Family Law II

Write a short note on the changes brought about by the Hindu Succession
Act, 1956.

The Act has brought some major changes in the rules of succession of the property. One of those is
the manner of devolu on of property. It has provided a uniform system of devolu on of a
coparcenary property and self-acquired or separate property. The other changes are discussed
below.

Sapinda rela onships are abolished

The present law has made several changes, and among those, it abolished the previous Sapinda
rela ons that used to inherit property out of love and affec on. It has now men oned the list of
heirs and divided them into four categories. People men oned in such categories like Class I heirs,
Class II heirs, agnates and cognates are en tled to inherit the property.

Changes with respect to the Hindu joint family

Earlier, coparceners did not have any right to make a will with respect to their share or property. This
right has now been recognised under Sec on 30. The rule of survivorship has been replaced by
uniform rules of succession that are different for males and females. The Act also recognised the
rights of daughters as coparceners and they would now have the same rights as sons.

Removal of various disqualifica ons

The previous law disqualified the following people from inheri ng a property:

 Luna cs,
 Idiots,
 Unchaste widows,
 Disqualifica ons based on physical deformi es, etc.

However, such disqualifica ons have been abolished now, and the only 2 disqualifica ons under the
Act are being a murderer or a converted person.

Succession in the separate property of a propositus

The right of succession in the separate property of propositus i.e. a person who died, was not
recognised earlier, but now, it is well established that Class I heirs can inherit the property of
propositus in equal propor on simultaneously with the succession in joint property. These Class I
heirs are preferred over Class II heirs, and they cannot inherit if Class I heirs are present. Similarly,
Class II heirs are preferred over agnates, cognates, and so on.

Changes with respect to illegi mate sons

An illegi mate son can only inherit his mother’s property but not his father’s property. He has not
been given any rights in coparcenary property. His posi on was earlier chao c due to the two
schools and varied from caste to caste.

Changes in consanguine and uterine blood rela ons

Uterine blood rela ons were not recognised under the previous law and rules, but consanguinity had
its recogni on. Uterine rela ons are those where there is a common ancestress but different
husbands. Under the present law, both rela onships are recognised and given rights accordingly.

Other changes

The other changes are:

 Women are absolute owners of their property rather than limited owners.
 Earlier, the benefit of the doctrine of representa on was given only to sons, grandsons,
great-grandsons or pre-deceased sons. But it extends to daughters as well.
 The Act abolished impar ble estate and its succession.
 It abolished the disqualifica on based on remarriage.
 It is not applicable to people governed by the Special Marriage Act, 1954.
 It has removed any kind of difference between male and female heirs.

Write a note on any two divorce grounds under the Hindu Marriage Act,
1956.
(Read any two from following grounds)
Sec on 13(1) provides grounds on which divorce can be sought by either of the partners in a
marriage. A er the amendment of 1976, grounds for divorce specified under Sec on 13 of the Act
and judicial separa on under Sec on 10 are similar. The par es also have the op on of judicial
separa on instead of divorce, where they can rethink their decision. The objec ve is to save the
sacred ins tu on of marriage and make efforts for reconcilia on. In the case of Ishwar Singh v. Smt.
Hukam Kaur (1965), the Allahabad High Court held that if the husband permi ed his wife to marry
someone else of her choice because of his ill health, it does not amount to divorce because no such
pe on or applica on had been filed in the court and so the second marriage solemnised is illegal as
the first marriage s ll subsists. It was also observed that a marriage subsists un l a decree of divorce
has been passed by the court.
Further, in the case of Niru Sarmah v. Ja n Chandra Sarmah (2014), the Gauha High Court observed
that if a marriage is broken to the extent that it is irretrievable and there are no possibili es that the
bond can be recovered and the marriage can be saved in near future, decree of divorce can be
passed by the court.

Adultery

The concept of Adultery may not be considered as an offence in many countries. But as per the
Hindu Marriage Act, in the matrimonial offence, the adultery is considered as one of the most
important ground for seeking divorce. Adultery means the consensual and voluntary intercourse
between a married person with another person, married or unmarried, of the opposite sex. Even the
intercourse between the husband and his second wife i.e. if their marriage is considered under
bigamy, the person is liable for the Adultery.

The concept of Adultery was inserted under the Hindu Marriage Act by the Marriage Laws
Amendment Act, 1976.

In Swapna Ghose v. Sadanand Ghose

In this case, the wife found her husband with other girl lying on the same bed and the neighbour also
confirmed that the husband has commi ed an offence. Here the wife gets the divorce.

In Sachindranath Cha erjee vs Sm. Nilima Cha erjee

In this case, the pe oner and the defendant were married. A er marriage, the husband leaves the
wife in his home town so that she can complete her studies and go to another city for work. He
visited twice or thrice a month to meet her. Later he found that his wife commits the adultery i.e. to
involve in sexual intercourse with his own nephew, watchman etc. The plain ff approaches the court
to demand divorce on the ground of adultery and his pe on was accepted and the marriage gets
dissolved.

Prior to the 1976 amendment, in order to seek divorce on the ground of adultery, a person had to
prove that, on the date of the pe on, his/her spouse was living in an adulterous rela onship.
However, a er the amendment, even a single voluntary sexual intercourse with a person other than
the spouse is a valid ground for divorce. It is given under Sec on 13(1)(i) of the Act. The burden to
prove that the spouse commi ed the offence of adultery is on the person who made such
allega ons, and the standard of proof is by preponderance of probabili es and not proof beyond
reasonable doubt.

It is correct that there can be no direct evidence to prove the act of adultery, so circumstan al
evidence plays an important role. The Madhya Pradesh High Court in the case of Samuel Bahadur
Singh v. Smt. Roshini Singh (1960), rightly pointed out that in India, if a male and female are living
together under the same roof without any connec ons or rela ons, it is not considered normal, and
so adultery can be inferred from the following circumstances:

 A male and female lived together in the same house for a long me.
 They are not related to each other by way of marriage or any other rela onship.
 They refused to return to their spouse.
 Both the par es cannot deny adultery because of circumstan al evidence.
 They had the opportunity to commit adultery.
In the case of Chetan Dass v. Kamla Devi (2001), appellant and respondent were married to each
other according to Hindu ceremonies. A er marriage, the appellant had an extramarital affair with
one of the nurses in the hospital where he was working, and so his wife le him. He appealed,
claiming that the allega ons made by the respondent and her act of deser ng him without any
reasonable cause amount to mental torture. The Hon’ble Supreme Court observed that a man
cannot take advantage of his own wrong. However, the decree for divorce was not passed because
the wife, or respondent in this case, was ready to con nue her marriage and live with him only on
the condi on that he must leave the other woman and end his adulterous rela onship.

It must be noted that adultery as an offence has been decriminalised by the Hon’ble Supreme Court
in the case of Joseph Shine v. Union of India (2018). However, it is s ll a ground of divorce under the
Hindu Marriage Act, 1955, which means that if a person commits adultery, he/she would not be
punished but the spouse can seek divorce.

Essen als of Adultery

1. One of the spouses involved in the intercourse with another person, married or unmarried,
of the opposite sex.
2. Intercourse should be voluntary and consensual.
3. At the me of the act, the marriage was subsis ng.
4. There must be sufficient circumstan al evidence to prove the liability of another spouse.

Cruelty

The concept of cruelty includes mental as well as physical cruelty. The physical cruelty means when
one spouse beats or causes any bodily injury to the other spouse. But the concept of mental cruelty
was added as the spouse can also be mentally tortured by the other spouse. Mental Cruelty is lack of
kindness which adversely affects the health of the person. Well it is easy to determine the nature of
physical cruelty but difficult to say about mental cruelty

What is considered as Mental Cruelty against Husband by wife:

1. Humilia ng the husband in front of his family and friends.

2. Undertaking the termina on of pregnancy without husband consent.
3. Making false allega on against him.
4. Denial for Mar al Physical Rela onship without a valid reason.
5. Wife having affair.
6. Wife living an immoral life.
7. The constant demand for money.
8. Aggressive and uncontrollable behaviour of Wife.
9. Ill-treatment to the husband parents and family.

In Balram Prajapa vs Susheela Bai

In this case, the pe oner filed the divorce pe on against his wife on the ground of mental cruelty.
He proved that his wife that behaviour with him and his parents was Aggressive and uncontrollable
and many mes she filed the false complaint against her husband. The court accepts the pe on and
grants the divorce on the ground of cruelty.

What considered as Mental Cruelty against wife by Husband

1. False accusa on of adultery.

2. The demand for dowry.
3. Impotency of Husband.
4. Force to abort the child.
5. The problem of drunkenness of husband.
6. Husband having affairs.
7. The husband lives an immoral life.
8. Aggressive and uncontrollable behaviour of the husband.
9. Humilia ng the wife in front of family and friends

Deser on

Deser on means the permanent abandonment of one spouse by the other spouse without any
reasonable jus fica on and without his consent. In General, the rejec on of the obliga ons of
marriage by one party.

Before the 1976 Amendment, deser on was only a ground for judicial separa on and not divorce.
But now, deser on of any of the spouses by the other for a con nuous period of two years
immediately before filing the pe on is a valid ground to seek divorce as well as judicial separa on.
Deser on as the ground of divorce is men oned under Sec on 13(1)(i)(ib) of the Act. In the case of
Malathi Ravi v. B.V. Ravi (2014), the Supreme Court held that if there is no evidence to prove that the
wife had an inten on to end the marriage or whether she deserted her husband, then the court will
not pass a decree of divorce. This means that the inten on to end marriage is one of the essen als of
deser on, i.e., animus deserendi must exist. Also, if there was no deser on for a con nuous period
of two years immediately before the presenta on of the pe on or if the party assumed it, no
divorce can be granted.

In the case of Ranjeet Kaur v. Surendra Singh Gill (2012), the Madhya Pradesh High Court gave the
meaning of deser on as the inten on of par es to permanently abandon the spouse without their
consent and reasonable cause, which means that for the ground of deser on, the fact of separa on
and animus deserendi must co-exist. In the present case, the wife denied the allega ons of cruelty
and deser on made by her husband and requested that the court dismiss his pe on. In the case of
Om Wa v. Kishan Chand (1983), the Delhi High Court opined that deser on does not mean
withdrawal but is a state of things. It is a ques on of fact. In the case of J. Shyamala v. P. Sundar
Kumar (1990), the Madras High Court held that if a wife starts living with her parents rather than her
husband because he made false allega ons against her regarding her character and unchas ty, it
would not amount to deser on. It must be noted that the deser on of a spouse must be without
reasonable cause. The burden of proof, in this case, lies on the pe oner, and it must be proved that
the said deser on occurred without any sufficient and probable cause and did last for two years.
Essen als

1. Permanent abandonment of the other spouse.

2. Rejec on of the obliga on of marriage.
3. Without any reasonable jus fica on.
4. No consent of another spouse.

In Bipin Chander Jaisinghbhai Shah vs Prabhawa

In this case, the respondent leaves the house with the inten on to abandon his wife. Later the wife
approaches the court, but the defendant proved that even though he le the house with the
inten on to desert, but he tried to come back and he was prevented from doing so by the pe oner.
Here, the defendant cannot be held liable for deser on.

Conversion

If one of the spouses converts his religion to any other religion without the consent of the other
spouse, then the other spouse can approach the court and seek the remedy of divorce.

Illustra on

A, a Hindu has a wife B and two children. One day A went to church and converted to Chris anity
without the consent of B, here B can approach the court and seek for divorce on the ground of
conversion.

In Suresh Babu vs Leela

In this case, the husband converts himself into Muslim and marries another woman. Here the wife
Leela filed a case and demanded the divorce on the ground of conversion without her consent and
cruelty.

Unsoundness of mind

Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the
following two requirements-

1. The respondent has been incurably of unsound mind.

2. The respondent has been suffering con nuously or intermi ently from mental disorder of
such a kind and to such an extent that the pe oner cannot reasonably be expected to live
with the respondent.

In Vinita Saxena vs Pankaj Pandit

In this case, the pe oner filed a case to get the divorce from the respondent on the ground that the
respondent was suffering from Paranoid Schizophrenia which means mental disorder. She came to
know these a er her marriage. Here, the court grants the divorce on the ground of insanity of
husband.

If one of the par es, i.e., either husband or wife, is of unsound mind, then it is a valid ground for
divorce. It is given under Sec on 13(1)(iii) of the Act. The unsoundness may be con nuous or
intermi ent and incurable to the extent that it is not possible for the pe oner to con nue married
life with the respondent. This was also men oned in the Amendment Act of 1976. In the case of Smt.
Alka v. Abhinesh Chandra Sharma (1991), the Madhya Pradesh High Court found that the wife was
suffering from schizophrenia because she was cold and frigid on the first night of marriage and could
not cooperate with the husband. Also, she was not able to handle domes c appliances, so the
husband was en tled to nullity of marriage in this case. It was also observed that the facts pertaining
to the mental illness of the wife and her medical treatment were not disclosed to either the husband
or his mother and grandmother, who nego ated the marriage on his behalf. The counsel
represen ng the wife also argued that breaking the marriage just a er 19 days of marriage would
bring upon her great tragedy. However, the appeal made by the wife was dismissed.

In the case of Suvarnalata v. Mohan Anandrao Deshmukh and Anr. (2010), husband filed for divorce
on the ground that his wife was suffering from schizophrenia, but the Supreme Court did not accept
and agree with the allega ons made by the husband that his wife was suffering from mental disorder
and desisted itself from giving any observa ons in this regard because of the effect that it would
have on the minor child. Further, the Calcu a High Court in the case of Pramatha Kumar Maity v.
Ashima Maity (1991) held that in order to obtain a decree for divorce on the ground of unsoundness
of mind, it must be proved that unsoundness exists to the extent that it is impossible for the
pe oner to cohabit and live with the respondent.

Leprosy

Leprosy is an infec ous disease of the skin, mucous membranes, nervous system etc. this disease is
transmi ed from one person to another. Thus it is considered as the valid ground for divorce.

In Swarajya Lakshmi vs G. G. Padma Rao, the husband filed the case for gran ng 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 ge ng the divorce on the ground of leprosy.

In the case of Mr. ‘X’ v. Hospital ‘Z’ (1998), a marriage was called off as the appellant was found out
to be HIV+ which is a venereal disease. Further, in the case of P. Ravi Kumar v. Malarvizhi @ S. Kokila
(2013), husband filed for divorce on the ground that the wife is suffering from HIV, which is a
communicable sexually transmi ed disease. The wife, on the other hand, argued that she is afflicted
by the disease only through her husband. The medical reports proved that the husband was not
suffering from HIV. On the basis of facts and circumstances, the husband was en tled to the decree
of divorce.

Venereal Disease

Under this concept, if the disease is in communicable form and it can be transmi ed to the other
spouse, then this can be considered as the valid ground for divorce.

Illustra on

A and B married on 9 September 2011. Later A suffered from a venereal disease and it is incurable.
There’s also a chance that B can also get infected by that disease if she lives with A. Here, B can
approach the court for the dissolu on of the marriage
Renuncia on

It means when one of the spouses decides to renunciate the world and walk on the path of the God,
then the other spouse can approach the court and demand the divorce. In this concept the party
who renunciates the world is considered as civilly dead. It is a typical Hindu prac ce and is
considered as a valid ground for divorce.

Illustra on

A and B got married and lives a happy life. One day A decides to renunciate the world. Here, B has a
right to approach the court and seek the remedy of divorce.

Presump on of Death

In this case, the person is presumed to have died, if the family or the friends of that person does not
hear any news about the person alive or dead for seven years. It is considered as the valid ground for
divorce, but the burden of proof is on the person who demands the divorce.

In the case of LIC of India v. Anuradha (2004), the Supreme Court held that the death of a person can
be presumed only a er the lapse of seven years. However, it does not include the me of death. In
the case of Prakash Chander v. Parmeshwari (1987), a woman was asked to enter into a karewa
marriage with her brother-in-law for the procrea on of children because her husband became a
luna c and was discharged from the Army. He was not heard of a er his discharge and was
presumed to be dead. The customs of karewa marriage allowed a second marriage if the spouse was
not heard of for 2-3 years, which means that they presumed the death of the spouse within this
period. However, when she was ill-treated by her brother-in-law and thrown out of the house, she
filed for divorce, but all the allega ons were denied by the opposite party. The court in this case
observed that such a custom is not judicially recognised and that the karewa marriage between the
woman and her brother-in-law does not itself dissolve the first marriage between her and her
husband.

Illustra on

A was missing from the last seven years and his wife B does not get any news about him of being
alive or dead. Here B can approach the court and ask for the divorce.