Q1) Briefly describe the relationship between personal law, family law, and Hindu law.

Describe briefly different types of sources of Hindu law and schools of Hindu law.
Ans 1)
Personal law - is a set of laws which gives rules and regulations which includes the
customary usages and laws legislated by the parliament. The personal law is meant for a
specific person, community, group of persons, a particular religion or for a family.

Family law - are the set of laws which are codified and uncodified in nature. The laws
which are related to a particular family is called as family law. Family law is a part of
personal law.
Hindu law – According to these laws, the rules and regulations relating to a Hindu person
for e.g. Institution of marriage, existence of a family, concept of blood relationship,
concept of coparcener, concept of Karta and concept relating to succession and inheritance.

SOURCES OF HINDU LAW – PRIMARY AND SECONDARY

1) Primary
a) Shruti – This word is derived from Shru meaning “which was heard by a person from
the mouth of the divine”. It is considered to be ultimate and fundamental source of
Hindu law.

1) Shrutis are called as Vedas which is divided into 4 parts – Rig Veda, Yajur
Veda, Shyam Veda and Atharva Veda. According to this section, the theories
of rituals and customs, rights and duties, forms of marriages, requirement
of a male child for inheriting the property.

2) Upanishads – The gist of Vedas are explained from which Dharmashastras and
Dharmasutras have been drawn down. It is divided into 2 parts – Samhita
which means the mantras are embodied and explained in story form and
Brahmana which means the method of application.

b) Smriti – The word has been interpreted from the word Smri which means to
remember. There are two kinds of Smritis – Dharmasutras: which are written in
prose styles and Dharamashastras: which are written in poetry styles. Written by
Yajna Valkya, which was interpreted by Manu and the interpretation was related to
the position of a female in the society and law of inheritance of the property by a
female.

c) Commentaries and Digest – The digest or commentaries, known as Nibandh, are

written, and compiled in two ways.

1) Mitakshras – written by Vigyaneshwar.

 2) Dayabhag – written by Jimutavahana.

d) Customs – According to this source of law, it is one of the continuous and uniform in
nature. This custom can be obtained by any community, any person or any society. It
is of four types –

1) Specific Custom – It is applied for a specific person.

2) General Custom – Applied for the whole society.
3) Family Custom – Applied by the whole family.
4) Guild Custom –

Essential features of the custom

1) Can be ancient in nature
2) Should be continuous
3) Should be reasonable
4) Should not be opposed to public policy

MODERN SOURCES OF LAW

2) Secondary

1) Legislations – are those legislated laws which are passed by acts of parliament
and state legislature. According to Hindu law, legislation plays one of the
important role for codifying the historical concepts. Eg – HMA 1955, HAMA
1956, HSA 1956, HDA 1850, Child Marriage Restraint act, 1928.
2) Precedents – Judicial decision or judge made laws.
3) Equity, justice and good conscience

SCHOOLS OF HINDU LAW

It is divided into two parts – Mitakashras and Dayabhag (only prevails in Assam and West
Bengal)
1) Mitakashras - Deals with concept of joint family system and concept of
coparcenary. It is divided into four parts –
a) Banaras School – UP, MP
 b) Mithila School – Bihar and WB
c) Dravida School – South India
d) Bombay School – Maharashtra and Gujarat

CONCEPT OF MARRIAGE
This concept of marriage is divided into many parts –
1) Concept of Polygamy – One man has many wifes.
a) Concept of Sororal – Two sisters (related by blood) marry one man. The wives
are related by blood.
b) Concept of Non – Sororal – Type of polygamy : Wives are not related by blood.
2) Concept of Polyandry – One woman has many husbands.
3) Concept of Monogamy – One man and one woman

Institution of marriage – Marriage is one of the sacred institution in India, it is one of the
institution which is related to laws and regulations for starting a family. In all personal laws,
the rules and regulations relating to legal marriage has been defined with certain terms and
conditions.

RIGHT TO MARRY AS AN ABSOLUTE, FUNDAMENTAL AND HUMAN RIGHT

1) It is one of the components which belongs to Article 21 (right to life and personal
liberty) of Indian Constitution, which says that no person shall be deprived of his life
or personal liberty except according to the procedure established by law. According to
article 14 and 19, they laid down the rules and regulations as fundamental rights in
case of right to marriage.
2) According to Article 16 of UDHR, three parameters for right to marriage –
a) Every male and female of full age (18 for female and 21 for male) without any type of
limitation in case of caste, religion, nationality have the right to marry and found a
family. They are entitled to equal rights as to marriage, during the marriage, after the
marriage.
b) The marriage shall be entered into free and full consent of the parties.
c) As the family is the natural and fundamental group of the society, then both of the
parties must be protected by the society and the state.
CASE LAWS –

(1) Mr. X v. Y AIR 1999 SC 495 – The SC rule relating to right to marry is not one of the
absolute rights. X, the appellant and one of the surgeons in Nagaland State Health
services, and donated blood to the blood camp to his relatives. Upon testing it was
found that he was HIV positive. His marriage was fixed with Ms. Y. This information
was disclosed by the Respondent and as a result, the Appellant’s marriage was called
off and he was ostracised by his relatives and community. He filed an appeal on the
grounds that disclosure of his HIV(+) status by the Respondent-Hospital was violative
 of medical ethics pertaining to confidentiality and also infringed upon his right to
privacy under Article 21.

(2) Lata Singh v State of UP (AIR 2006 SC 2522) – According to Supreme Court, Right
to marry is one of the essential components of Right to life mentioned under Article
21 of the Indian Constitution.

(3) Shafin Jahan v. KM Ashokan AIR 2018 Kerala District Court –

Ruled by Justice DY Chandrachud and Justice Arun Mishra

Institution of marriage as per different personal laws -

1) Hindu Law – It considered one of the sacramental relationships between parries as

marriage is considered by Vedas and Sanskaras.
2) Muslim Law – Nikah has been defined as the contractual relationships between both
parties are there is Ijab (offer), qubool (acceptance) and mehr (dawer) as main
component of Nikah.
3) Christian Law – Marriage has been defined as the contractual relationship between
both the parties as the registration formalities have to be fulfilled in front of the head
of the church and the society.
4) Parsi Law - Marriage has been defined as the contractual relationship between both
the parties in front of the society. After the fulfilment of customary usages, both the
parties have to register their marriage and complete the formalities of registration of
marriage in front of the registrar of Court.

According to Special Marriage Act, the marriage has been defined as registered marriage in
which both of the parties has to fulfil all the formalities relating to registration in front of the
registrar of the court.

INSTITUION OF MARRIAGE UNDER HISTORY OF HINDU LAW

Historical Background – The formalities relating to Hindu Marriage have been taken from the
Ghriyasutras. According to historical background of marriage, it has been defined in 8 forms
from which 4 are approved and 4 are unapproved.
a) Approved
1) Brahma Marriage – The girl was given to a boy who was well versed in Vedas and of
a good moral character. The consent of marriage was given by the guardian of the girl.
2) Daiva Marriage – The girl was given to a priest as a Dakshina.
 3) Arsha Marriage – The bride groom was given a pair of bulls and cows by the father of
the bride as part of the marriage.
4) Prajapatya Marriage – The father performed all the rights and rituals during the
marriage for the performance of secular and religious duties.

HINDU MARRIAGE ACT – 1955

1) Rohini Kumari v. Narendra Singh (AIR 1972 SC 1) – Supreme Court of India laid
down that when a particular set of rules and regulations is combined with a codified
set of rules, then it can be changed and amended time to time looking towards the
society.
PRE HMA
1) Marriage was called as a sacramental relationship which was purely based on Vedas
and Shastras
2) The solemnization of marriage was according to the customary usages.
3) A person can marry at any age.
4) Polygamy was prevented.
5) Inter religious and Inter religious marriage was prohibited
6) Marriage within same Gotra and Parvara
7) Dissolution of marriage was up to the parties and the guardians of the family.
POST HMA
1) Mutual consent of the parties was mandatory
2) Consent of the parties was given preference
3) Marriage between Hinduism, Jainism, Sikhism, Buddhism was allowed
4) Age criteria of 18 for girls and 21 for boys were introduced
5) Limits within sapinda relationships were introduced
6) Concept of monogamy was introduced
7) Inter caste and Inter religious marriage was allowed
8) Registration of marriage was introduced
9) Grounds for dissolution of marriage were introduced
APPLICABILITY OF ACT (SEC 1 – 4 )

1) HMA 1955 is applicable in all states of India except Jammu and Kashmir.
2) It is applicable to all the citizens who have an Indian domicile but stay outside India
3) Applicable to anyone who is Hindu by religion with its 5 sub communities.
1) Arya Samaj
2) Brahma Samaj
3) Prathana Samaj
4) Lingayat Samaj
5) Virashaiva Samaj
4) It is also applicable to a person who is Jain, Sikh aur Buddhist by religion
5) Applicable to any person who has converted or reconverted to Hinduism
6) It is applicable for all legitimate and illegitimate persons.
 Case Law – 1

Sapna v. State of Kerala (AIR 1993 Ker HC) – Court of law laid down that every
legitimate or illegitimate person who is born from Hindu Parents will be Hindu by
religion and all the conditions of 1985 will be applicable to that person.

Case Law – 2

Gopal Krishna v. Mithilesh Kumari (AIR 1979 ALL) – Marriage under Hindu law has
been declared as sacramental relationship between two parties rather to be called as a
socio – legal contract.

Case Law – 3

Dashrath v. Guru (AIR 1972 ORIHC 78) – All those persons who belong to ST
community about sufficiently practice Hinduism, then HMA 1955 governs them.

Case Law – 4

Ratanji D. Morarji v. Administrator General of Madras (AIR 1972 MAD 160) – All
those persons who are converted and reconverted to Hinduism, they are also Hindu by
religion.

CONDITIONS OF A VALID MARRIAGE (SEC 5)

Section 5 deals with all the conditions relating to valid marriage.

1) Concept of Monogamy – According to this condition, neither parties must have a

spouse living at the time of marriage.

Chamundamma v. Lakshmi (AIR 2005 KARHC 21) – If a party without

dissoluting the previous marriage, enter into a second marriage, then the second
marriage will be void ab initio.

Dr. DN Mukherjee v. State (AIR 1969 ALLHC 489) – If a person has not entered
into the institution of marriage, he cannot be liable for bigamy under 494 of IPC.

According to Sarla Mudgal and Lily Thomas Case, the Court held that if a Hindu
person converts to any other religion, then conditions relating to HMA 1955 will
not be applicable.
 2) Criteria of age – At the time of entering the institution of marriage, the female
must be 18 and the male must be 21 years of age.

3) Unsoundness of Mind – When both parties enter into the institution of marriage,
they must be of sound mind while giving consent.

Sridhar v. Sita (AIR 2013 KARHC 97) – The husband was unable to prove the mental
disorder of the wife.

4) Free consent – While giving the consent, there must not be any fraud,
misrepresentation, undue influence, unfair advantages.

Sapinda Relationship – Most of the parties must be beyond Sapinda relationship.

From mother’s side 3 generations are considered and from father's 5 generations have been
taken into consideration.

5) Prohibited degrees – Relationships which prohibit the parties to enter into the
institution of marriage. According to this relation, only the blood relationship of
both of the parties is prohibited to enter into the institution of marriage.
CEREMONIES OF MARRIAGE (SEC 7)
According to the institution of marriage under Hindu Law, there are four ceremonies :-
1) Saptapati
2) Kanyadaan
3) Panigrahan
4) Vivahomam

Balwinder Kaur v. Gurmukh Singh (AIR 2007 P&H 100) – The Court held that performance
of ceremonies at the time of marriages becomes one of the evidence and proof for marriage.

REGISTRATION OF MARRIAGE (SEC 8)

According to Hindu Law, every state government has laid down certain rules and regulations
for registration of marriage under Sec 8.

Seema v. Ashwini Kumar (AIR 2006 SC 287) – Every citizen has the right to register their
marriage compulsorily for procuring a marriage certificate.
Sudhir Mohan v. Jyoti Debdas (AIR 2016 DMC 24) - Marriage certificate is one of the
evidential proofs to justify the parties as husband and wife in the society.

Section 11 – Conditions relating to void marriage

According to this section, the provisions and conditions relating to void marriage have been
given. According to this kind of marriage there is no status in the eyes of law but the child
born out of this relationship is called a legitimate child
According to this void marriage it is called as null marriage which is void ab initio.
According to this kind of marriage, the parties have no right to file a petition in a court of law
for dissolution of marriage.

There are 3 grounds or conditions from which the marriage is known as a void marriage:

1. Breach of the concept of Monogamy: According to this condition if the party has
entered into a second marriage without dissolution the previous marriage lawfully by
the court of law then the second marriage of the party will be called as void ab initio.

2. If the parties belong to the same sapinda relationship: If both belong to the same
sapinda relationship as 3 generation from the mother side and 5 generation from the
father side, then this kind of marriage is called void ab initio.

3. If the parties belong to prohibited degrees: If they belong to same prohibited

degrees then the relationship has no status in the eyes of law.

M.M Malhotra v. Union of India AIR 2006 SC 80: According to this case law SC laid
down that marriage under section 11 is called as void ab initio. According to this marriage, it
is considered as no marriage in the eyes of law.
Mohanlal Sharma v. Praveen HLR 2009 581: According to this case law, the court of law
laid down that there is no declaration is required by the court of law for dissolution of
marriage.

Section 12- Conditions relating to voidable marriage

According to this marriage it depends on the party to consider it as a marriage or the party has
the right to dissolute the marriage. The grounds are:
4. Impotency of the husband or wife: Impotency is known as the first ground to
consider a relationship as voidable. This impotency can be of physical or mental.
Physical impotency includes:
a. When a person unable to consummate his/her marriage, then it is known as physical
impotency. According to this kind of impotency the parties can annul the marriage.
b. Mental Impotency: When a party has psychological or moral phobia towards sexual
activity with the other party and the disease is incurable in nature it is called as mental
impotency.
Sharda v. Dharampal AIR 2003 SC 3450: According to this case law, if a party
is suffering from any kind of impotency the burden of proof lies on the
complainant to prove that the other party is suffering from impotency.
 1. Mental Disorder: Unsoundness of mind is one of the grounds to declare a marriage
as voidable. Unsoundness of mind can be permanent or temporary in nature.
According to the law if a party is suffering from mental disorder and it is curable in
nature then it is the option of the party to stay in the marriage or to exist in the
marriage or to dissolute the marriage.

2. Consent obtained fraud or unfair advantage: If the consent to enter into the
institution of marriage is obtained by fraud, force, or unfair advantage then this kind
of marriage can lead to voidable marriage.

Sunaina Devi v. Prashant Kumar, AIR 2004 Pat 14: According to this case law if the party
gives consent with any type of foreseeable act or fraud it leads to voidable marriage.

3. Non-Disclosure of age: Somdutt v. Rajkumari AIR 1986 P&H 191 According to

this case law if the parties has concealed relating to the age then according to the court
of law the declaration is relating to matrimonial fraud in the marriage

4. Concealment of Job: Bindu Sharma v. Ramprakash Sharma AIR 1997 All 429:

5. Concealment of religion or caste:

6. Concealment of identity: Concealment of identity of the parties at the time of

marriage amounts to matrimonial fraud and the marriage can be nullified on this
ground.

7. Concealment of pre-marriage pregnancy: Mayaram V. Kamala Devi AIR 2008

HP 43: According to this case law the child was born within 6 months from the date
of her marriage, the husband allegated it as a illegitimate child and filed a petition for
dissolution of marriage and according to the court of law both the parties were
suggested to undergo medical examination and DNA test of the child which is laid
down under Section 112 of the evidence act to declare the marriage as a valid
marriage and the child as legitimate child.

Difference between Void and Voidable marriage

Void marriage Voidable Marriage
Laid down in section 11 Laid down in section 12.

Void marriage is always void ab initio in nature It depends on the option of the party to exist in the
marriage or to dissolute the marriage

No decree from the court of law is required in case of A decree is necessary to get the voidable marriage
void marriage annulled

Grounds of void marriage are of three conditions as Grounds for voidable marriage can as given above.
given
Void marriage has no status in the eyes of law The second marriage in the subsistence of first marriage
is punishable under section 494 of IPC

Section 16 – According to section 16 the children born out of void and voidable marriage
will be called as legitimate child.

M. Mutiah v. Kamu AIR 1981 KAR 127: According to this case law, the court of law laid
down that if a child born out of void or voidable marriage then the status of the child will
always be called as legitimate.
THEORIES OF DIVORCE
A marriage can be dissolved and the grounds relating to divorce have been taken from the Act
of Parliament – Matrimonial Causes Act.,1857. According to this act, the grounds for
dissolution of marriage have been drawn down under Section 10 (judicial separation) and
Section 13 (grounds for divorce) of HMA, 1955. These grounds are also included in Parsi
Marriage and Divorce Act and Indian Divorce Act and Special Marriage Act. In case of
Muslim personal law, the grounds for Talaq are uncodified in nature. The Matrimonial Causes
Act 1857 gives three theories-
1) The Fault/guilty theory of Divorce – One party must be in fault and other
party is the innocent party waiting for the justice by the court of law.
According of this theory, three grounds have been drawn down –
a) Adultery – One of the foremost grounds and according to this ground, the
party who committed the fault having wilfully and intentionally sexual
intercourse with another party outside the marriage.
b) Cruelty – Act of cruelty undermines the basic assumption of marriage that
the parties should live peacefully after entering into the institution of
marriage. There should not be any kind of physical or mental cruelty on
any of the parties.
c) Desertion – It is the third ground in the case of dissolution, which breaks
the institution of marriage or the relationship between two parties. In this,
 one party prohibits the other party to cohabit. According to Matrimonial
Causes Act, this prohibition of cohabitation must be for at least two years.

2) The consent theory of Divorce – According to Matrimonial Causes Act 1857,

a marital life can be dissoluted by taking consent of both parties. According to
13(b), laid down all the grounds and conditions relating to mutual consent for
divorce.
Ammni v. Union of India (AIR 1995 KERHC 252) – The Court held that the
consent theory is the best ground for dissolution of marriage, which is taken into
consideration for all personal laws.
3) Breakdown theory of divorce –

a) Gollins v Gollins (1963) and Williams v Williams (1963) – The court laid down
that the main purpose of the divorce is to give justice to the innocent party. If both
parties committed the same act, then the institution of marriage will be dissolved by
applying the breakdown theory. The act of cruelty has been taken into consideration
for dissolution of marriage. In this case, ADR mechanism was used for proper
mediation. The court applied the breakdown theory for dissolution by mutual consent.
b) Masarati v Masarati (1969) – dealt with the act of desertion in which both parties
prohibit each other for consummation of marriage or cohabitation. The court applied
the breakdown theory for dissolution of marriage.

JUDICIAL SEPERATION (SECTION 10)

According to Section 10 of HMA 1955, it lays down all the conditions relating to Judicial
separation –
It is one of the matrimonial reliefs for a party under HMA 1955.
Dr. N Shivamohan v. Aparna Reddy (AIR 2005 APHC 44) – The Court laid down the
definition of Judicial separation as it is a process relating to dissolution of marriage in which
the Court of law gives an order to both of the parties to stay separate. The main intention of
passing an order by the Court of law, in the name of Judicial separation is to give an
alternative way to both the parties to save or restore their families.

ESSENTIALS OF JUDICIAL SEPERATION

1) It is not known as dissolution of marriage.
2) All marital ties are just suspended by the Court of law.
3) They continue to live with the same status as husband – wife in the society.
 4) Both parties are prohibited from cohabitation.
5) Both parties are not allowed to marry during this period.
6) Maintenance can be claimed, and the husband is bound to give the maintenance
during this period by either spouse.
7) Mutual rights and obligations are suspended during this period by Court of Law.

GROUNDS RELATING TO DIVORCE (SECTION 13)

According to section 13 of HMA 1955, there are 9 grounds for divorce for both parties.

a) Adultery – This is one of the foremost grounds for dissolution of marriage and adultery
means a party having wilful sexual intercourse outside the marriage. Section 497 of IPC
prescribes the conditions relating to act of Adultery with fine and punishment. In 2018, the
Supreme Court laid down that punishment and act of Adultery were not criminal offences in
eyes of law but it continues to be a ground for dissolution of marriage.
PROOF OF ADULTERY
Three conditions to prove Adultery –
1) Circumstantial evidence – According to this kind of evidence, it has to be properly
verified, enquired and investigated by the Court of Law.
P v. R (AIR 1982 BOMHC 498) – The Court held that all those circumstantial evidence are
no direct evidences to prove the act of adultery of the party. To prove the act of adultery, the
party has to provide evidential matter to the Court of Law which must be verified and
investigated by the Court of Law.
2) Giving birth to a child and proof of non-access from the husband’s side –
Anandi Devi v. Raja (AIR 1974 RAJHC 14) – The Court held that after proper medical
examination as per Section 112 of the Indian Evidence Act, the act of adultery can be proven
in the Court of Law.
3) Admission of the party – If one of the parties admits and accepts committing
Adultery in the Court of law, the marriage can be dissolved.

ARTFICIAL INSEMINATION – DOES IT AMOUNT TO ADULTERY ?

Oxford v. Oxford (1986) – The Court of law declared that Artificial Insemination may or
may not amount to Adultery if the wife is able to submit all the medical documents relating to
artificial insemination in the Court of law, then it does not amount to act of adultery. If she
fails to submit, the act of adultery will be established.
b) Cruelty – Second ground for dissolution of marriage drawn down from the fault theory.
Russell v. Russell – The act of cruelty has been divided in to 2 parts –
1) Mental Cruelty
2) Physical Cruelty
P.I. Shayal v. Sharla (AIR 1961 PUNHC 125) – If mental and physical cruelty is proven in
the Court of law, the marriage can be dissolved.

Dastane v. Dastane (1975) – The meaning of Cruelty has been drawn down and it is
established as one of the grounds for divorce.

c) Desertion – Abandonment of the spouse by the other party without any reasonable ground.
Two types –
1) Actual – One party knows that other party has left the spouse and automatically the
marriage will be dissolved if the other party is filling a petition in the Court for divorce.
2) Construction – If both of the parties stay together under one roof and stop cohabiting for a
long period of time (at least 2 years), then it becomes one of the grounds for dissolution.

ESSENTIALS OF DESERTION
1) Factum of Separation – It is in the knowledge of the spouse for prohibition of
cohabitation.
2) Animus Deserendi (Intention of separation) – One party knowingly abandons the other
party, if that party filing petition in the court of law on grounds of no cohabititon, then court
of law will admit it as a condition to dissolve the marriage.
3) Without petitioner’s consent
4) Without reasonable cause
5) Separation of two years of cohabitation -Archana Agarwal v. Suresh Jindal (AIR
2017 DMC 112)
d) Conversion to another religion –
Nitaben v. Dhirendra (AIR 1984 MLR) – The husband has converted to another religion
and the marriage was automatically dissolved without any petition.
e) Unsoundness of Mind – As per section 13, it is one of the most appropriate grounds in
which one of the party if able to prove, the unsoundness of mind as permanently incurable,
then it becomes one of the grounds for dissolution of marriage.
Krishna Bhatt v. Shrimati (AIR 1995 P&H 4330 – The wife was suffering from mental
disorder and it was a threat to life to children and aged in-laws, for which the marriage was
dissolved.

f) Leprosy – According to 2019 SC ruling, leprosy by MCI is non communicable and curable
in nature.
In Swarajya Lakshmi vs G. G. Padma Rao, the husband filed the case for granting the
divorce on the ground of leprosy. He claimed that his wife is suffering from incurable leprosy
with the expert’s reports. Here he succeeds in getting the divorce on the ground of leprosy.
g) Parties suffering from incurable mental illness – X v Y
h) Renounced from the world – One of the parties must have renounced from the marital
world and must have converted into a specific school or any other organisation. The person
from the day he renounces the world and family, the marriage comes to an end.
Deveriya v. Gangawa (AIR 2006 KARHC 535) – The Court laid down that if a party wants
to dissolute the marriage taking the ground renouncing from the world then, the party can
claim to the Court of law for dissolution of marriage.

i) Presumption of death – If one party has no information of the other party for a continuous
period of seven years, then the party is presumed to be dead, henceforth it becomes one of the
automatic grounds for dissolution of marriage. A party has an option to file a petition for
dissolution taking presumption as one of the grounds. It has three special grounds only for
wife –
1) Marriage through polygamy before 1955 Act
2) If the husband committed rape, sodomy and bestiality
3) Repudiation of marriage after attaining majority
a) Non consummation of marriage
b) The parents of the wife must be her guardians.
SECTION 13(b) – DIVORCE BY MUTUAL CONSENT

1. Both parties must move to the district court for presentation of a petition
relating to divorce by mutual consent.
2. Parties must have lived separately for at least one year before filing divorce by
mutual consent.
3. Both parties have mutually consented for dissolution of marriage.
4. After filing the petition, both the parties must wait for 6 months and not more
than 18 months for a withdrawal of a petition.

Sureshtha Devi v. Om Prakash (AIR 1997 SC 1266) –

Rupa Hura v. Ashok Hura (AIR 2010 SC 229) –
SECTION 14 – NO PETITION OF DIVORCE WITHIN ONE YEAR OF MARRIAGE
SECTION 15 – DIVORCED PERSON BOTH PARTIES HAVE ONE YEAR’S TIME
TO APPEAL IN THE HIGHER COURT
 After divorce the parties are free to remarry but the condition of one year will be
applicable at the discretion of the court
DIFFERENCE BETWEEN DIVORCE AND JUDICIAL SEPARATION

Judicial Separation Divorce

Order given by the court of law Final judgment given by the court of law

The status of husband and wife will be intact No more status of husband and wife
No right to remarry They have a right to remarry
They can resume the conjugal rights Not allowed to maintain conjugal rights.

MAINTENANCE - SECTION 24 AND 25

Maintenance is the final amount that is paid to the divorced spouse which is decided by the
court of law. According to section 24, it laid down the condition of:

Interim maintenance- Amount which has to be paid till final decision is laid down by the
court of law and this payment is paid while the petition is pending in the court of law.

SECTION 25- Permanent Maintenance- The final amount is decided by the parties in front
of the court of law and this payment is divided in two parts:
1. The court of law has given order for monthly payment.
2. The court of law can order for final alimony and paid once in the lifetime.
MUSLIM LAW

Different sources of Muslim law

The source of Muslim law is divided into two parts: Primary and Secondary
1. Primary-
a. Quran- It is known as the primary source which is derived from the Arabic word
quarra which means the direct revelation of words by God or Allah which is given by
Prophet Mohammed through an Angel Gabriel. The Quran is known as the holy book
of Islamic law which is divided into 114 chapters that deals with:
 Concept of the Muslim family system
 Law of inheritance
 Acknowledgment of paternity
 Maintenance
 Concept of Iddat period
 Grounds relating to Talaq

According to this source it deals with the lifestyle of a Muslim person to deal with his life in
the Indian society.

b. Sunnah/ Hadith: This is derived from the Arabic word “Sunnat Nabi” which means
the deeds, practices and sayings of Prophet Mohammed. This Sunnah is divided into 3
parts:
 Sunnat-Ul-Fail- This is regarding what Prophet Mohammed was doing himself.
  Sunnat-Ul-Qual- The traditions which was commanded by words of Prophet
Mohammed
 Sunnat-Ul-Taquir- The traditions which were adopted by a Muslim person till death.
Hadith is divided into 3 parts:
 Hadith Mutawali- According to this, it is the sayings and practices which is received
and accepted universally and narrated by the companions of Prophet Mohammed,
senior Jurist Muslim person or by successors of Islamic law.
 Hadith Mashoor- According to these traditions, the sayings of Prophet Mohammed
are restricted and new law is adopted.
 Hadith Ahad- it depends on the testimony or the sayings of an individual which is
questionable always and not accepted by all Muslim persons.

c. Ijma- It means the opinion of the jurist or confessors of opinion. This is the most
appropriate source of Muslim law which is divided into 3 parts:
 Ijma by companions- It is universally accepted and laid down by the companions of
Prophet Mohammed and it cannot be repealed.
 Ijma by jurist- The sayings and practices which is recognised in relation to different
concepts or views which is given by senior person of Muslim community.
 Ijma by a Muslim person- It deals with fasting, Hajj pilgrimage, prayers followed
with customary practices.

d. Qiyas (logical or analogical deduction)- In this case the practices are based on
certain reasons and logic which is applied by Prophet Mohammed or successors of
Prophet Mohammed. The analogical deduction deals with Law of inheritance,
Acknowledgment of paternity, Maintenance

2. Secondary Sources
a. Legislations
 Shariat Act, 1937
 Dissolution of Muslim marriage act, 1939
 Protection of Muslim women, 1986

b. Customs
c. Judicial Precedents
d. Justice, equity and good conscience
e. Fatawa 'Alamgiri

SCHOOLS OF MUSLIM LAW- It is divided into 2 parts:

1. Sunni- It is classified as:
a. Hanafi School- This is known as the first and foremost school of Muslim law and it
was also called as Khufa school. The founder of this school was Abu Hanafi who
relied on customary practices and beliefs and the decision which was taken and given
by Abu Hanafi. The authoritative book of Hanafi school was called as Hidaya which
was based on relating to succession and inheritance of property.
b. Maliki School- This is also called as Medina school and the founder of this school
was Imam Malik Bin Ahsaas. The authoritative book of this school was Muatha.
c. Shafi School- The founder of this school was Mohammed Bin Idris. The
authoritative book was Al-Risala.
d. Hanbali- The founder of this school was Ahmed-bin-Hanbal.
 2. Shia- It is classified as:
a. Ithna Asharis
b. Ismailiyah School
c. Zaidi School

3. Independent School
a. Ibadi
b. Ahmadiya

INSTITUION OF NIKAH ACCORDING TO MUSLIM PERSONAL LAW

In case of Muslim marriage, it is an act of Ibadat (offer and acceptance). As per the customs
of Muslim law, Prophet Muhmmad considered the institution of Nikah as his Sunnat and
Hadid and if a Muslim person does not enter into the institution of Nikah then he is not a
follower of Prophet Muhammad. According to Prophet Muhammad, a Muslim person’s life is
divided into 3 stages –

1) Shaghir – a Muslim below the age of 7 years is incompetent to enter into institution of
Nikah.
2) Sariri – a Muslim below 15 years can enter the institution of Nikah with the consent of
guardian.
3) Balugh – a Muslim above 15 years and has attained the age of puberty with his or her own
consent can enter into the institution of Nikah.

MEANING OF NIKAH

Means a civil contract in Arabic, underlying the relationship between two Muslims
based on mutual consent.

Shoharat Singh v. Jafri Begum – The Court held that Nikah under Muslim law is a
religious ceremony in which offer, acceptance and consideration between two parties are the
main components for the fulfilment of a valid marriage.

Abdul Rahim defines Nikah as a nature of Ibadat and Mualat regarding the offer,
acceptance and Mehr between all the senior members of the family.

Abdul Qadir v. Salima – Justice Muhammad defined Nikah as institution known as one of
the sacramental relationships and not called as a civil contract.

According to Justice Mitter, Marriage under Muslim law is a civil contract, and it is a
type of contract in which the bride is taken as consideration in the name of bride price.
 TYPES OF NIKAH

1) Sahahi Nikah – known as valid marriage under Muslim personal law and the child born
out of this relationship will be called as legitimate as per Muslim personal law. To
recommend the marriage as a valid marriage, following essentials has to be fulfilled :-
(a) Ijab (offer) – The offer is made by or on behalf of one party to the other party.
(b) Qubool (acceptance) – The other party has to accept to enter into the institution of
Nikah.
(c) Mehr (dower) – A fixed amount of money is decided which must be given by the
husband to the wife during the Nikah or after completion of the Nikah.
(d) Witnesses – must be present at the time of Nikah and a Nikahnama has to be prepared
by the Qazi.
(e) Free and mutual consent of both parties
(f) Both parties must be competent to wnter into a civil contract –
1. Both parties must have attained the age of 15 years.
2. Both must have attained the age of puberty.
(g) There should be no legal disabilities.
(h) Registration of Nikah is not mandatory – only the Qazi is the mediator to make a
Qazinama or Nikahnama.
According to Sunni law, at the time of Nikkah, it is mandatory that two witnesses are
present. Under Shia law, witnesses are not required.

Alamgiri v. State – The Court held that all the conditions must be fulfilled to recommend a
marriage as a valid marriage.
Habibur Rehman v. Majid Khan – The Court held that a valid marriage is necessary to
consider a child born out of that relationship legitimate.
Rashida Khatoon v. SK Islam – The Court held in a valid Nikah, the presence of witnesses
and presence of Qazi is mandatory to recommend a marriage as a valid marriage.

2) Fasid Nikah (irregular marriage) –

1) Limitations on the number of wives – A man can have four wives at a particular point of
time but has no right to marry fifth time. If the person marries, then the marriage will be
declared irregular marriage.
Jubeda v. Sardar Shah – The Court held that
2) Solemnization of Marriage during Iddat Period –
In case of Divorce – 3 months
In case of death of husband – 4 months and 10 days
If the wife is observing the Iddat period and if during that period if a Muslim person marries,
it is Fasid Nikah.
3) Marriage during pilgrimage –
4) Marriage to a non-Muslim
 MEHR
Dower is sum of money or property which is given to a wife by the husband in consideration
of the Nikah. Payment of dower is one of the essential components in relation of Nikah to
recommend the Nikah as valid marriage. If there is no payment of dower during marriage,
then the marriage can be called as irregular marriage. According to pre-Islamic time, Mehr
was called as Sadaq. It is also known as a marriage gift which is given to the wife at the time
of marriage. In Arabic terms, Mehr is known as an amount, consideration or property which
is included in the civil contract of marriage. In the pre-Islamic time period, it is given to the
bride's father as a compensation for giving his daughter in marriage. Meher can be fixed
either at the time of the marriage or after consummation of marriage.

Hamira Bibi v. Jubaida Bibi AIR 1960 PC 46 – The Court held payment of Dower at the
time of Nikah is one of the essential components of Nikah.

AL – MAHR – AL – MUSAMMA (SPECIFIED DOWER)

In this case, a husband settled down the amount of Mehr with his wife at the time of marriage
in presence of the Qazi while performing the formalities of Nikah. The amount of Mehr must
be registered in the Nikahnama with the proper conditions specified. This type of Mehr is
known as fixed or specified Dower. If the amount is specified, then the husband is obliged to
pay the whole of the amount.

In case of a minor whose marriage has been completed with the consent of the guardian, then
according to Sunni law, the husband is obliged to pay the Dower and in case of Shia law, the
payment of Dower depends on the guardian.

Two types: -
1) Prompt Dower – According to this type of Mehr, it is payable immediately after the
marriage when the wife demands before or after the consummation of marriage.
 In case of non - payment, it creates a defence for the wife to leave the husbands house
and if the husband files a petition of RCR, then this nonpayment of Dower becomes
one of the defences for the wife.
 If the prompt Dower is not paid and the wife is living with the husband, then the wife
can refuse for co-habitation and can initiate for dissolution of marriage.
 If the wife stays with her parents, then there is a limitation of three years which is
given to the husband for the payment of dower. If the husband fails to pay then, the
marriage automatically dissolute.
 If there is non - payment of prompt Dower and the wife dies, then the legal heirs of
the deceased wife have a right to file a petition in the Court of Law for the payment of
Dower. The limitation period for filing such a petition is three years.
 2) Deferred Dower – As per this type of dower, the payable of the dower is at the time
of the dissolution of the marriage or after the death of the husband.

Unspecified Dower – This type of dower can be paid at the time of Nikah, when the wife
demands during the consummation of marriage, at the time of dissolution of marriage or
death of the husband.

FIXATION OF THE MEHR

According to Sunni Law, if at the time of the marriage the Mehr is not fixed, half of the Mehr
will be paid and considered as prompt dower and the other part will be considered as deferred
dower.
According to Shia Law, if at the time of the marriage the Mehr is not fixed, the whole is
considered as prompt dower.

AMOUNT OF THE MEHR

According to Shia Law, there is no minimum amount of Mehr codified under Muslim law. In
the name of prompt dower, it should not exceed 500 Dirhams and if the husband has nothing
to pay as a Mehr to the wife, then the husband must give a silver ring or the husband has the
duty to teach Quran to the wife in favour of the amount of the Mehr.

According to Sunni Law, the minimum amount of dower is not fixed. It has been laid down
that a minimum of 10 Dirhams must be paid in Hanafi Law and 3 Dirhams and in case of
other sub schools.

INCREASE OF DOWER
A husband, at any point of time, during the marriage, before the marriage or after the
marriage the husband can increase the amount of Dower but has no right to decrease the
amount without the consent of the wife. If the wife wants to convert deferred dower to
prompt dower, she has no right to demand this from the husband.

CANCELLATION OF DOWER
If the wife wants to lower or remit the amount of dower, wholly or partially, then there must
be mutual consent between the husband and the wife. The remission made by the wife is with
mental distress due to husband’s death, then it is not taken as a consideration to remit the
Mehr.

MEHR – AL – MITHIL
It is referred to a proper dower, which is fixed looking towards the educational qualifications
of the bride, beauty of the bride and background of the wife of the father.

CONCEPT OF TALAQ IN MUSLIM LAW

1) Syed Rashid Ahmed v. Anisha Khatoon (AIR 1932 PC 25) – The Court held that
pronouncement of triple talaq and again living together with the divorced wife without
observing the proper procedure is one of the void relationships according to Muslim personal
law.

2) Shamim Ara v. State of UP (AIR 2002 CRJ 4726) – The Supreme Court held that
importance of communication of the pronouncement of talaq to the wife and attempt of
reconciliation of the parties is not applicable under Muslim personal law.

3) Yousuf vs, Soramma – The Court held that failure to provide maintenance to the wife
during the marriage under Muslim law is one of the grounds for dissolution, which has been
taken from dissolution of Muslim Marriage Act,1939.

4) Shakina v. F Sher (AIR 1957 LHR 47) – A minor wife has the right to repudiate the
marriage before attaining the age of majority.

CONCEPT OF DISSOULTION

The concept of Talaq or the word is of Arabic origin, meaning undoing or untying a marital
relationship between two parties. According to this, a marriage between two Muslim persons
or parties comes to an end.

Kinds of Talaq -
1) Death of the party to the marriage
2) By Divorce
2.1) By Husband
a) Talaq
i) Talaq – ul – Sunnat
1)Talaq – e – ahsan
2) Talaq – e – hasan
ii) Talaq – ul – Biddat
1) Written Divorce
2) Triple Divorce
b) Ila
c) Zihar
2.2) By wife
a) Talaq – e - tafweez
2.3) By mutual consent
a) Khula
b) Mubaraat
4) By judicial decree under the dissolution of Muslim Marriage Act, 1939
a) Faskh
b) Liam

CONDITIONS FOR VALID TALAQ

1) A Muslim husband who is of sound mind and has attained the age of puberty or attained
the age of majority can validly pronounce the talaq to the wife.
2) According to Muslim personal law, the husband need not to give the reason to the wife for
pronouncement of talaq.
3) The pronouncement of talaq must be in free consent of the husband.
4) Pronouncement of talaq under intoxication is valid under Hanafi school under Sunni Law
and in case of Shia Law, it is one of the void Talaq.
5) Talaq can be pronounced orally or in written form, which is known as Talaqnama.
6) Presence of witnesses – at least 2 witnesses must be present at the time of pronouncement
of Talaq and in case of Sunni law presence of witnesses is not mandatory.
 TYPES OF DIVORCE
1) Talaq – e – Ahsan: - This is the best form of Talaq under Muslim law and it is also known
as one of the approved form of Talaq. According to this Talaq, there will be a single
pronouncement by the husband to the wife in the period of Tuhar (when the wife is free from
menstruation). When the wife is free from menstruating, the husband at any point of time can
pronounce the Talaq. After the pronouncement of Talaq, the wife has to observe 3 months of
Iddat period and after the completion of the Iddat period, if there is no cohabitation between
the husband and wife, the talaq is irrevocable in nature and will be considered as valid talaq.
While the wife is observing Iddat period if again there is cohabitation between the husband
and wife, then pronouncement of talaq will revoke.
2) Talaq – e – Hasan: - The pronouncement of Talaq will be completed three times to the
wife in the period of Tuhar. The husband has to pronounce Talaq in each month. After the
completion of pronouncement of Talaq, three times in three months, it will be considered a
valid pronouncement of Talaq. After the pronouncement of Talaq thrice, the wife has to
observe the Iddat period of three months. In the entire six months of time period, there should
not be cohabitation between the husband and the wife. If there will be cohabitation in the
Iddat period and three months of pronouncement of Talaq, then the Talaq is revocable in
nature. Non-Cohabitation for the entire six months will be irrevocable in nature.

BY HUSBAND – ILLA
According to this type of talaq, the Muslim husband who is a major with sound mind, takes
promises in the name of Allah not to have sexual intercourse with the wife for a continuous
time period of 4 months. According to this process, the marital relationship automatically
dissolute without pronouncement of talaq.

ZIHAR
The husband brings out a comparative relationship with the mother and sister.

TALAQ - E – TAFWAAZ (DELEGATED TALAQ)

 The wife can delegate for the pronouncement of talaq by the husband from her own
side.
 The wife can delegate for the pronouncement of talaq in case of repudiation of
marriage.
 If the husband fails to maintain the wife, then the wife has a right to delegate the
husband for pronouncement of Talaq.
 KHULLA
If the husband and wife enter into the institution of marriage and the marriage is dissoluted by
repudiation and the husband gives consent to it, then according to Muslim law the marriage is
dissoluted.

MUBARAK
The process in which both of the husband and wife, give their mutual consent to dissolve the
marriage after attaining the age of majority. The consent must be in presence of the senior
most member of the family or the community.

BY JUDICIAL DECREE
1) Faskh – Dissolution of marriage by the Court of law or judicial interpretation.
2) Liyan – Conditions relating to Dissolution of Muslim Marriage Act, 1939 are followed.
 Whereabouts are not known to the wife for a period of four years or more.
 Failure to provide maintenance for two years or more.
 Imprisonment of the husband for seven years or more.
 Failure on the husband’s part to perform the marital obligation for a period of three
years or more.
 Impotency of the husband, which is known to the wife, within one year of marriage
by filing an application in the court of law taking impotency as one of the grounds and
in uncodified way, impotency can be one of the grounds for the wife in the name of
delegated talaq.
 If the husband is suffering from insanity, leprosy, or communicable diseases.
 Repudiation of marriage
 Cruelty by the husband for two years or more

MAINTENANCE OR NAFAQ
 It is the process in which the husband provides food, lodging and accommodation to
the wife in duration of the marital relationship.
 Derived from an Arabic term “Nafaq”, means a Muslim person has to maintain his
family.
 Maintenance is divided into 2 parts –
1) When the wife is living with the husband
2) Wife to be maintained after dissolution of marriage till the end of Iddat period

Khawaja Mohammed Khan v. Nawab Hussain Begum (1910 IA 152) – Both parties were
minor at the time of the marriage and the marriage took place with the consent of the
guardians. The minor wife shifted to the husband’s home and their was no sexual intercourse.
The marriage Is framed with a principal contract and the Father in law and Mother in law are
bound to give Kharcha-i-pandan till the wife attains majority. As per the uncodified Muslim
personal law, the husband has to pay the maintenance till the wife is obtaining the Iddat
period and expiry of the term.

Exp. 2 - A father agreed at the time of the marriage of his minor son that he would pay a sum
of Rs. 500/- per month to his son's wife. This amount was payable by the husband's father
from the date of the reception of the wife in her conjugal home. A charge for his sum was
created on the properties of the wife's father-in-law. The wife lived in the conjugal home for a
while, but later on, on account of some differences, left it. Her suit for the payment of the
monthly allowance of Rs. 500/- was decreed against the father-in-law. The court said that
once the wife joined the matrimonial home, the amount became payable, irrespective of the
fact whether she continued to live there or left it.

WHEN THE WIFE IS NOT ENTITLED TO GET MAINTAINANCE

 If the wife is disobedient to her husband and in laws

 When there are no proper marital ties in the institution of Nikah, the husband has no
obligation to pay maintenance

A v. B (ILR 1890 BHC 77) – The Court held that if the wife refuses to stay with the husband
after receiving the prompt dower and misbehaved and was disobedient towards the family,
then the husband has no obligation to provide maintenance.

 When the wife is a minor and she is staying with her parents and there is no
cohabitation, then the husband is not entitled to pay the maintenance.

B Das v. Angoori – The Court held that the wife has to be maintained by the husband after
the pronouncement of Talaq till the expiry date of Iddat period or remarriage of the wife.
COMPARITIVE STUDY BETWEEN SHIA AND SUNNI LAW

SUNNI LAW SHIA LAW

According to this school, there are 4 According to this school, there are 3
subschools:- Hanafi, Maliki, Shafei, Hanbali subschools:- Ithana ah sharis, ismalia, Zaidi

At the time of marriage, the proposal and In case of marriage, the offer and acceptance
acceptance need not be in any particular form. must be made by use of the terms – tafweez
of Nikah.
Marriage under compulsion or without intention Marriage under compulsion is considered
is valid and if it is made for suitable mehr and to void.
a man who is equal to her then that marriage is
called valid.

Two males or one male and two females can be No witnesses are necessary.
the witnesses to consider the marriage as valid.

Prohibition by affinity arises not only from the
marriage but also from the illicit relationship and
undue acts.
Prohibition against unlaw conjunction and Iddat
for divorce is revocable and irrevocable in
nature.
A Muslim male can marry a non-Muslim
kitaabia female (female who follows a book).
The illicit relationship before marriage will
create prohibition.
The Iddat subsists for those prohibitions
only in case of revocable divorce.
Neither a male or a female can marry a non-
Muslim.

Period of Iddat in three courses – menstruating
and three lunar months in non-menstruating wife
is considered as a valid talaq.
Iddat of a female who is pregnant by Zina, then
the Iddat period will extend till delivery of the
child.
Iddat commences from the date of death or
divorce and the wife may not have the
knowledge of it.
Iddat must be observed in case of the death of
the husband during the period in which the wife
is already observing period of Iddat even after
Talaq.
Marriage during pilgrimage is valid
The period of three tuhars in case of
menstruating and 78 days in case of non-
menstruating wife for a valid Talaq.
If pregnancy is by Zina and the Talaq is
pronounced, the period of Iddat will be only
three months and it is not extended till the
delivery of the child.
In case of death of husband and in absence
of wife’s knowledge, the Iddat commences
when she receives the information about the
husband’s death.
No Iddat is necessary in which the wife is
already observing Iddat after pronouncement
of Talaq.
Marriage during pilgrimage with pilgrimage
dress is prohibited

A marriage with a female who is observing Iddat If cohabitation is during the Iddat period,
period is not prohibited for marriage. the marriage with the same party is
prohibited.
Marriage contracted by a minor who has attained If a minor contracts a marriage before
the age of puberty is considered irregular. attaining puberty, it is a void marriage.

Temporary form of marriage is not permitted. Temporary marriage is permitted.

At the time of dissolution of marriage, presence At the time of dissolution of marriage, at

of witnesses is not mandatory. least 2 witnesses are mandatory.
In case of minor marriage, if amount is not fixed, The whole of the dower is considered as
Half dower is considered is prompt and half is prompt dower.
deffered.
Dirhams – must be atleast 10 dihrams Dirhams – must be atleast 500 dihrams

SPECIAL MARRIAGE ACT

Describe the provisions in Special Marriage Act (10 marks)

1. The said was laid down in India in 1954.
2. SMA deals with laws related to marriage dissolution of marriage maintenance custody
of child
3. This act is applicable to a person who belongs inter caste inter communal inter
religious to enter into the marriage.
4. According to this act, the provisions deal with registration of marriag
5. e between two parties which is mandatorily to be completed before the marriage
before the court of law in front of court marriage registrar.

S4 : CONDITIONS RELATING TO SOLEMNISATION OF SPECIAL MARRIAGE

1. Deals with whenever both of the parties are entering the institution of marriage, both of
them should not have any living spouse, the spouse should either be dead or legally/judicially
separated. (Concept of Monogamy)
2. They should be able to give valid consent, mutual consent, meeting of minds.
3. Neither party should not suffer from any kind of unsoundness of mind, should not be in
drunken condition.
4. Valid Age, Male -21 years and Female -18 years .
5. Should not be coming under prohibitory decrees- like sapinda relationships or blood
relations.
6. All the formalities of marriage should be done in front of the court of law, can also perform
their own customary usages.
Applicability of the Act
All the states except JK(explain the reason why) , belongs to all the persons who are
intercaste , inter communal , inter religion.
All the people who have converted and reconverted.
Legitimate and Illegitimate Status, doesn’t put any type of impact.

S5: NOTICE OF INTENDED MARRIAGE

When a marriage is intended to be solemnized under this Act, the parties to the marriage shall
give notice thereof in writing in the form specified in the Second Schedule to the Marriage
Officer of the district in which at least one of the parties to the marriage has resided for a
period of not less than thirty days immediately preceding the date on which such notice is
given.

S6 : MARRIAGE NOTICE AND BOOK PUBLICATION

1.The Marriage Officer shall keep all notices given under section 5 with the records of his
office and shall also forthwith enter a true copy of every such notice in a book prescribed for
that purpose, to be called the Marriage Notice Book, and such book shall be open for
inspection at all reasonable times, without fee, by any person desirous of inspecting the same.
2. The Marriage Officer shall cause every such notice to be published by affixing a copy
thereof to some conspicuous place in his office.
3. Where either of the parties to an intended marriage is not permanently residing within the
local limits of the district of the Marriage Officer to whom the notice has been given under
section 5, the Marriage Officer shall also cause a copy of such notice to be transmitted to the
Marriage Officer of the district within whose limits such party is permanently residing, and
that Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous
place in his office.

S7 : OBJECTION TO MARRIAGE
links S4 ,S5, S6
1 Any person may, before the expiration of thirty days from the date on which any such
notice has been published under sub-section (2) of section 6, object to the marriage on the
ground that it would contravene one or more of the conditions specified in section 4.
2. After the expiration of thirty days from the date on which notice of an intended marriage
has been published under sub-section (2) of section 6, the marriage may be solemnized,
unless it has been previously objected to under sub-section (1).
3. The nature of the objection shall be recorded in writing by the Marriage Officer in the
Marriage Notice Book, be read over and explained if necessary, to the person making the
objection and shall be signed by him or on his behalf

S8 : PROCEDURE ON RECEIPT OF OBJECTION

links S5 ,S6 ,S7
1.If an objection is made under section 7 to an intended marriage, the Marriage Officer shall
not solemnise the marriage until he has inquired into the matter of the objection and is
satisfied that it ought not to prevent the solemnisation of the marriage or the objection is
withdrawn by the person making it; but the Marriage Officer shall not take more than thirty
days from the date of the objection for the purpose of inquiring into the matter of the
objection and arriving at a decision.
2.If the Marriage Officer upholds the objection and refuses to solemnise the marriage, either
party to the intended marriage may, within a period of thirty days from the date of such
refusal, prefer an appeal to the district court within the local limits of whose jurisdiction the
Marriage Officer has his office, and the decision of the district court on such appeal shall be
final, and the Marriage Officer shall act in conformity with the decision of the court.

S9 : POWERS OF MARRIAGE OFFICERS IN RESPECT OF INQUIRIES

1. For the purpose of any inquiry under section 8, the Marriage Officer shall have all the
powers vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), when
trying a suit in respect of the following matters, namely:―
(a) summoning and enforcing the attendance of witnesses and examining them on oath;
(b) discovery and inspection;
(c) compelling the production of documents;
(d) reception of evidence of affidavits; and
(e) issuing commissions for the examination of witnesses;
and any proceeding before the Marriage Officer shall be deemed to be a judicial proceeding
within the meaning of section 193 of the Indian Penal Code (45 of 1860).
Explanation.―For the purpose of enforcing the attendance of any person to give evidence,
the local limits of the jurisdiction of the Marriage Officer shall be the local limits of his
district.
2. If it appears to the Marriage Officer that the objection made to an intended marriage is not
reasonable and has not been made in good faith he may impose on the person objecting costs
by way of compensation not exceeding one thousand rupees and award the whole or any part
thereof, to the parties to the intended marriage, and any order for costs so made may be
executed in the same manner as a decree passed by the district court within the local limits of
whose jurisdiction the Marriage Officer has his office.
All the conditions in HMA are connected to the Hinduism, in Special Marriage Act, it caters
to those categories who are inter religious, inter caste or inter communal, basically the people
who have been barred by the society to get married NRI’s, Foreigner and people who have
stayed in India for more than 180 days - included in Foreign Marriage Act.

S11 : DECLARATION BY PARTIES AND WITNESSES

Before the marriage is solemnised the parties and three witnesses shall, in the presence of the
Marriage Officer, sign a declaration in the form specified in the Third Schedule to this Act,
and the declaration shall be countersigned by the Marriage Officer.

S12 : PLACE AND FORM OF SOLEMNISATION

1.The marriage may be solemnised at the office of the Marriage Officer, or at such other
place within a reasonable distance therefrom as the parties may desire, and upon such
conditions and the payment of such additional fees as may be prescribed.
2.The marriage may be solemnised in any form which the parties may choose to adopt.
Provided that it shall not be complete and binding on the parties unless each party says to the
other in the presence of the Marriage Officer and the three witnesses and in any language
understood by the parties,―“I, (A), take the (B), to be my lawful wife (or husband)”.
Time, place, date, day – of the registration of marriage

S13 : CERTIFICATE OF MARRIAGE

1.When the marriage has been solemnised, the Marriage Officer shall enter certificate
thereof in the form specified in the Fourth Schedule in a book to be kept by him for that
purpose and to be called the Marriage Certificate Book and such certificate shall be signed by
the parties to the marriage and the three witnesses.
2. On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the
Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this
Act has been solemnised and that all formalities respecting the signatures of witnesses have
been complied with.
S15 : REGISTRATION OF MARRIAGES CELEBRATED IN OTHER FORMS
Any marriage celebrated, whether before or after the commencement of this Act, other than a
marriage solemnized under the Special Marriage Act, 1872 (3 of 1872), or under this Act,
may be registered under this Chapter by a Marriage Officer in the territories to which this Act
extends if the following conditions are fulfilled, namely:―
(a) a ceremony of marriage has been performed between the parties and they have been living
together as husband and wife ever since;
(b) neither party has at the time of registration more than one spouse living;
(c) neither party is an idiot or a lunatic at the time of registration;
(d) the parties have completed the age of twenty-one years at the time of registration;
(e) the parties are not within the degrees of prohibited relationship: Provided that in the case
of a marriage celebrated before the commencement of this Act, this condition shall be subject
to any law, custom or usage having the force of law governing each of them which permits of
a marriage between the two; and
(f) the parties have been residing within the district of the Marriage Officer for a period of not
less than thirty days immediately preceding the date on which the application is made to him
for registration of the marriage.

S16 : PROCEDURE FOR REGISTRATION

Upon receipt of an application signed by both the parties to the marriage for the registration
of their marriage under this Chapter the Marriage Officer shall give public notice thereof in
such manner as may be prescribed and after allowing a period of thirty days for objections
and after hearing any objection received within that period, shall, if satisfied that all the
conditions mentioned in section 15 are fulfilled, enter a certificate of the marriage in the
Marriage Certificate Book in the form specified in the Fifth Schedule, and such certificate
shall be signed by the parties to the marriage and by three witnesses.
Marriage certificate must be dated, signed and sealed.

S17 : APPEALS FROM ORDER U/s 16

Any person aggrieved by any order of a Marriage Officer refusing to register a marriage
under this Chapter may, within thirty days from the date of the order, appeal against that order
to the district court within the local limits of whose jurisdiction the Marriage Officer has his
office, and the decision of the district court on such appeal shall be final, and the Marriage
Officer to whom the application was made shall act in conformity with such decision.

S19 : EFFECT OF MARRIAGE ON MEMBER OF HINDU UNDIVIDED FAMILY

The marriage solemnised under this Act of any member of an undivided family who professes
the Hindu, Buddhist, Sikh or Jaina religions shall be deemed to effect his severance from
such family.

S 21 : SUCCESSION TO PROPERTY OF PARTIES MARRIED UNDER ACT

Notwithstanding any restrictions contained in the Indian Succession Act, 1925 (39 of 1925),
with respect to its application to members of 9 certain communities, succession to the
property or any person whose marriage is solemnised under this Act and to the property of the
issue of such marriage shall be regulated by the provisions of the said Act and for the
purposes of this Act shall have effect as if Chapter III of Part V (Special Rules for Parsi
Intestates) had been omitted therefrom.

S22 : RESTITUTION OF CONJUGAL RIGHTS

Same as given in HMA , 1955
When either the husband or the wife has, without reasonable excuse, withdrawn from the
society of the other, the aggrieved party may apply by petition to the district court for
restitution of conjugal rights, and the court, on being satisfied of the truth of the statements
made in such petition, and that there is no legal ground why the application should not be
granted, may decree restitution of conjugal rights accordingly.
Explanation.―Where a question arises whether there has been a reasonable excuse for
withdrawal from society, the burden of providing a reasonable excuse shall be on the person
who has withdrawn from the society.

S23 : JUDICIAL SEPARATION

Same as given in HMA,1955
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 3 [in sub-section (1) 4 [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 be no longer 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.
S24: VOID MARRIAGES
1.Any marriage solemnised under this Act shall be null and void 5 [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 solemnised
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.

S25 : VOIDABLE MARRIAGES

Any marriage solemnised 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 wilful refusal of the respondent to
consummate the marriage; or
(ii) the respondent was at 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) that 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 had ceased or, as
the case may be, the fraud had been discovered; or
(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.

S26: LEGITIMACY OF CHILDREN

1. Notwithstanding that a marriage is null and void under section 24, any child of such
marriage who would have been legitimate if the marriage had been valid, shall be legitimate,
whether such child is born before or after the commencement of the Marriage Laws
(Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in
respect of that marriage under this Act and whether or not the marriage is held to be void
otherwise than on a petition under this Act.
2. Where a decree of nullity is granted in respect of a voidable marriage under section 25, any
child begotten or conceived before the decree is made, who would have been the legitimate
child of the parties to the marriage if at the date of the decree it has been dissolved instead of
being annulled, shall be deemed to be their legitimate child notwithstanding the decree of
nullity.
3. Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring
upon any child of a marriage which is null and void or which is annulled by a decree of
nullity under Section 25, any rights in or to the property of any person, other than the parents,
in any case where, but for the passing of this Act, such child would have been incapable of
possessing or acquiring any such rights by reason of not his being the legitimate child of his
parents.]

S27: GROUNDS RELATING TO DIVORCE

1.Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce
may be presented to the district court either by the husband or the wife on the ground that the
respondent―
(a) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse or
(b) has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition or
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as
defined in the Indian Penal Code (45 of 1860);
(d) has since the solemnisation of the marriage, treated the petitioner with cruelty; or
(e) has been incurably of unsound mind or has been suffering continuously or intermittently
from mental disorder of such a kind and to such an extent that the petitioner cannot
reasonably be expected to live with the respondent.
Explanation.―In this clause,―
(a) the expression “mental disorder” means mental illness, arrested or incomplete
development of mind, psychopathic disorder or any other disorder or disability of mind and
includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind
(whether or not including sub-normality of intelligence) that results in abnormally aggressive
or seriously irresponsible conduct on the part of the respondent, and whether or not it requires
or is susceptible to medical treatment;
or (f) has been suffering from venereal disease in a communicable form; or]
(h) has not been heard of as being alive for a period of seven years or more by those persons
who would naturally have heard of the respondent if the respondent had been alive;
Explanation.―In this sub-section, the expression “desertion” means desertion of the
petitioner by the other party to the marriage without reasonable cause and without the consent
or against the wish of such party, and includes the wilful neglect of the petitioner by the other
party to the marriage, and its grammatical variations and cognate expressions shall be
construed accordingly;]
[(1A) A wife may also present a petition for divorce to the district court on the ground―
(i) that her husband has, since the solemnisation of the marriage, been guilty of rape, sodomy
or bestiality;
(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of
1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of
1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5
of 1898), a decree or order, as the case may be, has been passed against the husband awarding
maintenance to the wife notwithstanding that she was living apart and that since the passing
of such decree or order, cohabitation between the parties has not been resumed for one year
or upwards.]
2.Subject to the provisions of this Act and to the rules made thereunder, either party to a
marriage, whether solemnised before or after the commencement of the Special Marriage
(Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court
on the ground―
(i) that there has been no resumption of cohabitation as between the parties to the marriage
for a period of one year or upwards after the passing of a decree for judicial separation in a
proceeding to which they were parties; or (ii) that there has been no restitution of conjugal
rights as between the parties to the marriage for a period of one year or upwards after the
passing of a decree for restitution of conjugal rights in a proceeding to which they were
parties

S28: DIVORCE BY MUTUAL CONSENT

1. Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce
may be presented to the district court by both parties together on the ground that they have
been living separately for a period of one year or more, that they have not been able to live
together and that they have mutually agreed that the marriage should be dissolved.
2. On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in subsection (1) and not later than eighteen months
after the said date if the petition is not withdrawn in the meantime, the district court shall, on
being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a
marriage has been solemnised under this Act, and that the averments in the petition are true,
pass a decree declaring the marriage to be dissolved with effect from the date of the decree.

S 33: PROCEEDINGS TO BE IN CAMERA AND MAY NOT BE PRINTED OR

PUBLISHED
1.Every proceeding under this Act shall be conducted in camera and it shall not be lawful for
any person to print or publish any matter in relation to any such proceeding except a
judgment of the High Court or of the Supreme Court printed or published with the previous
permission of the Court.
2. If any person prints or publishes any matter in contravention of the provisions contained in
sub-section (1), he shall be punishable with a fine which may extend to one thousand rupees.

S35: RELIEF FOR THE PARTY IN CASE OF DIVORCE AND OTHER

PROCEEDINGS
In any proceeding for divorce or judicial separation or restitution of conjugal rights, the
respondent may not only oppose the relief sought on the ground of petitioner’s adultery,
cruelty or desertion, but also make a counter-claim for any relief under this Act on that
ground, and if the petitioner’s adultery, cruelty or desertion is proved, court may give to the
respondent any relief under this Act to which he or she would have been entitled if he or she
had presented a petition seeking such relief on that ground

S36: ALIMONY PENDENTE LITE / Interim Maintenance

Where in any proceeding under Chapter V or Chapter VI 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 proceeding such sum as
having regard to the husband’s income, it may seem to the court to be reasonable.
Provided that the application for the payment of the expenses of the proceeding and such
weekly or monthly sum during the proceeding under Chapter V or Chapter VI, shall, as far as
possible, be disposed of within sixty days from the date of service of notice on the husband.
S37: PERMANENT ALIMONY AND MAINTENANCE
1.Any court exercising jurisdiction under Chapter V or Chapter VI 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.
2.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.
3.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.

S 39: APPEALS FROM DECREES AND ORDER

1.All decrees made by the court in any proceeding under Chapter V or Chapter VI shall,
subject to the provisions of sub-section (3), be appealable as decrees of the court made in the
exercise of its original civil jurisdiction, and such appeal shall lie to the court to which
appeals ordinarily lie from the decisions of the court given in the exercise of its original civil
jurisdiction.
2.Orders made by the court in any proceeding under this Act, under section 37 or section 38
shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders,
and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions
of the court given in the exercise of its original jurisdiction.
3.There shall be no appeal under this section on the subject of costs only.
4.Every appeal under this section shall be preferred within a 4 [period of ninety days] from
the date of the decree or order.

S40 A: POWER TO TRANSFER PETITIONS IN CERTAIN CASES

1.Where―
(a) a petition under this Act has been presented to the district court having jurisdiction, by a
party to the marriage praying for a decree for judicial separation under section 23 or for a
decree of divorce under section 27, and
(b) another petition under this Act has been presented thereafter by the other party to the
marriage praying for decree for judicial separation under section 23, or for decree of divorce
under section 27 on any ground whether in the same district court, or in a different district
court, in the same State or in a different State, the petition shall be dealt with as specified in
subsection
(2) .In a case where sub-section (1) applies,―
(a) if the petitions are presented to the same district court, both the petitions shall be tried and
heard together by that district court;
(b) if the petitions are presented to different district courts, the petitions presented later shall
be transferred to the district court in which the earlier petition was presented and both the
petitions shall be heard and disposed of together by the district court in which the earlier
petition was presented.
3. In a case where clause (b) of sub-section (2) applies, the court or the Government, as the
case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any
suit or proceeding from the district court in which the later petition has been presented to the
district court in which the earlier petition is pending, shall exercise its powers to transfer such
later petition as if it had been empowered so to do under the said Code.

S40 B: SPECIAL PROVISIONS RELATING TO TRIAL AND DISPOSAL OF

PETITIONS UNDER THE ACT

1.The trial of a petition under this Act shall, so far as is practicable consistently with the
interests of justice in respect of the trial, be continued from day to day, until its conclusions,
unless the court finds the adjournment of the trial beyond the following day to be necessary
for reasons to be recorded.
2. Every petition under this Act shall be tried as expeditiously as possible and endeavour shall
be made to conclude the trial within six months from the date of service of notice of the
petition on the respondent.
3. Every appeal under this Act shall be heard as expeditiously as possible, and endeavour
shall be made to conclude the hearing within three months from the date of service of notice
of appeal on the respondent.

SECTION 40C. Documentary evidence.— Notwithstanding anything contained in any

enactment to the contrary, no document shall be inadmissible in evidence in any proceeding
at the trial of a petition under this Act on the ground that it is not duly stamped or registered.

DOMESTIC VIOLENCE ACT, 2005

Domestic violence act was laid down in 2005, the provisions of act is the combined law with
section 498 A of IPC.
Act of cruelty has been taken into main consideration with DV act 2005 and section 498 A of
IPC

The defence of domestic violence is the power which is exploited to misuse by one person to
control and subjugate another person who is in a close relationship in a family the power is
mentioned under this act in different parameter
1) Physical
2) Sexual
3) Economical
4) Emotional
5) Mental
6) Verbal
The said provisions are applicable only for female in case of a household
S.3 of the act defines the Domestic Violence
3. Definition of domestic violence. —For the purposes of this Act, any act, omission or
commission or conduct of the respondent shall constitute domestic violence in case it—
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental
or physical, of the aggrieved person or tends to do so and includes causing physical
abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or
any other person related to her to meet any unlawful demand for any dowry or other property
or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any
conduct mentioned in clause (a) or clause (b); or (d) otherwise injures or causes harm,
whether physical or mental, to the aggrieved person.
Divided in diff parts
1. Physical
2. Sexual which violates the dignity by showing pornography are included in case of
these abuse
3. Verbal or emotional includes humiliation or any type of pain to disturb the mental
element of a women
4. Economic Abuse means refraining a female for use of all financial resources which
are included in the same.
S.4 Protection of a female by a Protection Officer:
Any person who has reason to believe that an act of domestic violence has been, or is being,
or is likely to be committed, may give information about it to the concerned Protection
Officer.
No liability, civil or criminal, shall be incurred by any person for giving in good faith of
information for the purpose of sub-section (1).
By the discretion of FIR any suffering by a women must be protected.

S. 5 Duties of police officers, service providers and Magistrate.

They are obligated to protected the female by the discretion of an FIR:
(a) of her right to make an application for obtaining a relief by way of a protection order, an
order for monetary relief, a custody order, a residence order, a compensation order or more
than one such order under this Act;
(b) of the availability of services of service providers;
(c) of the availability of services of the Protection Officers;
(d) of her right to free legal services under the Legal Services Authorities Act, 1987 (39 of
1987);
(e) of her right to file a complaint under section 498A of the Indian Penal Code (45 of
1860),wherever relevant:

S. 6 Duties of shelter homes.— If an aggrieved person or on her behalf a Protection Officer

or a service provider requests the person in charge of a shelter home to provide shelter to
her, such person in charge of the shelter home shall provide shelter to the aggrieved person in
the shelter home.
If there is a child in the case Then the PO provides all the welfare laws to child (food,
lodging, education, etc)

S. 8 Appointment of Protection Officers.—(1) The State Government shall, by

notification, appoint such number of Protection Officers in each district as it may
consider necessary and shall also notify the area or areas within which a Protection Officer
shall exercise the powers and perform the duties conferred on him by or under this Act. 6
(2) The Protection Officers shall as far as possible be women and shall possess such
qualifications and experience as may be prescribed.
(3) The terms and conditions of service of the Protection Officer and the other officers
subordinate to him shall be such as may be prescribed.
Control over the jurisdiction of the civil court.

S. 9 Duties and functions of Protection Officers.—(1) It shall be the duty of the Protection
Officer—
(a) to assist the Magistrate in the discharge of his functions under this Act;
(b) to make a domestic incident report to the Magistrate, in such form and in such manner as
may be prescribed, upon receipt of a complaint of domestic violence and forward copies
thereof to the police officer in charge of the police station within the local limits of whose
jurisdiction domestic violence is alleged to have been committed and to the service
providers in that area;
(c) to make an application in such form and in such manner as may be prescribed to the
Magistrate, if the aggrieved person so desires, claiming relief for issuance of a protection
order;
(d) to ensure that the aggrieved person is provided legal aid under the Legal Services
Authorities Act, 1987 (39 of 1987) and make available free of cost the prescribed form in
which a complaint is to be made;
(e) to maintain a list of all service providers providing legal aid or counselling, shelter
homes and medical facilities in a local area within the jurisdiction of the Magistrate;
(f) to make available a safe shelter home, if the aggrieved person so requires and forward a
copy of his report of having lodged the aggrieved person in a shelter home to the police
station and the Magistrate having jurisdiction in the area where the shelter home is situated;
(g) to get the aggrieved person medically examined, if she has sustained bodily injuries
and forward a copy of the medical report to the police station and the Magistrate having
jurisdiction in the area where the domestic violence is alleged to have been taken place;
(h) to ensure that the order for monetary relief under section 20 is complied with and
executed, in accordance with the procedure prescribed under the Code of Criminal Procedure,
1973 (2 of 1974);
(i) to perform such other duties as may be prescribed. (2) The Protection Officer shall be
under the control and supervision of the Magistrate, and shall perform the duties imposed on
him by the Magistrate and the Government by, or under, this Act.

Also, to provide services given under DV Act and instructions by Court.

S. 11 Duties of Government.—The Central Government and every State Government, shall

take all measures to ensure that—
(a) the provisions of this Act are given wide publicity through public media including the
television, radio and the print media at regular intervals;
(b) the Central Government and State Government officers including the police officers and
the members of the judicial services are given periodic sensitization and awareness
training on the issues addressed by this Act;
(c) effective co-ordination between the services provided by concerned Ministries and
Departments dealing with law, home affairs including law and order, health and human
resources to address issues of domestic violence is established and periodical review of the
same is conducted;
(d) protocols for the various Ministries concerned with the delivery of services to women
under this Act including the courts are prepared and put in place.

S. 14 Counselling. — (1) The Magistrate may, at any stage of the proceedings under this Act,
direct the respondent or the aggrieved person, either singly or jointly, to undergo
counselling with any member of a service provider who possess such qualifications and
experience in counselling as may be prescribed.
(2) Where the Magistrate has issued any direction under sub-section (1), he shall fix the
next date of hearing of the case within a period not exceeding two months.
Direction could be given by ADR method.

S. 17, S. 18 19 20 21 22 refer to the bare act.

2(s) “shared household” means a household where the person aggrieved lives or at any stage
has lived in a domestic relationship either singly or along with the respondent and includes
such a house hold whether owned or tenanted either jointly by the aggrieved person and the
respondent, or owned or tenanted by either of them in respect of which either the aggrieved
person or the respondent or both jointly or singly have any right, title, interest or equity and
includes such a household which may belong to the joint family of which the respondent is a
member, irrespective of whether the respondent or the aggrieved person has any right, title or
interest in the shared household;
2(f) “domestic relationship” means a relationship between two persons who live or have, at
any point of time, lived together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are
family members living together as a joint family;

INDIAN CHRISTIAN MARRIAGE ACT

This act was laid down in the year 1872 in India. According to this act, the provisions and
rules is related to registration of marriage in the Church. All the provisions include the
registration formalities and the provisions relating to dissolution of marriage has been taken
from Indian Divorce Act, 1869. According to this act, it is applicable only for proper
solemnization of marriage between two Christian parties.
APPLICABILITY

This act is only applicable to all the persons who are Christians by religion and it is also
applicable all over the states of India except Jammu and Kashmir.
Section 4 – The marriage between two Christian parties has to be compulsorily registered in
the presence of minister of religion (father of the Church) and it has also been registered in
the Court of law before the marriage registrar.

Section 5 – Marriage can be solemnized under this Act, if both parties are Chrisitan by
religion and all the registration formalities and customary rights are fulfilled in the presence
of minister of Religion, clergyman.

Section 7 – The state government may appoint one or more Christian person from time to
time and they will be designated as Marriage Registrar in the Court of law. When there is
more than one Marriage registrar, the state government shall appoint one of them as senior
marriage registrar.

Section 10 – Clergyman of the church or Minister of religion gives the time to the parties for
solemnization of marriage between 6 am to 7 pm.

Section 11 – Place for solemnization of marriage

According to this act, both of the parties are notified by the clergyman to appoint the place
for solemnization of marriage as Church. If the parties are unable to reach to the Church and
there is no Church between 5 to 15 km of the Jurisdiction, then one person will be appointed
by the marriage registrar to complete all the formalities relating to solemnization of marriage
in the residential area of the parties selected by the party in the notice.

Section 12 – Notice of the intended parties

According to this section, one of the parties intended to the marriage shall give a notice in
writing to the nearest church in his/her jurisdiction and the notice includes name of the
parties, permanent address, name of the Church and it has to be verified properly by the
clergyman or minister of religion.

Section 13 – Obligation of the notice

The notice of the intended parties after proper verification has to be affixed in the notice
board of Church premises. One of the notices has to be sent to the local police station by the
clergyman and another notice has to be sent to the permanent address of the both the parties.

Section 60 – Condition relating to solemnization of valid Christian marriage

1) Both parties must follow the concept of monogamy.
2) The Female must be 18 years and Male 21 years.
3) Both parties must be of sound mind and the consent of the parties must be free.
4) The parties must not be within the prohibited decrees
5) The formalities of the marriage have to be completed in front of the witnesses and minister
of religion.

Section 28 – The registration formalities have to be completed by the minister of religion or

clergyman.

Section 38 to Section 41 – Registration of marriage solemnized in front of registrar or

marriage officer
Parties have to procure marriage certificate from clergyman after completion of formalities.

The certificate shall state therein the name and surname, and the profession or condition, of
each of the party’s intending marriage, the dwelling-place of each of them, the time during
which each has dwelt therein, and the place at which the marriage is to be solemnized.

Section 44 – Consent letter of the father or guardian of both the parties for proper
solemnization of the marriage has to be submitted to the Clergyman of the church.

Section 69 – Number of witnesses

At least 2 witnesses must be present at the time of registration of marriage for proper
solemnization.
INDIAN DIVORCE ACT, 1869

According to this act, the grounds relating to dissolution of Christian marriage has been
drawn down, maintenance and custody of child have been taken.

Section 10 – Grounds for dissolution

1) The husband can file a petition if the wife is guilty of adultery and the wife can file a
petition for dissolution in case of conversion of religion, bigamy, adultery, rape, sodomy or
cruelty. In case of desertion for more than 2 years, the wife has a right to file for divorce.
2) Non consummation of marriage
3) If there is no information of the party for 7 years or more.

Section 10A – Divorce by mutual consent

Proceedings must start at the district courts.

Section 18 and 19 – Petition to declare a marriage as null and void – it can be presented by
any of the parties.

Section 22 – Grounds relating to Judicial separation

Section 32 – Petition for restitution of conjugal rights

Section 36 – Maintenance to the wife and alimony pendent élite

Section 41 – Custody of the child in case of separation

Section 42 – Any type of decree or appeal in the higher Court.

PARSI MARRIAGE AND DIVORCE ACT

It was laid down in the year 1936. The provision relating to this act deal with law relating to
registration of marriage, solemnization of marriage according to customary usages, grounds
relating to divorce and conditions relating to maintenance and custody of a child. The
provisions of this act are applicable to all the Parsis in India.

Section 3 – It lays down all the conditions relating to valid solemnization of marriage.
1) Neither parties should have a living spouse.
2) Both parties should be of sound mind
3) Male 21 and Female 18
4) Both parties must be Parsis
5) Within decrees of prohibited relationship
6) Both parties have to undergo customary usage in front of the society - Ashirwad
7) After the completion of Ashirwad formalities – both parties undergo registration
formalities.
8) Ashirwad must be completed in front of the priest who is Parsi by religion.

Section 4 – Remarriage is unlawful if one party has not lawfully dissoluted the previous
marriage.

Section 5 – Punishment for bigamy

According to this Section, punishment mentioned under 494 and 495 for IPC will be
applicable.

Section 6 – Certificate and Registration of marriage

1) After the fulfilment of customary usages by both parties, they have to undergo registration
formalities in the Court of law.
2) In the presence of both parties and two witnesses, registration has to be completed.
3) In the presence of the priest, all the registration formalities have to be completed.
4) Two rupees have to be paid by the husband to the registrar of the Court of law for the
registration of marriage.

Section 18 – Special courts have to be established in all presidency towns.

Section 19 – Parsi matrimonial Court has to be established in each presidency town.

Section 20 – Parsi District Matrimonial Court

In every district, there will be establishment of Parsi District Matrimonial Court, if in that
area, there are more than 200 Parsi families staying.

Section 31 – Petition for dissolution of Parsi Marriage

If husband or wife have been absent for a continuous period of 7 years, then it amounts to
dissolution of marriage.
Section 32 – Grounds for divorce
1) Refusal by the defendant to consummate the marriage within one year.
2) Unsoundness of mind
3) If the defendant was pregnant during the marriage from another person.
4) Adultery or bigamy
5) Grievous hurt
6) Imprisonment for 7 years or more
7) Desertion for at least 2 years
8) No marital intercourse for 1 year
9) Conversion to another religion

Section 32A – Non resumption of cohabitation or restitution of conjugal rights within one
year within pursuance of the decree will be one of the grounds for divorce.

Section 34 – Petition for judicial separation

Section 36 – Petition for Restitution of Conjugal Rights (RCR)
Section 40 – Law relating to maintenance – defines permanent maintenance and alimony

Section 49 – Custody of the children

Section 50 – Settlement of the wife’s property for the benefit of Children

If the wife is separated due to the act of adultery and it is proven in the Court of Law, the part
of the property which belongs to the female will be given to the Children for future prospects.

FAMILY COURTS ACT, 1984

 PRACTICE QUESTIONS

1) Describe briefly the different sources and schools of Hindu Law

Points
 Who is a Hindu Person
 Relevant acts of Hindus and their provisions
 Different sources of Hindu Law – primary and secondary – explain the sources
 Schools of Hindu Law
 No case laws

2) Describe briefly who is known as a Hindu Person and different sources and schools of
Hindu Law.
Ans
 Intro - 1 page
 Hindu Law what is it
  Who is a Hindu person
 Relevant acts and its provisions - HMA , Hindu Adoption Act , Hindu Succession
Act
 Different sources of Hindu Law - mention all of them , imp for mcq
 Schools of Hindu Law

3) Describe briefly who is known as a Muslim Person in India and different typed of
schools and sources in Muslim Law.

Ans.

1. By birth and By conversion and Re Conversion and Acknowledgment of Paternity

Sources - Primary and Secondary
Schools of Muslim Law

2. Shia Schools
Third one Zaidi

3.Independent Schools:
Ahmadia School
Ibadi school

4) Describe briefly the concept of Right to Marry in India and Uniform Civil Code in
case of Institution of Marriage in India

Ans
 What is marriage - basic definition
 Definition of Marriage under diff personal laws
 Right to Marry - Art 16 of UDHR
 If Right to Marry is a Human Right or Fundamental Right: Lata Singh v State
of Up Hadiya Case and Mr x v Ms Y
 Right to Marry and UCC - Art 44 of Indian Constitution, there is no unified laws
in India for marriage- diff personal laws
 Institution of Marriage in India has no unified laws.

5) Describe briefly different kinds of marriage according to HMA 1955. Bring out the
comparative study of Void voidable and valid.
Ans
 Introduction
 Definition of marriage
 Hindu law
 HMA
 Historical background of marriage in India
 8 Forms
 Kinds of marriage
  S. 5, S. 7 ceremonies of marriage
 S. 8 reg of marriage
 S. 11 void marriage
 S. 12 voidable marriage
 S. Valid marriage
 Conclusion
 Comparative study

6) Describe briefly the grounds related to dissolution of marriage under HMA 1955
 Introduction
 What is dissolution
 S. 9 Conjugal rights
 Essentials features of RCR
 Cases to show what cases will be granted and what will be not be not
 Judicial Separation- Which grounds would be granted and vice versa.

Dissolution of marriage 10 marks

RCR 9, Judicial Separation 10, Divorce 13

Alone topics for 10 marks

9, 10, 13
Adultery, Cruelty, Discretion 10 marks
T Sarita case (RCR)

7) Describe briefly the concept of maintenance according to HMA 1955. Bring out a
comparative study between Section 24 and 25 of HMA with Section 125 of CrPC.

MUSLIM LAW QUESTIONS

8) Describe briefly the concept of Nikah according to Muslim law and bring down a
comparative study between valid or Shahi marriage, void or batil Nikah, phasid or
irregular Nikah or temporary or mutah marriage.

 General meaning of Nikah according to Muslim law – uncodified in nature in

India
  Definition of Nikah – 4 or 5
 Essential components of Nikah – Abdul Qadir vs Salima (6-7 components) Shahi
nikah
 Batil nikah – 3 grounds – Blood relation (half, full, uterine), affinity and
fosterage.
 Phasid or Irregular marriage – marriage to non-Muslim, marriage to lady in
Iddat period, etc.
 Temporary form of Nikah – definition – Sunni law prohibits – Shia allowed in
Ithana Asharis

9) Describe briefly the concept of Talaq according to Muslim law in India and describe
the different types of Talaq in Muslim law in India.

10) Describe briefly the concept of Talaq ul Biddat or Triple talaq. Discuss the recent
amendments laid down by the Apex Court in Shah Bano case.

11) Describe briefly the concept of Mehr in India. Describe types of Mehr with different
conditions for both Shia and Sunni law.

 Introduction – definition of Mehr – what it includes – why it is a main

component
 Kinds of dower – specified (prompt and deferred) and unspecified (dissolution or
death)
 Amount of dower
 Fixation of dower
 Revocation of payment of dower

12) Describe briefly the concept of maintenance or Nafaq. Describe the essential
conditions relating to Nafaq with relevant judgements.

Short Notes
 Repudiation of marriage
 Concept of Iddat period
 Nafaq

UNIT 2
13) Describe briefly the concept of live in relationship in India. Describe briefly the
positive and negative impact of this relationship in the Indian society. Bring down a
comparative study of live in relationship with Constitution of India and DV Act.

 Definition of marriage
 Definition of live in relationship
 Live in relationships – in different eras – 2-3 more definitions
 Status of LIR in Indian society – doesn’t exist in India
 Indian constitution – Art 14,15,19,21
 Article 16 of UDHR
 Positive impact
 Negative impact
 Discuss DV Act 2005 – 2s and 2f
 Badripal
14) Describe briefly the concept of Same sex marriage in India. Describe briefly the
provisions related to Same Sex marriage with relevant case laws laid down by Apex
Court.

 What is Same sex relationship – explain LGBT umbrella

 Discuss according to Indian constitution – status
 Indian constitution – Art 14,15,19,21
 Section 377 – impact
 Article 16 of UDHR
 Positive impact on Indian society
 Negative impact
 Naz Foundation vs Delhi, Suresh Kumar vs Naz Foundation, Naz Foundation vs
UOI
 Navtej Johar
 Discuss international jurisdiction

15) Describe briefly the concept of pre-nuptial agreement in India and describe briefly
the provisions relating to pre-nuptial agreement according to ICA, 1872.

 What is Pre-nuptial agreement ?

 Status of concept of pre-nuptial agreement in India – doesn’t exist in India
 Process of pre-nuptial agreement – what is included etc etc
 ICA – exception to Consideration 2(d)
 Landmark case laws
16) Describe briefly the provisions relating to NRI Marriage. Describe briefly the
process of registration of NRI Marriage as per 2019 bill.

 Who is NRI
 Procedure relating to registration formalities