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Q1. Discuss various kinds of Marriages under Muslims Law.

Ans. Introduction:- Muslims are broadly divided into two major sects Shias and Sunnis and
there are four schools of thought under Muslim law, Hanafi, Hamabil, Maliki, and Shafi. Out of
these four, the Hanafi school is dominant in India. Due to these different sects and schools of
thought, there are different types of marriages and divorce that are accepted in Muslim society.
Different types of marriages are Muta marriage, Sahih (valid) marriage, Batil (void) marriage,
Fasid (irregular) marriage.

Types of marriages
The validity of a marriage depends on the conclusion of the marriage contract, no writing is
necessary while making a contract, it can be oral or written. The different types of marriages are
following:

1.Temporary Marriage (Muta Marriage)

Muta marriage is a temporary marriage contract that is prevalent in Shia Islam, although it is not
recognised by Sunni Muslims. This kind of Muslim marriage is a fixed-term marriage contract
that specifies the length of the marriage, which can range from a few hours to several years. The
marriage is automatically dissolved when the term of the contract expires, without the need for a
formal divorce.

The main significance of Muta marriage is that it provides a way for individuals to engage in a
temporary marital relationship without violating Islamic law. In situations where a permanent
marriage is not feasible, such as when a man is travelling or when a woman is in need of
financial support, a temporary marriage can be a solution.

It is important to note that Muta marriage is not considered equivalent to permanent marriage
and the rights and responsibilities of the parties to a Muta marriage are different from those in a
permanent marriage.

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2.Sahih (valid) marriage

Sahih marriage, also known as Nikah, is the most common kind of marriage under Muslim law.
It is considered the only valid and lawful form of marriage, as it is in accordance with the
principles of Islam. In a Sahih marriage, the parties enter into a permanent and stable union, with
the intention of living together as husband and wife for the rest of their lives.

The marriage is based on mutual consent and the parties are free to negotiate and agree upon the
terms and conditions of the marriage.

Characteristics of Sahih Marriage

Sahih marriage has certain characteristics that distinguish it from other types of Muslim
marriage.

 It is a permanent and stable union, which is intended to last for the rest of the parties’
lives.
 It is based on mutual consent and agreement and both parties must freely and voluntarily
consent to the marriage.
 The marriage must be conducted in accordance with the principles of Islam, which
include the presence of witnesses, the payment of a dower (mahr) to the wife and the
recitation of certain formulae.

3.Batil Nikah
A void marriage, also known as a Batil Nikah, is a marriage that fails to meet the necessary
conditions for a valid marriage. In such a marriage, no legal rights or obligations are recognised.
The following types of marriages are considered void:

 Marriages between parties who are closely related by blood.

 Marriages that are prohibited by reason of affinity.
 Marriages with a foster mother or foster sister. Sunni law recognises an exception for
marriages with the foster mother of one’s sister or foster sister’s mother, foster son’s
sister or foster brother’s sister.

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 Marriages with a woman who is undergoing iddat (the period of waiting after divorce or
death of the husband) under Shia law.
 Marriages with a fifth wife.
 Marriages with someone else’s wife, provided her marriage is still valid.

4.Fasid Nikah
An irregular marriage, also known as a fasid marriage, is considered an invalid marriage because
it does not fulfil all of the necessary conditions for a valid marriage.
However, this type of marriage in Islam can be converted into a valid marriage by removing the
irregularities. The concept of irregular marriage is recognised only under Sunni law, as Shia law
does not offer a middle path between valid and void marriages.
Under Sunni law, the following marriages may be considered irregular:
 Marriage without witnesses. The parties may remarry in the presence of witnesses to
make their marriage valid.
 Marriage with a fifth wife. It will be valid if the husband divorces one of his four wives
and then marries the fifth one.
 Marriage with a woman in her iddat period. The marriage will be valid if contracted after
the expiration of the iddat period.
If an irregular marriage has been consummated, the wife is entitled to dower and must undergo
iddat under Islamic Law. The children born from such a marriage are legitimate. If the irregular
marriage has not been consummated, the wife is not entitled to dower and the parties can
separate without legal formalities.

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Q2.Discuss Desertion as a Ground of divorce under Hindu

Law.
Ans. Introduction:- The word desert literally means ‘to abandon or give up or forsake without
any sufficient reason or intention to return’.In a marriage, if one spouse leaves the matrimonial
alliance without any sufficient cause he is said to be at ‘fault’. Section 13(1) (ib) of the Hindu
Marriage Act, 1955 deals with desertion as a ground for divorce.

Concept and elements of desertion

Section 13(1) (ib) of the Hindu Marriage Act, 1955 deals with desertion as a ground for divorce
and the explanation of the same reads: “The expression “desertion” means the desertion of the
petitioner by the other party to the marriage without reasonable cause and without the consent
of or against the wish of such party, and includes the willful neglect of the petitioner by the other
party to the marriage. There are mainly four basic elements which are primarily to be satisfied to
constitute desertion. The first two are to be present in the deserting spouse.

1. The fact of separation (factum deserdendi)

2. The intention to desert ( animus deserdendi)

Desertion is a state which occurs only on the co-existence of both of these elements. If
either of these two ingredients is absent, the petition for divorce on desertion
fails.The interesting phenomenon in desertion is that either of the elements can precede the other;
however, desertion will result only when both coincide and form a union.

When a petition is filed, the first step is proving the fact of separation and the intention
separately while the second step is to prove their union. It is fairly easy to prove the physical act
of separation either from the conductor from the state of minds. The difficulty arises on proving
the animus i.e. the intention for desertion. This intention is required throughout the period of
desertion. The petitioner is expected to prove intention through conduct as a person’s mind
cannot be read.In this process, there are two ways in which the deserting spouse has an
opportunity to misuse the position of law:

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There exist cases where the separation was consensual (like when the husband is on a voyage)
with no animus to desert.While separated, one of the spouses may develop the intention to bring
an end to the cohabitation permanently on the expiry of the consensual period. With the
separation and the consequent formation of intention, the act of desertion commences which the
deserted spouse is expected to prove.

The quality of permanence in intention to leave the matrimonial home is one of the essential sub-
elements in desertion which differentiate it from willful separation. If there is just temporary
separation without the intention to leave permanently, there is no desertion.

In this law, if a person decides to return just before the expiry of two years and claims to have no
intention of permanent separation, the so deserted spouse will have no recourse in law.

Apart from these elements in the deserting spouse, there are two other elements which have to be
present in the deserted spouse:

1. Absence of consent
2. The absence of conduct which led to the other spouse leaving the matrimony.

The deserted spouse filing the petition is the one who must sufficiently prove and provide
evidence for his conduct showing unmistakably that the desertion was against his will.Courts
have held that it is not enough for the petitioner to show that he was unwilling that the
respondent stays out rather he must have expressly declared his wishes to the deserting spouse or
make it clear that the absence was against his wish.With this burden on the deserted spouse, there
arise times when illiterate, and submissive women cannot expressly convey their consent or
rather lack it. This creates problems in discharging their burden of proof providing for the
deserting spouse to take advantage of. If there is no proof of lack of consent, the consensual
separation is not a matrimonial offence using volenti non fit injuria.

It is additionally important to note that for a matrimonial relief on the ground of desertion, it is
necessary to show the passage of the statutory period of two years and the same must be
continuous.

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Desertion as a continuing offence

The petition for divorce on the grounds of desertion can be filed only after a period of two years
from the commencement of the co-existence of animus and the factum. Desertion is known as
continuing offence as the element of permanence necessarily requires that the factum and animus
must continue during the entire statutory period preceding the presentation.If the spouse returns
before the expiry of two years and then leaves again, the waiting period of two years commences
all over again from the time he left again. If such period is interrupted, the broken periods may
not be added together so as to establish a summed period of two years. The legislature provided
this buffer period as a sort of cooling off period so that couples can rethink and reconsider their
decision before ending the holy matrimony.

Desertion is known as an inchoate offence as it continues from the day it commences to the day
it is terminated by the conduct of the deserting spouse or by the presentation of the petition.

It becomes a complete fault based matrimonial offence only when the deserted spouse files for
divorce.

In Leela Devi v. Suresh Kumar , a divorce petition filed by the husband, which he withdrew on
receiving an assurance from the wife that she would be joining his company but she didn’t live
with him even for a single day. There was then again a fresh petition filed by the husband for
divorce. In addition the wife had left the home and also stated unwillingness to live with the
husband. Her conduct of leaving the house showed an implied intention of not to live and
expressing unwillingness was an explicit expression to her intention to leave. The husband was
therefore granted divorce on the ground of desertion.

Vinay Kumar v. Nirmala , was a crystal clear case of intention to desert. The wife was unable
to adjust with the husband and in-laws. She used to be abusive and violent towards them, once
she even threatened to put the matrimonial house on fire. She then left her matrimonial home and
did not return. Looking at her conduct while she was living in the matrimonial home her
intention to desert could be clearly construed and thus, the husband was granted divorce.

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Kinds of Desertion

There are 3 kinds of desertion in law-

(i) Actual Desertion

(ii) Constructive Desertion
(iii) Wilful Neglect

(i) Actual Desertion:- Actual Desertion means that in reality abandoning one’s spouse. It
is when the spouse completely refuses to perform any obligations of matrimonial
alliance and permanently runs away from home. It is the genuine and explicit
forsaking of one’s spouse to be precise.
(ii) Constructive Desertion:- Desertion is not always the abandonment of place,
sometimes it is an abandonment of situation and it is known as constructive desertion.
It can also be said as that desertion means not abandoning the place rather it is
ignoring the obligations while living under the same roof. In the case of Jyotish
Chandra Guha vs. Meera Guha, it was held that when one partner behaves in such
a manner that it becomes difficult for the other partner to live under the same roof or
is compelled to leave the matrimonial home. Then it will be considered as desertion
by the first party.
(iii) Wilful Neglect:- In the case of Savitri Pandey vs. Premchand Pandey, the Supreme
Court held that “the desertion actually means the ignorance from matrimonial duties,
by either party instead of leaving any place. It also requires the existence of
cohabitation between the parties earlier”.

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Q3.Discuss the concept of maintenance under the Code of

Criminal procedure,1973.

Ans. Introduction:-The word ‘Maintenance’ is not defined in the Code of Criminal Procedure,
1973. Chapter IX of the Code of Criminal Procedure deals with provisions for maintenance of
wives, children and parents. ‘Maintenance’ in general meaning is keeping something in good
condition. ‘Maintenance’ in legal meaning is money (alimony) that someone must pay regularly
to a former wife, husband or partner, especially when they have had children together. It is the
duty of every person to maintain his wife, children and aged parents, who are not able to live on
their own.

Scope and objective of Proceedings

Scope and objectives of proceedings for maintenance of wives, children and parents are the
following:

 The proceedings are not punishable in nature. The main objective of Chapter IX of Cr.PC

is not to punish a person who is not maintaining those whom he is bound to maintain.

 The main objective is to prevent homelessness by way of procedure to provide a speedy

remedy to those who are in pain.

 It does not make any distinction between persons belonging to different religions or

castes.

 It has no relation to the personal laws of parties.

Who can claim and get maintenance?

Section 125 of Cr.PC deals with “Order for maintenance of wives, children and parents”.
According to Section 125(1), the following persons can claim and get maintenance:

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

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(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority,
where such child is, by reason of any physical or mental abnormality or injury unable to maintain
itself, or

(d) his father or mother, unable to maintain himself or herself.

Wife

In the case of Chanmuniya v Virendra Singh, Supreme Court has defined ‘Wife’ and it includes
even those cases where a man and woman have been living together as husband and wife for a
reasonably long period of time. Strict proof of marriage should not be a precondition of
maintenance under Section 125 of the Cr.PC.

In the case of Smt. Yamunabai Anantrao Adhav v Ranantrao Shivram Adhav, the Supreme Court
held that marriage of women in accordance with Hindu rites with a man having a living spouse is
completely nullity in the eye of law and she is not entitled to benefit under Section 125 of the
Cr.PC.

In the case of Sirajmohmedkhan Janmohamadkhan v Hafizunnisa Yasinkhan, the Supreme Court

held that maintenance can be allowed to the wife when her husband is impotent.

A wife can claim and get maintenance from her husband in the following conditions:

 She is divorced by her husband, or

 Obtained divorce from her husband, and
 She has not remarried, and
 She is not able to maintain herself.

A wife can not claim and get maintenance from her husband in the following conditions:

 Wife living in adultery, or

 Refuses to live with husband without any valid reasons, or
 Living separately by mutual consent.

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Legitimate or illegitimate minor child

Son

Minor’ means a person who, under the provisions of Section 3 of the Indian Majority Act,
‘

1875 is deemed not to have attained his majority i.e., above the age of 18 years.

Minor Son (Legitimate or Illegitimate) is entitled to get maintenance under Section 125 of
Cr.PC.

Daughter

If Minor Daughter (Legitimate or Illegitimate) is unmarried, then she is entitled to get

maintenance from her father and if she is married, then she is also entitled to get maintenance
from his father but the magistrate has to be satisfied that her husband has not essential and
sufficient means for the maintenance of his minor wife. In the case of Shahbuddin v State of UP,
a minor daughter attaining majority during the pendency of the application for maintenance was
held entitled to maintenance up to the date of majority.

Legitimate or illegitimate abnormal child who has attained majority

If any major child (Legitimate or Illegitimate) is abnormal (mentally or physically unfit), then
the father of that child has to maintain him and he can claim maintenance on this ground of
abnormality.

Father or mother

 Natural father and mother can claim maintenance.

 Mother includes adoptive mother, she can claim maintenance from adoptive son.
 Father can claim maintenance, it is a statutory obligation, this claim cannot be defeated
by pleading that the father failed to fulfil his parental obligation.
 A childless stepmother can claim maintenance.

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In the case of Pandurang Bhaurao Dabhade v Baburao Bhaurao Dabhade, Bombay High Court
has held that the father or mother can claim maintenance under Section 125(1)(d) if he or she is
unable to maintain himself or herself. But it is also important that if parents claim maintenance to
their children, children must have sufficient means to maintain their parents and yet neglects or
refuses to maintain the father or mother.

Essential conditions for granting maintenance

There are some essential conditions which should be fulfilled for claiming and granting
maintenance:

1. Sufficient means for maintenance are available.

2. Neglect or refusal to maintain after the demand for maintenance.
3. The person claiming maintenance must be unable to maintain himself/herself.
4. Quantum of maintenance depends on the standard of living.

Jurisdiction of Magistrates to deal with maintenance proceedings

According to Section 125(1)(d), If any person neglects or refuses to maintain his wife, children
or parents, then a Magistrate of the First Class can order such person to make a monthly
allowance for the maintenance of his wife, children or parents, at such monthly rate as such
Magistrate thinks fit, and to pay the same to such person as the direction of magistrate.

If a minor female child is unmarried, then the magistrate can order to make such allowance, until
she attains her majority. In case a minor child is married and the magistrate is satisfied that the
husband of such minor female child is not possessed of sufficient means, then the magistrate can
order father of the minor female child to make such an allowance for maintenance.

When a proceeding is pending regarding monthly allowance for maintenance, the Magistrate can
order such person to make a monthly allowance for the interim maintenance of his wife, children
or parents and the expenses of such proceeding which the Magistrate considers reasonable.
An application for the monthly allowance for the interim maintenance and expenses of

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proceeding should be disposed within sixty days from the date of the notice of the application to
such person.

According to Section 125(2), If a court order for such allowance for maintenance or interim
maintenance and expenses of the proceeding, then it should be payable from the date of the order
or if so ordered, then it shall be payable from the date of application for maintenance and
expenses of proceedings.
According to Section 125(3), If any person fails to comply with the order without sufficient
cause, then Magistrate can order to issue a warrant for levying the amount with fines. If the
person again fails after the execution of the warrant, then the punishment of imprisonment for a
term which may extend to one month or until payment of sooner made is awarded.

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Q4. Discuss various Conditions of Adoption under HAMA

1956.
Ans. Introduction:-

Adoption can serve as a wonderful remedy, not just for individuals or couples unable to
conceive, but also for homeless children. This legal procedure facilitates the formation of a
parental bond between individuals who are not biologically related. Essentially, it involves the
act of raising and nurturing a child who is not one's own biological offspring as a member of
one's own family.

The Hindu Adoptions and Maintenance Act, 1956 outlines the provisions for adoptive Hindu
parents to adopt children of the Hindu faith. While the Act does not provide a precise definition
for the term "Adoption," its derivation is from the Dharmasastra, particularly the Manusmriti.
Manusmriti defines adoption as the act of 'taking someone's son and raising him as one's own'.
However, the act expands on this definition by using the term "child" instead of "son," thereby
including both male and female children.

According to act – a Hindu means not only a person that follows Hinduism but also includes
other sects of Hinduism, such as- Buddhists, Jains, Sikhs, Virashaiva, Lingayat, or members
Arya Samaj. As a matter of fact, the Hindu Adoption and Maintenance Act covers everyone
residing in India who is not a Christian, Muslim, Parsi or Jew.

Requisites and Essentials of Valid Adoption:

Section 6 states that all adoptions shall be considered as void-ab-initio or invalid unless:

(i) the person adopting has the capacity, and also the right, to take in adoption;

(ii) the person giving in adoption has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter-II of
the Act.

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Landmark Cases:

Kumar Sursen v. State of Bihar, AIR 2008 Pat 24: Under section 6 the law does not recognise
an adoption by a Hindu of any person other than a Hindu;

M. Gurudas v. Rasaranjan, AIR 2006 SC 3275: To prove valid adoption, it would be

necessary to bring on records that there had been an actual giving and taking ceremony;

Devgonda Raygonda Patil v. Shamgonda Raygonda Patil, AIR 1992 Bom 189: Section 6
does not bar a lunatic person from being adopted.

Capacity of a Hindu Male to Adopt:

Section 7 states "Any male Hindu who is of sound mind and is not a minor has the capacity to
take a son or a daughter in adoption: Provided that, if he has a wife living, he shall not adopt
except with the consent of his wife unless the wife has completely and finally renounced the
world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be
of unsound mind."

Capacity of the Hindu Female to Adopt:

Section 8 states, "Any female Hindu—

(a) who is of sound mind,

(b) who is not a minor, and

(c) who is not married, or if married, whose marriage has been dissolved or whose husband is
dead or has completely and finally renounced the world or has ceased to be a Hindu or has been
declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a
son or daughter in adoption."

Provided that, if she has a husband living, she shall not adopt a son or daughter except with the
consent of her husband.

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Persons Who May Be Adopted:

Section 10 provides for the Capacity of a person which can be adopted. According to this
section, "No person shall be capable of being taken in adoption unless the following conditions
are fulfilled, namely:—

(i) he or she is a Hindu;

(ii) he or she has not already been adopted;

(iii) he or she has not been married, unless there is a custom or usage applicable to the parties
which permits persons who are married being taken in adoption;

(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage
applicable to the parties which permits persons who have completed the age of fifteen years
being taken in adoption."

Conditions for Valid Adoption

According to section 11 of the Act, these are the conditions that must be met for a valid
adoption:

 The adoptive parent must not have a Hindu son, son's son, or son's son's son living at the
time of adoption if adopting a son.

 The adoptive parent must not have a Hindu daughter or son's daughter living at the time
of adoption if adopting a daughter.

 The adoptive father must be at least twenty-one years older than the female to be adopted.

 The adoptive mother must be at least twenty-one years older than the male to be adopted.

 The same child cannot be adopted by two or more people at the same time.

 The child must be actually given and taken in adoption by the parents or guardian
concerned with intent to transfer the child to the family of adoption.

Note: Performing Datta Homam is not necessary for the validity of adoption.

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Landmark Judgments:

Hanmant Laxman Salunke (D) by L.Rs. v. Shrirang Narayan Kanse, AIR 2006 Bom
123: Provision of section 11 requiring age difference between adoptive mother and adoptive son
to be at least 21 years is mandatory in nature. Word ‘must' cannot be read as ‘may'. This breach
is fatal to adoption;

Urmila Devi v. Hemanta Kumar Mohanta, AIR 1993 Ori 213: The defendant's father only
wanted that he should be reared up by Sankar and Sasi after the mother's death and there had
been no formal ceremony of adoption nor were Sankar and Sasi unfit to have children of their
own, thereby negativing the adoption;

Nemichand Shantilal Patni v. Basantabai, AIR 1994 Bom 235: There was no evidence in
hand that the plaintiff was actually given and taken in adoption by the parents or guardians of the
plaintiff as required under section 11(vi). Adoption was held not to have taken place. The age of
the plaintiff was 30 years and that of the adoptive mother 48 years six months, thereby
contravening the provisions of section 11(iv) as the difference between the plaintiff and mother
was only 19 years and not 21 years;

Conclusion
The adoption involves the feeling emotions between the adopted family and adopted child. By
the act of adoption the adopted child is uprooted from his natural family and transplanted in to
adoptive family like a natural son.

The adoptive child severs his ties from the family of his birth and becomes a regular member of
the family in which the child has been adopted. The adopted child becomes the child of his
adoptive family from the date of adoption for all the purposes like a natural child and thereby get
all rights like birth in that family.

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Q5. Discuss the various sources of Hindu law.

Ans. Introduction:-

The sources of Hindu law provide the foundation for the legal system followed by Hindus in
India, and understanding these sources is crucial to comprehend the principles and practices of
Hindu personal law.

Hindu law, also known as Hindu personal law, is a body of legal principles and rules that govern
the social, religious, and personal affairs of Hindus in India. It is primarily based on ancient
Hindu scriptures, customs, and traditions, and has evolved over time through various judicial
decisions and legislative enactments.

Sources of Hindu Law

The sources of Hindu law can be classified under the following two heads:

I. Ancient Sources

Under this would come the following:

 Shruti

 Smriti

 Digests and Commentaries and

 Custom.

II. Modern Sources

Under this head would come:

 Justice, equity and good conscience

 Precedent, and

 Legislation.

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Ancient Sources

Ancient Texts: Vedas, Smritis, and Dharmashastras

The ancient texts of Hinduism form the primary source of Hindu law in India. These texts are
revered as sacred scriptures and contain philosophical, ethical, and moral principles that guide
the conduct of Hindus. The three main types of ancient texts that are considered as sources of
Hindu law are:

Vedas (Shrutis): The Vedas are the oldest and most sacred texts of Hinduism. They are believed
to be of divine origin and are considered as the foundation of Hindu law. The Vedas are divided
into four main texts: Rigveda, Yajurveda, Samaveda, and Atharvaveda.

They contain hymns, rituals, and prayers, and provide guidance on religious, social, and moral
duties of individuals.

Smritis: Smritis are the secondary scriptures of Hinduism that expound on the principles laid
down in the Vedas. They are written by sages and scholars and provide detailed instructions on
personal and social conduct.

The most famous Smritis are Manusmriti, Yajnavalkya Smriti, and Narada Smriti, which are
considered as important sources of Hindu law. These texts cover a wide range of topics,
including marriage, inheritance, property rights, and religious practices.

Dharmashastras: Dharmashastras are treatises on dharma, which is the moral and ethical law
governing the conduct of individuals.

They provide guidelines on social and moral duties, and are considered as important sources of
Hindu law. Some of the well-known Dharmashastras include Manavadharmashastra,
Parasharasmriti, and Brihaspatismriti.

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Digests and commentaries

Digests and commentaries are also important sources of Hindu law in India. These are secondary
sources that provide explanations, interpretations, and commentaries on the ancient texts,
customs, and statutory laws related to Hindu personal law.

Digests are compilations of legal principles and rules extracted from various ancient texts,
customs, and judicial precedents. These compilations are often written by legal scholars and
provide a systematic and organized overview of Hindu law. Commentaries, on the other hand,
are explanatory writings that provide detailed analyses, interpretations, and insights into the legal
principles and practices of Hindu law.

Customs: Local and Regional Practices

Customs are an important source of Hindu law, as they reflect the social, cultural, and religious
practices followed by Hindus in different regions of India. Customary law is based on long-
established practices that have been recognized and followed by the community for a
considerable period of time. Customary law is recognized as a valid source of Hindu law and is
applied in cases where there is no specific provision in the scriptures or legislation.

Customs vary from region to region in India, and they are influenced by factors such as
geography, climate, caste, and religious beliefs. For example, the customs followed in a rural
village in North India may differ from those followed in a cosmopolitan city in South India.
Some of the common customs that are recognised as sources of Hindu law include customs
related to marriage, succession, adoption, and religious practices.

Modern Sources

Justice, Equity and Good Conscience

Another significant source of Hindu law in India is the principle of justice, equity, and good
conscience. This principle is based on the concept of natural justice and is often invoked by
courts in cases where there is no specific provision in the ancient texts, customs, or statutory
laws to address a particular issue.

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The principle of justice, equity, and good conscience allows courts to exercise their discretion
and interpret and apply Hindu law in a fair and just manner, taking into account the facts and
circumstances of each case. This principle is particularly relevant in cases where existing laws
may not adequately address modern social, economic, or cultural changes.

For example, in cases where there is no clear guidance on matters such as maintenance for
divorced wives, property rights of illegitimate children, or the adoption of a child born out of
wedlock, courts have relied on the principle of justice, equity, and good conscience to arrive at
decisions that are fair and just.

It is important to note that the principle of justice, equity, and good conscience is not a
standalone source of Hindu law, but rather a guiding principle that complements and
supplements the other sources mentioned earlier. It is often used as a fallback option when other
sources are silent or inadequate in addressing a particular legal issue.

Judicial Precedents: Case Laws and Judicial Interpretation

Judicial precedents, also known as case laws, are another important source of Hindu law in India.
Judicial precedents are the decisions of courts in cases involving Hindu law, which are
considered as authoritative interpretations of the law. The decisions of higher courts, such as the
Supreme Court of India, have a binding effect on lower courts, and they are considered as
precedents that are to be followed in similar cases. Judicial precedents play a significant role in
the development and evolution of Hindu law, as they provide interpretations and clarifications on
legal principles and practices.

Over the years, the Indian judiciary has delivered numerous landmark judgments on various
aspects of Hindu law, including marriage, divorce, property rights, inheritance, adoption, and
religious practices.

These judgments are considered as important sources of Hindu law and have shaped the legal
framework for Hindus in India.

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For example, the Supreme Court of India clarified the rights of a Hindu woman as a coparcener
in a joint Hindu family property.

Another example can be, in the case of Mohd. Ahmed Khan v. Shah Bano Begum the court
established the rights of Muslim women to maintain under Hindu law.

Judicial precedents are based on legal principles, statutes, and customs, and they provide
guidance on the interpretation and application of Hindu law in contemporary times. They help in
filling the gaps in the legal framework and adapting the law to changing societal needs and
values. Judicial precedents are cited and relied upon by courts in subsequent cases to ensure
consistency and uniformity in the application of Hindu law.

Legislative Enactments: Statutory Laws

Legislative enactments, or statutory laws, are another important source of Hindu law in India.
The Indian Parliament and state legislatures have enacted various laws that govern different
aspects of Hindu personal law. These laws are based on constitutional principles, social policies,
and contemporary needs, and they provide a comprehensive legal framework for Hindus in India.

Some of the important statutory laws that are sources of Hindu law include:

 Hindu Marriage Act, 1955: The Hindu Marriage Act is a central legislation that governs
the solemnisation, registration, and dissolution of marriages among Hindus, Buddhists,
Jains, and Sikhs. It provides for the conditions for a valid Hindu marriage, the rights and
duties of spouses, and the grounds for divorce and judicial separation. The Act also deals
with issues such as maintenance, custody of children, and property rights of married
couples.
 Hindu Succession Act, 1956: The Hindu Succession Act is a central legislation that
governs the inheritance and succession of property among Hindus, Buddhists, Jains, and
Sikhs. It provides for the rules of intestate succession, i.e., succession in case of death
without a valid will, and testamentary succession, i.e., succession based on a valid will.
The Act also provides for the rights of female heirs, coparcenary rights, and rules related
to joint family property.

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 Hindu Minority and Guardianship Act, 1956: The Hindu Minority and Guardianship
Act is a central legislation that deals with the minority and guardianship of Hindu minors.
It provides for the rights and liabilities of minors, the appointment and powers of
guardians, and the duties and responsibilities of guardians towards the minors’ welfare
and property.
 Hindu Adoption and Maintenance Act, 1956: The Hindu Adoption and Maintenance
Act is a central legislation that governs the adoption and maintenance of Hindus. It
provides for the rules and procedures for adoption, the rights and duties of adopted
children and adoptive parents, and the maintenance rights of Hindu women, children, and
aged parents.
 Customary Laws: In certain regions of India, Hindus also follow customary laws that
have been codified and recognized by local legislation. For example, in some states like
Goa, the Goa Family Law, which is based on Portuguese civil law, applies to Hindus for
matters related to marriage, divorce, inheritance, and succession.

Conclusion

The sources of Hindu law in India are ancient texts, customs, judicial precedents, and legislative
enactments. These sources provide the foundation for the legal framework that governs various
aspects of Hindu personal law, and their interplay continues to shape and evolve Hindu law in
contemporary times.

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Q6. Discuss the conditions of valid marriage under the hindu

Marriage Act, 1955.
Ans. Introduction:-

The most significant institution in human society is marriage. It is a common occurrence. The
foundation of human civilization has come into the picture because of marriage. New social ties
and reciprocal rights between spouses are created through marriage. When children are born,
their rights and position are established. Every community recognises specific steps for
establishing these relationships and rights. Real marriage is the acceptance of a new status with
new responsibilities that are acknowledged by others. Every society recognises marriage as a
socially accepted universal institution. One of the most profound and intricate human
partnerships is marriage. In 1955, the laws governing Hindu marriage were formalised and put
into effect. The laws governing Hindu marriage, restitution of conjugal rights, judicial
separation, divorce, annulment of marriage, maintenance, and guardianship are included in
the Hindu Marriage Act, 1955, which was passed by the legislature. Sections 5 and 7 of the
Hindu Marriage Act of 1955 address the requirements for a legally binding union among Hindus.

conditions of valid marriage

For a marriage to be solemnized between any two Hindus, it must follow the conditions that are
present in Section 5 of the Hindu Marriage Act, 1955.

Let’s see what are the conditions for a valid marriage under Hindu Laws.

MONOGAMY – Section 5 (i)

Now let’s assume that Mr.X gets married to Ms Y by following all the required ceremonies but
after a month into the marriage, it was discovered by Ms Y that Mr.X was already married to
Ms.A according to their customs and religion.

Then in this case the marriage between Mr.X and Ms.Y will be held null and void.

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Apart from the marriage being null and void Mr.X is liable under Section 494 or Section 494 of
IPC for a punishment leading up to 7 or 10 years along with a fine depending on the details of
the case.

If either party has a spouse living at the time of the marriage and not divorced from their former
partner or spouse, then that marriage under the Hindu Laws is not considered as a valid marriage.

In a simpler term, this act prohibits bigamous marriage and Section 11 declares such a bigamous
marriage void. A person indulging in such a marriage makes himself open to penal liability under
Section 494 and 495 of the Indian Penal Code.

In cases like Bhogadi Kannababu & Ors vs Vuggina Pydamma & Ors [AIR 2006
SC149] and Yamunabai Anantrao Adhav A vs Ranantrao Shivram Adhav & Anr [AIR
1988 SC 644], the apex court held that during the subsistence of first marriage, the second
marriage would be null and void.

SOUNDNESS OF MIND – Section 5 (ii)

The next important prerequisite for a valid marriage under Hindu Law is the soundness of mind.

Firstly, the ability of both parties to be able to give valid consent for their marriage, for which a
sound mind is an essential rudiment. So if either party is suffering from an unsound mind or is a
lunatic at the time of marriage then a valid marriage is said to have not taken place.

Secondly, if either party despite being able to give valid consent for their marriage but suffers
from any mental disorder to such an extent that the party becomes unfit for marriage and/or if
either party is not capable of procreation of children even then the marriage would be taken as an
invalid marriage. Such a marriage is not per se void but voidable under Section 12 of the Hindu
Marriage Act, 1955.

Thirdly, if either party to the marriage has been a subject to recurrent attacks of insanity he or
she is also not qualified for a marriage under the Hindu Marriage Act.

In Smt.Alka Sharma vs Abhinesh Chandra Sharma [AIR 1991 MP 205], the High Court of
Madhya Pradesh held that the court can nullify the marriage if either condition or both conditions
are fulfilled due to mental disorder of the party.

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AGE OF MARRIAGE – Section 5 (iii)

The next prerequisite for a valid marriage is the age of the parties to the marriage as defined by
the law. The age of the bridegroom must be 21 years, while the age of the bride should be 18
years at the time of the marriage.

Violation of this rule won’t make the marriage void or voidable but would attract penalties which
would lead up to 15 days of imprisonment or with a fine up to Rs. 1000 or with both.

This marriage becomes a valid condition to repudiate or deny the marriage by the minor.

But, if the marriage was between a bridegroom whose age at the time of marriage was above 21
years while the bride’s age was below 18 years would attract punishment under the Prohibition
of Child Marriage Act, 2006, leading up to rigorous imprisonment which may extend to two
years or with fine which may extend to one lakh rupees or with both.

NOT WITHIN PROHIBITED RELATIONSHIP – Section 5 (iv)

In this rule, the Hindu Marriage Act, 1955 calls out the fact that the parties entering into
marriage with each other shouldn’t be in a prohibited relationship.

Firstly, a prohibited relationship is defined as a relationship whereby one is a lineal descendant

of the other. This includes direct blood relatives falling as a descendant such as children,
grandchildren, great children and so on. All these categories fall under a prohibited relationship
under the Act.

Secondly, a relationship by affinity is also categorised as a prohibited relationship under this act.
In other words, if one is the husband or wife of their blood relative it falls under a prohibited
relationship.

For example, A marriage between the father-in-law and daughter-in-law or mother-in-law and
son-in-law or stepmother and stepson or stepfather and stepdaughter are thus within the degrees
of a prohibited relationship under this act.

Thirdly, a marriage with the wife or sister of any brotherly relation also falls under a prohibited
relationship.

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For example, If ‘A’ marries his adopted sister or If ‘B’ marries the wife of his pre-deceased
brother, then both the marriages are invalid since in the first case A is related to his adopted
sister by his parents and in the second instance B is related to the wife of his pre-deceased
brother by his own brother.

But, there is one exception to all these kinds of prohibited relationships, which is, if the custom
or usage governing each of the parties permits such a kind of marriage between them.

In Shakuntala Devi vs Amar Nath [AIR 1982 P H 221], Punjab and Haryana High Court held
that two persons can marry within the prohibited relationship but there should be a proof of
established custom i.e. very old and beyond human memory.

NOT WITHIN SAPINDA RELATIONSHIP – Section 5 (v)

According to the Mitakshara Law of Marriage ‘Pinda’ means body and therefore those who are
related by body or blood are sapindas among themselves.

According to the Mitakshara definition adopted by the Act, the extent of Sapinda relationship is
limited to 5 degrees in line of ascent/upwards through the father and 3 degrees in the line of
ascent/upwards through the mother. Any marriage that falls under the sapinda relationship is held
as an invalid marriage.

For example, Marriage between ‘X’ and his father’s sister falls under a sapinda relationship or if
‘P’ the daughter of ‘Q’ marries her mother’s brother or father, it would fall under the same
category of an invalid marriage.

But, in the same case as the previous rule, If the custom or usage governing each of them permits
of a marriage between the two, then such marriage is valid.

CONCLUSION

The above listed are the essential condition of a valid Hindu Marriage under Hindu Law. Hindu
Marriage is not only a sacrament but a contract too. As soon as the marriage is completed it gives
certain marital rights and duties to both husband and wife.

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Q7. Discuss the various theories of Divorce under Hindu

Marriage Law. Discuss consent theory of divorce.
Ans. Introduction:-

There are various theories of divorce under Hindu Law according to which a married couple can
give divorce, these theories are the reasoning given behind the separation or dissolution of
marriages.

Guilt or fault theory, mutual consent theory and irretrievable breakdown of marriage are mainly
three theories for divorce under Hindu law.

Guilt/Fault Theory of Divorce

In accordance with the guilt theory of divorce, the dissolution of marriage is only permissible if
one spouse has committed a matrimonial offence. This theory suggests that there must be an
innocent and guilty party and only the innocent party can seek the remedy of divorce.

Furthermore, there must be a personal injury to the marital relations of the individuals. However,
as a consequence of the guilt of one party, the other party must be completely blameless. This
poses a major drawback to this concept because if both parties are at fault, there is no remedy
available for the dissolution of the marriage.

The Hindu Marriage Act of 1955, as amended by the Marriage Laws (Amendment) Act of 1976,
includes nine grounds based on the guilt theory of divorce:

 Adultery

 Cruelty

 Desertion

 Insanity or mental disorder

 Conversion

 Venereal communicable disease

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 Leprosy

 Renunciation

 Presumption of death.

These grounds serve as legal justifications for a divorce if a party is found to be guilty of
committing one of these offences. However, it is important to note that the innocent party must
prove the guilt of the other party in court in order for a divorce to be granted based on the guilt
theory. Additionally, if both parties are found to be at fault, neither party can seek a remedy for
the dissolution of marriage under this theory.

Adultery

Adultery is considered a matrimonial crime under the guilt theory. Even under the
Shastric Hindu law, adultery was considered a sin. The offence of adultery is defined as
consensual sexual intercourse or voluntary extramarital affairs between a married person and
another married or unmarried person, not being the other’s spouse.

The Hindu Marriage Act, as amended in 1976, allows even a single act of adultery as sufficient
for the ground of divorce. It is necessary to prove that at the time of the act of adultery, the
marriage was lawful. Evidence for adultery can be established by circumstantial evidence or by
contracting venereal disease. In Swapna Ghose v. Sadanand Ghose, the court found sufficient
evidence of adultery when the wife found her husband and the adulteress lying together on the
bed at night.

Cruelty

The concept of cruelty includes both physical and mental cruelty. Acts of cruelty are behavioural
exemplifications specified by different factors in the life of spouses. Mental cruelty is a lack of
conjugal kindness of marital relations, which adversely affects the mental health of the spouse.

Some examples of cruelty are false accusations of adultery, demand for dowry, impotency,
drunkenness, threat to commit suicide, incompatibility of temperament, refusal to have marital
intercourse or children, etc. In Pravin Mehta v. Indrajeet Mehta, the court has defined the
cause of mental cruelty as the ‘state of mind.’

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Desertion

Desertion means the repudiation by one spouse of all the responsibilities of marriage, the
abandonment of one spouse by the other without any rational cause and without the consent of
the other.

The following five conditions must be co-existing to constitute desertion as a ground for divorce:
animus deserdendi, the factum of separation, desertion without the consent of the other party,
desertion without any reasonable cause and de jure period of two years must have run out before
filing a petition.

In Bipinchandra v. Prabhavati, the court states that where the respondent leaves the
matrimonial home with an intention to desert, he will not be guilty of desertion if he
subsequently shows an intention of returning but is prevented from doing so by the petitioner.

Insanity or Mental Disorder

Insanity or mental disorder is a ground of divorce where the person has been suffering from
incurable unsoundness of mind and the suffering should be continuous and the mental disorder of
the respondent is of such a kind and extent that the petitioner cannot reasonably be expected to
live with the respondent.

Conversion

Conversion is a ground of divorce where the other party has ceased to be Hindu by conversion to
any other religion.

Venereal Communicable Disease

A venereal communicable disease is a ground for dissolution of marriage under the fault theory
where the respondent is suffering from venereal disease, which is communicable in nature.

Leprosy

Leprosy is granted as a remedy for divorce and the obligation of proving this is on the petitioner.
However, The Personal Laws (Amendment) Bill, 2018, directs to remove leprosy as a ground for
divorce in five personal laws, including the Hindu Marriage Act.

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Renunciation

Renunciation of the world by entering into a holy order (sanyasa) is a ground for divorce only
under Hindu law. Modern codified Hindu law lays down the remedy for divorce that a spouse
may seek if the respondent has renounced.

Presumption of Death

Under the presumption of death, a person is presumed to be dead if the spouse has not been
heard of as being alive for a period of at least seven years. The burden of proof that the
whereabouts of the respondent is not known for the 7 years is on the petitioner under all
matrimonial laws.

This is a presumption of universal acceptance that aids proof and supports cases where it would
be extremely difficult, if not impossible, to prove that fact.

Mutual Consent Theory of Divorce

The Indian law provides for the dissolution of marriage through mutual consent in Section 13(B)
of the Hindu Marriage Act, by the Marriage Laws (Amendment) Act, 1976. This provision
acknowledges that marriage is a social contract that two individuals enter into voluntarily and
that they should be allowed to dissolve the marriage if they agree to do so.

The fault or guilt theory, on the other hand, requires one of the spouses to be guilty of some
matrimonial offence for the marriage to be dissolved. The mutual consent theory, in contrast,
recognizes that an unhappy marriage can give rise to misconduct and delinquency and that both
spouses should be granted the remedy of divorce if they agree to separate.

Critics argue that the mutual consent theory makes divorce difficult since it requires the consent
of both parties. However, if both parties agree, they can file a joint petition in court for divorce.
This theory is a positive effort towards preventing miserable cohabitation and protecting the
freedom of marriage by recognizing the freedom of divorce.

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Irretrievable Breakdown Theory of Divorce

The concept of irretrievable breakdown of marriage is a relatively recent addition to the grounds
of divorce and one of the theories of divorce under Hindu Law. It was introduced in the Hindu
Marriage Act in 1976 by the Marriage Laws Amendment Act.

Under this ground, a petition for divorce can be filed by either party, without having to prove any
specific fault or wrong-doing on the part of the other party. The only requirement is that the
marriage has broken down irretrievably and that there is no possibility of reconciliation between
the parties.

This ground of divorce is based on the recognition that in certain cases, it may be better for the
parties to end the marriage rather than continue in a relationship that has become acrimonious or
intolerable. In such cases, it is considered to be in the best interests of both parties to allow them
to move on with their lives and seek happiness elsewhere.

In cases where both spouses cannot live together peacefully and benefit from the marriage, it
may be better to dissolve the marriage through mutual consent rather than retaining an empty
shell. This theory presumes a de facto breakdown of the relationship. If the parties have been
living separately for a significant period of time (two or three years or more) with or without a
reasonable cause and all attempts to restore the foundation of the marriage have failed, it is
presumed by law that the relationship is entirely unworkable, emotionally and physically dead,
with no hope of resuming spousal duties.

In the landmark case of Naveen Kohli v. Neelu Kohli, the court held that the marriage bond was
beyond repair and the legal ties had to be severed because of the serious allegations of adultery,
cruelty and other types of misconduct made by both parties against each other. The Supreme
Court urged the Union of India to include ‘Irretrievable Breakdown of Marriage’ as a separate
ground for divorce under Section 13 of the Hindu Marriage Act, 1955 and amend the act.

The 71st Report submitted by the Law Commission of India in 1978 discusses the theory of the
Irretrievable Breakdown of Marriage, questioning the conditions, applicability and extent to
which this theory can be included as a ground for divorce under the Hindu Marriage Act.

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Currently, only the Supreme Court of India can grant a divorce on the ground of the theory of
irretrievable breakdown of matrimonial relationships.

Conclusion

The theories of divorce under Hindu Law provide us with various grounds for the dissolution of
marriage. The Hindu Marriage Act recognizes different theories of divorce under Hindu Law
such as fault or guilt theory, mutual consent theory and irretrievable breakdown theory.

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Q8. Discuss the various schools of Hindu Law in detail.

Ans. Introduction:-

Mitakshara and Dayabhaga are two schools of Hindu law that have shaped how inheritance laws
work in India.

Mitakshara is a school of Hindu law commonly followed in the western and Northern regions of
India. It originates from a commentary written by Vijnaneswara in the 12th century on the
Yajnavalkya Smriti. In this school, coparcenary is a key concept. This means that ancestral
property is owned jointly by all male family members, who share equal rights to it. The
Mitakshara school also acknowledges daughters’ right to inherit property, though with some
limitations.

Dayabhaga is another school of Hindu law mainly practised in the eastern parts of India,
particularly in Bengal. It comes from a commentary written by Jimutavahana in the 13th century
on the Yajnavalkya Smriti. Unlike Mitakshara, Dayabhaga doesn’t consider coparcenary.
Instead, it emphasises individual ownership of property. Inheritance of property in this school is
based on the principle of lineal succession, where the nearest male relative in the family inherits
the property. Daughters also have the right to inherit property under this school, but their rights
are more restricted and subject to specific conditions.

Both Mitakshara and Dayabhaga schools have significantly influenced the development of Hindu
personal and inheritance laws in India. The laws related to inheritance and succession in India
keep evolving due to changes in laws and court decisions, affecting the rights of heirs and the
rules governing inheritance.

History of Mitakshara and Dayabhaga Schools

The history of the Mitakshara and Dayabhaga schools goes back to ancient India. These schools
of Hindu law focus on property inheritance and individual rights to property.

Mitakshara School: The Mitakshara school was established by Vijnanesvara, a scholar from the
Chalukya dynasty in the 12th century. His work, the Mitakshara, is a respected text on Hindu

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law, specifically a commentary on the Yajnavalkya Smriti. This school is mainly followed in
North India and has wide influence.

In this school, the idea of family property is important, where all family members have a claim to
ancestral property. The property is inherited through the male lineage and sons share it equally.
The Mitakshara school also recognises the right to create a will to distribute property.

Dayabhaga School: The Dayabhaga School was founded by Jimutavahana, a 12th-century

scholar from Bengal. His work, the Dayabhaga, is a significant text on Hindu law in Bengal. This
school is mainly followed in Bengal and eastern India.

The Dayabhaga school emphasises personal ownership of property, allowing an owner to control
its distribution. It acknowledges women’s right to inherit property, ensuring daughters receive an
equal share of ancestral property. Unlike the Mitakshara school, joint family property isn’t a
recognised concept here.

The Mitakshara and Dayabhaga schools differ in their views on property ownership and
inheritance. While Mitakshara promotes joint family property, Dayabhaga supports individual
ownership. These schools have shaped India’s legal system and continue to be practised across
the country.

Mitakshara and Dayabhaga Schools

Mitakshara School

The Mitakshara school is a branch of Hindu law focused on inheritance and succession. The term
“Mitakshara” means “commentary,” and the school is named after a text called the Mitakshara,
which explains the Yajnavalkya Smriti.

Primarily practised in northern and western India, the Mitakshara school centres around joint
family property. This means that property belongs collectively to the entire family rather than
individual members.

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Within the Mitakshara school, there are four ways property is inherited:

 by birth

 by adoption

 by will and

 by survival

The school also recognises coparcenary, ensuring all male descendants of a common ancestor
share equal rights to ancestral property.

Stridhana, another concept in the Mitakshara school, refers to property women inherit through
gifts or inheritance. This property is absolutely owned by the woman and can’t be taken by her
husband or family members.

Sub Schools within the Mitakshara school:

1. Banaras School: Based in Banaras, this sub-school emphasises traditional Hindu texts as the
ultimate authority in law, advocating strict adherence to them.

2. Mithila School: Found in the Mithila region (parts of Bihar, Jharkhand, Nepal), this branch
promotes equal inheritance rights for daughters, differing from the traditional belief that only
sons inherit.

3. Maharashtra School: Operating in Maharashtra, this sub-school interprets the law more
liberally. It supports individual ownership rights, even if it contradicts joint family rules.

4. Andhra School: In Andhra Pradesh, this branch emphasises coparcenary, where the ancestral
property is jointly owned by male heirs. Daughters’ rights are not considered equal here.

5. Dravida School: Prevalent in Tamil Nadu and Kerala, this school emphasises religious
freedom, allowing individuals to follow their own beliefs despite traditional Hindu law.

These sub-schools emerged due to varying interpretations and regional influences. Though
differing in some aspects, they all focus on joint family ownership and inheritance within the
broader Mitakshara tradition.

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Dayabhaga School

The Dayabhaga school is one of the two main schools of Hindu law in India, the other being the
Mitakshara school. This school is predominantly practised in the eastern parts of India, notably
in Bengal, Assam, Orissa and parts of Bihar.

The term “Dayabhaga” comes from Sanskrit, where “Daya” means compassion and “Bhaga”
means share. This school places more importance on an individual’s right to property compared
to the Mitakshara school. In the Dayabhaga school, an individual has complete control over their
property’s distribution. Sons and daughters do not inherently inherit their parent’s property;
inheritance follows either the deceased’s will or rules of inheritance based on the closeness of the
relation.

The Dayabhaga school is renowned for its commentary on the Manusmriti (Hindu law code),
authored by Jimutavahana. This commentary, known as the Dayabhaga, serves as the primary
legal source for this school.

Within the Dayabhaga school, several sub-schools have emerged over time, each with distinctive
features and interpretations:

 Bengal School: This traditional sub-school highlights the mother’s role in inheritance
and treats her equally with the father. It recognises a son’s right to inherit all his father’s
property and emphasises joint family property.

 Mayukha School: Based on the Mayukha commentary on the Yajnavalkya Smriti, this
sub-school emphasises the eldest son’s right to inherit all paternal property and
acknowledges the father’s freedom to divide property as desired.

 Vyavahara Matrika School: Drawing from the Vyavahara Matrika commentary, this
sub-school stresses the role of written documents in determining inheritance. It
acknowledges daughters’ and widows’ right to inherit property.

 Dattaka Mimamsa School: Built on the Dattaka Mimamsa text on adoption, this sub-
school highlights adoption’s significance in inheritance. It considers the adopted son’s
rights equal to those of a natural-born son.

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 Nirnaya Sindhu School: This sub-school, influenced by the Nirnaya Sindhu

commentary, emphasises customs in determining inheritance and validates the father’s
right to divide property as desired.

These sub-schools within the Dayabhaga tradition offer diverse interpretations and features,
shaping the laws of inheritance and succession in eastern India.

The difference between Mitakshara and Dayabhaga Schools can be summarised as:

Parameters Dayabhaga Mitakshara

Joint Family Includes both male and

Focuses on male members of the family
System female family members

Right to Children gain rights after Sons, grandsons and great-grandsons have
Property father’s death rights by birth

Involves physical
Partition separation and individual Partition is based on defined shares
ownership

Provides stridhan and equal

Rights of Women have limited rights and can’t demand
rights in husbands’
Women partition
property

Considered a more liberal

Features Considered a more conservative system
system

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Conclusion

The Dayabhaga and Mitakshara schools are two distinct branches of Hindu law that govern
inheritance and succession practices in India. The Dayabhaga school, mainly followed in eastern
regions like Bengal, Assam and Orissa, emphasises individual ownership and property rights. In
this school, property inheritance is determined by the deceased’s will or rules based on the
proximity of the relationship and sons inherit only after the father’s demise.

Conversely, the Mitakshara school, prevalent in northern and western parts of India, emphasises
joint family ownership. It recognises coparcenary, where sons have an equal share in ancestral
property by birth and partition occurs through defined shares. The Mitakshara and Dayabhaga
schools’ differences significantly impact property rights, inheritance patterns and family
dynamics within the Hindu community, showcasing the diversity and complexity of Hindu legal
traditions.

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Q9. Discuss the condition for a valid marriage under the

Muslim Law.
Ans. Introduction

In Muslim communities certain social functions and ceremonial rites are performed at the time of
marriage, such functions or rites are not legally necessary. The solemnization of marriage
requires adherence to certain forms in formulas. If any of these requirements is not fulfilled the
marriage becomes either void or regular, as the case may be. Some of the important essentials are
as follows-:

 Proposal and acceptance

 Free will and consent

 Competent parties

 No legal disability

Proposal And Acceptance

Marriage like any other contract is constituted by Ijab-O-Qabul, that is by declaration and
acceptance. One party to the marriage must make an offer (Ijab) to the other party. Marriage
becomes complete only when the other party has accepted (Qabul) that offer. According to
Muslim marriage it is absolutely necessary that a man or someone on his behalf and the woman
or someone on her behalf should agree to the marriage at one meeting and agreement should be
witnessed by to two aldut and sane witnesses.

In the case of Mst. Ghulam Kibriya vs Mohammad Shafi, AIR 1940, it was observed by the
court that ” as the woman is in Purdah, it is customary to send a relation of the woman to her
inside the house accompanied by two witnesses. The relation asks the girl within the hearing of
the two witnesses whether she authorises her to agree to the marriage on her behalf for the
dower money offered by the husband. When the girl says Yes or signifies her consent by some

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other method, the three people come out. The future husband and those three people are then
placed before the Qazi. The Qazi asks the boy whether he offers to marry the girl on payment of
the specified dower. He says Yes, then the relation who had gone inside, consents on behalf of
the girl. The witnesses are present there so if the Qazi has any doubts he can question them.
When both sides have said ‘Yes’, Qazi then reads some portion of the Quran and in this way
marriage is completed.”

In the case of Mst. Zainaba vs Abdul Rehman, AIR 1945, the court held that ” There is no
particular form in which the proposal and acceptance should be made. The offer (Ijab) and
acceptance (Qabul) may be either oral or in writing. Where the words of offer are laid down in a
written document, such a document is called Kabin-Nama which is an important documentary
evidence of marriage. The words must indicate with reasonable certainty that a marriage has
been contracted. There must be no ambiguity, no questions of intention to marry at some future
time. It is necessary that the words of proposal and acceptance should be such as to show
intention to establish the conjugal relation from the moment of acceptance.”

Free will and consent

Another important essential is that parties contracting a marriage must be acting under their free
will and consent. The consent should be without any fear or undue influence or fraud. In the
case of a boy or a girl who has not attained the age of puberty, the marriage is not valid unless
the legal Guardian consented to it. The consent may be expressed or implied; smiling or laughter
or remaining silent may be construed to imply consent. Free consent in the case of an adult
person is not only an essential factor for a valid marriage, but is also necessary and the father’s
consent is no substitute for the girl’s consent.

In the case of Sayad Mohiuddin vs Khatijabai, where marriage of a Shafei Girl, who had
attained puberty was performed by her father against her consent, the court held that marriage
was void.

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Competent Parties

For a marriage to be valid, the parties must be competent to give their consent without any fear
or undue influence. There are many factors which determine the competency of the parties to the
marriage. Some of them are as follows:

Age Of Marriage

The parties to a marriage must have the capacity of entering into a contract, In other words, they
must be competent to marry, Muslim who is of sound mind and who has attained puberty may
enter into a contract of marriage. The parties must be able to understand the nature of their act. A
marriage contracted by a majnoon (lunatic) is void except when it is contracted in lucid
intervals. However, lunatics can be contracted in marriage by their respective guardians.

Puberty

Another important factor to determine whether the parties are competent is puberty. Puberty
means the age at which a person becomes capable of performing sexual intercourse and
procreating children. Puberty and majority are in the Muslim law one and the same. The
presumption is that a person attains majority at the age of 15 but the Hedaya lays down that the
earliest period for a boy is 12 years and a girl 9 years. Majority is presumed among the Hanafis
on the completion of the fifteen years, in the case of both males and females,, unless there is any
evidence to show that puberty was attained earlier. In the case of a Shia female, the age of
puberty begins with menstruation. It has been held by the Privy Council in Sadiq Ali Khan vs
Jai Kishori, that the age of majority in the case of a Shia girl is attained at the age of nine years
Muslim law.

Minor’s Marriage and Guardianship

It should also be noted that marriage of minors without the consent of a Guardian is invalid
unless it is ratified after the attainment of majority. A boy or a girl who has attained puberty is at
liberty to marry any one he or she likes and the Guardian has no right to interfere. The right to
contract to give a minor in marriage under Sunni law belongs successively to the following
people:

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 Father,

 Paternal grandfather how high soever,

 Brother and other male relation on father’s side enumerated in the table of residuaries,

 The mother,

 The maternal uncle aur aunt and the other maternal relations without the prohibited
degrees,

 Lastly, the state.

No Legal Disability

Under Muslim law, marriage is not permitted under certain circumstances.

The restrictions/prohibition can be divided into two parts:

i. Absolute Prohibition

ii. Relative Prohibition

iii. Miscellaneous Prohibition

Absolute Incapacity

It arises from Consanguinity, Affinity and Fosterage.

Consanguinity (Qurabat)– Consanguinity means blood relationship and bars a man from
marrying:

(i) his mother or grandmother how high soever,

(ii) his daughter or grand-daughter how low soever,

(iii) his sister whether full, consanguine or uterine,

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(iv) his niece or great-niece how low soever,

(v) his aunt (father’s sister, mother’s sister) or great aunt, how high soever, whether paternal or
maternal.

A marriage with a woman prohibited by reason of consanguinity is void and issues from such
marriage are illegitimate.

Affinity (Mushaarat)- A man is prohibited from marrying:

(1) his wife’s mother or grand-mother how high soever;

(2) his wife’s daughter or grand-daughter how low soever

(3) wife of his father or paternal grand-father how high soever;

(4) wife of his son or son’s son or daughter’s son how low soever.

A marriage with a woman prohibited by reason of affinity is void. Marriage with the wife’s
daughter or grand-daughter is prohibited only if the marriage with the wife was consummated.

Fosterage (Riza)- When a child under the age of two years has been suckled by a woman other
than its own mother, the woman becomes a foster-mother of the child. A man may not marry his
hostel mother or her daughter, or his Foster sister. However under Sunni law there are few
exceptions to the general rule of the prohibition on the grounds of Fostage and a valid marriage
may be contracted with:

1) Sister’s foster-mother

2) Foster- sister’s mother

3) Foster son’s sister

4) Foster bother’s sister

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Relative Prohibition:
Under Muslim law, certain prohibitions are relative and not absolute. If marriage takes place in
violation of such prohibition, it is only irregular and it can't be declared as void. The marriage
becomes valid as soon as the irregularities are removed.

Relative prohibitions are as follows:

a. Unlawful Conjunction:
A Muslim man is prohibited to marry two different women if they are related to each
other by means of consanguinity, affinity or fosterage as if they would have been of
opposite sexes their marriage would have been void (batil). After the termination of
marriage/ death of his wife, marriage can take place with the other. Under Sunni law,
Marriage in violation of unlawful conjunction is irregular (fasid) and not void but under
Shia law, a marriage violating the rule of unlawful conjunction is void (batil).

b. Polygamy:
Muslim laws allow polygamy but it is restricted to a maximum of four wives. A Muslim
man can have four wives at a time, but if he marries the fifth one despite of having four
wives, the marriage turns to be irregular and not void. The fifth marriage can be valid
after death/ termination of marriage of one of the four wives. However, the Shia law
considers marriage with the fifth wife as void. In India, a Muslim marriage can't have a
second marriage if his marriage is registered under The Special Marriage Act, 1954.

c. Absence of Proper Witness:

Contracting of marriage must be done in the presence of proper and competent witnesses.
Under the Shia law, presence of witness is not essential and marriage without witnesses is
considered as valid. Marriage is contracted by the parties themselves (if major) or by
their guardians itself. Under Sunni law, presence of witness is essential else the marriage
would be irregular. At least two male or one male and two female witnesses should be
present and the witness should be a major, of sound mind and a Muslim.

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d. Difference of religion:
Under the Sunni law, a Muslim male is allowed to marry a female who shows respect for
same scriptures, such as Christain, Parsi and Jews, but if he marries with an idol/ fire
worshipper, the same is considered as irregular. A Muslim woman is not allowed to
marry a non-Muslim man and if it happens, the same is considered as irregular. Under the
Shia Law, a marriage with non-Muslim is considered as void. According to Fyzee, such
marriage is void, but According to Mulla, such a marriage is irregular.

e. Marriage during Iddat:

It is referred to as a period of waiting after the death of her husband or after termination
of marriage during which she cannot remarry. The purpose of the iddat is to check
whether the woman is pregnant or not to clear doubts of paternity of any child born. A
divorced woman has to observe for a period of three months whereas a widow observes it
for four lunar months and ten days after the death of husband. If the woman is pregnant
then if extends up to her delivery. Under Sunni law, marriage during iddat is considered
as irregular whereas, under Shia law, it is considered as void.

iii. Miscellaneous Prohibitions:

a. Marriage during pilgrimage is considered as void in Shia law.

b. Re-marriage between Divorced Couple:

A certain procedure needs to be followed in which a Muslim lady has to perform a valid
marriage with another man. Then her husband needs to voluntarily divorce her. Then the
lady needs to perform iddat. Now she can marry her previous husband. If this procedure
is not followed the marriage is considered as irregular.

c. Polyandry:
It refers to a condition in which a woman can have more than one husband. It is not
permitted under Muslim law.

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Q10. Discuss cruelty as a ground of Divorce.

Ans. Introduction:-

What is cruelty?

Cruelty refers to violent acts. However, a mere quarrel, petty outrageous behaviour or differences
between the spouses does not come in the ambit of cruelty because this is something that is
common in a day to day married life. Conducts that would amount to cruelty should be grave and
severe in nature. Grave violence doesn’t always mean physical violence. Though physical
violence is an essential factor that constitutes cruelty but apart from that a continuous process of
ill-treatment or mental or physical torture to either of the spouse would also amount to cruelty.

Types of cruelty

Cruelty may be classified as physical cruelty and mental cruelty.

Physical cruelty:

Any physical violence, bodily injuries, or a threat to life, limb, or health would be considered
physical cruelty on the spouse. Assault is a serious offence and is defined under section 351 of
the Indian Penal Code. Section 320 of the Indian Penal Code defines grievous hurt.

Mental cruelty:

Mental cruelty has gained acceptance in today's society, despite the fact that it is difficult to
prove in court due to the lack of tangible consequences. Cruelty does not always have to be
physical pain. It can also be an emotional pain. The Black's Law Dictionary (8th ed., 2004)
defines the term "mental cruelty" as “without actual violence, the behavior of a spouse that
endangers life, physical health, or mental health of the other spouse.”

Cruelty as a ground for Divorce

The day to day situations in a matrimonial life creates an ambiguity within the couples to lead
their life with each other peacefully. Although there is no such exhaustive definition to what all

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condition would lead to an offence of cruelty but if we go through a case of marital abuse
happening around us, then we can conclude of certain conditions such as:

 The physical violence on the spouse.

 Having affairs or committing adultery with not just the spouse’s knowledge but even
publically accepting it.

 And also in cases where either of the spouses is falsely accused of committing adultery.

 The constant manifestation of agony, rage with the addition of yelling or abusing at the
spouse.

 Demoralizing and restricting the spouse by every means to be an independent individual

and compelling the spouse to be in a marital relationship where the spouse is left with no
other option but to depend on the other.

 Not disclosing any fact or incident of an acquired sexually transmitted disease while they
are already into marital life.

The conduct by either of the spouse should be of such a nature which should fall in the ambit of
cruelty under the Matrimonial Law. The Court needs to look after all the background and
circumstances because of which the couple wants to get separated. Basically, the Court has to
investigate the reason for the deterioration of the marriage.

How cruelty was established as a ground for divorce

If we study the history of the Hindu Marriage Act, 1955, cruelty was never taken into
consideration as a ground for divorce but was applied only in cases of judicial separation. Here
the aggrieved party or the petitioner has to prove that the cruelty is so grave or so unbearable that
it is getting difficult to carry forward with his or her spouse (the defender). But this was upheld
by the Supreme Court in a landmark case of Narayan Ganesh Dastane Vs. Sucheta Narayan
Dastane in 1975.

This led to an amendment in the Act where cruelty as a ground for divorce was added into the
Act with the inclusion of legal definition to the term cruelty under this Act in 1976. However, the

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Court also held that the courts should decide the case on grounds of cruelty only based upon the
subject matter of the case. After the amendment in this act, there was not much distinction
between the grounds of cruelty resulting in judicial separation and grounds of cruelty resulting in
divorce except for two words that are added are “persistently or repeatedly”. By this addition, the
establishment of cruelty as a ground for divorce was given much more importance than proving
it as a ground for judicial separation. This ground was added under Section 10(1) of the Hindu
Marriage Act,1955 and now “Cruelty” has a self-contained definition.

Other provisions under the law

Section 498A of IPC deals with the offence of cruelty against a wife by her husband and/or in-
laws.

Ingredients of Section 498A

 The woman must be legally married to her husband.

 The woman must have been subjected to some sort of cruelty or marital abuse.

 Such cruelty must be done by her husband himself or the relatives of the husband and
here the terms relative only includes the husband’s parents, brothers and sisters and
nobody other than them, not even any close friend or any distant relatives.

 However, if the husband commits such cruelty he shall be liable for imprisonment which
may extend to three years with fine.

Who can seek for divorce on the ground of cruelty?

Either of the spouses can seek the decree of divorce on the ground of cruelty that is to say the
ground is available for both husband and wife and both can file a case against the other.

Divorce case is dealt in which court?

Generally, divorce petition is filed in the district court or family court where either of the
partners resides. Later, the party not satisfied with the verdict of the family court can file appeal
petition in the High Court and then in the Supreme Court if necessary.

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Landmark Cases:

In the case of V. Bhagat vs. D. Bhagat (1994), the wife claimed in her written statement that her
husband had "mental problems and paranoid disorder." While the husband was being cross-
examined, the wife's lawyer levelled accusations of "lunacy" and "insanity" against him and his
family. The supreme court ruled that leveling such allegations by the wife against the husband
constituted "cruelty."

In the case of Vijaykumar Ramchandra Bhate vs Neela VijayKumar Bhate, (2003), In his
written statement, the husband claimed that his wife was "unchaste" and had "indecent
familiarity" with someone outside of marriage, and that she was having an extramarital affair.
Given the context of an educated Indian woman, such allegations by the husband constituted
mental cruelty on the wife.

In Mayadevi vs. Jagdish Prasad (2007), the court determined that any type of mental cruelty
suffered by any spouse, not just the woman, but also the man, could result in divorce on the
ground of cruelty. In this case, the respondent filed for divorce as a result of his wife's repeated
acts of cruelty, including the husband's (respondent's) allegation that the wife refused to feed him
and his children and instead criticized the husband and his family members on a daily basis.

Conclusion

It is true that there are a lower number of complaints lodged for divorce on grounds of cruelty.
Because people any way prefer settling themselves with whatever condition they are in. But you
need to understand that the provisions made are going to help and safeguard you from ill-
treatments. So, laws may vary according to particular State Laws or the grounds which would
fall under the scope of cruelty. So in my opinion, if at all any of you want to know about the
grounds that would fall under the scope of cruelty then you should consult a local lawyer or
study the related statutes of your state.

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Q11. Distinction between Valid, void and Voidable Hindu

marriage.
Ans. Types of Marriage

There are three types of marriage-

 Valid Marriage

 Void Marriage

 Voidable Marriage

Valid Marriage

Section 5 of the Hindu Marriage Act,1955 states the conditions for a valid marriage. A marriage
can be said valid, if it fulfils following conditions:

 None of these parties have spouses living at the time of the marriage.

 During the time of the marriage, neither party should be-

1. Incapable of giving valid consent due to the unsoundness of mind.

2. Suffering from mental disorder to an extent as to be unfit for marriage and procreation of
children.

3. Subjected to repeated attacks of insanity.

 Age- The bridegroom must be 21 years or above and the bride must be 18 years or above.

 The parties are not in a degree of prohibited relationship.

 Parties are not sapindas (blood relation) to each other.

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Nullity of Marriage

If there are any impediments (obstructions), then the parties cannot marry each other. If someone
marries and there are any obstructions in the marriage process then it is not a valid marriage.
Impediments are divided into two types which are: absolute impediments and relative
impediments.

In absolute impediments, a fact that disqualifies a person from lawful marriage exists and the
marriage is void i.e an invalid marriage from the beginning.

In relative impediments, an impediment that forbids marriage with a certain person exists and the
marriage is voidable i.e one party can avoid the marriage. These impediments gave rise to the
classification of marriage which are:

 Void Marriages

 Voidable Marriages

Provision of Void and Voidable Marriages under Hindu Marriage Act, 1955

Void Marriages (Section 11)

A marriage is considered void under the Hindu Marriage Act if it doesn’t fulfils the following
conditions of Section 5 of the Hindu Marriage Act:

 Bigamy

If any of the parties have another spouse living at the time of marriage. It shall be considered as
null and void.

Illustration: there are three parties ‘A’,’B’ and ‘C’ where ‘A’ has a living spouse ‘B’, but he
again marries to ‘C’ then this will be called as bigamy and it will be void.

 Prohibited Degree

If the parties are within a prohibited relationship unless the customs allows it.

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Illustration: there are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is his wife. They
both went on a relationship which is prohibited by law. This marriage can also be called void
marriage.

 Sapindas

A marriage between the parties who are sapindas or in other words a marriage between the
parties who are of his or her relations or of the same family.

Illustration: there are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is the wife, who
has blood relation or close relation to A which can also be termed as Sapinda. So, this process
will be treated as void.

Consequences of a Void Marriage

The consequences of void marriage are:

 The parties don’t have the position of husband and wife in a void marriage.

 Childrens are called legitimate in a void marriage (Section 16 of Hindu Marriage Act,
1955).

 Mutual rights and obligations are not present in a void marriage.

Voidable Marriages (Section 12)

A marriage is voidable on either side of the party is known as voidable marriage. It will be valid
unless the petition for invalidating the marriage is made. This marriage is to be declared void by
a competent court under the Hindu Marriage Act, 1955. The parties of such marriage have to
decide whether they want to go with such marriage or make it invalid.

The grounds where marriage can be termed as voidable:

 The party to the marriage is not capable of giving consent due to the unsoundness of
mind. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’
is his wife. ‘B’ gave the consent of the marriage when she was suffering from an unsound
mind. After some years, ‘B’ gets cured and raised that her consent was invalid and this

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marriage is voidable because during the time of the consent of ‘B’, she was in an unsound
mind. So, this a ground of voidable marriage.

 The party is suffering from mental disorder which makes her unfit for reproduction of
children. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and
‘B’ is his wife. If ‘B’ is suffering from mental disorder due to which she is unfit for
reproduction of children. Then this can be a ground for voidable marriage.

 If the party has been suffering from repeated attacks of insanity. Illustration: There are
two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. Anyone from ‘A’
or ‘B’ is suffering from repeated attacks of insanity, then this can also be a ground for
voidable marriage.

 The consent of marriage by either of the parties is done by force or by fraud. Illustration:
There are two parties ‘A’ and ‘B’ where A is the husband and B is his wife. If either party
gave consent to the marriage by force or fraud, then it will be a voidable marriage.

 If either of the parties are under-aged, bridegroom under 21 years of age and bride under
18 years of age. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband
and ‘B’ is his wife. If ‘B’ is under the age of 18 years then this marriage will be
considered as voidable or if A is under the age of 21 years then it can also be considered
as voidable marriage.

 If the respondent is pregnant with a child of someone other than the bridegroom while
marrying. Illustration: There are two parties ‘A’ and ‘B’ where ‘A’ is the husband and
‘B’ is his wife. During the time of the marriage if ‘B’ is pregnant through another person.
Then the marriage would be voidable.

Legitimacy of Children under Void and Voidable Marriages

 Legitimacy of children under void and voidable marriages are specified under Section 16
of Hindu Marriage Act, 1955.

 In a void marriage, any children born out shall be treated as legitimate.

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 In a voidable marriage, any child born of a marital relationship subsequently declared as

nullity by court shall also be termed as legitimate.

 Even if the marriage under Section 11(void marriage) or Section 12 which is declared as
null and void, notwithstanding such circumstances the child born out of such marriage is
held to be legitimate.

 If prior to the marriage, the bride was pregnant and gave birth to the child after the
marriage, such a child cannot be treated as legitimate because that child was not born out
of the marital relationship of the present marriage and therefore, the child born after the
marriage having been conceived prior to the marriage is to be held
illegitimate. Illustration: If there are two parties ‘A’ and ‘B’ where, ‘A’ is the husband
and ‘B’ is his wife. During the time of the marriage ‘B’ is pregnant through another.
After the marriage of ‘A’ and ‘B’, the child born does not come from the marital
relationship of ‘A’ and ‘B’. That child will be termed as illegitimate.

Conclusion

Prior to the Hindu Marriage Act, 1955 the parties to the marriage had no remedy to get out of the
marriage. Section 11 and Section 12 of Hindu Marriage Act, 1955 is a remedy for the parties,
who are in a void and voidable marriage. After the enactment of the Amendment Act, 1976 the
child born out of void and voidable marriage shall be termed as legitimate. There are certain
grounds for valid marriage under Section 5 of the Hindu Marriage Act,1955, if someone violates
it then it amounts to void marriage or voidable marriage.

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Q12. Types of marriages under Hindu law.

Ans. Introduction

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

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

Forms of Marriage According to Hindu Law

The historic textual regulation provided for eight types of marriage, 4 of them have been
approved and four others were disapproved. The felony consequences in approved and
unapproved varieties of marriage are not similar.

Approved Forms:

1. Brahma Form:

In this structure of marriage, the father of the girl respectfully invites the bridegroom at his
residence, worships him and gives him the female as his spouse along with a pair of great clothes
and adorns etc. Here the father does now not take delivery of any consideration in trade of bride
and does now not choose the bridegroom with a view to increase his own career etc. A widow
should now not be remarried under this structure of marriage

2. Daiva:

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In this form of marriage, a properly decorated bride is provided to the priest who performs non
secular acts and rituals for the religious advantages of the father of the bride.

3. Arsha:

In this structure of marriage, the bride is offered to a person, from whom the father has usual a
pair of cow or bull for spiritual rituals only

4. Prajapatya:

In this form the bride’s father, decorates the bride with colourful attires and after worshipping
her, offers her to the bridegroom, making a recitation to the effect that they (bride and
bridegroom) together may act religiously throughout and prosper and flourish in life. In this form
of marriage, it is not necessary that the bridegroom should be a bachelor as in the Brahma form.

Unapproved Forms:

5. Asura Form:

This shape of marriage, the bridegroom after having given wealth as tons as it is within his
capability to the father and paternal kinsman or to the damsel herself takes her voluntarily as his
bride of course with the consent of her father. This structure of marriage has a placing
resemblance with a sort of buy of bride as the father or the woman herself has already taken
money and the father or guardian later giving his consent to marry the woman in lieu of cash
taken.(Chunnilal v.Suraj,38Bom.433) [1]i

6. Gandharava:

In this shape of marriage there is a union of the bride and bridegroom by means of mutual
consent stimulated through their mutual love and sexual instincts. Infatuated by way of their
bond of love, the bride and the groom establish a bodily union except having carried out any
spiritual rites and ceremonies

7. Rakshasa:

In this form of marriage, the girl is forcibly kidnapped and married to a person, who intends to
marry her but her father is not willing. There is an attack on the bride’s parents or guardian who

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is either killed or wounded and thereafter breaking open the door or securing forcible entry into
the house, the people at the groom’s side take away the girl, weeping, vailing and crying for
help. This type of marriage is still prevalent in the Gonda castes of Barrar and Betul (Madhya
Pradesh).

8. Paishach:

According to Dharma shastras this is the most condemnable form of marriage. In this type of
marriage sexual intercourse is done with a girl, while she is asleep, or brought in a state of drunk
or after she is administered some drug and has lost consciousness temporarily or who is of
immature understanding. After the girl is ravished, she is married to one, who has been guilty of
such heinous crime.

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Q13. Maintenance under Hindu Adoption and Maintenance

Act,1956.
Ans. Introduction:- Maintenance has been defined in the sec.3(b) of the Act and it is used in the
wide sense. It defines that ‘providing food, clothing, shelter, education, and medical expenses’
and in case of unmarried daughter, it includes reasonable expenses of her marriage. It is mainly
financial support paid by the spouse or father that covers all the necessities of life.

Right of Maintenance under Hindu Adoption and Maintenance Act, 1956

It includes −

Maintenance of Wife

Following the divorce, usually, the wife is entitled to have maintenance from her husband. The
idea behind this is to provide means of subsistence and allow her to maintain the comfort and
lifestyle she enjoyed during her marriage.

 There is no set minimum or maximum for maintenance; the amount will be determined
by the court based on the husband's earning potential.

 The maintenance should be substantial if the husband is well off in order to match the
opulent lifestyle the woman was accustomed to before the marriage.

 If this is not the case, it must be a sum that is sufficient to cover all of her justifiable
needs.

Maintenance of Widowed Daughter-in-law

The husband is required to pay his wife alimony following the divorce. But if the bride's husband
passes away, it is the father's responsibility to provide alimony. Section 19 of the Act specifies
that

A Hindu wife, shall be entitled to be maintained after the death of her husband by her father-in-
law, provided and to the extent that she is unable to maintain herself out of her own earnings or
other property or, where she has no property of her own, is unable to obtain maintenance―

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 From the estate of her husband or her father or mother, or

 From her son or daughter, if any, or his or her estate.

Further, sub-section (2) of the same provision states that any obligation under sub-section (1)
shall not be enforceable if the father-in-law has not the means to do so from any coparcenary
property in his possession out of which the daughter-in- law has not obtained any share, and any
such obligation shall cease on the remarriage of the daughter-in-law.

Maintenance of Children and Aged Parents

The Section 20 of the Act specifies −

As per this provision, a Hindu is bound, during his or her life-time, to maintain his or her
legitimate or illegitimate children and his or her aged or infirm parents.

Furthermore, sub-section (2) states that a legitimate or illegitimate child may claim maintenance
from his or her father or mother so long as the child is a minor.

Lastly, sub-section (3) states that the obligation of a person to maintain his or her aged or infirm
parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter,
as the case may be, is unable to maintain himself or herself out of his or her own earnings or
other property.

Maintenance of Dependants

The word "dependent" was not used in Hindu law before 1956. Dependent people rely on their
parents, siblings, or other family members for support. According to Section 21 of the
legislation, "dependents" in the context of this act refer to the father, mother, widow who hasn't
remarried, and a minor son, grandson, or great-grandson with a deceased father and grandpa.
Support must be given if the deceased was unable to make dependents independent.

 The definition of dependent persons in Section 21 of the Act and their right to care in
Section 22 are both made clear.

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Maintenance of Father and Mother

Along with variations in the weather and in social demands, the family structure also fluctuates.
As we have seen today, families are becoming more nuclear and are refusing to take on parental
duty.

 The Kerala High Court ruled in the case of Areefa Beedi v. K.M. Sahib that "The
sentence of the father or mother must be read as the meaning of the father and mother."
The next most crucial query pertaining to this rule is: according to this rule, the terms
"father" and "mother" refer to "adoptive father or mother" and "adoptive father or
stepmother," respectively.

 The General Conditions Act of 1897 stipulates that a "father" must be an "adoptive
father," but there is still a "mother."

Maintenance of the Children

The responsibility to care for children is a human responsibility that results from the close bond
between parents and their offspring. As in the past, only the father has a legal obligation to raise
the child. Both parents and legitimate and illegitimate offspring now have obligations under
contemporary Hindu law.

 In the case of Ramakrishnan, T. Vimala, and Others, when the topic of "Eligibility of
Children to Claim Maintenance" was brought up, it was decided that minor children who
do not have any physical or mental disabilities could request maintenance from their
father.

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