as to the Court seems fit.

38. Court may direct payment of alimony to wife or to her trustee. -In all cases in which the
Court makes any decree or order for alimony, it may direct the same to be paid either to the wife
herself, or to any trustee on her behalf to be approved by the Court, and may impose any terms or
restrictions which to the Court seem expedient, and may from time to time appoint a new trustee,
if it appears to the Court expedient so to do.

Alternatively, as previously mentioned S.125 of Cr.P.C., 1973 is always there in the secular
realm

Under the Code of Criminal Procedure, 1973 (2 of 1974), right of maintenance extends not
only to the wife and dependent children, but also to indigent parents and divorced wives. Claim of
the wife, etc., however, depends on the husband having sufficient means. Claim of maintenance
for all dependent persons was limited to Rs 500 per month but now it has been increased and the
magistrate can exercise his discretion in adjudging a reasonable amount. Inclusion of the right of
maintenance under the Code of Criminal Procedure has the great advantage of making the remedy
both speedy and cheap

Order For Maintenance of Wives, Children And Parents

S.125.Order for maintenance of wives, children and parents.- (1) If any person having
sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself,
or
 8

(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is by reason of any physical or mental abnormality or injury unable to
maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to
make a monthly allowance for the maintenance of his wife or such child, father or mother, at such
monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to
pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause
(b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is not possessed of sufficient means.

Explanation- For the purposes of this Chapter, -

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875(9 of
1875) is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date
of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the
manner provided for levying fines, and may sentence such person, for the whole or any part of
each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for
a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section
unless application be made to the Court to levy such amount within a period of one year from the
date on which it became due:
 9

Provided further that if such person offers to maintain his wife on condition of her living with
him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated
by her, and may make an order under this section notwithstanding such offer, if he is satisfied that
there is a just ground for so doing.

Explanation- If a husband has contracted marriage with another woman or keeps a mistress,
it shall be considered to be just ground for his wife's refusal to live with him.

(4) No wife shall be entitled to receive an allowance from her husband under this section if
she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband,
or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living
in adultery, or that without sufficient reason she refuses to live with her husband, or that they are
living separately by mutual consent, the Magistrate shall cancel the order. The objective of this
section as expressed by Krishna Iyer, J. is to ameliorate the economic condition of neglected
wives and discarded divorcees

Proceedings under S.125 are not civil, but criminal proceedings of a summary nature. But
these criminal proceedings are of a civil nature. Thus, clause (3) of S.126 which empowers that
Court to make such orders may be just.

It should be kept in view that the provision relating to maintenance under any personal law is
distinct and separate. There is no conflict between the two provisions. A person may sue for
maintenance under s.125 of Cr.P.C. If a person has already obtained maintenance order under his
or her personal law, the magistrate while fixing the amount of maintenance may take that into
consideration while fixing the quantum of maintenance under the Code. But he cannot be ousted
of his jurisdiction. The basis of the relief, under the concerned section is the refusal or neglect to
maintain his wife, children, father or mother by a person who has sufficient means to maintain
them. The criterion is not whether a person is actually having means, but if he is capable of earning
he will be considered to have sufficient means. The burden of proof is on him to show that he has
no sufficient means to maintain and to provide maintenance.

Maintenance Under Parsi Law:

 10

Parsi can claim maintenance from the spouse through criminal proceedings or/ and civil
proceedings. Interested parties may pursue both criminal and civil proceedings, simultaneously as
there is no legal bar to it. In the criminal proceedings the religion of the parties doesn't matter at
all unlike the civil proceedings.

If the Husband refuses to pay maintenance ,wife can inform the court that the Husband is
refusing to pay maintenance even after the order of the court. The court can then sentence the
Husband to imprisonment unless he agrees to pay. The Husband can be detained in the jail so long
as he does not pay. The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to
maintenance-both alimony pendente lite and permanent alimony. The maximum amount that can
be decreed by court as alimony during the time a matrimonial suit is pending in court, is one-fifth
of the husband's net income. In fixing the quantum as permanent maintenance, the court will
determine what is just, bearing in mind the ability of husband to pay, wife's own assets and conduct
of the parties. The order will remain in force as long as wife remains chaste and unmarried.

S.40. Permanent alimony and maintenance

(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or
at any time subsequent thereto, on an application made to it for the purpose by either the wife or
the husband, order that the defendant shall pay to the plaintiff for her or his maintenance and
support, such gross sum or such monthly or periodical sum, for a term not exceeding the life of the
plaintiff as having regard to the defendant?s own income and other property, if any, the income
and other property of the plaintiff, the conduct of the parties and other circumstances of the case,
it may seem to the Court to be just, and any such payment may be secured, if necessary, by a
charge on the movable or immovable property of the defendant.

(2) The Court if it is satisfied that there is change in the circumstances of either party at any
time after it has made an order under sub-section (1), it may, at the instance of either party, vary,
modify or rescind any such order in such manner as the Court may deem just.

(3) The Court if it is satisfied that the partly in whose favour, an order has been made under
this section has remarried or, if such party is the wife, that she has not remained chaste, or, if such
party is the husband, that he had sexual intercourse with any woman outside wedlock, it may, at
 11

the instance of the other party, vary, modify or rescind any such order in such manner as the Court
may deem just

Maintenance Under The Special Marriage Act, 1954xiv

Alimony During The Pendency Of The Case In The Court

Where in any proceeding under the Special Marriage Act, 1954, it appears to the District
Court that the wife has no independent income sufficient for her support and the necessary
expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her
the expenses of the proceeding, and weekly or monthly during the preceding such sum as having
regard to the husband’s income, it may seem to the Court to be reasonable.

Permanent Alimony and Maintenance

Any Court exercising jurisdiction under the Special Marriage Act, 1954 may, at the time of
passing any decree or at any time subsequent to the decree, on application made to it for the
purpose, order that the husband shall secure to the wife for her maintenance and support, if
necessary, by a charge on the husband’s property, such gross sum or such monthly or periodical
payment of money for a term not exceeding her life, as having regard to her own property, if any,
her husband’s property and ability, the conduct of the parties and other circumstances of the case
it may seem to the Court to be just.

If the District Court is satisfied that there is a change in the circumstances of either party at
any time after it has made an order under sub-section (1), it may at the instance of either party,
vary, modify or rescind any such order in such manner as it may seem to the Court to be just.

If the District Court is satisfied that the wife in whose favour an order has been made under
this section has remarried or is not leading a chaste life, it may, at the instance of the husband vary,
modify or rescind any such order and in such manner as the Court may deem just.

Amount of maintenance

The amount of the maintenance shall be purely the discretion of the Court. In determining
the amount of the maintenance the court shall have due regard to the following considerations,
namely,
 12

the position and status of the parties;

the reasonable wants of the claimant;

if the claimant is living separately, whether the claimant is justified in doing so;

the value of the claimant’s property and any income derived from such property, or from the
claimant’s own earnings or from any other source;

Any other relevant fact and circumstance.

The captioned subject is complex by its very nature. We, therefore, always encourage our
visitors & Clients to seek an independent legal advice by our empanelled lawyers. In such Cases,
our lawyers devise most appropriate legal recourse for our Clients after examining the related
provisions of law, i.e The Special Marriage Act, 1954, The Code of Civil Procedure, 1908, The
Limitation Act, 1963, The Evidence Act, 1872, The Code of Criminal Procedure, 1973, Other
relevant Acts & Judgments and Citations of the Hon’ble Supreme Court Of India and the
High Courts. Even otherwise, the question as to how to apply the laws, judgments and citations
is rather more complex, as it involves a thorough examination of substantial laws, procedural laws
and Court precedents in a given set of facts and circumstances.

Maintenance Under Hindu Adoption and Maintenance Act, 1956xv

Introduction

The Hindu Adoption and Maintenance Act, 1956 (hereinafter ‘the Act’) is an important
personal law that aims to amend and codify the law relating to adoptions and maintenance among
the Hindus. Apart from the Hindus, this act also applies to Buddhists, Jains, Sikhs and any other
person who is not a Muslim, Christian, Parsi or Jew.

Meaning of Maintenance

Maintenance includes:-

1. provision for food,

2. clothing,

3. residence,
 13

4. education

5. medical attendance and treatment

6. in the case of an unmarried daughter, maintenance also includes reasonable expenses for
her marriage.

This Act provides rules for the maintenance for wife, children, aged or infirm parents,
widowed daughter-in-law and dependents. But we shall be focusing on maintenance for wife,
children and aged or infirm parents.

The main reason behind the provision of maintenance is to provide financial support to a
divorced wife or aged parents or minor children or any other dependents for their well-being and
for their sustenance needs.

Maintenance for women

The Act provides that a Hindu wife is entitled to be maintained by her husband throughout
her lifetime.

A Hindu wife can live separately while getting the alimony from her husband if:-

1. her husband is guilty of desertion, i.e., abandoning her without reasonable cause and
without her consent or against her wish, or willfully neglecting her;

2. her husband has treated her with such cruelty as to cause a reasonable apprehension in her
mind that it will be harmful or injurious to live with her husband;

3. her husband has any other wife living;

4. her husband keeps a concubine in the same house in which his wife is living;

5. her husband habitually resides with a concubine elsewhere;

6. her husband has converted to another religion and ceased to be a Hindu;

7. if there is any other cause justifying her living separately.

A Hindu wife is not entitled to maintenance if:-

1. she was unchaste, meaning, she engaged in illicit relations or had an extramarital affair;
 14

2. she ceases to be a Hindu by converting to any other religion.

Maintenance of children and aged

The Act provides that a Hindu is obliged under this Act to maintain her/his children and aged
or infirm parents if they are unable to maintain themselves out of their own earnings.

Here, the term ‘children’ means –

1. minors who are below the age of 18 years;

2. the term includes legitimate and illegitimate children.

Also, the term ‘parent’ includes a childless stepmother.

Amount of Maintenance for wife, children, and aged or infirm parents

The Act specifically mentions that it shall be the discretion of the Court to determine whether
the claimant is entitled to maintenance or not and if so, what.

Once the Court is satisfied that the claimant is entitled to the allowance, it needs to take the
next step which is to decide the amount to maintenance that shall be awarded to the claimant.

The Act lists out the considerations the Court takes into account to decide the amount of
maintenance to be awarded to the wife, children, aged or infirm parents, widowed daughter-in-law
and dependents. But we shall focus on the considerations for wife, children and aged or infirm
parents.

The Act provides the following considerations that the Court shall take into account to decide
the amount of maintenance to be awarded to the wife, children and aged or infirm parents –

1. The position and status of the parties:

The status and position of the parties include their financial and social status and any other
status which must be taken into account.

In all the cases, the means and capacity of the party against whom the award of maintenance
has to be made must be taken into account. The Court must evaluate the earning potential of that
party and accordingly fix the amount of maintenance after considering other factors. Apart from
 15

the status and position of the party against whom the award of maintenance has to be made, the
status and position of the claimant(s) shall be taken into account.

In the claimant is a wife, her financial and social status must be considered. If the wife is
earning, the husband cannot deny his liability to maintain her if her income is not sufficient to
sustain her. In the case of the claimant(s) being children or aged parents, their financial and social
status must be considered. Unmarried daughter above the age of 18 years can claim maintenance.
The amount of maintenance fixed by the Court must suit the position and status of the aged parents
or the children.

2. The reasonable wants and claims of the claimant:

The claims of the claimant(s) who may be the wife or children or the aged parents must be
reasonable and must match the standards of necessities in their lives. If their claims are not feasible
keeping in mind various factors like the earning potential of the party against whom the award of
maintenance has to be made, the claimant’s necessities, etc., or if their claims are not reasonable
and excessive and redundant, the Court shall not entertain such claims.

3. Whether the claimant is justified in living separately if she is doing so:

The wife is entitled to the claim of maintenance even if she lives separately but only if she is
justified in doing so. The grounds on which a Hindu wife can live separately while being
maintained by her husband are mentioned above under the sub-heading, ‘Maintenance for women’.
Only when she satisfies any of those grounds and the Court finds her justified, the Court shall
award maintenance to her. The same rule is applicable to children and aged parents who live
separately from the party against whom the award of living expense has to be made.

Though the Act does not provide any grounds on which the children and the aged parents shall
be justified in living separately but the Court shall consider their reasons for living separately
which depend on the facts and circumstances of each case. The Court shall also consider this factor
to determine the amount of maintenance because the standards of living and expenses incurred
while living with the party against whom the award of maintenance has to be made, may differ
from the standards of living and expenses incurred while living separately.

4. The value of the claimant’s property and all sources of their income:
 16

The Court shall consider all the sources of income and the properties of the claimant(s) to
decide the amount of maintenance. If Court finds that the income and/or the properties of the
claimant(s) is not enough to fulfill their needs, to meet their standards of living and to meet their
expenses, the Court shall try to fill the lacuna by accordingly fixing the maintenance amount to
support them.

5. The number of persons entitled to be maintained under this Act:

The number of persons entitled to be maintained plays an important role in fixing the amount
of maintenance because the earning potential and the status of the party against whom the award
of maintenance has to be made should not be ignored. If the number of persons entitled to be
maintained is more as compared to the earning potential of the party against whom the award of
maintenance has to be made, the Court shall accordingly reduce the maintenance amount and vice-
versa.

The claimant(s) whether it be a wife or children or aged parents shall not be entitled to claim
maintenance under this Act if they cease to be a Hindu. The amount of maintenance may be
changed with a change in circumstances and factors affecting the decision to fix the amount of
maintenance.

Maintenance under Criminal Procedure Codexvi

Introduction

The term Maintenance literally means to take care of something, the process of preserving a
condition or situation, the state of being preserved or to provide financial support to somebody to
make their living expenses. In India, Various laws are applicable to the matters of maintenance of
wives, parents, sons, daughters and other dependents such as HAMA, 1955, HMA, 1955,
Protection of Women from Domestic Violence Act, 2005, Special Marriage Act, 1954, Guardians
And Wards Act, 1890, etc.

Under chapter IX of Criminal Procedure Code, 1973, Section 125 provides for Maintenance
of wives, children and parents. Section 126 provides the procedure to initiate proceedings under
Sec. 125, Section 127 talks about Alteration in allowances ordered u/s 125 and lastly, Section 128
enable the enforcement of order of maintenance.
 17

Nature of Section 125:

• It is a secular law , irrespective of religion- Noor Saba Khatoon Vs. Mohd. Quasim, (1997) 6
SCC 233

• Social-welfare legislation- Badshah Vs. Urmila Badshah Godse & Another, (2014) 1 SCC 188

• Not strictly criminal in nature, the proceedings are civil in nature- Vijay Kumar Prasad Vs. State
of Bihar, (2004) 5 SCC 196

• Proceedings u/s 125 CrPC are summary in nature and intended to provide speedy
remedy- Nagendrappa Natikar Vs. Neelamma, AIR 2013 SC 1541

• We need a maintenance provision under CRPC though its already provided in personal laws so
that it can be strictly followed- Rajnesh v. Neha Criminal Appeal no. 730 of 2020

Section 125 CrPC : Order of Maintenance of Wives, Children and Parents

1) When person have sufficient means and neglects or refuses to maintain his-

i. Wife, unable to maintain herself

ii. Legitimate/illegitimate minor children, whether married or not and unable to maintain itself

iii. Legitimate/illegitimate major children but not a married daughter, if they are unable to maintain
itself by reason of physical or mental injury.

iv. Father or mother, unable to maintain himself or herself.

The Magistrate I class may order that person to give monthly allowance at such monthly rate
for maintenance, upon proof of neglect or refusal to maintain to above-mentioned person/s as
Magistrate time to time directs. Three proviso clauses are attached to clause (1) those are-

Magistrate may order the father of “minor married female child” to make allowance if her
husband is not possessed with sufficient means to maintain her, until she attains majority.

Magistrate may order the person to pay “interim maintenance along with expenses incurred
in proceedings” during pendency of proceeding under Section 125 as it thinks fit.
 18

The application for monthly allowances and expenses of proceeding shall be disposed of
within 60 days from date of service of notice of application u/s 125 CRPC to such person.

In Bhagwan Dutt v Kamla Devi AIR 1975 SC 83 the Supreme Court held that under Section
125(1) Cr.P.C. only a wife who is “unable to maintain herself” is entitled to seek maintenance.
The object of these provisions is to prevent vagrancy and destitution, the Magistrate has to find
out as to what is required by the wife to maintain a standard of living which is neither luxurious
nor penurious, but is modestly consistent with the status of the family.

In case of Rajnesh v. Neha Criminal Appeal no. 730 of 2020 the Court held, that the
maintenance amount awarded must be reasonable and realistic, and it must avoid either of the two
extremes i.e. amount awarded to the wife should neither be so extravagant which becomes
oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to
penury.

In case of Chaturbhuj Vs. Sita Bai, AIR 2008 SC 530 Court held an earning wife is also entitled
to claim maintenance if her income is insufficient to maintain herself.

In case of Shahbuddin Vs. State of UP, 2006(1) ALJ 372(All) Court held, where a minor
daughter attained majority during pendency of maintenance proceedings, she will be entitled to
get interim maintenance up to date of attaining majority.

In case of Jagdish Jugtawat Vs. Manjulata, 2002 SCC (criminal) 1147(SC) and Noor Saba
Khatoon Vs. Mohd. Quasim, (1997) 6 SCC 233, Court held, that combined reading of Section 125
CrPC and Section 20(3) of HAMA, 1956 entitles a major unmarried daughter for maintenance
from her parents.

But a contrary view was taken in Abhilasha v Parkash & Ors. Decided on 15.10.2020 in
Criminal Appeal No.615/2020 where Court marks a distinction between both the laws and three
judge bench held that right of claiming maintenance from father is absolute in personal law but
Sec 125 limits this right until child attains majority unless they suffer form physical or mental
injury which makes them unable to maintain.

Explanation clause of Section 125-

 19

a) “minor” means a person who has not attained majority as per provisions of Indian Majority
Act, 1875 i.e. 18 years.

b) “wife” includes a divorced woman and has not remarried.

In case of Savitaben Somabhai Bhatiya Vs. State of Gujarat, 2005 Cr LJ 2141 (SC) Court
held, woman not lawfully married cannot be treated as wife and is not entitle to claim maintenance
u/s 125 CRPC.

In case of Badshah Vs. Urmila Badshah Godse and Another, (2014) 1 SCC 188 Court held, a
second wife is entitled to maintenance if she was unaware of the fact of subsisting marriage of her
husband and the latter has duped her and concealed the fact of already existing marriage. Also,
husband cannot take the plea that second wife is not entitled to maintenance solely on the ground
that it is a void marriage. Therefore, he cannot take advantage of his own wrong.

In case of Rohtash Singh Vs. Smt. Ramendri, AIR 2000 SC 952, Court held, a divorce woman
is entitled to enjoy status of “wife” for claiming maintenance till she re-marries or if she is unable
to maintain herself even if the divorce is obtained from mutual consent.

2) Maintenance allowance or interim allowance and expenses be payable from date of order,
or if ordered, then from date of application for maintenance.

In case of Shail Kumari Devi Vs. Krishan Bhagwan Pathak, AIR 2008 SC 3006 Court held,
Order of Magistrate granting maintenance u/s 125 CrPC from date of application without recording
reasons is liable to set aside

3) Where the person who is ordered to make allowances fails to comply with the order of
maintenance, then Magistrate may issue warrant against him in the same manner as provided for
recovery of fine and he may be sentenced to imprisonment for a term which may extend to one
month or until payment of allowances if they remain unpaid even after execution of warrant.

In case of Dalip Kumar Vs. Family Court, Gorakhpur, 2000 CrLJ 3893 (All) Court held,
confinement u/s 125 CRPC cannot in any manner be stretched to more than one month but is
limited up to one month if he fails to comply with maintenance order and on application of wife
for seeking same relief and after issue of warrant. For subsequent non-compliance he can be again
imprisoned but Magistrate has no power to sentence him for more than one month in one go.
 20

4) A wife is not entitled to maintenance or interim maintenance if she is living in adultery,

lives separately by mutual consent or refuses to live with her husband without sufficient grounds.

5) On proof that wife is living in adultery, lives separately by mutual consent or refuses to live
with her husband without sufficient grounds, the Magistrate can cancel the order of maintenance,
interim maintenance and expenses of proceedings.

Section 126: Procedure-

1) The proceedings of maintenance u/s 125 CRPC can be initiated against a person in any of
the districts where-

i. He is.

ii. He OR his wife resides.

iii. He last resided with his wife or mother of his illegitimate child.

2) All the evidences must be taken in the presence of that person or in-absentia, his pleader
and can be recorded as per summon-case. Provided that if Magistrate is satisfied that person is
willfully avoiding or neglecting the proceedings, he has the power to proceed to hear and determine
the case ex-Partee but it can be set-aside within 3 months if reasonable and good cause is shown
by that person for not attending the court.

Section 127: Alteration in Allowances-

1) On proof of changing financial circumstances the Magistrate may alter the amount of
allowance or interim maintenance of person receiving or person ordered to pay u/s 125 CRPC and
make such allowance as it thinks fit.

2) If sum of maintenance is already provided under any proceeding of personal law in a

competent Civil Court, then magistrate should cancel or vary any order made under section 125.

In case of Rajnesh v. Neha Criminal Appeal 730 of 2020 the Court held, if maintenance is
allowed in any other proceeding of personal laws, then it should be intimidated to the court so that
it can take into consideration for ordering maintenance allowances or grant an adjustment or set-
off of the said amount, this view was taken by Court.
 21

3) Where the order u/s 125 CRPC is made in favor of a woman who has either obtained
divorce or been divorced, has now re-married or willfully surrender right to maintenance after
divorce or has obtained the whole sum after divorce of which she is entitled under customary or
personal law applicable to her , then the Magistrate on his satisfaction of same shall cancel the
order.

4) Where a civil suit of recovery of maintenance or dowry is pending between parties and in
meanwhile order u/s 125 CRPC is made, the Civil court at the time of making decree shall take
into consideration the sum recovered from or paid by person who is ordered to make allowances.

Section 128: Enforcement of order of Maintenance

Copy of order u/s 125 CRPC shall be given to person in whose favor it is made or to person
who has to pay without taking any payment and it may be enforced at any place by any Magistrate
in whose jurisdiction the person against whom it is made is, after Magistrate being satisfied as to
the identity of the parties and the non- payment of the allowance due.

Maintenance of parents and senior citizensxvii

Indian society prides itself on its rich culture and heritage. Our society is largely built on the
principles of compassion, respect for elderly, spirituality, integrity, unity in diversity, etc.
Throughout the world, Indian lifestyle and family system is revered and often considered as a
model which incorporates the best of both worlds; tradition with modernity. There are several
households across the country which still believe in the concept of joint families. Invariably, in
majority of families throughout India, elderly are recognized as threads that bind the constituent
units of the household into a unified garland. It goes without saying, elderly are accorded respect
in such families and their words are treated as gospels, regulating the manner in which the day to
day functioning of household is carried out.

Significantly, the practice of touching the feet of elderly in India is not only a sign of
bestowing respect, rather, is also an expression of gratitude for their years of services rendered, in
nurturing the family. Considering these facts, it becomes quite appalling when one comes across
instances where the elderly and senior citizens are neglected and abused. Unfortunately, in several
such cases, parents and senior members of the families are subjected to grave physical and mental
tortures; deprived of basic necessities of life and often abandoned on streets or in old age home.
 22

Such events are perfect illustrations of apathy of the younger generations towards their progenitors
and an ever-growing trend of “use, abuse and discard”. Not only are such incidents reflective of
materialistic and self-serving attitude of the succeeding generations, rather, act as a direct blow on
India’s cultural and religious principles.

Article 212 of the Constitution of India (“Constitution”) confers one of the most significant
rights on individuals; right to life and personal liberty. Significantly, the provisions of Article 21
of the Constitution safeguard these rights of individuals from any insidious encroachments and
unreasonable restrictions. In fact, it is settled law3 , the procedure, which, in any manner, affects
the rights to life and/ or personal liberty of a person must be a ‘procedure prescribed by law’ and
that the same should be “fair, just and reasonable, not fanciful, oppressive or arbitrary” It is an
equally appreciated fact that the safeguards envisioned under Article 21 of the Constitution are
available to all persons/ individuals.

Further, the scope and ambit of the said protection is ever expanding. The Hon’ble Supreme
Court in Ashwani Kumar v. Union of India4 , while considering the expansive meaning of the
provisions of Article 21 of the Constitution, as applicable to the elderly5 , held, “[t]he right to life,
we acknowledge, encompasses several rights but for the time being we are concerned with three
important constitutional rights, each one of them being basic and fundamental. These rights
articulated by the petitioner are the right to live with dignity, the right to shelter and the right to
health.

The State is obligated to ensure that these fundamental rights are not only protected but are
enforced and made available to all citizens.” In fact the Hon’ble Court, inthe instant case,
specifically recognized the right to dignity and adequate compensation; right to shelter and right
to medical care/ assistance, as few of the rights available to the elderly under Article 21 of the
Constitution. The Hon’ble Apex Court, specifically recognized the “need to continuously monitor
the progress in the implementation of the constitutional mandate to make available to the elderly
the right to live with dignity and to provide them with reasonable accommodation, medical
facilities and geriatric care.”

The Ministry of Social Justice and Empowerment, Government of India, in the year 1999
formulated and declared the National Policy on Older Persons (“NPOP/ Policy”). In the NPOP it
was specifically noted, “due to the operation of several forces, the position of a large number of
 23

older persons has become vulnerable due to which they cannot take for granted that their children
will be able to look after them when they need care in old age, especially in view of the longer life
span implying an extended period of dependency and higher costs to meet health and other needs.”

The said policy, inter alia, aimed at strengthening old/er persons legitimate place in society
and help them to live the last phase of their life(ves) with purpose, dignity and peace. NPOP further
visualized State’s role in extending support towards financial security, health care, shelter, welfare
and other needs of older persons; provide protection against their abuse and exploitation; make
available opportunities for development of the potential of older persons; seek their participation,
and provide services so that such persons can improve the quality of their lives.

The Policy further envisaged providing/ ensuring, inter alia, financial security though pension
and legislative schemes; health care and nutrition through strengthening existing medical
framework and providing easy access; shelter through group housing schemes; education and
welfare schemes; etc. Pertinently, in order to ensure the implementation of the Policy, Ministry of
Social Justice and Empowerment was provided as a nodal agency/ Ministry. The NPOP further,
inter alia, provided preparation of Five Year and Annual Action Plan, indicating the steps to be
taken to ensure flow of benefits to older persons from general programmes and from schemes
specially formulated for their well-being.

At the same time, as per the policy, detailed review on the implementation of the Policy was
to be prepared every three years by the Ministry. Pursuant to the NPOP and in furtherance to aims
and objects envisaged therein, Maintenance and Welfare of Parents and Senior Citizens Act, 2007
(“Senior Citizens Act”) was enacted. As per the preamble of the Senior Citizen Act, the said Act
aims to provide for “more effective provisions for the maintenance and welfare of parents and
senior citizens guaranteed and recognised under the Constitution and for matters connected
therewith or incidental thereto” Significantly6 , one of the major aims of the Senior Citizens Act
is to provide for the institutionalization of a suitable mechanism for the protection of ‘life and
property of older persons’.

The Senior Citizens Act defines parent to mean father or mother whether biological, adoptive
or step father or step mother, as the case may be, whether or not the father or the mother is a senior
citizen (Section 2(d) of the Act). As per Section 2(h) of the said Act senior citizen means “any
person being a citizen of India, who has attained the age of sixty years or above.” Further, under
 24

Section 2(b) of the Senior Citizens Act, “maintenance” includes provision for food, clothing,
residence and medical attendance and treatment.” As per Section 4 of the Senior Citizens Act,
application for maintenance can be maintained by a senior citizen, including parent who is unable
to maintain himself from his own earning or out of the property owned by him, against one or more
of his children not being a minor, in case of parent or grandparent.

In case of a childless senior citizen, such application can be made by the senior citizen against
any his relatives as referred to in Section 2(g)7 of the said enactment. Pertinently, such obligation
to maintain a senior citizen extends to ensuring that the parents are able to lead normal life. Further,
as per Section 4(4) of the said Act, such obligation of maintenance extends toany person who is a
relative of a senior citizen, having sufficient means and is in “possession of the property of such
senior citizen or he would inherit the property of such senior citizen.”

Undoubtedly, the significance of elderly in a family is unmatched and cannot be

overemphasized. Society and family/ies cannot opt to repay for their years of dedicated service in
nourishing their households by abandoning and disregarding them. It is equally imperative to
maintain and provide their health, stature and basic necessities, as it is important to respect and
take care of them in their fragile conditions. In his renowned work22, William Shakespeare
compared old age to second childhood by remarking, “Is second childishness and mere oblivion,
Sans teeth, sans eyes, sans taste, sans everything” Life, clearly comes to a full circle in old age.

Those fortunate to pass through all the stages of life, do culminate living preceding a stage of
total oblivion, hence, often termed a second childhood. Therefore it is understandable and much
required that equally patience, love and affection is bestowed upon those who dedicated the prime
of their lives in looking after us. It is not only a social responsibility, rather, a mandate of a State
and society built on law order and especially in the case of India, on cultural and religious
principles.

No society or nation can progress if it forsakes its roots for a better tomorrow. The debt we all
owe in our primes towards our elderly is infinite and the least we can do to repay is to nurture such
elderly in their ages of senescence. At the same time it needs to be appreciated that elderly do not
amount to a liability rather their wisdom and knowledge of life is to be cherished and gained. As
someone once said, “The elderly have so much to offer. They’re our link with history.”
 1

Module – 5
Legitimacy of the children born out of void marriages and voidable
marriagesxviii
The status of children, whether legitimate or illegitimate, plays an important role in their life.
It actually defines the way of their life. The rights they confer, the authorization they have, the
liability they possess, it all flows in the conscience of their status. Generally, it has been said that
children born out of valid marriages are legitimate and those who are born out of no valid marriage
or extra marital affairs or invalid sexual relationships are considered to be the illegitimate ones.
The society and personal laws had already created a line of distinction between both, back in the
history. That distinction generally means hardships, no social acceptance, discrimination, disparity
etc. For the illegitimate children, on the other hand, legitimate children enjoys the rightful status
in the society, authoritative for certain things, rightful succession etc.

But this is not the truth, all the children born out of no valid marriage or void marriage
or voidable marriage are not illegitimate. We will study about this in detail in the coming article
but before that one needs to understand the meaning of legitimacy, void marriages and voidable
marriages.

What is legitimacy of a child?

Legitimacy of a child can be defined as the status that he or she acquires when they are born
out of valid marriage or born out of a marriage which fulfills the conditions of Hindu marriage
given under section 5 of Hindu Marriage Act, 1955 or in other words, the child born to the parents
who are legally married to each other and the child conceived before the divorce of them. Status
of legitimacy defines the rights and liabilities of the children. It gives the rightful status of children
in the society. It gives the title and the surname of the father to the child. It gives the right of
inheritance to the child in the father’s property and ancestral property.

Void marriages and legitimacy of children born out of it-

Void marriages– A void marriage is not a marriage, irrespective of the fact that all the rites
and ceremonies took place. In the simpler terms, void marriage is a marriage that took place
between two such person who doesn’t have to capacity to marriage or the marriage is in the
 2

contravention of clause (1), (4) and (5) of section 5 of Hindu Marriage Act,1955. A void marriage
is void-ab-initio, which means it is void from the beginning, i.e. it never existed. Void marriages
do not require a decree to get it annulled, as it never existed, so even if the court passes a decree
of annulment it just declares it null and void, do not render it null and void. Void marriages do not
give rise to any status of husband and wife, do not create mutual rights and obligations. Parties to
the void marriage can remarry, as marriage never existed, so they wouldn’t be charged with the
offence of bigamy.

Legitimacy of children- According to the provisions given under the section 16 of Hindu
Marriage Act, 1955 and Special Marriage Act, children born out of void marriage, irrespective of
being declared annulled/void by court or not, shall be treated as legitimate children, but they
will inherit the property of their parents’ only, not the ancestral property. They do not have
coparcenary rights.

Voidable marriages and legitimacy of children born out of it

Voidable marriages- A voidable marriage is a valid marriage until it is avoided by the either
party, or in other words, a voidable marriage is a marriage that can be avoided at the petition of
declaring it void by either party to the marriage, and if the parties doesn’t file the petition the
marriage remains valid. As long as the voidable marriage is not avoided, all the consequences of
the valid marriage flow from it. Parties to the unavoided voidable marriage can not marry to the
other person, they would be charged with the offence of bigamy if they do so, as the consequences
of valid marriage flows from unavoided voidable marriage.

Legitimacy of children- According to the provisions given under the section 16 of Hindu
Marriage Act, 1955 and Special Marriage Act, the legitimacy of the children born out of voidable
marriages has certain cases, which are as follows:-

CASE 1- CHILDREN BEGOTTEN BEFORE THE DECREE IS MADE

Children begotten or conceived before the decree of nullity is made, would be legitimate as if
the decree would have dissolved rather than annulling the marriage.

CASE 2- CHILDREN OF UNANNULLED VOIDABLE MARRIAGE

 3

Children born out of such voidable marriage which is not rendered void/annulled/avoided by
the either party to the marriage would be legitimate in the same way that of children born out of
valid marriage.

CASE 3- CHILDREN OF ANNULLED VOID MARRIAGE

Children born out of such voidable marriage that has been rendered void/ annulled/unavoided
by the either party to the marriage would be legitimate, but they can only inherit the property of
their parents only, not others. No coparcenary right is given to them.

Prior to the commencement of Hindu Marriage Act, 1955 the parties to the void and voidable
marriage doesn’t have any remedy to render that marriage void or avoid that. But after the
commencement of the said act, the remedy to get rid of such marriages came in existence. Section
11 and Section 12 empowers such parties to the void and voidable marriages to get them annulled.
The said act provided the set of provisions which declare the marriage void and voidable, those
are in contravention of the section 5 of the act. The enactment of the Amendment Act, 1976
empowered the children born out of such marriages. It gave the legitimate status to the children
born out of void and voidable marriages. This enactment stood up for the rights of the children as
being born out of such marriages is not their fault, but the ultimate price has to be paid by them
only. They are the only ones who suffer from all the disparity and discrimination that society has
created. It has been rightfully said by Leon R. Yankwich, “There are no illegitimate children, only
illegitimate parents”.

Adoptionxix
Introduction

Section 5 in The Hindu Adoptions and Maintenance Act, 1956

Adoption means a legal transfer. Generally, new couples prefer to adopt a child not to give
birth to a new child. If we see, in India, orphanages are full of children, as they have no parents to
take care of them. Today many parents give birth to a girl and throw her in the dustbin and don’t
even think twice. This crime is increasing day by day. In today’s generation also people don’t
understand the value of a girl child after so high education qualifications. Half of the population
of children is alone, they don’t have legal parents to take care of them. Adoption is the best way
to give them a good life. It also helps in maintaining the population of the country. Hence, new
 4

couples of our generation are working in this matter by adopting the child and give them a better
life.

Adoption under English law

• U.N adoption program

According to the United Nations, every state has the right to adoption so that adoption may
come in the effect. International Conventions has its own general rules and principles and acts for
the adoption right.

1. The Declaration of the Rights of the Child, 1924 is the first and foremost principle for the
protection of child rights. It is also known as the Geneva Declaration of the Rights of the
child. This right is adopted by the League of Nations in 1924. Geneva has taken this quote
to define the protection of child and child rights under English Law. the quote is
“International Save the Children Union”.

The main objective of this quote is:

1. For the protection of a child and give them a good life.

2. For the development of their mental and physical health.

3. The children who have no one to feed them and the children who are sick and they don’t
get medical health facilities can get adopted and give them all these facilities. Take care of
them in all cases.

4. They are provided with good education even in the orphanages. And most importantly the
children who stay on the roadside also get adopted by orphanages and feed them with good
food and health facilities.

World Child Welfare Charter is the first welfare program which is established and perform in
the established institution by the League of Nation on 26 November 1924. This is the first human
rights document that is approved by the governmental institution to perform the welfare program.

• The second right which is established by the United Nations is The Declaration of the
Rights of the Child is the second document which is established in the year 1959. It gave
the children official recognition of the human rights of the children. There are some
 5

Declarations, Covenants, and Conventions for the children who did not get parental care.
The two summits of UN Convention which was established by the United Nation and India
has become a signatory of those summits. The summit is the Declaration of the World
Summit for Children. This summit’s main intention is to work for the survival and
development goals in the year 2000.

• The seventeenth session of the UN is the Hague Conference on Private International Law
and Hague Adoption Convention(Convention on the Protection of Children and
Cooperation in Respect of Inter-Country Adoption) which is adopted for the protection of
children and the interest of their parents and adoptive parents so they can adopt children
by their own choice and feed them.

• Person Competent to Adopt under English Law

1. Children domiciled in the United Kingdom

2. Couples are the citizens of the United Kingdom

3. Couples must have their residents to stay.

4. They must be employed so they can give their child a good life.

5. Couples must be married.

6. Adoption is not allowed for unmarried couples.

7. Couples must adopt the child with the permission of their parents so if any condition they
become incapable to feed their children so their parents can feed their children.

8. Couples must be age 21 or above.

• A person competent to give their child for adoption

In case natural parents died, the Guardian of that child can give the child for adoption.
Guardians have the right to give the children for adoption under Guardians of Minor Act. in case
of a child is admitted in the hospital, asylum or any other place, in case institution permission is
important for giving the child for adoption as well as guardian permission is also required. Children
who are only attended 6 weeks of age, their adoption is only valid after the permission of their
parents or adoptive parents or guardian.
 6

• Who may be adopted

Children attended the age of 6 weeks they can be adopted or up to the age of 18. The children
who already attend the age of more than 18 years cannot be adapted according to the English law.

• Effects of Adoption

1. Adoptive children can’t marry in their own natural parent’s family.

2. Adoptive children can only marry with adoptive children.

3. Adoptive children have rights in the property of their parents.

4. All the rights are the same for adoptive children and natural children.

5. Adoptive children is a citizen of the United Kingdom only.

6. Natural parents can only adopt children.

7. Adoptive parents cannot adopt children.

8. Adoption is revocable.

9. Adoption is registered under Registrar General.

10. Records of the adoption are always kept a secret from the public.

Modern Adoption Law

Modern adoption law is established in the nineteenth century for some new changes and
development in the society for the betterment of children’s future. Modern adoption promotes the
welfare of children for the new ideological framework. The first act which is established in the
modern adoption law is The Massachusetts Adoption of Children Act which was enacted in the
year 1851.

Rules of Massachusetts Adoption of Children Act:

1. Prove themselves suitable and fit to adopt the child in front of judges.

2. The birth relatives didn’t get terminated because of adoption.

3. A person who has legitimate descendants cannot adopt a child.

 7

In the year 1881 New Zealand has introduced the Adoption of Children Act. New Zealand is
the first country under Common Health to introduced this act.

Adoption in India

“Every child has a Right of Adoption”

This quote brings great change related to adoption in India. It is a very sensitive issue in India
that children have no one for their care in a very high population. In comparison to all other
countries, India has the highest population. And every day, many children are pushed into the
orphanages because of their family problems. Even we see children on roadsides roaming around
and they have to beg on the roadside for the food and dresses and they cry for the food maximum
time. And after seeing these conditions also people don’t even try to feed them when they are
capable of feeding them. This is the reason why maximum children have to stay alone.

Principles to govern the Adoption Process in India

Orphan and abandoned child

• Adoption is legally free under section 31, 32, 33, 36, 40.

• If any child gets adopted without the involvement of the child welfare committee that child
has to stay 24 hours with the committee and also has to submit the reports and other
documents of adoption to the local police station.

• Committee issue an order for the interim care of the child.

• Documents and reports of the adoption are submitted to the local police station as well as
entered online in the Child Adoption Resource Information and Guidance System in the
format as prescribed.

Eligibility of adoption in India

1. Parents should be stable for adoption.

2. Parents should economically, physically and financially capable of adoption.

3. Parents must be married.

4. A single male is not eligible to adopt a girl child.

 8

5. Composite age will count.

6. The age difference between parents and child be 25 years.

7. Step-parent adoption is not allowed.

8. If any couple has 3 children or more than that they cannot adopt a child.

Age perspective:

Age of Maximum composite age of Maximum age of single

child prospective adoptive parents (couple) prospective adoptive parents.

1-4
90 years 45 years
years

4-8
100 years 50 years
years

8-18
110 years 55 years
years

• The adoption process in India

The procedure of Adoption In India:

Child registration:

• Parents have to register themselves in the organization from where they want to adopt a
baby.

• Documents are submitted for the adoption of a child.

• The documents required photographs of the current family, Pan card of the parents, birth
certificate of the parents, proof of residency, proof of income of last year, medical report
of the parents, reference letter, consent of older children.
 9

1. Home inquiry and counselling of parents: when couples registered themselves for the
adoption of the child first they have to submit all their documents as required for the
adoption according to the adoption agency and then the next process of adoption is the
home enquiry of parents where they live. The social worker of the organization where the
parents have registered themselves to adopt the child, from that organization some of the
social workers visit the house of registered parents and study the home and check all the
things in the house for the satisfaction that the parents are capable to adopt the child. And
also they do counselling session with parents to know their strength, motivation, and
preparation for the adoption of a child.

2. The child is referred: after every process of the adoption done from the parent’s side then
the organization shares medical reports, physical examination reports and other relevant
information with the couple and also allow them to spend time with the child so they get
comfortable with each other.

3. Acceptance by parents: finally parents accept the child and take their child with
themselves by signing the petition in the court.

4. A petition filed: the documents of the adoption to the lawyer to present in front of the court
for the adoption process and at last, after the end of the process, parents have to sign the
petition for the completion of the adoption.

5. Pre-Adoption foster care: this process is done when the petition is signed. In this process,
adoptive parents can take their child to the child nursing home for the pre-adoption foster
care centre and help to understand the habits of the child.

6. Court hearing for the process of Adoption: after parents take adoptive child home after
that they have to take their child to attend the court hearing for the adoption process with
the child but this hearing is happened in the closed room with judge and the judge some of
the questions to the parents and mention the amount which needs to be invested in the name
of the child.

7. Follow up: at last agency has to submit the following report of the child’s well being in 1-
2 years.
 10

Adoption Coordinating Agency

The functions and duties of the Adoption Agency are as follows:

1. Care, protection, care of their well-being, health needs, emotional, and psychological
needs, education, training.

2. Training needs like leisure and recreational activities.

3. Protect from child abuse, neglect, and exploitation, social mainstreaming and restoration.

4. All cases must be for the children related to admissions, restorations, transfers, death, and
adoption of children, children missing.

5. All committees like Child Welfare, District Child Protection Unit, State Adoption Resource
Agency, and the Authority through Child Adoption Resource Information and Guidance
System are designated for the post of a missing child to file to the police.

6. The report of orphanages of children is submitted to the Child Adoption Resources

information and Guidance System through the website of CARA.

Hindu law

According to the Hindu Law, it legalises the adoption in India. It defines the adoption under
the Hindu Adoption and Maintenance Act, 1956. It teaches the parents to treat the adoptive
children as their natural child. There must be no discrimination between the adoptive children and
natural children. If any parents adopted girl child they must take care of their girl child by giving
her all the facilities which she is eligible for as they give to their natural child. There will be no
discrimination between a girl child and a boy child. Even girl child get all the facilities they give
to their natural son.

The landmark case on Hindu Law:

Bal Gangadhar Tilak vs Shrinivas Tilak

Facts of the case:

 11

In this Privy Council observed that adoption among Hindus is not only for the legalise the
children but also it is a religious means to make obligations and sacrifices which would permit the
soul of the deceased father passing from Hades to paradise.

Amarendra Mansingh vs Sanatan Singh

Facts of the case:

In this case, the Privy Council observed about the foundation of the Brahmanical doctrine of
adoption is the duty which every Hindu owes with his ancestors to provide for the continuance of
the line and the solemnization of the necessary rites.

• Adoption is a part of the customs and burden of proving the validity of adoption depends
on the person who claims it under the Hindu Adoption and Maintenance Act, 1956.

Binapani Samanta vs Sambhu Mondal

Facts of the case:

The petitioner has filed a petition challenging the defendant who is the probate of the will on
the ground that she was the adopted daughter of the deceased who died and the probate is
fraudulent. But she fails to prove the burden of proof of the validity of the adoption. It was held
that she could not challenge the probate.

Hindu Adoption and Maintenance Act, 1956

This act was enacted in the year 1956 for the maintenance of children who don’t have legal
parents and they have to live in an organization.

• Features of the Act

1. Females can adopt a child and even give for adoption.

2. Female can adopt the child with the consent of his husband

3. A widow can also adopt the child.

4. The male has to take the consent of his wife if he wants to adopt the child.

5. Female can adopt the child which was not permissible in pre-act
 12

Capacity to adopt

1. Unmarried males can also adopt the child.

2. An unmarried female can also adopt the child after the HAMA act, 1956

3. If any married male wants to adopt a child he has to take the consent of his wives.

4. If any married woman want to adopt the child she has to take the consent of her husband.

5. Divorced and widow can also adopt the child.

Capacity to give for adoption

1. If in case parents died then the guardian can give for adoption.

2. If only the father is alive then he can alone give for adoption without any consent.

3. If the mother becomes unsound mind then her/his father can give for adoption.

Effect of adoption

When children get adopted he/she gets right in the property of their parents. They become part
of the natural family. All the rights and obligations of a natural-born child of the family fall on the
adoptive child with some exceptions. These exceptions are as follows:

1. An adopted children can only marry the adopted child. He cannot marry anyone who is
not adopted.

2. Any property which is vested in the adopted child before adoption continues to vest in him
subject to the obligation, if any, attaching with the ownership of the property, including the
obligations to maintain relations of his/her birth.

3. The adoptive child cannot divest any person of any estate which vested in him or her before
adoption.

If any parents give their property to their adoptive child they lose power to dispose of the
property or transfer the property. They don’t have any rights in the property of the adoptive child.
If any male is already married and his wife has adopted a child she will be the actual mother of
that child and if the male was married another girl she will become the step-mother of the adoptive
 13

child. If any unmarried male adopted a child before marriage and after some time he gets married
then his wife becomes the step-mother of that child. She will not consider as a legal mother of that
child. And if any unmarried woman or a widow or divorced woman has an adopted child and if
she married someone then he will become the step-father of that child. Because of this many times
dispute is caused between adopted child and step-father. The reason behind this adopted son has
no right in the property of his step-father.

Case law:

Gender bias

Comparison between male and female in case of adoption.

1. Married women cannot adopt the child even though she cannot adopt the child with the
consent of her husband.

2. If any female wants to adopt the child, in case she can only adopt the child if she widow or
divorced or a single mother.

3. A married male can adopt the child with the consent of her wife.

4. Unmarried males can also adopt the child.

In the case of giving in adoption father has a better right:

1. If the father is alive he can give his child for adoption with the permission of his wife.

2. But a mother cannot give their child for adoption even with the consent of her husband she
cannot give for adoption.

3. Mother can give the child for adoption if her husband died.

Case laws:

Malti Roy Chowdhury vs Sudhindranath Majumdar

Facts of the case:

This case is filed by the petitioner for the right of married women for adoption because
according to HAMA act married women cannot adopt a child and not even with the consent of her
 14

husband. This case is related to gender discrimination. The court marked for this judgment
is “Adoption has to be taken factually or legally by the male in case of marriage, and not by
the wife. In other words, the wife cannot adopt even with the consent of the husband”.

Brijendra Singh vs The State of M.P

Facts of the case:

This case overruled the case Malti Roy, in this case, it is observed that this case came as a big
disappointment. In this case, disabled lady was married with the village custom, a virgin girl must
get married, her husband left her and after that, she adopted a son after 22 years of her marriage.
In the other case, disputes are under the agriculture land ceiling law. She sought a declaration that
the appellant was her adopted son. The suit was decreed by the trial court and affirmed by the first
appellate court. On second appeal to the Madhya Pradesh High Court it was held that, given the
provisions of section 8(c) of the HAMA Act, 1956, the adoption was not valid. The argument she
said that she is leading a life like a divorced woman was not accepted because this was a great deal
of difference between a female Hindu who is divorced and one who is leading a life like a divorced
woman, the court observed.

After this new Act is established in favour of married women, the Gender Discrimination
Act which is a personal law amended in the year 2010, which gives right to the married
women to adopt a child with husband’s consent but that is not likely to change the fate of
married female placed in the position of the disabled, deserted, “divorced-like” lady in this
case.

Factum and proof of adoption

Case law:

Ram Das vs Gandiabai

Facts of the case:

In this case, petitioner filed a suit for partition against the deceased father’s brother. The latter
alleged that the petitioner had no right over the properties, as he was no longer a member of the
family because he had been given away in adoption to the man whom his mother later married and
who maintained him. The court did not accept this plea. It held that simply because the step-father
 15

spent money on his maintenance does not by itself imply that he had been adopted by the step-
father. It was accordingly held that even though he was brought up by the step-father, he continued
to be a member of his deceased father’s family, with all the rights of a son of that family.

Nilima Mukherjee vs Kanta Bhusan Gosh

Facts of the case:

In this case plea of adoption was taken based on joint accounts with the alleged adoptive
father, the court held that the mere fact of having a joint account is no proof of adoption.

Dhanno vs Tuhi Ram

Facts of the case:

This is the case of the property dispute based on the claims of the virtue of adoption, but the
court refused to accept the claim because there was a valid adoption. The son claimed to be the
adoptee of his parents, but he treats him as his biological father, rather than the alleged adoptive
mother, as his parent. Besides, there was no other evidence on record to show any ceremony
regarding adoption. In these circumstances, a mere placing of a registered adoption deed on record,
without proving the factum of adoption, was held to be not enough evidence of adoption.

The judgment of the case:

The court observed that evidence in support of adoption must be sufficient to satisfy the heavy
burden that rests upon any person who seeks to displace the natural succession by alleging the
adoption.

Ram Chandra vs Banwari Lal

Facts of the case:

In this case the validity of adoption deed is challenged where the alleged adoption deed did
not bear the signature/thumb impression of the natural father of the adoptee or any of his guardians
nor was there any indication of presence of parents and guardians of the adoptee at the time of
execution or registration of the adoption deed.

Prafulla Bala Mukherjee vs Satish Chandra Mukherjee

 16

Facts of the case:

In this case, the adoptive mother sought a declaration of absolute right, title, and interest in
respect of the property built by the adopted son, and also a decree for a perpetual injunction
restraining his relatives, the defendants, from interfering with occupation and possession of the
property. According to the court, the mere fact that an allegedly adopted son permitted his adopted
son, adoptive mother, and her family to live in his house, was no proof of adoption. On the
contrary, there were several facts to disprove the adoption like the adopted son treating his natural
mother as his mother till his death, appointing her as his nominee in the insurance policy, provident
fund, etc. performing the shraddha ceremony of his natural father, and his own death, his shraddha
ceremony being performed by his brother.

Suma Bewa vs K.B. Nayak

Facts of the case:

The plea of adoption is rejected in this case because there was proof of the adoption. There
was no document executed by the parties in support of the alleged adoption, no contemporaneous
document recording name of adopted son as the son of the adoptive father, nor any document to
show that the name of the adoptive father was recorded in the service book of the adopted son. On
the contrary, the voter’s list indicated the name of the natural father. Besides, oral evidence was
found to be suspicious, no independent witnesses were examined to prove adoption ceremony nor
a single neighbour examined to testify that adoptive father and adoptive son were living together
and addressing each other as such.

Oriental Insurance Co.Ltd vs Lalita Sharma

Facts of the case:

In this case, the mere fact that the child was living with his father and step-mother, who
claimed to be the adoptive mother, in the same house was held not enough to prove adoption.

Chandan Bilasini vs Aftabuddin Khan

Facts of the case:

 17

In this case where there was enough evidence of adoption, the mere fact that the adoptive
mother, who was an old lady of 86, and some other persons who were present at the adoption
ceremony, could not be produced in the court for giving evidence, was held not to be enough to
assail the validity of the adoption. Also, where all rituals of adoption as per Hindu Law were
followed the adoption deed was registered and photographs and negatives of photographs which
had been taken at the time of adoption were produced, the adoption cannot be challenged. It is
significant to note that registration of an adoption deed is not mandatory and there is no
presumption in law against the validity of an unregistered adoption. However, when the same is
registered, there is a strong presumption under section 16 of the act that the adoption has been
made in compliance with the provisions of the act unless and until it’s disproved. Such
presumption, however, is not irrebuttable and the court may refuse to accept an alleged adoption
as legal despite it being registered if there is evidence of circumstances indicating that there was
no valid adoption. Such presumption, cannot, however, be rebutted by minor discrepancies in the
evidence. For instances where there was enough evidence of adoption, the mere fact that the
adoptive mother, who was an old lady aged 86, and some other persons who were present at the
adoption ceremony, could not be produced in the court for giving evidence, was held not to be a
sufficient ground to assail the validity of the adoption.

Siddalingaiah vs H.K. Kariappa

Facts of the case:

This is the case challenging the adoption which was raised 40 years after the adoption the
court held that the moment the adoption deed was registered parties to the adoption would have
constructive notice of the same and challenging it after such a long gap would be barred by
limitation. The court further clarified that even if the bar of limitation is not set up as a defence the
court must take note of this and dismiss the suit.

Age requirement

Case law:

Uma Prasad vs Padmavati

Facts of the case:

 18

The claim of an adopted son to properties was sought to be challenged on grounds that the
boy was above the age of 15 when he was adopted, and so the adoption was not valid. The parties,
who were Agarwals by caste, however, succeeded in proving that they were governed by ancient
and well-established custom and usage, which permitted the adoption of boys over the age of 15.
The adoption was, consequently held to be valid.

Khagenbam Sadhu vs Khagembam Ibotial Singh

Facts of the case:

Where the fact of adoption was proved, the challenge that the child was above 15 years, and
Manipur custom did not allow such adoption, was held to be not sustainable as the alleged Manipur
custom against such adoption was not proved. Adoption was therefore held to be valid. However,
in a case where a plaintiff who was not.

Amit Chandubhai Chauhan vs Ahmedabad Municipal Corporation

Facts of the case:

In this case, the alleged adopted son sought a compassionate appointment after the death of
his mother, his case was rejected as he was aged 23 at the time of the alleged adoption and he could
not prove cogent evidence of the existence of a custom permitting adoption of the child over 15
years.

Parvathamma vs Shivakumar

Facts of the case:

In this case, the child is over the age of 15 is allegedly adopted and it was not established that
there was a judicially recognised custom amongst the lingayats of Karnataka permitting such
adoption, the same was held to be void under Sec5(1) violation of section 10(iv) of the Act.

Atluri Brahmananda(dead) through L.R. vs A.S. Bapuji

Facts of the case:

This is the case where the petitioner succeeded in proving the custom in the Kamma
community to which he belonged, recognising the adoption of a boy over the age of 15 and this
 19

custom and fact of adoption was also recorded in the registered adoption deed which was not
disproved, the adoption was held to be valid.

Patel Mukesh Kumar vs Regional Passport Authority

Facts of the case:

The petitioner’s application before the passport authorities for the inclusion of his adoptive
father’s name in his passport was rejected on the ground that the appellant was aged 34 at the time
of adoption and hence the adoption was not valid. On appeal against this rejection, it was held that
the passport authority has no power to render a finding regarding the legality or otherwise of the
adoption of such findings could be given only by a competent court. Further, the adoption was
affected by a registered deed. There is a legal presumption that the same has been made in
compliance with the statutory requirements unless it is proved otherwise. In this case, it was not
the case of the respondent passport authority that the adoption has been disproved, hence the
presumption of validity of the adoption would apply, the court held.

Adopted child to be Hindu

Case law:

Kumar Sursen vs The State of Bihar

Facts of the case

The issue of the adoption of a Muslim child came up before the court. The child was
admittedly brought up by Hindu parents since his every tender age and they also treated him like
their son. The court, however, declined to give him the status of an adopted child because of the
specified provision of section 10(i) of the Act.

Consent of Wife

Case law:

Siddaramappa vs Gouravva

Facts of the case:

 20

The court invalidated an alleged adoption by a male without seeking his wife’s consent. The
plea that the relations between the husband and wife were stained, and therefore her consent could
not be taken was not accepted, as there was documentary evidence to establish that they were
living together at the time of the alleged adoption. There was nothing to indicate that it was
impossible to have a wife’s consent. Apart from that, when the conditions under which such
consent may be dispensed with are specified in the Act, taking any other plea would be adding
words to the statute.

Ghisalal vs Dhapubai

Facts of the case:

This is the case based on the significant judgment of the Supreme Court. It was a property
dispute where the issue of the validity of an adoption by a male, even though by a registered deed,
was raised. The focal point was, the consent of the wife in the adoption while the petitioner claimed
that he is the adopted son was entitled to the properties of the adoptive father, the latter denied the
factum of adoption and also absence of the wife’s consent. The trial court, the lower appellate
court and the Madhya Pradesh High Court were all of the opinion that the adoption was valid and
the consent of the wife of the adopted male can be inferred from the circumstances of the case,
that she was present in the ceremonies of adoption and did not question the adoption till the stage
of filing the written statement in the suit filed by the petitioner. On appeal, however, the Supreme
Court analysed the facts and circumstances of the case in detail and set aside the judgment of the
courts below, adoption was held to be invalid.

Deen Dayal vs Sanjeev Kumar

Facts of the case:

In this case, the mother’s consent is equally mandatory in giving and taking of a child in
adoption. Thus, an adoption, even through, registered, where the child was given in adoption by
the natural father but without the consent of the mother, was held to be invalid.

Consent of the father

Consent of the father is equally important when the mother wants to give or take a child in
adoption unless he suffers from the statutory disabilities mentioned in sections 8 and 9 of the Act.
 21

Case laws:

Teesta Chattoraj vs Union of India

Facts and judgment of the case:

In this case, the parents had a divorce by mutual consent and as per the settlement the father
gave up all the claims and duties of their daughter. Two years later, the mother remarried and by
a registered adoption, deed gave the daughter to the second husband without seeking the consent
of the biological father. When the child applied for a passport with step father’s name as the father,
the application was turned down because the adoption was invalid. Hence, the child’s petition
through her mother under Article 226 of the Constitution. Her plea that the natural father had, in a
way “finally renounced” the petitioner’s world since, at the time of obtaining a divorce by mutual
consent, he gave up all his rights, responsibilities and claims over the child, was not accepted. On
the other hand, a Government Circular of 2009 by the Ministry of External Affairs which provides
that relationship of the child with his biological parents subsists even after divorce and the name
of the stepparent cannot be written in the passport of the children from a previous marriage was
relied upon. While there is logic to this provision, too technical an interpretation may go against
the interest of the child. A recalcitrant parent may have abdicated himself/herself of all the
responsibilities towards the child yet out of sheer vindictiveness may hold requisite consent which
could cause psychological, emotional, social and practical problems as also embarrassment to the
child. Each case needs to be assessed on its own merits and facts.

Guardians and wards Act, 1890

This act is established in the year 1890. The main intention of this act is to define the
guardianship of the child. Parents are the real and natural guardian of children but after the death
of parents, grandparents or other members of the family becomes the guardian of the children but
they are not considered as the natural parents of children. This act is applicable when any couple
adopts children and after some because of some reasons they died then child responsibility comes
over guardians so they can feed their child or if they are not capable of adoption they can give their
child for adoption under this act. Guardians have full rights on the child-related to the right to
education, employment, etc.

Duties, Rights and Liabilities of Guardians

 22

1. Fiduciary relation of guardian to ward- The Guardian and children relation is considered
as the fiduciary relation. This relation is for the protection of will and other instruments.
But the guardian cannot make any profit in the will and property of children.

2. The capacity of minors to act as guardians- Minors is considered incompetent so he or

she cannot become the Guardian of the children. He could be parents of his children but
not a guardian.

3. Control of collector as guardian- if the Guardian is minor then the court appoints the
collector for the care and protection of children. The collector is connected with the
Guardian. The collector is paid by the government officials.

4. Remuneration of Guardian- when an officer appoints any person for the guardianship of
children then that person’s duties towards children is decided by the court.

Guardian of the Person

Title of guardian to custody of wards- if ward leaves or is removed from the custody of a
guardian of his person by the court then the welfare of the ward is transferred to the guardian by
making the order for his return by the court and before the transfer of the ward to the guardian the
ward gets arrested.

Duties of guardian of the person- the duties and responsibilities are charged to the guardian
after the child is transferred to the guardian by the court.

Removal of Ward from Jurisdiction- the guardian is appointed by the will or another
instrument by the court. If a guardian is adopted with the permission of the court then the guardian
should be removed from the responsibility of children.

Guardian of property

Duties of guardian of property– child are transferred to the guardian with some restrictions
and bounds under the act. He can only do those acts which are reasonable and proper for the
realisation, protection or benefit of the property.

Powers of testamentary guardian– When guardian adopt a child for the care and protection
of the child they have some limited powers on childlike mortgage or charge, transfer by sale, gift,
 23

exchange, etc. guardian can adopt a child with the help of the will or another instrument which are
legal. There are restrictions on the immovable property which belongs to ward is subject to
restrictions which may be imposed by the instrument, unless they are declared guardian and the
court which made the declaration permits them by an order in writing to dispose of any immovable
property specified in the order in a manner permitted by the order.

Limitation of powers of guardian of property appointed or declared by the court– When

the person is appointed as a guardian or collector by the court for the protection of the child than
he shall not without the previous permission of the court mortgage or charge, transfer by sale, gift,
exchange, or otherwise, any part of the immovable property of his ward.

Other than he can lease any part of that property for a term exceeding five years or for any
term extending more than one year beyond the date on which the ward will cease to be a minor.

Voidability of transfers made in contravention of section 28 or section 29– A disposal of

immovable property by a guardian in contravention of either of the two last foregoing sections is
voidable at the instance of any other person affected thereby.

Practice concerning for permitting transfers under section 29– This section mentioned
that the guardian has permission to do any acts which are mentioned in this section but it is not
granted by the court except in case of necessity or for an evident advantage to the ward. The grant
the permission from the court, shall recite the necessity or advantage, as the case may describe the
property with respect to which that act permitted is to be done, specify such conditions, if any, as
the court may see fit to attach to the permission and it shall be recorded, dated and signed by the
judge of the court with his hand, or when from any cause he is prevented from recording the order
with his hand, shall be taken down in writing from his dictation and be dated and signed by him.
The court may in its discretion attached to the permission the following among other conditions.

1. That a sale shall not be completed without the sanction of the court.

2. When some people are specially appointed by the court then the sale shall be made to the
highest bidder by public auction before the court and the time and place is specified by the
court. After such proclamation of the intended sale as the court subject to any rules made
under this act by the High Court.
 24

3. That a lease shall not be made in consideration of a premium or shall be made for such
term of years and subject to such rents and covenants as the court directs.

4. According to the court, direction guardian shall be paid to the court on prescribed
securities.

Variations of powers of guardian of property appointed or declared by the court– if any

guardian is appointed by the court and if such a guardian is not the collector then the court may
from time to time restrict or extend his powers with respect to the property of the ward in such
manner and to such extent as it may consider being for the advantage of the ward and consistent
with the law to which the ward is subject.

Right of guardian so appointed or declared to apply to the court for opinion in

management of property of ward– A guardian appointed or declared by the court may apply by
petition to the court which appointed or declared him for its opinion, advice or direction on any
present question respecting the management or administration of the property of his ward.

The obligation on Guardian of property appointed or declared by the court– Where a

guardian of the property of ward has been appointed or declared by the court and such guardian is
not the collector than he shall:

• If a guardian is required to give the bound in the prescribed form to the judge of the court
to ensure the benefit the judge for the time being with or without sureties for engaging duly
to account for what he may receive in respect of the property of the ward.

• A guardian is required to deliver to the court in every six months from the date of his
appointment or declaration by the court as the direction of the court. The statement of the
immovable property which belongs to the ward related to money and other movable
property which the guardian has received on behalf of the ward up to the date of delivering
the statement, and of the debts due on the date to or from the ward.

• Guardian have to exhibit his account in front of court when court requires and in such form
as the court from time to time directs.

• A guardian has to pay the due balance from his account to the court if court is required as
the court directs.
 25

• If the guardian apply for the maintenance, education, and advancement of the ward and
the ward is dependent on the guardian then such portion of the income of the property of
the ward as count from time to time directs, and if the court directs, the whole or any part
of that party.

Power to award remuneration for auditing accounts– when accounts are exhibited by a
guardian of the property of a ward in pursuance of a requisition made under clause (c) of section
34 or otherwise, the court may appoint a person to audit the accounts and may direct that
remuneration for the work be paid out of the income of the property.

Suit against guardian where administration-bond was taken– Where a guardian appointed
or declared by the court has given a bond duly to account for what he may receive in respect of the
property of his ward, the court may on application made by petition and on being satisfied that the
engagement of the bond has not been kept, upon such terms as to security, or providing that any
money received be paid into the court, or otherwise as the court thinks fit, assign the bond to some
proper person, who shall thereupon be entitled to sue on the bond in his own name as if the bond
had been originally given to him instead of to the judge of the court, and shall be entitled to recover
thereon, as trustee for the ward, in respect of any breach thereof.

Suit against guardian where administration-bound was not taken– Where a guardian
appointed or declared by the court has not given a bond as aforesaid, any person with the leave of
the court, may, as next friend, at anytime during the continuance of the minority of the ward, and
upon such terms as aforesaid, institute a suit against the guardian, or, in case of his death, against
his representative, for an account of what the guardian has received in respect of the property of
the ward, and may recover in the suit, as trustee for the ward, such amount as may be found to be
payable by the guardian or his representative, as the case may be.

General liability of guardian as trustee– Nothing in either of the two last foregoing sections
shall be constructed to deprive a ward or his representative of any remedy against his guardian, or
the representative of the guardian, which, not being expressly provided in either of those sections,
any other beneficiary or his representative would have against his trustee or the representative of
the trustee.

Termination of guardianship
 26

Right of survivorship among joint guardians- On the death of one of two or more joint
guardians, the guardianship continues to the survivor or survivors until a further appointment is
made by the court.

Removal of guardian- The court may, on the application of any person interested, or of its
motion, remove a guardian appointed or declared by the court, or guardian by the court, or a
guardian appointed by will or another instrument, for any of the following causes namely:

1. For abuse of his trust.

2. For continued failure to perform the duties of his trust.

3. For incapacity to perform the duties of his trust.

4. For ill-treatment, or neglect to take proper care of his ward.

5. For contumacious disregard any provision of this act or of any order of the court.

6. For conviction of an offence implying, in the opinion of the court, a defect of character
which unfits him to be the guardian of his ward.

7. For having an interest adverse to the faithful performance of his duties.

8. For ceasing to reside within the local limits of the jurisdiction of the court.

9. In case of a guardian of the property, of bankruptcy or insolvency.

Discharge of Guardian- If a guardian appointed or declared by the court desires to resign his
office, he may apply to the court to be discharged.

Muslim Law

Adoption is the transfer of a child to the parents. Under Muslim law Islam does not recognise
the adoption, it is very different from Hindu law. In Muslim law, adoption is recognised as
“Acknowledgment of paternity”.

Acknowledgment of Paternity is the principle that establishes the legitimacy of the child. In
this principle child gets acknowledges to become a legitimate child means paternity of the child is
established upon him.
 27

Case law in which the Supreme Court gave judgment related to the adoption, to extend the
right of adoption to Muslims also.

Shabnam Hashmi vs Union of India, (2014) 4 SCC 1

Facts of the case:

The judgment of the case, the Supreme Court of India declared that the right to adopt the child
by a person as per the provisions of Juvenile Justice Act would prevail over all personal laws
and religious codes in the country. The three judges bench consisting of Chief Justice P.
Sathasivam and Justice Ranjan Gogoi and Shiv Kirti Singh, however, maintained that

personal laws would govern any person who chooses to submit himself until such time that
the vision of a uniform civil code is achieved.

The Hon’ble Court also stated that adoption was a matter of personal choice and there was no
compulsion on any person to adopt or adopt a child.

According to the Act, Juvenile Justice Act, 2002 defines Adoption in section 2(aa). This act
confers that the adoptive parents and the child rights, privileges and responsibilities that are
attached to a normal parents child relationship.

Parsi law

“Parsi law” is the only personal law that is defined under the Hindu Adoption and
Maintenance Act. There is no other laws governing people belonging to other religions or
communities. The Parsi who are governed in their law by Parsi Marriage and Divorce Act,
1936, and PT III of the Indian Succession Act, 1925 has no provision for adoption. The
customary form of adoption amongst the Parsi is known as “Palak”. In the Parsi Law widow can
adopt the child on the fourth day of her husband’s death, simply to perform certain annual religious
ceremonies. The adopted child does not have the right to property.

Christian law

“Christians have no Adoption Laws” because the personal law of these communities does
not recognize adoption and adoption can take place from an orphanage by obtaining permission
from the court under the Guardians and Wards Act. if any Christians want to adopt a child then
 28

has to take permission from the court under the Guardians and Wards Act. National
Commission on Women has stressed on the need for uniform adoption law. With the help of
the National Commission Christians can adopt a child under foster care. If any child is adopted
under foster care and when he becomes major he can break all the connections with his family.
This type of child has no right of inheritance.

Case laws:

Philips Alfred Malvin vs V.J. Gonsalves

Facts of the case:

In this case, the court give the judgment that in spite of any absence of any law or alleged
existence of any custom enabling Christians to adopt a child, the court legally recognised the
validity of an adoption.

Uniform Civil Code for Adoption

If we talk about Personal Laws in Indian, all are codified to bring social justice, equality
among classes and uniformity. This personal law is simple easy and it attempts to make personal
faith. It applies to the particular religion. In the case of Uniform Civil Code is also called UCC is
a personal lawmaking system that creates a system for adoption for different religions with
different rules and regulations. It makes the process of adoption uniform and easy. If we talk about
the past situation of the adoption our forefathers do not know UCC but in the present situation,
there is a choice to include the provision for UCC to help the future government to implement the
law for adoption under UCC.

Conclusion

The only statute governing adoption in India is the Hindu Adoptions and Maintenance Act
or Juvenile Justice Care and Protection of Children Act, 2000. The Juvenile Justice Act has
provisions of adoption but in a different context. HAMA has liberalised the law in several aspects
like:

1. Clear religious bias

2. Hindu can only be adopted.

 29

3. Hindu can take and give for adoption

The act has an interest in the care and protection of the child as well as the welfare of the
child. Since there is no provision to investigate and look into the suitability and antecedents of the
family seeking to adopt, nor any follow-up to ascertain how the child is being treated. Other than
that if a foreigner wishes to adopt a child in India he cannot adopt under this act. He can adopt the
child under guardian and wards act for being appointed guardian of such a child, has to seek court
permission to take the child out of India. Moreover, under this act, the rights which children get
are very limited. They have no inheritance rights. Similarly, those who adopt are only guardians
and no parents. There is a need for a uniform law on adoption. Thousands of abandoned, orphaned
and neglected children need families and innumerable couples wish to adopt, but in the absence of
satisfactory legal provisions, the children remain homeless and people desiring to adopt cannot
adopt. All attempts to enact such laws are futile.

Inter-country Adoption
The Hindu Adoption and Maintenance Act applies only to the Hindus. There is no law
governing adoption by a different religion, nor is there any statutory provision providing for the
adoption of a child by foreigners living abroad.

CARA

Definition of CARA

Central Adoption Authority is a statutory body of the Ministry of Women and Child
Development, Government of India. It functions as the nodal body for the adoption of Indian
children and is mandated to monitor and regulate in-country and inter-country adoptions.

CARA Adoption Guidelines and authorities for adoption in India

1. Photograph of the current family for adopting the child.

2. Pan card of the adoptive parents.

3. Birth certificate of adoptive parents.

4. Residence proof of adoptive parents.

5. Proof of income of the family.

 30

6. Medical certificate from a medical practitioner.

7. Marriage certificate.

8. Divorce decree.

9. Reference letter from relatives in support of adoption.

10. Consent of the old siblings.

11. Home study report valid for 3 years only.

12. Parents should be declared legal.

13. Parents can file a suit against the adoption agency for the rejection of adoption.

14. The appeal referred to in sub-regulation 14 shall be disposed of within 15 days and the
decision of the Authority in this regard shall be binding.

State Adoption Resource Agency

State Name of the SARA Address

Andaman and Directorate of Directorate of Social Welfare, Golghar,

Nicobar Island Social welfare Port Blair, South Andaman & Nicobar Islands.

Women and Government of Andhra Pradesh 4th floor

Andhra Pradesh Development and Child Jampani Towers, Lodge Center, Amravati
Welfare Department Road, Guntoor Andhra Pradesh- 522006

Women and Child Social Welfare Department, Government

Arunachal
Development of Arunachal Pradesh post box no- 227,
Pradesh
Department Naharlaguan, Arunachal Pradesh.

State Child Protection Society, house no-

Social welfare
Assam 46, near Sarvey Bus Stop, Beltola, Guwahati-
department
781028
 31

SARA, 2nd Floor Apna ghar behind Lalit

Bihar SARA Bihar Bhawan Bailey Road Punaichak, Patna-
8000023

Department of Union Territory Child Protection Society,

Chandigarh
social welfare Near Vatika School, Sector- 19B, Chandigarh

State Adoption Resources Agency,

Directorate Women Directorate of Women & Child Development
Chhattisgarh and Child development Department, 2nd floor, block A Indrawati
department Bhawan, Atal Nagar, Raipur-492001
Chhattisgarh

Social Welfare Department ICPS Unit 1st

SARA Dadar and
Daman and Diu floor Government Quarters, Dholar, Moti,
nagar Haveli
Daman-396220

Department of Women and Child

Development, ICPS unit 1st floor of
Dept. of Women
Delhi Adharshila Observation Home for Boys Sewa
and Child Development
Kutir Complex Kingsway Camp, Delhi –
110009

Directorate of Directorate of Women & Child

Goa Women and Child Development, 2nd Floor Old Education
Development Building 18th June Road, Panji, Goa 403001.

Gujarat State Child Protection Society

Department of Government of Gujarat, Block 19 3rd Floor,
Gujarat
Social Defence Dr. Jivraj Mehta Bhavan, Sector-10/A,
Gandhinagar, Gujarat-382010.
 32

Social Justice and Women and Child Development

Haryana Empowerment Department, Government of Haryana, Bays
Department No. 15-20, Sector 4, Panchkula, Haryana.

Jharkhand State Child Protection

Social Welfare
Jharkhand Society(JSCPS) FFP Building, 3rd Floor Room
Department
No 313, Dhurwa Ranchi, Jharkhand-834004.

Specialised Adoption Agency

1. The parents responsibility towards children is to take care, protect them and take care of
their well-being and shall cater to their health needs, emotional as well as psychological
needs, educational and training needs, leisure and recreational activities, protection from
any kind of abuse, neglect and exploitation, social mainstreaming and restoration or as the
case may be and follow-up.

2. The cases related to admission, restorations, transfers, death, and adoption of children is
to be reported in the institutions like Child Welfare Committee, District Child Protection
Unit, State Adoption Resource Agency and the Authority through child Adoption Resource
Information and Guidance System. These are also the designated portal for child and
police.

3. Status of the child orphan abandoned and surrendered child on the Child Adoption
Resources Information and Guidance System, is to be submitted on the
website www.cara.nic.in.

4. Certificates are issued of the children by the Child Welfare Committee to declare the child
legality free for adoption in Child Adoption Resource Information and Guidance System
within forty-eight hours from the receipt of such certificate and must be uploaded.

5. Child study report must be prepared by the social worker and upload it in Child Adoption
Resource Information and Guidance System, within seven days from the date, such
children are declared legally free for adoption by the Child Welfare Committee.
 33

6. The medical tests of the child are to be submitted or uploaded in the Child Adoption
Resource Information and Guidance System as provided in schedule IV and it is prepared
in the home by the parents or orphanage.

7. Prepare individual care plan for each child in the following order: restoration to the
biological family or legal guardian, inter-country adoption, foster care, and institutional
care.

8. Album of the children is to be made after the adoption by the parents.

9. Make efforts to place each child in adoption, who has been declared legally free for
adoption by the Child Welfare Committee.

10. Ensure that siblings and twins are placed in the same family, as possible.

Authorised Foreign Adoption Agency

1. Register the prospective adoptive parents interested to adopt children from India and to
complete their home study report.

2. Follow-up with Specialised Adoption Agency for ensuring early adoption after receipt of
No Objection Certificate for the Adoption from the authority.

3. Give orientation to the prospective adoptive parents on culture, language, and food of the
place to which the adopted child belongs.

4. Ensure the submission of post-adoption follow-up of the progress of adopted children and
to address the cases of disruption, as specified in regulation 19.

5. Arrange get-together of children of Indian origin and their adoptive families from time to
time with the involvement of the Indian diplomatic missions concerned.

6. Facilitate root search by older adoptees.

7. Upload attested copies of the adoption application of the prospective adoptive parents in
the Child Adoption Resources Information and Guidance System and forward the original
of the same to the allotted Specialised Adoption Agency.
 34

8. Fulfill the legal requirements of the host country as well as the terms and conditions of the
authorisation given by the Authority.

District child protection unit

The district child protection is introduced by the Government of India in the year 2009-10.
The main aim to bring this Child Protection Unit:

• Bring some programs for child protection with some improved norms.

• Incorporate other interventions that aim to address issues that were so far not covered by
earlier schemes.

• Based on principles of protection of child rights and the best interest of the child.

• Every District has a child protection unit.

• The district child protection unit is under the Chairperson of the Chairperson.

• District Magistrate, District Child Protection Unit has been established in District Panipat
from July 2012.

The District Child Protection is set up by ICPS envisages in each district as a fundamental
unit for the implementation of the scheme. This unit is under the chairperson of the chairperson.
The District Magistrate is the chairperson has been established in District Panipat from July 2012.

Name of the Phone

Address
office No

District Child District Child Protection Unit Room No- 407, Fourth 0180-
Protection unit Floor Mini Secretariat, Panipat 2641574

S.no Designation Name Phone no

District Programme Officer Cum Smt. Usha

9896179209
Member Secretary Arora
 35

District Child Protection unit

Smt. Nidhi
2. District Child Protection Officer 9255644002
Gupta

Rights of Adopted Child in India

The child has all the rights, as well as the adopted child have all the rights after adoption. The
adopted child becomes legal as the normal child. This is defined in the Hindu Succession Act,
1956. If the parents die without making the will of the property then the property always goes to
the Class-1-heirs. An adopted children also have rights in the will of the parents.

Conditions for Adoption

According to the Hindu Law, below the age of 15 years if he/she is not adopted previously.
But if any child already gets adopted then he cannot get adopted twice. In the Guardianship Law
and the Juvenile Justice Act, 2015, if any child is not Hindu and if he is above 18 years of age
then he/she can also be adopted. In other religions like Islam, Christianity, Parsis and the Jews, if
they want to adopt a child then they can adopt a child under section 8 of Guardians and Wards
Act because they have no personal law for adoption. There are some rules and regulations for the
adoption which adoptive parents have to follow.

Conclusion

At last, I conclude this topic by saying that adoption of the child is the biggest development
process. Because of this process, the children who are not legalised are to be legalised after the
adoption and they also get all the care and protection from their family. It also maintains the
population of the country. If we see, in India, orphanages are full of children, as they have no
parents to take care of them. Today many parents give birth to a girl and throw it in the dustbin
and don’t even think. This crime is increasing day by day. In today’s generation also people don’t
understand the value of girl child after so high education. Half of the population of children is
alone they don’t have legal parents to take care of them. Adoption is the best way to give them a
good life. It also helps in maintaining the population of the country. But new couples of our
generation are working in this matter by adopting the child and give them a better life.
 36

Adoption under the Juvenile Justice Act of 2015xx

Meaning of adoption

Adoption is the legal act of permanently placing a child with a parent or parents other than the
biological parents. Adoption results in the severing of the parental responsibilities and rights of
the parents and the placing of those responsibilities and rights onto the adoptive parents. It is a
worldwide institution. Almost all religions and mythologies contain some reference or other to
adoption. In the contemporary world, the thirst for the concept of adoption has changed from
providing a child to childless to providing a home to the homeless.

Whole Chapter VIII has been dedicated, this deals with “Adoption under the Juvenile Justice
(Care and Protection of Children) Act, 2015 from Section 56-73.

Section 2 (2) of the Juvenile Justice Act,2015, defines ‘adoption’ as the process by which an
adopted kid is legally separated from his biological parents and becomes the lawful child of his
adoptive parents, with all of the rights, privileges, and responsibilities that come with being a
biological child.

The effectiveness of the provision

Initially, the option of adoption was only accessible to the Hindu community after the Hindu
Adoption and Maintenance Act came into effect in 1956, which facilitated the adoption of Hindu
children by a person adhering to the Hindu community, and did not apply to communities such as
Muslims, Christians, and Parsis, who had to depend on the Guardians and Wards Act, 1890, under
which they could become guardians. However, the procedure only established a guardian-ward
connection. The Juvenile Justice (Care and Protection) Act of 2000, which was last updated in
2015, was the first step toward a secular adoption law.

The Juvenile Justice Act establishes elaborate procedures for both in-country and intra-
country adoption, which are governed by the Central Adoption Resource Authority, a statutory
authority of the Government of India. A prospective parent can apply at their state’s Adoption
Coordination Agency (ACA), which is a CARA-accredited agency in each state. This adoption
agency prepares a complete assessment of the family, including pre-adoptive counseling that is
valid for three years. At this point, potential parents can express their preferences. Once a suitable
child has been selected, the agencies can arrange for potential parents to meet the youngster. If the
 37

match is made, the child can be placed in pre-adoption foster care after signing the foster care
agreement.

Meanwhile, within 10 working days of matching, the Specialized Adoption Agency/Child

Care Institution and the prospective parents submit an application with the District Court as co-
applicants. According to Section 61(2) of the Juvenile Justice Act, all processes must be held in
private and concluded within two months after filing. However, figures from the Ministry of
Women and Child Development show that there is a large number of pending adoption cases in
India’s Civil Courts that have been there for longer than the time limit specified in section 61(2)
of the Juvenile Justice Act. Even though several adjustments have been made over the years to
address concerns encountered during the Act’s implementation.

In cases of children in need of care and protection, the CWC is no longer the “ultimate
authority.” The District Magistrate will be the CWC’s grievance redressal authority, and anyone
linked with the child may file a petition before the district magistrate, who will consider and issue
appropriate orders.

One advantage is that the district magistrate will be able to manage the process more
efficiently and promptly since he has access to and is more familiar with all of the departments in
his jurisdiction.

Loopholes if any: a highlight

Sections 14(1) and (2) of the Act are primary core issues. The first is the basis on which the
Juvenile Justice Board will decide whether a 16- or 17-year-old should be tried in a Regular Court
or under the JJ Act. The most problematic feature of these tests is that almost all of them carry a
presumption that the child is guilty of having committed the charge if they are positive.
Furthermore, the question of how the Board will make these decisions in one month and before
the actual trial remains unaddressed. Juveniles between the ages of 16 and 18 who are found guilty
of committing terrible crimes after a preliminary inquiry by the Juvenile Justice Board will be
transferred to a Children’s Court, which will be able to proclaim the youngster guilty. These minors
can be held in a “safe environment” until they reach the age of 21. Even if they are deemed to have
been “reformed” by the age of 21, they may be sent to adult prisons. The ‘place of safety,’ also
known as ‘borstals,’ is currently unavailable in the majority of states.
 38

Beyond rape and murder, the new juvenile laws have broadened the category of terrible
crimes. All offenses punishable by seven years or more in jail are classified as heinous. Experts
have examined the law and identified several offenses for which children can face adult charges.
Offenses relating to drugs, war, trafficking, abetment of crimes, enabling one’s property to be
utilized, and many others are among them.

According to the Juvenile Justice Act of 2015, there is a provision for specialists to be
available in about 600 of the country’s above-mentioned districts to provide advice to JJBs. It will
be determined whether or not a child committing a crime is in a ‘child-like frame of mind based
on their findings. On paper or in a political debate, this theory may appear sound, but it is highly
subjective in practice. It lays an excessive amount of responsibility on the Juvenile Justice Board,
which may cave to public pressure and, as a result, minors may be moved to the adult criminal
justice system.

This law has grown contentious as a result of the growing incidence of adolescent elopement
and consensual sex among teenagers. The boys may now face rape charges. A kid cannot consent
to a sexual act until the age of 18, hence any act of sex, even consensual, is considered rape under
the Protection of Children from Sexual Offenses Act (POCSO).

It contradicts UN commitments derived from several conventions and guidelines to which

India is a signatory, particularly recommendations 79 and 80 of the UN Committee on the Rights
of the Child, which specifically request that India “ensure that persons under the age of 18 are not
tried as adults, following the principle of non-discrimination contained in Article 2 of the
Convention.

Recommendations and suggestions

The Juvenile Justice Act should be aggressively implemented. Acting without willing hands
is inefficient and harmful. As a result, the government should ensure that the legislation is
appropriately enforced by the authorities.

India should not have a uniform juvenile age for all crimes. The system can be designed along
the lines of those used in the United States, the United Kingdom, and France to categorize and
divide the Juvenile Justice system into distinct age groups.
 39

Juvenile cases should not be moved to Adult Courts.

Every Juvenile Justice Board should collaborate with local child welfare agencies to improve
their efficacy in providing safe shelter to abused and neglected children.

Members of the Juvenile Justice Board should collaborate with local child welfare agencies
to improve their efficacy in providing safe havens for abused and neglected children.

The feasibility of establishing a non-judicial juvenile justice system should be investigated.

Ensuring and improving the quality of the juvenile correctional services process would result
in justice for minors who have broken the law.

The juvenile age should not be reduced at all since it will have a far-reaching impact on India’s
criminal justice system, which will be adverse to the advancement of justice and equity.

Case laws associated with the same field

Shilpa Mittal v. State of NCT of Delhi and Anr. (2020)

Issue of the case

Whether an offense has a maximum punishment of more than seven years in jail but no
minimum term, or with a minimum penalty of fewer than seven years, can be regarded as a
‘heinous offense’ under Section 2 (33) of the Juvenile Justice (Care and Protection of Children)
Act, 2015.

Judgment

While considering the case, the Court stated that it was not the Court’s responsibility to fill in
the gaps and fix them. The Court stated that it could add or delete words from the legislation if the
legislature’s meaning was apparent. In circumstances where the aim of the legislature is unclear,
however, the Court cannot add or eliminate words to offer meaning that the Court believes would
fit into the scheme of things. The Court was interpreting a statute, which had to be construed by
its wording and intent. The goal of the Act of 2015 is to ensure that children who violate the law
are dealt with separately, rather than as adults. We cannot wish away the word “minimum” when
the language of the clause stipulates a minimum of 7 years imprisonment when dealing with severe
crime.
 40

The Court dismissed the appeal by resolving the issue and ruling that an offense that does not
carry a minimum penalty of seven years cannot be considered heinous. However, the Act does not
address the fourth category of offenses, namely, offenses where the maximum sentence is more
than seven years in prison but no minimum sentence or a minimum sentence of fewer than seven
years is provided, which shall be treated as serious offenses within the meaning of the Act and
dealt with accordingly until Parliament decides on the matter.

VikramDeo Singh Tomar v. State of Bihar (AIR 1988 SC 1782)

The Supreme Court has taken notice of the poor conditions in the State of Bihar’s care homes
for women and children and has ordered the State to improve affairs in these facilities and provide
at least the minimum living standards necessary to ensure human dignity.

Gaurav Jain v. Union of Indian (1997)

The Supreme Court ruled that the children of prostitutes have the right to equal opportunity,
dignity, care, protection, and rehabilitation to be included in the mainstream of social life without
stigma. The Court ordered the formation of a committee to devise a plan for the rehabilitation of
such children and child prostitutes, as well as its implementation and submission of the registry’s
quarterly report.

Laxmikant Pandey v. Union of India (AIR1984 SC469)

In this landmark case, the Supreme Court of India established a couple of doctrines controlling
the requirements for inter-country adoption. The lawsuit was initiated based on a letter filed to the
court by a lawyer, Laxmikant Pandey, saying that social organizations and volunteer organizations
engaged in the activity of selling Indian children to foreign parents are indulging in malpractices.
 1

Module – 6
Overview of the Hindu Minority and Guardianship Act, 1956xxi
Introduction

In the premature stage of one’s life, a child is incapable of taking care of himself,his/her own
body and his/her property because of his minority. A child can not handle his/her own matters. A
child is even unable to understand what is right and what is wrong. So, he requires the help of
some other person to take care of himself. For the advantage of the minors, the lawmakers have
made specific laws which allow some relaxation and support to the lives of the minors.

The modern laws on minority and guardianship are regulated by the Hindu Minority and
Guardianship Act, 1956. The father is the natural guardian of the child and after his death, the
mother will take the responsibility of the guardianship of the child.

Definitions of the Minor and the Guardian

According to Section 4(a), it is defined as a minor means who has not completed the age of
18 years.

According to Section 4(b), it is also defined that a guardian means a person who has
completed the age of 18 and he is taking proper care of a minor and his property and as well as his
own.

Types of Guardian

There are 3 types of guardian who are in the following:

Natural Guardian

Testamentary Guardian

A Guardian appointed by the Court

Natural Guardian

According to Section 4(c) of the Act, the natural guardian assigns to the father and mother of
the minor. For a minor wife, his husband is the guardian.
 2

Section 6 of the Act gives 3 types of natural guardian in the following:

Father– A father is the natural guardian of a boy or unmarried girl, the father is the first
guardian and the mother is the next guardian of the minor. It is given in the Act that only up to 5
years the mother is the natural guardian of the child.

Case- Essakkayal nadder Vs. Sreedharan Babu. In this case, the mother of the minor died
and the father was also not living with the child, but the child was alive. the child was not declared
to be a Hindu or renounced the world and he was also not declared unfit. These facts do not
authorize that any other person adopts the child and be the natural guardian and transfer the
property.

Mother– The mother is the first guardian of a minor illegitimate child, even if the father is
existing.

Case- Jajabhai Vs. Pathakhan, in this case, the mother and father got separated for some
reason and the minor daughter stayed under the guardianship of the mother. Here, it will be
determined that the mother is the natural guardian of the minor girl.

Husband– For a minor wife his husband is the natural guardian.

Under Section 6, it is given that no person will be designated to perform like the natural
guardian of a minor under this portion, which is in the following:

If he/she ceased to be a Hindu.

If he/she has completely renounced the world that they are becoming an ascetic (sayansi) or
hermit (vanaprastha).

Note: In Section 6, the terms “Father” and “Mother” do not include the step-father and the
step-mother.

Powers of a natural guardian

As per Section 8, the powers of the natural guardian to impose on the child are as follows:

The natural guardian of a Hindu minor has the power to do all work, which are compulsory
and which are beneficial for the minor’s interest. Protection or benefits of the minor’s condition.
 3

The natural guardian should bring the prior permission from the Court, for the use of the gift
transferred to him, mortgage or any other valuable things of the minor.

For the lease of any part of minor’s property for about exceeding 5 years or for a term of
extending one year beyond the date on which the minor attains the majority. The prior permission
from the Court is very much needed for doing so.

Violation of any disposal of the immovable property by a natural guardian, it will be voidable
at the case of the minor or any other person claiming on the behalf of him.

No Court shall grant permission to the natural guardian to do any act which is not in the
interest of the minor.

The Guardians and Wards Act, 1890 shall apply to the application for getting the permission
of the Court if the application is for getting the permission of the Court under Section 29 of that
Act and in these grounds:

The natural guardian requires permission from the District Court or under the Court which
empowered by the Guardians and Wards Act, 1890.

Should submit the application to the Court within the local limits of whose jurisdiction,
portion of the property of minor is placed.

An appeal would be declined, when the Court rejects the permission to the natural guardian
to do any acts of property transfer and this remedy is usually the result of this Court decision.

Testamentary Guardian

Under Section 9, of the Hindu Minority and Guardianship Act, 1956 testamentary guardian
only authorized by a will. It is compulsory for the testamentary guardian to receive the
guardianship adoption which may be expressed or implied. A testamentary guardian has the right
to decline the appointment, but once he /she receives the guardianship then he/she can not decline
to perform or resign without the permission of the Court.

According to the Hindu Minority and Guardianship Act, 1956 testamentary power of
choosing a guardian has been provided on both, father and mother. If the father chooses a
testamentary guardian but the mother rejects him, then the chosen guardian of the father will be
 4

inefficient and the mother will be the natural guardian thereafter. If the mother chooses a
testamentary guardian, her chosen guardian will become the testamentary guardian and father’s
appointment will be void. If the mother does not want to choose any guardian then father’s
appointee will become the guardian. It appears that a Hindu father can not choose a guardian of
his minor illegitimate children even when he is allowed to perform as their natural guardian.

A Guardian appointed by the Court

In the earlier days of Smritis, the overall jurisdiction for the children was sanctioned over the
king. The king had the power to choose a closet relation of the minor as guardian. Only priority
was given to the relatives on the paternal side over the maternal side. Only for the security of the
child, this type of laws was formulated by the ancient lawgivers.

Now, this type of powers are applied by the Courts under the Guardians and Wards Act, 1890.

The guardian who is appointed by the Courts, he/she will be known as a certified guardian.

Under Section 13 of the Hindu Marriage and Guardianship Act, 1956, while the appointment
of any person as guardian is going on by a Court, the advantage of the minor shall be the primary
consideration.

Therefore, in both the ancient and modern times the king or the Court has been given the
responsibilities to appoint a guardian for the defence of a minor.

Additional grounds where a guardian is appointed

Guardianship of Minor’s property(De Facto guardian)

A minor, who is under the tender age may achieve some property which is given by
inheritance, gift etc. because of child underage, he/she can not take proper care of the property.

The Smritis gave the opinion that the king has to guard the property of the minor. In this
statement, Manu says that the king should protect the inheritance accepted by a child till his study
is completed or till he attains majority.

Vasistha states that the king should guard the property of a person who is unfit to transact any
business but in a minor’s case when he attains majority, the property will be handed over to him.
 5

In modern law, the natural guardian will take care of the minor. This statement is also used in
the testamentary and certified guardian and in some cases the guardian will protect only those
property for which they were appointed, but not for the excluded property of the minor and the
guardian has no rights to claim for protecting that property.

Therefore, both the ancient and modern lawmakers are interested in the security of the person
and his property. Nowadays there are many laws that are incorporated for the changing need of
the society.

According to Section 11, De Facto guardian is not allowed to dispose or deal with the property
of the minor and it is given that the guardian does not have the rights to take any debt.

Case- Smt. Beti Bai Vs. Jagdish Singh and Ors, in this case Aparbal Singh was the father
of plaintiff, who is no more. Aparbal Singh had 2 wives because, during his lifetime his first wife
died due to some problem, then his second wife came to his life who was the respondent. And the
child of the second wife also died due to some reason. At last after the Aparbal Singh died, the
second wife captured all the property then the son of the first wife filed a complaint.

It was held that, according to Section 4, Section 6, Section 8, Section 11 of the Hindu
Minority and Guardianship Act, 1956, the answer was in the favour of the plaintiff and plaintiff
enjoyed the property. The Court also held that, as the respondent was also had a relation with that
person, therefore, she has the right to get one third of the property, when she will ask for the
partition before the competent authority.

Hindu law tried to find a result from two difficult conditions: one, when a Hindu child has no
legal guardian, there would be no person, who would manage his property under law and therefore,
without a guardian the child would not receive any advantages for his property and second, a
person having no designation could not be a allowed to interfere with the child’s property as to
cause loss to him. The Hindu law got a result of this difficult condition by an according to legal
status to De Facto guardians.

Guardianship of a minor widow (guardianship by affinity)

 6

Earlier days of the Smritis child marriage was very common. After the marriage happened of
a minor girl with the husband, then the husband became the guardian of the girl. In any situation,
if the husband died then the minor widow should not feel unsafe.

According to Narada, when a minor girl becomes a widow then the husband’s relatives have
the duty to protect and maintain her if in husband’s family no one is there, then the father of the
widow takes the responsibilities of the widow to protect her.

Before 1956, there was a guardian called guardianship by affinity. It was the guardian of a
minor widow which was given by the Guardianship and Wards Act, 1850.

No provision is given under the Hindu Minority and Guardianship Act, 1956 for the
guardianship of a minor widow.

Case- In Paras Ram Vs. State, it was held that the father-in-law of a minor widow vigorously
took away the widow from her mother’s control and married her to an improper person without
the widow’s consent. The Court held that the father-in-law guilty of displacing the girl without her
consent.

The Allahabad High Court held that he was not guilty because he was lawfully a guardian of
the widow.

A question has arisen in the Court, whether the nearest blood relatives of the husband
undoubtedly becomes a guardian of the minor widow on the death of her spouse or whether he is
simply as a choice get into the guardianship and therefore, he can not perform as guardian but he
is appointed as such? Paras Ram seems to subscribe to the previous view.

Conclusion

Adoption of a child by any guardian is creating a relationship of the child and the guardian, it
creates the subject matter of personal law and for a minor, it is mandatory to protect his property
and for that reason, there is a guardian who will take care of him and his property. Special thanks
to the lawmakers who invented these types of laws for protecting the minor and his property and
for the unmarried girl and widow. In this way, no one can steal the property of anyone who is a
minor.
 7

Therefore, the guardian is very necessary for a minor to protect himself physically or mentally
and secure from any danger.

Minor and Guardianship under Muslim Lawxxii

Who is a Minor?

This article deals with the concept of Guardianship what it means, the appointment of the
guardian and the removal of a guardian. The ‘Urdu’ term for a child is ‘walad’ and according to
the Holy Quran, a ‘walad’ is a blessing be it a baby boy or a girl. Also, it specifies that be it either
since they are a blessing the persons should content and satisfied with whatever the case may be.

Moreover, the Holy Quran considers female infanticide and believes that those who involve
in such a crime shall be punished on the day of judgment. [1] In several other verses the Quran
provides for adoption, parentage and guardianship.

According to Islamic law, minority ceases when the boy or the girl attains puberty that is also
called ‘bulugh’ in Urdu. And the child can decide to marry and there can be no intervention for
the same. In the Hanafi and Shia Muslims, it is assumed that the child attains majority at the age
of fifteen.

It differs from the Indian Majority Act after the completion of the eighteenth year of the child
then he/she becomes an adult. And once in the instance where the marriage has been conducted by
arrangement between the parents of the major boy and girl and has been misrepresented or
concealed in any way then the status of the marriage shall be invalid.

This has been similarly held in the case of Sayid Mohaddin v. Katijabai[2]. On the other
hand, the marriage of a minor child shall be permitted by the parent or the guardian. This power is
given to the parents or the guardian because it is expected of them to act in the interest of the child.
There obviously exists a trust relationship between the minor child and the parent. But the
relationship between the guardian and the child is fiduciary in nature. This is to ensure that the
minor child is not acting unfavourably to their own interest.

Therefore, assuming that the minor child is incapable to maintain himself there is need for
resorting to the appointment of a guardian who shall be an adult and shall be capable to make
decisions on behalf and in the interest of the minor child be it a girl or a boy.
 8

Types of Guardian/ Guardianship under Muslim Law

Guardianship under Muslim Law recognizes the following kind of guardianship:

A natural or legal guardian

Testamentary guardian

Guardian appointed by courts or statutory guardian

De-facto guardian

Meaning of Guardianship under Muslim Law

The word Guardianship is denoted as ‘Hizzanat’ in Urdu.

A Natural Guardian or a Legal Guardian

Etymologically, a natural guardian is a person who shall be naturally or by the virtue of being
a parent shall be responsible for the child. Under all schools of Muslim law, the father is the natural
guardian of the child. This right is derived from the Substantive Muslim law.

The father is liable, responsible and is imposed upon to take care of the child and their well-
being. The authority after the father shall lie with the grandfather. A natural guardian is also
called a legal guardian.

The person who will be next in turn to takeover guardianship in the absence of the father. But
the father, if he is alive he shall be the supreme and the only guardian who shall have the right to
make decisions on behalf of the minor child.

In Shia law, the legal guardian who comes next, in turn, shall be the paternal grandfather i.e.
the father’s father. Moreover, the role of the executor of the father shall not begin if the father is
present and if the father is absent then the paternal grandfather shall be acting.

Testamentary guardian

Lexically, testamentary would mean ‘by the will’. Hence, a testamentary guardian is a person
who shall be appointed as the guardian of the minor child. This appointment is carried out by the
father of the minor child. And under a circumstance where the father is not alive then the paternal
grandfather shall have the authority to decide the guardian.
 9

This mode of appointment is an alternate mode of appointment of a testamentary guardian.

According to usual practice, the testamentary guardian is appointed by way of will which encloses
who shall be the guardian to the minor child in case the natural guardian i.e. the father is not alive.
A testamentary guardian can also be a non-muslim person or a female. However, specifically under
Shia Law, a female can never be a testamentary guardian.

Guardian appointed by courts or statutory guardian

Guardianship and Wards Act, 1890 comes into play when the guardian of the minor child is
appointed by the court. The Rules and procedure are highlighted under this act. However, it needs
to be noted that this act shall not only apply to Muslims but it also applies to every Indian citizen
in India. So it applies to Hindus, Muslims, Parsi and persons of every religion and this is a Specific
Legislation specifically dealing with the policy of guardianship and ward.

Under Muslim law, when the father of the child is not there and there is an absence of legal
documents specifical absence of a will then the court shall have the authority to appoint the legal
guardian of the minor child.

When the guardian is appointed by this method then they are also called ‘Statutory
Guardians’ since they are being appointed by the virtue of the Guardianship and wards Act, 1890.

A district court shall be the court who shall decide and appoint the guardian of a minor child.
This is done in consideration of the age of the child, the sex of the child and the way the child has
been brought up till this point of time. It also needs to be asserted that the High Court also has the
powers to appoint a Guardian.

De-Facto guardian

This mode of guardianship comes into play when the person assumes the role of guardian
without any legal or statutory authority. Therefore, a person who by way of circumstances is in the
guardianship of a minor child not either by way of testament or statutorily then these types of
guardianship is called a De-facto guardianship.

For instance, A is a minor child of 12 years who lives with his mother and maternal
grandmother at his grandmother’s house. A’s mother died due to severe diseases and A was taken
 10

into care by his grandmother. In this case, the maternal grandmother of A becomes the de facto
guardian of A.

Although the grandmother has not been appointed as the guardian by the court, nor is she is
appointed by the parents of A as the guardian, she has to take of A because she is the only relative
of A. Therefore, a person who assumes the care and protection of a minor because of any
circumstance or a moral obligation and not because any legal mandate is called a de facto guardian.

Removal of Guardianship under Muslim Law

There are certain duties which are imposed upon a guardian that is required to be performed
by the guardian. On the failure of which the guardian can be removed. This removal is usually
taken place in the court.

The Court shall have the power the remove the guardian under certain circumstances which
are:

If the husband has abused the trust of the woman

He has not performed any duties as the husband

The husband does not have any capacity to perform the duties

That the husband has not treated the woman well

That there is no regard to the orders of the court by the husband and he is also not regarding
the provisions of the Guardianship Act

When the husband has been found guilty for moral turpitude

Have different interests as a guardian

That the wife ceases to be a minor.

Conclusion

Guardianship under Muslim Law is an essential part of personal laws of people and with the
passage of time, it has been codified by way of legislations. The Guardians and Wards Act is the
legislation passed by the Parliament which deals with the laws and process related to guardianship
in India.
 11

However, it cannot be ignored that personal laws are based on customs and need to be taken
into consideration. Considering this, the Bombay High Court in Smt. Farzanabai v. Ayub
Dadamiya[3] clearly held that personal law and beliefs of the parties need to be kept in mind by
the adjudicating bodies whenever they hear any matter of guardianship.

Guardianship in Muslim Lawsxxiii

Guardianship in Muslim Laws

Guardianship of a minor refers to the overall supervision of the minor’s personality. It includes
the care and welfare of the child including the liability to maintain the same. In Muslim personal
law, guardianship largely refers to the guardianship of a minor, including his property by the
natural, testamentary, or court-appointed guardian. Guardianship as a concept itself in Muslim
personal law has many aspects that are not directly comparable to the Western concept of custody.

For example, guardianship may be distinguished from custody or hizanat under Muslim
personal law, with the latter concept being associated with the welfare and care of a minor of tender
age by their Muslim mother. The guardian, in whatsoever manner he is established, has certain
powers and liabilities accruing to him by virtue of his position.

Introduction

Who is a minor in Muslim personal law?

A minor is an individual who has not attained the age of majority as mentioned in the (Indian)
Majority Act, 1875.[1] Except in the matters of marriage, divorce and Mehr, the Muslim
community is governed by the rules of majority as defined in the 1875 Act.[2]

According to customary laws, fifteen years of age is the age of majority relating to marriage,
divorce and mehr. Thus, while fifteen years is the age of majority in general, in the context of
guardianship of a person and property, a minor Muslim will be governed by the 1875 Act which
states 18 years of age as the age of majority for all persons.

What are the categories of guardianship in Muslim personal law?

There are three major types of guardianship, and they are:[3]

1. Guardianship in marriage of a minor (Wilayat-ulnikah)

 12

2. Guardianship of property of a minor (Wilayat)

3. Guardianship of person of a minor (Hizanat)

What is guardianship? How is it different from custody?

Before discussing the Muslim personal law relating to guardianship, it is important to note
that a statute known as the Guardians and Wards Act, 1890 regulates and defines guardianship in
India. The Muslim law of guardianship is customary in nature and the only secular legislation on
guardianship rules is the aforementioned 1890 Act. The 1890 Act had been enacted to protect the
best interest of a minor and secure his property.

According to Section 4(2) of this legislation, the term ‘guardian’ refers to “a person having
the care of a person of a minor or of his property, or of both his person and his
property.”[4] However, as there is no express restriction that the provisions of this Act, it does not
seem that it would interfere with the rules and customs of Muslim law relating to guardianship-
although it shall definitely supplement the same. Thus, this definition of guardianship is also an
appropriate description for the function performed by guardianship under Muslim law, saving
customary differences.

According to Legal Service India,[5] guardianship or wilayat, refers to the guardianship of a

minor Muslim person. It usually refers to the guardianship of property, because “detailed rules
have been laid down for the guardianship of minor’s property, while, on the other, there are very
few rules relating to the guardianship of a minor’s person.”[6]

Custody on the other hand, which is also known as hizanat, lies with the mother of the
minor.[7] The legal sources for guardianship and custody in Muslim law (‘Shariat’) are certain
verses in the Quran, along with a few ahadis. In these sources, the Shariat explicitly speaks of the
guardianship of the property of the minor, while the guardianship of the person of the minor is
seen as a mere inference.[8]

The present article will discuss the three major categories of guardianship under Muslim
personal law. Part I will discuss the Guardianship of property of a minor (wilayat). Part II
Guardianship in the marriage of a minor (wilayat-ulnikah) and Guardianship of the person of
a minor (hizanat).
 13

I. Guardianship in Minor of Property

As mentioned in the introduction, the religious source texts largely refer to the guardianship
of property, in terms of rules relating to guardianship in general.

As guardianship is seen as a patriarchal right, according to Radd-ul-Muhtar, the right of

guardianship of the property of a minor belongs to the father, by preference and in his absence, it
belongs to his executor.[9] In case the father has died intestate, without appointing an executor,
then the grandfather is deemed the guardian.

After the death of grandfather, the guardianship belongs to the grandfather’s executor.
Moreover, if the grandfather had died without appointing an executor, then guardianship is vested
in the kazi who may himself act as such or may nominate someone else to act on his behalf.[10]

According to the Fatwai Alamgiri,[11] a comprehensive legal text of Hanafi law, the law of
guardianship of the property of minor is as follows:

“The executor of a father is in the place of the father, so also, the executor of the grandfather
is in the place of the grandfather, and the executor of the grandfather’s executor is in the place of
the grandfather’s executor, and the executor of the judge is in the place of the judge, when his
appointment is in general.”[12]

What are the different types of guardians?

There are three types of guardians under Muslim law:[13]

▪ Natural guardians

While the term ‘natural guardian’ is not used explicitly by Muslim jurists or appropriate texts,
it is a useful term to consider because the father is recognized as guardian in all the schools of both
the Sunnis and the Shias. In contrast, while the father of the minor is recognized as guardian, which
is synonymous with the term ‘natural guardian,’ the mother of the minor in all schools of Muslim
law is not given due recognition as a guardian, even after the death of the father.[14]

The father’s role and function as guardian subsist even when the mother, or any other female,
is entitled to the custody of the minor. The father’s right to control the education and religion of
minor children has been judicially recognized.[15] He also has the right to control the upbringing
 14

and the movement of his minor children. Thus, as long as the father is alive, he is the sole and
supreme guardian of his minor children.[16]

While Shariat does not recognize the mother as a natural guardian- whether minor legitimate
or minor illegitimate children, she is still entitled to their custody.[17] In contrast, the father’s right
of guardianship extends only over his minor legitimate children and is neither entitled to
guardianship nor to the custody of his minor illegitimate children at any time, even after the death
of the mother.[18]

▪ Testamentary guardians

The rules relating to testamentary guardianship is different for Sunni and Shia schools. In the
Sunnis, the father has the full power of making a testamentary appointment of guardian.[19]

In the absence of the father or his executor, the grandfather has the power of appointing a
testamentary guardian. In the case of the Shias, the father’s appointment of a testamentary guardian
is deemed valid under Shariat only if the grandfather is not alive. This is because in the Shia
traditions, the grandfather, too, has the power of appointing a testamentary guardian.[20] Apart
from the father and the father’s father, no other person has any power of making an appointment
of a testamentary guardian.

That the mother has no power of appointing a testamentary guardian of her children is a
common feature among both the Shias and the Sunnis. According to Dr. Diwan, there are only in
two cases in which the mother can appoint a testamentary guardian of the property of her minor
children, (both legitimate and illegitimate):[21]

Firstly, when she has been appointed a general executrix by the will of the minor child’s
father, she can appoint an executor by her will, and

Secondly, she can appoint an executor in respect of her own property which will devolve after
her death on her children.

There are no specific formalities for the appointment of testamentary guardians under Muslim
law. This implies that an appointment may be made by the appropriate party in writing or orally:
however, in each case, the intention to appoint a testamentary guardian must be clear and
unequivocal.[22]
 15

▪ Guardians appointed by the court

It is only on failure of the natural and testamentary guardians, that the kazi is entrusted with
the power of appointment of a guardian of a Muslim minor.[23] However, in modern India, the
Muslim law of appointment of guardians by the kazi stands abrogated and instead, the matter is
governed by the Guardians and Wards Act, 1890.[24]

As mentioned above, this Act safeguards the best interests of minors and also applies to the
appointment of guardians of all minors belonging to any community. Thus, the High Courts and
District Courts also have inherent powers of appointment of guardians, though the power is
exercised sparingly.[25]

Section 17 of the 1890 Act deals with the matters to be considered by a Court when appointing
a guardian and it may do so whenever it considers it necessary for the welfare of the minor, taking
into consideration the age, sex, wishes, of the child as well as the wishes of the parents and the
personal law of the minor.[26]

In a 1996 case[27], the Gauhati High Court held that when the Muslim mother had remarried
after the death of her husband, she should not be appointed a guardian of her minor daughter.
Instead, the paternal grandmother was held to be a preferable guardian in the view of the court,
and the court-appointed her accordingly.

What are the powers of guardians?

In Muslim law, no hierarchy is made between powers of the natural guardian’s powers and
testamentary guardian’s power over minor’s property. The relevant scripture provided by the
Muslim law-givers first establish the powers of a testamentary guardian and then state that the
natural guardian has the same powers.[28]

The various powers available to guardians of the minor’s property include the following:

1. Power of alienation

According to Dr. Diwan, Muslim law-givers speak of the sale of minor’s property to the
exception of any other types of alienation.[29] There is a distinction made between immovable
and movable property. The guardian in fact has wider powers over the minor’s movable properties
than his immovable properties. Alienation or disposal of minor’s immovable property is
 16

permissible by the guardian only in exceptional cases. This is because the Hedaya[30] sets forth
the reason for this distinction thus:

“The ground of this is that the sale of movable property is a species of conservation, as articles
of this description are liable to decay…on the contrary, with respect to immovable property, it is
in a state of conservation in its own nature, whence it is unlawful to sell it-unless, however, if it be
that it will otherwise perish or be lost, in which case the sale of it is allowed.”[31]

Thus, the sale of movable property is justified not just for the necessity of the minor, but on
the basis of its conservation. It is provided that the guardian is allowed to take all reasonable risks
which are involved in the world of business in his handling of movable property.

The sale of movable property can be avoided by the minor on attaining majority only on the
ground of fraud resulting in the inadequacy of consideration, or when the inadequacy of

consideration is such as to cause serious loss or detriment to the minor, though there is no
indication of fraud.[32]

The case law on the guardian’s power of alienation is fairly clear. It has been held that the
guardian can sell the minor’s property in cases of urgent necessity[33] or for the benefit of the
minor,[34] or for maintenance of the minor,[35] or for the conservation of the property.[36]

The Supreme Court in Meethiyan v. Md. Kunju,[37] held that the father as a natural guardian
has the power to alienate the minor’s property and, in his absence, the legal guardian is competent
to do so. However, the sale of the minor’s property by the mother, who is not a legal guardian nor
was she appointed as such, is void. In this case, the father had died and the contention of the mother
was that as she was natural guardian, her sale of the minor’s property was not void.

2. Power to grant lease

The provisions of the Fatwai Alamgiri[38] were not in favour of conferring any power on the
guardian of leasing out the minor’s properties.[39] In fact, Ameer Ali has taken the view that the
executor may give on lease the minor’s property, only if there be need to do so, and if it is
advantageous to the minor. Moreover, he has also the power to pledge the goods and other movable
property of the minor if it is essential for the maintenance of the minor.
 17

In Zeebunissa v. Danaghar,[40] the Madras High Court held that a guardian of the minor has
the power to lease out minor’s property if and only if it is for the benefit of the minor. It appears
that the guardian cannot give leases of the minor properties extending beyond the period of the
minority of the child.

3. Power to carry on business

According to the Hedaya, the guardian has power to carry on trade or business on behalf of
the minor just like a person of ordinary prudence, provided that the trade is not speculative of
hazardous in nature.[41] Another text, the Fatwai Alamgiri[42] endows an executor to invest
minor’s property in partnership and goes so far to state that he may enter into partnership with
others.

However, it can be argued that the element of risk that any trade or business offers, especially
in the case of partnerships may pose a danger to the best interests of the minor in cases where
aggrieved persons sue the minor for his involvement in any failed venture. The Privy Council in
the past has held that though the guardian had the power to enter into partnership on behalf of the
minor, the minor’s liability was only to the extent to which he had shared in partnership; in no
case, the minor was personally liable.[43]

4. Power to incur debts and enter into contracts

The position on whether the guardian of a minor has the power to incur debts on behalf of the
minor is yet unclear. In essence, a debt contracted without any necessity is not binding on the
minor. However, it has been held that the guardian has the power to execute a promissory note on
behalf of the minor in those cases where the incurring of debt is justified.[44]

In India, there has been a conflict of judicial opinion as to whether the guardian of a minor
under Muslim law as well as Hindu law, could enter into a contract on behalf of the minor, and
whether such a contract is especially enforceable against the minor.[45] A slew of cases dealt with
this question, starting with the Privy Council case in 1912,[46] wherein it held that it was not
within the power of the guardian to bind the minor’s estate by contract for the purchase of the
immovable property.
 18

The issue, in that case, was whether the specific performance of a contract validly entered into
on behalf of a minor could be granted. Following this, the observations in a case relating to Hindu
personal law is relevant in this context because the obiter in this judgment was made in a way to
be applicable to all bodies of personal law in India.[47]

In 1948, the Privy Council held that a contract entered into by a guardian on behalf of the
minor, which is within the capacity of competence of the guardian and which is for the express
benefit of the minor, is especially enforceable against the minor.

5. Power to make partition

According to the Fatwai Alamgiri, the executor has no power to affect partition among the
minors, and if he does so, the partition is not void in law and therefore unlawful.[48] Further, it is
stated that if among the heirs some are minors, and some are adults, the the executor can separate
the share of the adult heirs from the share of the minor heirs and hand it over to them, and retain
the share of the minors in his hands.[49] However, it is forbidden in all cases that the guardian
separate the shares of each minor and if so done, the entire partition is deemed invalid. If all the
heirs are minors, the executor may allot the shares to the legatees, and retain the rest. In case a
guardian is appointed by the court with general powers to deal with all matters of the minor, then
the guardian has power to effect a partition.[50]

II. Guardianship of Minor in Marriage and Person

Guardianship in marriage (Jabar)

Under this form of guardianship, the father as an empowered guardian or ‘wali’ may contract
marriage on the behalf of his minors. The power of imposition of marriage by the wali is known
as ‘jabar.’[51] Apart from the father, the role of wali may even be assumed by the grandfather,
mother, maternal relatives, full brother and other male relatives.

The Qazi or Court may also assume this role. A person who has renounced Islam cannot be a
guardian of a minor Muslim girl for marriage.

Guardianship of person (Hizanat)

Just as modern systems of law place the best interests of the child at the centre of guardianship
in any form, the central principle of hizanat in Muslim law is the welfare of the minor.
 19

It is for this reason that Shariat has always preferred the mother to the father in the case of
guardianship of minor children in their tender years. If the hazina (the person who performs the
function of hizanat) is cruel or neglectful towards the minor then she likely forfeits her right of
hizanat.[52]

Interestingly, however, the lack of funds does not mean that the hazina loses her right
of hizanat- if the hazina has no funds to maintain the child, then it shall be the responsibility of the
father to provide for the hazina with a house and relevant financial support which is essential for
the maintenance of the minor. Thus, poverty of the hazina is no ground for depriving her from
custody. In case the child has property, then, the hazina may provide maintenance out of that
property for the benefit of the minor.

What is remarkable about the Muslim law of hizanat is that every other consideration is
subordinated to the welfare of the child. A woman who is unworthy of credit may still retain the
custody of child, if the welfare of the child so requires. This means that every misconduct which
otherwise disentitle a hazina from the custody of the child is tested on the touchstone of welfare
of the child. Thus, no misconduct is absolute, and what amounts to misconduct will vary from case
to case.

Conclusion

The legal concept of guardianship of property has been formulated due to the fact that minors
are incapable of managing their person and property until they are of age. This article has discussed
the concept of guardianship in customary laws of the Muslim community and has examined the
various categories of guardianship and guardians, with reference to relevant scriptures, statutes
and case-law.

Minority and guardianship under the Guardian and Wards Act, 1890xxiv
Introduction

The Hindu Guardianship and Minorities Act were established to give power to the Guardians
and Ward Act of 1890 (GWA) and provide better rights and protection for children rather than act
as a replacement for the already prevailing law. This law was approved with the purpose of
defining rights, obligations, relations between adults and minors. This law covers Hindus,
followers of Lingayat, Virashiva, Brahmo, Parthana Samaj, Arya Samaj, Buddhists, Sikhs, and
 20

Jains. But Muslims, Christians, Parsis and Jews are not covered under this law. The Guardians and
Ward Act of 1890 applies to everyone regardless of caste, creed or community, whereas the Hindu
Minority and Guardianship Act are considered only Hindu.
The Hindu Guardianship and Minorities Act was established in 1956. Three other important Acts
were also created during this time which include the Hindu Marriage Act (1955), the Hindu
Succession Act (1956), and the Hindu Adoption and maintenance Act (1956). The Hindu
Guardianship and Minorities Act of 1956 (HGMA) was intended to improve the Guardians and
Wards Act of 1890.

This law specifically serves to define guardianship relationships between adults, minors and
people of all ages and their respective assets. The welfare of the child is a top priority under the
HMGA of 1956 and the GWA of 1890. Section 13 of the Hindu Guardianship and Minorities Act
of 1956 perfectly captures the essence and purpose of the act – all measures taken by the guardian
and any judgment rendered by the Court must be for the welfare of the child.

Meaning of minority and guardianship

According to Section 4(a) of the Act, the minority of a particular person is defined by the age
of that person. The age of achievement to be a major varies by religion and time, for example, in
ancient Hindu law, the age of majority was 15 or 16 years, but now it has been increased to 18
years, for Muslims, the age of puberty is considered the age of majority. Both legitimate and
illegitimate minors who have at least one parent who complies with the stipulations described
above are under the jurisdiction of this Law. This concept is called Majority Law. Under this law,
the age of the majority is 18, but if a person is under the care of a guardian, the age of the majority
increases to 21 years.

Guardianship is when a person is appointed under the Guardianship Act to make decisions on
behalf of another person who lacks decision-making capacity due to a disability. Most people with
disabilities do not need guardians and can be supported in making their own decisions. According
to Section 4 (b) of the Minority and Guardianship Act, a guardian is defined as a person who has
attained the age of 18 and is adequately caring for a minor and minor’s property and as well as his
own.

Amendments
 21

The law commission report has suggested the following amendments to the Hindu
Guardianship and Minorities Act:

It analyzes Section 6 clause (a) of the act which explains that in the case of an unmarried boy
or girl, the natural guardian of a Hindu minor is the father and, after him, the mother. The
Commission observes that even after the Supreme Court ruling in the case of Gita Hariharan v
Reserve Bank of India, the mother can become a natural guardian during the father’s lifetime but
only in exceptional circumstances.

The Law Commission recommended that the superiority of one parent over the other should
be eliminated and that both the mother and the father should be considered as natural guardians of
a minor. The welfare of the minor should always be the primary consideration in all circumstances.

It has also recommended changes to Section 7 of the act. This section explains that the natural
guardianship of a minor adoptive child passes, at the time of adoption, to the adoptive father and,
subsequently, to the adoptive mother. But this section only talks about the natural guardianship of
an adopted child and does not talk about the adopted daughter.

When the Hindu Guardianship and Minorities Act 1956 came into effect, at that time the
courts did not recognize the adoption of a daughter. Thus, at the time of the approval of the law,
the adoption of daughters was only allowed only according to custom and not as per codified law.
It was also enacted before the Hindu Adoptions and Maintenance Act 1956, which corrected the
legal status of adopting a daughter by law. Therefore, it recommends that the law now include both
the adopted son and the adopted daughter in the scope of natural guardianship. Also, the
Commission recommended that the natural guardians of an adopted child should include both
adoptive parents, along with its recommendations to Section 6 clause (a) which is provided
above.

Evolution of guardianship laws

Through this list of cases, one can understand the evolution of guardianship laws:

In the case of PT Chathu Chettiar vs. VKK Kanaran, it was held that if the father is alive
and if he is not unfit in any manner as per law to be the natural guardian, then the mother cannot
claim to be the guardian of the minor.
 22

It was seen in the case of Rajalakshmi v. Ramachandran, where the Court stated that the
fact that someone surrenders your property to a minor and appoints yourself as guardian of those
property does not mean that you are a guardian as per law.

The Court threw light on the topic of importance of father as a natural guardian in the case
of Essakkayal Nadder v. Sreedharan Babu. According to the facts of this case, the children did
not live with their father and the mother had expired. The court stated that no one other than the
father himself could be the natural guardian of the minors as the father was very much alive and
as per law he was not declared as unfit guardian for any other reason.

The Supreme Court launched a new wave of gender equality in the case of Gita Hariharan
v. Reserve Bank of India. The court addressed the problematic and patriarchal notion that the
father is the natural guardian and the mother becomes the natural guardian only after him. This
case is an amazing example to understand the position of single mothers. According to the facts of
this case, an educated and financially independent single mother wanted to make her son a
candidate for her investments, but was prevented from doing so until she shared the details about
the child’s father to complete the obligations of the paperwork. The lower courts declared that it
was mandatory for her to provide details about the father as per Section 11 of the Guardians and
Ward Act 1890. Upon appeal, the higher court stated that even if she was a single mother, it was
necessary to check whether the father has any potential interest in the child. However, the Supreme
Court did not support the judgments of the other courts and instead declared two essential
principles to govern such cases in the future:

The most important factor in determining any custody case is checking what the welfare of
the child is. If as per law, the circumstances are such that it is in the child’s best interest for the
mother to be the natural guardian, then she can be the natural guardian.

To maintain her privacy, which is her fundamental right, the mother may refuse to disclose
information about the father. This case was a milestone, since in the Indian legal structure, all
administrative work, from school forms, bank details, to official documents, is in the father’s name.

This trend continued in the case of Jajabhai v. Pathankhan. Here, the couple had separated
and the youngest lived with her mother. In these circumstances, the court found it acceptable for
the mother to be considered the child’s natural guardian.
 23

Another judgment passed in the case of Bakshi Ram v. Shila Devi . The court held that due
to the mother’s remarriage her rights as a natural guardian cannot be questioned or restricted ever.

As per Section 6 of the Hindu Minorities and Guardianship Act, until the minor reaches at
least five years of age, the child is supposed to be under the care and protection of the mother. The
Rajasthan High Court rejected the appeal of the father who requested for physical custody of his
daughter, in the case of Smt. Dr. Snehalata Mathur v. Mahendra Narain. In this case, the mother
was granted custody of the child.

Analysis of HGMA 1956 and GWA 1890

The Guardian and Wards 1890 is a secular act that applies to every citizen and communities
of India while The Hindu Guardianship and Minorities Act of 1965 is applicable only to Hindus
and subsets of Hindus such as Jains, Buddhists, Sikhs, Lingayat, Arya Samaj, Followers of
Brahmo, Followers of Prarthana Samaj, and Virashiva.

Other religious communities such as Muslims, Parsis and Christians do not fall within the
scope of this law. This law is added to the Law of Guardians and Wards of 1860 and does not
replace the latter. GWA 1890 covers the procedure on how to petition courts for the appointment
of a guardian.

Conflicting law

The Indian law commission in its 2015 report has highlighted the gender differences existing
in society that have affected the gender ratio and discrimination and why the empowerment of
women is necessary. Shortly after the enactment of the Hindu Guardianship and Minorities Act,
the Hindu Support and Adoption Act of 1956 was also enacted, which recognized the adoption of
daughters.

The law commission report states that the parliament passed the Hindu Guardianship and
Minorities Act when the adoption of daughters was not recognized by Hindu law and the Hindu
Adoption and Maintenance Act; however, the position of the daughters statutorily improved, but
the conflict between these two laws has not been solved yet. To resolve this conflict, the Indian
Legal Commission recommended an amendment of section 7 of the Hindu Guardianship and
Minorities Act.
 24

Custody

India’s legal commission in its 2015 report has reaffirmed that section 6 of the Hindu
guardianship and minority’s law should be amended because if one law has eliminated such a
discrepancy, then another should also agree to implement the same. This report has also
highlighted issues related to custody of a child and the status of the mother and father in that
custody and has proposed that to grant the same guardianship rights to the father and mother, the
commission has suggested joint custody of the child. To soften the concept of joint custody, the
commission had also established certain guidelines for it so that the well-being of the minor is not
compromised. Bearing in mind this same principle, it is convenient to update our laws regarding
guardianship, custody and adoption.

Mother’s and father’s stand

The Commission has also recommended another provision of the Hindu Guardianship and
Minorities Act, Section 6, this section deals with the natural guardianship of a child and his
property. As per this Section, the first natural guardian is the father and only after him, the mother
is considered the natural guardian of a child.

This means that while the father is alive, the mother cannot claim natural guardian status. The
legal commission found that the issue of natural guardianship should not be ignored and the
influence of patriarchy is so strong that it is suppressing the rights of a mother. The Law
Commission recommended the modification of Section 6 as then the mother and father both can
have the same rights as natural guardians. This matter came to light in 1999 when the Supreme
Court gave a judgment on a petition filed by Gita Hariharan to challenge that only the father can
be the first natural guardian and only after him, the mother is considered as a natural guardian.

The Supreme Court interpreted the word “after” in section 6, which originally meant “after
the death of the father”, but is now “in the absence of the father”. In this case, an absence means
that the parent was absent for an extended period or was inconsiderate of the child or was unfit
due to illness. Therefore, the Apex court had issued judgments where the father is always preferred
as a natural guardian but in exceptional circumstances, the mother is considered as a natural
guardian. This was seen in the case of the famous writer Gita Hariharan where the principle of
equity was challenged. Section 19 of the Guardians and Ward Act 1890 was amended in 2010 in
 25

which this act had prohibited the court from appointing a guardian for a minor whose father was
alive and who was not in a position to take that responsibility. The 2010 amendment applies this
clause to cases where even the mother is alive.

Important case

Ms. Githa Hariharan vs. Reserve Bank Of India

In the case of Ms Githa Hariharan vs Reserve Bank of India, an educated and employed mother
wanted her five-year-old son to be nominated for her investments, but in the paperwork, she had
to disclose the father’s name. The district court rejected her claim because as per Section 11 of the
Guardians and Ward Act of 1890, she needed to disclose the information of the child’s father,
which she was unwilling to do.

When this case was taken to the higher court, they gave the reasoning to uphold this ruling
that even if the mother is not married, the father of the child could have any interest in the child.
But the Supreme Court chaired by Judge Vikramjit Sen annulled this sentence by establishing two
fundamental rules; the first interests of the child are paramount, and consequently, a mother can
be considered a guardian; second, for privacy reasons, the woman has a fundamental right to
conceal the identity of the father. In this case, the couple separated and the mother was the child’s
guardian.

The court of law held that both parents have to be treated equally for the purpose of
guardianship and the word “after” in Hindu minority law and guardianship should not make the
mother’s position secondary. This trial will at least do some good and will safeguard the rights of
single mothers or the illegitimate child that the Guardianship Law had mentioned but that society
had not yet accepted. In this case, the child’s mother obtained the same rights in the case of
guardianship. The interpretation of the word “after” has been changed to “in the absence of the
husband”, so that now the position of the mother is never questioned and treated equally. This
decision will be beneficial to some extent for children born out of wedlock or the descendants of
commercial sex workers. This landmark ruling will also encourage adoption by independent and
single women in India.
 1

i
Scope of personal laws under Part III of the Indian Constitution - iPleaders
ii
Ancient and Modern Sources of Hindu Law: A Concise Overview (legalbites.in)
iii
Sources of Muslim Law in India (legalbites.in)
iv
The Different Schools of Hindu law | Explained (legalbites.in)
v
Schools of Muslim Law (legalbites.in)
vi
Module – 2
1. Solemnization of Marriage with Special Reference to Live-in Relationships (legalbites.in)
2. Live-in Relationships (legalservicesindia.com)
3. Same sex marriages in India under personal laws - iPleaders
4. Special Marriage Act, 1954 : All you need to know about (ipleaders.in)
5. Difference between Hindu and Muslim marriages (legalbites.in)
6. Distinction between Shia and Sunni Law of Marriage (legalbites.in)
7. Classification of Marriages under the Muslim Personal Laws (legalbites.in)
8. Essential Conditions for Muslim Marriage in India (legalbites.in)
9. Definition, Nature and Scope of Muslim Marriage (legalbites.in)
10. Muslim Marriage & It's Nature - The Indian Law
11. 8 Traditional forms of Hindu Marriage in India (yourarticlelibrary.com)
12. Marriage under Hindu Law: Sacrament, Contract and Sacrosanct - LawBhoomi
13. Registration of Marriage under the Hindu Marriage Act (legalbites.in)
14. Conditions for the Validity of Marriage Under the Hindu Marriage Act, 1955 (legalbites.in)
15. Concept of Marriage under Hindu law (legalbites.in)
16. Evolution and History of Hindu Marriage (legalbites.in)
17. Nature of Hindu Marriage under the Hindu Law - iPleaders
18. Domestic violence and dowry laws : the gender disadvantage - iPleaders
vii
Restitution of conjugal rights - Law Times Journal
viii
Judicial Separation (indialawoffices.com)
ix
Nullity of Marriage under the Indian Laws (ipleaders.in)
x
Divorce under different personal laws in india : a comparative study - iPleaders
xi
Jurisdiction and Procedure of Family Court - Law Times Journal Family Law
xii
Family Courts under the Family Courts Act, 1984 | Law column
xiii
Maintenance: Under Hindu, Muslim, Christian And Parsi Laws (legalserviceindia.com)
xiv
Special Marriage Act: Maintenance For Wife & Children | Hello Counsel
xv
Maintenance Under Hindu Adoption and Maintenance Act, 1956 (lawcorner.in)
xvi
Maintenance in Criminal Procedure Code | Law column
xvii
MAINTENANCE OF PARENTS AND SENIOR CITIZENS | Law column
xviii
Legitimacy of children born out of void and voidable marriages | Law column
xix
Everything you need to know about Adoption in India (ipleaders.in)
xx
An analysis of adoption under the Juvenile Justice (Care and Protection of Children) Act, 2015 - iPleaders
xxi
Overview of the Hindu Minority and Guardianship Act, 1956 - iPleaders
xxii
Minor and Guardianship under Muslim Law (legalbites.in)
xxiii
Guardianship in Muslim Laws (legalbites.in)
xxiv
Minority and guardianship under the Guardian and Wards Act, 1890 - iPleaders