Program:

B.A./B.B.A.LL.B.
Semester: IV
SUBJECT: FAMILY LAW I
• Definition of Family
1. Maciver & Page: “Family is by far the most important primary group in society. The
family is a group defined by sex relationship sufficiently precise and enduring to provide
for the production and upbringing of children”.

2. Kingsley Davis: Family is more or less durable association of husband and wife with or
without children or of a man or women alone, with children.

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• Definition of Family
3. Burgess and Locke: The family is a group of persons united by the ties of marriage, blood
or adoption; constituting a single household, interacting and communicating with each other
in their respective social role of husband and wife, mother and father, brother and sister;
creating a common culture.

4. Elliot and Merill define family as “biological social unit composed of husband, wife and
children.

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Basic Concepts:
The confusing variety of family forms, noticed in societies throughout the world in the course
of human history, is a cultural phenomenon of considerable interest.
For instance, with regard to residence some societies are Matrilocal in their marriage and
family customs, while others are Patrilocal.
Matrilocal: The young married couple takes up residence at the home of the bride's parents.
Patrilocal: The couple takes up residence at the home of the bridegroom's parents.
Residence in most parts of India is Patrilocal in that it gives to the husband and not the
wife the right to choose the place of residence after marriage.

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Basic Concepts: Lineage
From the point of view of lineage, there are three different systems for tracing descent;
1. Matrilineal society: The descent is traced through the female line and female hold the
dominant position in the family in decision-making and house hold activities.
2. Patrilineal society: The descent is traced through the male line and male holds the superior
position in the family by making decision and managing the family and its members in
authoritarian way.
3. It is also common to trace descent bilaterally in some societies.

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Basic Concepts: Family Systems
Conjugal Family: The family form by the marriage. It consists of Parents and their children.

Consanguine Family: Family by blood, based on the membership type of the family.
Consanguine family is made up of both parent and the units' blood relatives, such as, mother,
her children, her parents or father, his children, his parents etc.

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Basic Concepts: Family Systems
Nuclear Family: Refers to a couple with or without children.
a) Supplemented Nuclear Family: Indicates a nuclear family plus one or more unmarried,
separated, or widowed relatives of the parents, other than their unmarried children.
b) Sub Nuclear Family: Identified as a fragment of a former nuclear family for instance a
widow/widower with her/his unmarried children or siblings (unmarried or widowed or
separated or divorced) living together.

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Basic Concepts: Family Systems
c) Single Person Household
d) Supplemented Sub Nuclear Family: Refers to a group of relatives, members of a formerly
complete nuclear family along with some other unmarried, divorced or widowed relative who
was not a member of the nuclear family.
For instance, a widow and her unmarried children may be living together with her widowed
mother-in-law.

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Basic Concepts: Family Systems
Joint Family
Joint Family consists of a man and his wife and their adult sons, their wives and children, and
younger children of the paternal couple. In this ideal type the oldest male is the head of the
family. The rights and duties in this type of family are laid down to a great extent by the
hierarchical order of power and authority.

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Basic Concepts: Family Systems
Joint Family
a) Collateral Joint Family: It comprises two or more married couples between whom there is
a sibling bond. In this type, usually a brother and his wife and another brother and his wife
live together with unmarried children.
b) Supplemented Collateral Joint Family: It is a collateral joint family along with
unmarried, divorced or widowed relatives. The supplemented relatives are generally the
widowed mother of the married brothers or the widower father, or an unmarried sibling.

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Basic Concepts: Family Systems
Joint Family
c) Lineal Joint Family: Two couples, between whom there is a lineal link, like between a
parent and his married son or some times between a parent and his married daughter, live
together.
d) Supplemented Lineal Joint Family: It is a lineal joint family together with unmarried,
divorced or widowed relatives who do not belong to either of the lineally linked nuclear
families; for example, the father’s widower brother or the son’s wife’s unmarried brother or
sister.

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Sources of Hindu Law
Ancient Source
Ancient sources are the source that developed the concept of Hindu law in ancient times. It is
further classified into four categories
1. Shruti
2. Smriti
3. Customs
4. Digest and Commentaries

Modern Sources
1. Judicial Decisions
2. Justice equity and good conscience
3. Legislation

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Schools of Hindu Law
The two major schools of Hindu law are as follows-
• Mitakshara
• Daya Bhaga
Mitakshara School: Mitakshara is one of the most important schools of Hindu Law. It is a
running commentary of the Smriti written by Yajnvalkya. This school is applicable in the whole
part of India except in West Bengal and Assam. The Mitakshara has a very wide jurisdiction.
However different parts of the country practice law differently because of the different
customary rules followed by them.

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Schools of Hindu Law
Mitakshara School:
Mitakshara is further divided into five sub-schools namely
1. Banaras Hindu Law School
2. Mithila Law School
3. Maharashtra Law School
4. Punjab Law School
5. Dravida or Madras Law School

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Schools of Hindu Law
Dayabhaga School
Dayabhaga School predominantly prevailed in Assam and West Bengal. This is also one of the
most important schools of Hindu Laws. It is considered to be a digest for the leading Smritis.
Its primary focus was to deal with partition, inheritance and joint family. According to Kane, it
was incorporated in between 1090-1130 A.D.

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Schools of Hindu Law
Dayabhaga School was formulated with a view to eradicating all the other absurd and artificial
principles of inheritance. The immediate benefit of this new digest is that it tends to remove all
the shortcomings and limitations of the previously established principles and inclusion of many
cognates in the list of heirs, which was restricted by the Mitakshara School.
In Dayabhaga School various other commentaries were followed such as:
1. Dayatatya
2. Dayakram-sangrah
3. Virmitrodaya
4. Dattaka Chandrika
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Hindu Law and Live in Relationship
A Live-in Relationship, also known as cohabitation, refers to an arrangement where two
individuals live together without being married. The couple shares a common household and
engages in a sexual relationship but chooses not to formalize their relationship through
marriage.
It is important to note that Live-in Relationship are not legally recognized as a valid union
under Indian Law, and therefore, couples in such relationships do not have the same legal rights
as married couples. However, the Supreme Court of India has recognized that living together as
partners without getting married is not illegal or a criminal offense.

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Hindu Law and Live in Relationship
• In 2005, the Indian Parliament passed the Protection of Women from Domestic Violence
Act, which provided legal protection to women who live with their partners in a relationship
similar to marriage. The Act recognized the need to protect women who face domestic
violence in live-in relationships and made provisions for them to seek legal remedies.

• The first time the legal system in India recognized live-in relationships was in 2010, when
the Supreme Court of India passed a landmark judgment in the case of "Khushboo vs
Kanniammal." In this case, the court held that live-in relationships were not illegal or
immoral, and that two consenting adults had the right to live together without getting
married.

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Hindu Law and Live in Relationship
• In 2015, the Supreme Court of India made a landmark judgment in the case of D. Velusamy
vs. D. Patchaiammal, where it recognized that a long-term live-in relationship could be
considered a valid marriage under certain circumstances. The court also held that women in
live-in relationships are entitled to maintenance from their partners after separation.

• Subsequently, in 2015, the Supreme Court of India further expanded the rights of partners in
live-in relationships in the case of "Indra Sarma vs V.K.V. Sarma." The court held that
women in long-term live-in relationships were entitled to maintenance from their partners
after separation, even though live-in relationships were not recognized as marriages under
Indian law.

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Who is a Hindu?
Section 2 of HMA defines who is a Hindu
• Hindu by Religion - A person who is Hindu, Jain, Buddha, or Sikh by religion.
o Converts and Reconverts to Hinduism (including Buddhists, Jains, Sikhs).
o A non-Hindu will become a Hindu by
o Expressing a bona fide intention to become Hindu, accompanied by conduct
o Conversion by undergoing a formal ceremony of conversion or reconversion prescribed by
the caste or community to which he/she converts or reconverts

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Who is a Hindu?
• Hindu by Birth - A person who is born of Hindu parents.
If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu.
Persons who are not Muslim, Christian, Jew, or Parsee by religion. Persons who are not
governed by any other religious law will be governed by Hindu Law.

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Who is a Hindu?
HMA does not apply to:
• Those who renounced Hindu religion
• Persons descended from Hindu ancestors and on account of marriage and converted into new
community
• Children, whose either parents though a Hindu, are not brought up as Hindus.
• If one or both parents convert to another religion, child will continue to be a Hindu, unless
child is also expressly converted
• Scheduled Tribes, unless the Government includes them by notification (if no notification,
they are governed by their traditional customs)

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Who is a Hindu?
Case Laws:
1. Chandrasekhar v. Kulandaivel: A Hindu, Jain, Buddhist or Sikh by religion is a Hindu if he practises, professes or
follows any of these religions and REMAINS a Hindu even if he does not practice, profess or follow the tenets of any one
of these religions.
2. Maneka Gandhi v. Indira Gandhi (1984): Sanjay Gandhi was a Hindu because: (i): his mother was a Hindu; (ii) he was
openly brought up as a Hindu.
3. Durga Prasad Rao vs. Sridhar Sanaswamy: Mere theological allegiance or bare declaration is not sufficient.
Mohandas vs. Devaswom Board: (1975) One becomes a Hindu by (i) bonafide intention, (ii) conduct unequivocally
expressing that intention (iii) acceptance by members of that society. Jesudas, the famous play back singer, a catholic
Christian by birth, filed a declaration stating that he was the follower of Hindu faith. It has been held that such a bonafide
declaration amounts to his acceptance of Hindu faith and becomes a Hindu by conversion.
4.

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Who is a Hindu?
Case Laws:
4. Ramesh Kumar vs. Kannapuram Grama Panchayat ( 1998): Even though Buddhist is considered as Hindu for HMA,
Japanese Buddhist girl is not a Hindu as she is not "domiciled" in India. (Domicile= permanent residence).
5. Peerumal v Poonuswami (1971), SC holds a person can be a Hindu if after expressing the intention of becoming a Hindu,
follows the customs of the caste, tribe, or community, and the community accepts him.
6. Sapna vs State of Kerala: the son of Hindu father and Christian mother was held to be a Christian.
7. Shastri v Muldas (1961), SC held various sub sects of Hindus such as Swaminarayan, Satsangis, Arya Samajis are also
Hindus by religion because they follow the same basic concept of Hindu Philosophy.

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Who is a Hindu?
Case Laws:
4. Ramesh Kumar vs. Kannapuram Grama Panchayat ( 1998): Even though Buddhist is considered as Hindu for HMA,
Japanese Buddhist girl is not a Hindu as she is not "domiciled" in India. (Domicile= permanent residence).
5. Peerumal v Poonuswami (1971), SC holds a person can be a Hindu if after expressing the intention of becoming a Hindu,
follows the customs of the caste, tribe, or community, and the community accepts him.
6. Sapna vs State of Kerala: the son of Hindu father and Christian mother was held to be a Christian.
7. Shastri v Muldas (1961), SC held various sub sects of Hindus such as Swaminarayan, Satsangis, Arya Samajis are also
Hindus by religion because they follow the same basic concept of Hindu Philosophy.

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Conditions for Marriage
As per S. 5 of HMA,
A marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled, namely:
i. (i) Neither party has a spouse living at the time of the marriage;
ii. (ii) at the time of the marriage, neither party-
(a) Is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) Though capable of giving a valid consent, has been suffering from mental disorder of
such a kind or to such an extent as to be unfit for marriage and the procreation of
children; or
(c) Has been subject to recurrent attacks of insanity
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Conditions for Marriage
iii. The bridegroom has completed the age of 21 years and the bride, the age of 18 at the time
of the marriage;
iv. The parties are not within the degrees of prohibited relationship unless the custom or usage
governing each of them permits of a marriage between the two;
v. The parties are not sapindas of each other, unless the custom or usage governing each of
them permits of a marriage between the two

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Sapinda Relationship
Sapinda relationships are prohibited under Hindu marriage law. A sapinda is someone who is:
• within or has a common ancestor relative within Three Generations above you on your
mother’s side of the family
• within or has a common ancestor relative within Five Generations above you on your
father’s side of the family.
• Sapinda relationships include half-blood, full-blood, uterine blood, and adoption.
However, in some cases, despite a Sapinda Relationship being prohibited by law, a person’s
custom might still permit a marriage with another person. In this case, they can get married
because their custom allows them to do so.

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Prohibited Degrees of Relationship
The parties to the marriage should not be related within the prohibited degrees of relationship.
Persons who come with in the prohibited degrees are mentioned in Section 3 (g).
a) If one is a lineal ascendant of the other
b) If one was the wife or husband of a lineal ascendant or decedent of the other.
c) If the two are related as brother and sister, uncle and niece, children of two brothers, or of
two sisters etc.
If this condition is violated the marriage becomes void ab initio and the parties become
punishable

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Ceremonies of Marriage
The basis of legislation is ancient texts such as Smrithis. Legislation only codifies what is
already prevalent, standardizing them to prevent confusion and injustice. However, when
legislations conflict with customs, legislations override custom.
Under the old law, before passing of HMA, a marriage was duly solemnised only when the
nuptial ceremonies essential to the validity of a marriage were performed. The nuptial
ceremonies essential to the validity of a marriage were:
1. Invocation before the sacred fire
2. Saptapadi: taking of seven steps by the bridegroom and bride jointly before the sacred fire.

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Ceremonies of Marriage
• HMA retains the provision relating to performance of ceremonies for a lawful marriage.
Section 7(1) of HMA provides that a Hindu marriage must be solemnised in accordance
with customary rites and ceremonies of either party thereto.
• HMA does not prescribe any particular form of ceremonies for solemnisation of the
marriage, and leaves the parties to choose any form of marriage.
• The presence of a priest is not essential. Parties can enter into a marriage in the presence of
relatives or friends or other persons.

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Ceremonies of Marriage
• When Saptapadi is the traditional custom, it is mandatory as per HMA also.
• When it is proved that Saptapadi is not part of the customary rites, it need not be performed.
• Any ceremonies, such as garlanding each other, putting a ring on any finger of the other,
tying a thali, bridegroom presenting a pair of clothes to the bridge, etc would be sufficient to
complete a valid marriage
• The Hindu Marriage Act has removed the impediments based on religion, caste and sects
with the result, the Hindus, Sikhs, Buddhists, Jains, Lingayats and others can intermarry.

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Ceremonies of Marriage
• Case Laws
1. Bliaurao Lokhande v. State of Maharashtra: SC states the word “solemnised” means marriage celebrated with proper
ceremonies and in due form. Unless marriage is celebrated and performed with proper ceremonies and in due form, it
cannot be said to have been solemnised.
2. In a 2001 case in Madras HC, wife accused husband of bigamy as he took a second wife. Husband countered saying first
marriage was void as there was no saptapati. Court held since saptapati was not as essential requirement in the custom of
either party, first marriage holds, and husband was convicted of bigamy.
3. Dr. Surajmani Stella Kajnr v. Ditrg Charan Hansdali: Parties to the petition are two tribals, who otherwise profess
Hinduism, but since their marriage is outside purview of Sn 2(2) of HMA, they would be governed only by their customs
and usages applicable to their tribe.
4. Sujeet Kaur v/s Garja Singh (1994) Saptpadi to be performed compulsory, when required by custom.

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Void Marriages
Section 11 of HMA prescribes void marriages, when conditions listed in Section 5 are fulfilled
A marriage becomes void ab initio (void from beginning)
• There is living husband or wife for either party to the marriage – S. 5(i)
• When parties fall within Sapinda Relation – S. 5(v)
• When parties fall within degrees of Prohibited Relationship. – S. 5(iv)
A void marriage is since inception, and as such no legal rights and duties flow from it.
If one of the party marries again, he or she is NOT guilty of bigamy, and the validity of later
marriage is not affected because of the first so called marriage.

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Voidable Marriages
Which can be annulled at the option of one or both the parties.

A marriage becomes Voidable Section 12 of HMA on the following grounds:

• Fraud: Consent obtained by fraud or force.

• Unsound Mind: Incapacity to consent or suffering from a mental disorder.
• Pregnancy: Concealment of pre-marriage pregnancy
• Impotency: Inability to consummate owing to impotency.

Note:
o Marriage of minors is valid.
o It is voidable at the insistence of contracting party who was a minor at time of
marriage.
o Minor girl given in marriage below 15 years can repudiate the marriage and file for
divorce under Section 13 of HMA, before she reaches 18 years.
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Doctrine of Factum Valet
If age condition is violated, the act is punishable, but such marriage shall neither be void nor
voidable.
Factum Valet (quod fieri non debuit): Certain prohibited things should not be done, but if done,
they become valid.
It applies only to relative prohibitions, and not to absolute prohibitions.
Eg: if a 15 yr girl and 20 yr boy marry, it is invalid. But If marries and have children, it
becomes valid.

Legitimacy of Children
Children of void or voidable marriage are considered legitimate and have inheritance rights
from parents (but not from other relations). – Section 16

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Registration of Hindu Marriage (Optional)
Section 8 of HMA
• Provisions are made to get the Hindu marriage, duly performed as per the rites and
ceremonies of parties, registered at the office of the sub-registrar of marriages.
• Application in prescribed form should be filed duly signed by all parties concerned.
• A certificate of Registration will be issued by the Registar if all formalities have been
complied with.
• This is only an enabling provision, to register, after the Hindu marriage is duly performed.
• The validity of any Hindu Marriage shall in no way be affected by the omission to make the
entry

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Restitution of Conjugal Rights
Section 9 of HMA
• These rights and obligations cumulatively constitute’ Conjugal rights’ and can be termed as
essence of the marital union. The term ‘Conjugal Rights’ in literal sense means ‘Right to
stay together’.
• When either the husband or the wife has, without reasonable excuse, withdrawn from the
society of the other, the aggrieved party may apply, for restitution of conjugal rights.
• When a spouse is guilty of staying away without any reasonable or a just cause and if the
suit of restitution of conjugal rights succeed than the couple would be required to stay
together.

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Judicial Approach of Restitution of Conjugal Rights
• T. Saritha Vengata Subbiah v. State, the court had ruled that that S.9 of Hindu Marriage
Act relating to restitution of conjugal rights as unconstitutional because this decree clearly
snatches the privacy of wife by compelling her to live with her husband against her wish.
• Harvinder Kaur v. Harminder Singh, the judiciary again went back to its original
approach and help Section 9 of Hindu Marriage Act as completely valid.
• The ratio of this case was upheld by the court in Saroj Rani Vs. S.K. Chadha

Restitution of Conjugal Rights Violates

•Freedom of Association – Article 19 (1) (c)
•Freedom to reside and settle in any part of India – 19(1) (e).
•Freedom to practice any profession – 19 (1) (g)

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Judicial Separation
• Judicial Separation is a medium under the law to give some time for self-analysis to both the
parties of a disturbed married life.
• Law gives a chance to both the husband and wife to rethink about the extension of their
relationship while at the same time guiding them to live separately.
• Section 10 of the Hindu Marriage Act, 1955 provides the Judicial Separation for both the
spouse, those who are married under the Hindu Marriage Act, 1955. They can claim the
relief of Judicial Separation by filing a petition. Once the order is passed, they are not bound
to have cohabitation.

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Difference between Judicial Separation and Divorce
Judicial Separation
•It is provided under Section 10 of
the Hindu Marriage Act, 1955.
•A petition for judicial separation can be
filed at any time after marriage.
•It only temporarily suspends the
marriage.
•An act of adultery is a very big ground, by
which anyone files the petition.
Divorce
•It is provided under Section 13 of
the Hindu Marriage Act, 1955.
•A petition for divorce can be filed only
after one or more years of the marriage.
•It is the end of the marriage.
•The husband and wife must be living in an
adulterous relation then only a party can
file for divorce.
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Divorce under HMA
• Section 13 of the Act describes the circumstances which extend the right of divorce
• The Marriage Laws (Amendment) Act, 1976 makes the grounds of divorce and judicial
separation common
• by the Amendment of 1976, a new mode of divorce i.e., divorce by Mutual Consent has been
introduced under Section 13(B).
• Section 13(B) is remarkable in the sense that it has substantially eroded the sacramental
character of Hindu Marriage.
• Besides the common grounds enumerated under Section 13(1) and 13(b) there are some
specific grounds available only to a wife as a ground for divorce or Judicial separation under
Section 13(2)
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Ground for Divorce under HMA

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Ground for Divorce under HMA
(Available to both the Parties)
Section 13 (1)(i)
Adultery: Either husband or the wife has after the solemnization of the marriage voluntary
sexual intercourse with any person other than his or her spouse".
To establish adultery it is not necessary to prove a continuous course of adulterous life for
divorce. Only this much is required to be established that the respondent has willfully indulged
into sexual intercourse with a person other than his or her spouse
Case: Rajendra Agarwal v. Sharda Devi (1993 M.P. 142), it was said that it is sufficient to prove
that the respondent had voluntary sexual intercourse with any person other that the spouse. It
need not be proved that the respondent has been living in adultery

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Ground for Divorce under HMA
Section 13 (1)(a)
This provision has been inserted by the Marriage Laws (Amendment) Act 1976
Cruelty: This provision provides that divorce can be granted on the ground of cruelty if the
other party has, after the solemnization of marriage treated the petitioner with cruelty.
• The expression "cruelty" is not defined in the Act.
• Russel v. Russel in the year 1897 Lopes, LJ has defined cruelty as "there must be danger to
life, limb or health, bodily or mental or a reasonable apprehension of it. to constitute
cruelty." This definition is still important for the purpose of the clause.
• Case: Rajan Vasant Revan Kar v. Mrs. Shobha Rajan (AIR 1995 Bom. 246). the Court held
that "cruelty" contemplated by Section 13(1)(i)(a) is a conduct of such type that the
petitioner cannot reasonably be expected to live with the respondent or that it has become
impossible for the spouse to live together

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Ground for Divorce under HMA
Section 13 (1)(b)
This provision has been inserted by the Marriage Laws (Amendment) Act 1976
Desertion: "Desertion" for a period of two years, as one of the grounds for divorce; it is the
total repudiation of the obligations of marriage. It is the intentional permanent forsaking and
abandonment of one spouse by the other without that other's consent and without reasonable
cause. Desertion may be actual, constructive or it may be by willful neglect.
Essentials:
a) There was desertion for a continuous period of 2 years immediately preceding the
presentation of the petition; and
b) The desertion was without reasonable cause and without the consent or against the wish of
the petitioner.

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Ground for Divorce under HMA
Section 13 (1)(ii)
Conversion: If a spouse has ceased to be a Hindu, by conversion to another religion, the other
spouse can obtain divorce under this clause. The conversion of the respondent to a non-Hindu
faith does not amount to automatic dissolution of marriage. The petitioner has to file a petition
to obtain a decree of divorce. If a petitioner chooses to continue to live with his spouse who has
converted to another religion, there is nothing to debar him from doing so.

Section 13 (1)(iii)
Unsound Mind: A petitioner may get a decree of divorce or judicial separation if the
respondent "has been suffering continuously or intermittently from mental disorder of such a
kind and to such an extent that the petitioner can not reasonably be expected to live with the
respondent.
It means mental illness, arrested or incomplete development of mind, psychopathic disorder or
any other disorder or disability of mind and includes schizophrenia.

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Ground for Divorce under HMA
Section 13 (1)(v)
Venereal Disease: The venereal diseases are only such diseases which are communicated by
sexual intercourse.

Section 13 (1)(vi)
Renunciation of the World: A petitioner may get a decree of divorce or judicial separation if
the other spouse has renounced the world by entering any religious order.

Section 13 (1)(vii)
Spouse not heard for seven years: If spouse has not been heard of as being alive for a period
of 7 years or more by those persons who would have naturally heard of it, had that party been
alive, the other spouse is given a right to obtain divorce.
This clause is based on the rule of evidence contained in Section 107 of Indian Evidence Act

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Irretrievable Breakdown of Marriage
• This means the couple can no longer live together as man and wife. Both partners, and one
partner, must prove to the court that the marriage broke down so badly that there is no
reasonable chance of getting back together.
• There is still no codified law for irretrievable breakdown of marriage. The Hindu Marriage
Act recognize few grounds for dissolution of marriage in Section 13; but with the change in
the social norms, the supreme court has shown special concern over the matter of making
irretrievable breakdown of marriage as a ground for divorce.
• The Supreme Court has with a view to do complete justice and shorten agony of the parties
engaged in long drawn battle, directed dissolution of marriage.

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Irretrievable Breakdown of Marriage
Case: Mansi Khatri Vs. Gaurav Khatri -2023 decided on 19.05.2023.
When the petitioner approached the Supreme Court seeking transfer of divorce petition under
the Hindu Marriage Act, from Indore to Lucknow, the bench of noticed that the parties have
suffered an irretrievable breakdown of marriage and hence, in order provide complete justice,
the Court exercised the power under Article 142 of the Constitution of India to grant mutual
consent divorce to the parties. The Court also closed all cases filed by the parties against each
other.
The Court then went on to grant the decree of mutual consent divorce and closed all cases filed
by the parties against each other. It has, however, been made clear that if the permanent
alimony is not paid within the stipulated time-period, the criminal cases, as well as the
Maintenance Case shall stand revived.
The Decree of Mutual Consent Divorce is also to be issued after payment of permanent
alimony

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Grounds for Divorce available to Wife
Section 13 (2)(i)
Bigamy: That in the case of a marriage solemnized before the commencement of the Act the
husband has married before such commencement or that any other wife of husband, married
before such commencement, was alive at the time of the petitioner's marriage.
Section 13(2)(ii)
Rape, Sodomy or Bestiality: That the husband has been guilty of rape, sodomy or bestiality
after the solemnization of marriage.
Section 13(2)(iii)
Decree or Order Awarding Maintenance: A decree or order has been passed against the
husband awarding maintenance to the wife, and after passing of such decree cohabitation
between the parties has not been resumed for one year or upwards.
Section 13(2)(iv)
Option of Puberty: That the wife's marriage was solemnized before she attained the age of
fifteen years and she repudiated the marriage after attaining that age but before attaining the age
of eighteen years, whether the marriage has been consummated or not.

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Divorce by Mutual Consent
Section 13 B
1. That both the parties have been living separately for a period of one year or more.
2. That both the parties have not been able to live together.
3. That both the parties have mutually agreed that their marriage should be dissolved
Case:
• Gandhi Venkata Chitti Abbai v. Unknown (1988), the Allahabad High Court held that the
waiting period was mandatory.
• In the case of Dinesh Kumar Shukla v. Neeta (2005), the Madhya Pradesh High Court held
that the period prescribed under Section 13B is directory in nature and can be brought down
below 6 months if the circumstances of the case demand so. Putting an end to this question,
the Apex Court, as discussed in the later part of the article, has held that the waiting period
under Section 13 B can be waived if the circumstances demand it.

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Bars on Matrimonial Reliefs
Section 23
• This provision states that if the aggrieved party seeking relief under any of the bars
mentioned from clause (a) to (e) of Section 23(1) of the Hindu Marriage Act is in
contravention to any of these clauses, then such grant for relief shall be quashed.
• The remedies mentioned in the Hindu Marriage Act, 1955 have certain bars which must be
crossed in order to get matrimonial relief.
• These bars are based on the Doctrine of Equity. This doctrine states that “One who comes to
equity must come with clean hands”.
• This means that the person seeking matrimonial relief must prove the fault of the other party
and also cross the bars to matrimonial relief.
• This maxim examines the past conduct of the aggrieved party and ensures that he/she does
not take advantage of his/her wrong.

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Bars on Matrimonial Reliefs
Section 23
1) Not Taking Advantage of his her Own Wrong: The Court before granting the relief should
fully satisfy itself that some established rule of relief exists and the petitioner is not in any
way taking advantage of his or, her own wrong.
2) Absence of Connivance and Condonation: There should not be any connivance with
respondent, or the plaintiff should not have condoned the acts of the respondent.
3) Absence of Collusion: The petition must not be presented or prosecuted in collusion with
the respondent.
4) No Unreasonable Delay: There should not be any unnecessary or improper delay in
instituting the proceeding.
5) Absence of Legal Bar: There is no other legal ground why relief should not be granted.
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Maintenance Pendente Lite and Expenses of Proceedings
Section 24 (support during the case’s pendency)
This Section deals with providing temporary financial support to a dependent spouse during
ongoing legal proceedings. In simpler terms, it means giving necessary living expenses and
financial assistance to either the wife or the husband while their legal case is still in progress.
if the court determines that one spouse lacks the means to support themselves and cover the legal
expenses, they can, upon the request of the dependent spouse, order the other spouse to provide:
• A reasonable monthly sum, considering both spouses’ incomes, during the ongoing legal
proceedings.

o The primary aim of this provision is to assist the claimant spouse financially, enabling them to
continue with the legal proceedings and sustain themselves.
o This ensures that they have enough funds to participate in the legal process without suffering
due to a lack of resources.

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Permanent Alimony and Maintenance
Section 25
This Section is about permanent alimony and maintenance stating that:

• Any court that has jurisdiction under this Act shall on an application made by either the wife or
the husband for grant of maintenance, order the non-applicant to pay for the maintenance and
support of the applicant, either a yearly or monthly sum for a term not exceeding the life of the
applicant, with regards to the non-applicant’s income and property, and any such payment may
also be secured by charging the non-applicant’s immovable property.
• If the court is satisfied that there is a change in the current situation after passing the order, then
the court may modify, or rescind the order at the instance of either party.
• If the court is satisfied that the party in whose name the order is placed has re-married, or if the
wife has not remained chaste, or if the husband has had sexual intercourse with any another
woman, then the court at the instance of the party may modify, rescind the order.

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Difference between Alimony and Maintenance
Alimony is a one-time payment made to either the husband or wife whereas maintenance can be
monthly, annually or instalments fixed by the court. Further, alimony is mostly referred to when
divorce is done by mutual consent. Maintenance is given in cases where one party has filed for
divorce and the other party has contested it in court.
Can a wife claim maintenance without getting Divorced?
• If the wife is living with another man, she cannot claim maintenance under Section 25 of the
Hindu Marriage Act
• If there isn’t any genuine reason for the separation between the wife and the husband,
maintenance cannot be claimed.
• When the husband and wife are living separately by mutual consent, they cannot claim for
maintenance.

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Maintenance under Section 125 of CrPC
Section 125 of CrPC lays down a Secular law for the maintenance of Wife ,Child or Parents. This
section helps giving monetary assistance to the vulnerable avoiding situations like Vagrancy and
Poverty.
Persons entitled to claim maintenance:
Wife- According to section 125(1),a lawfully married woman who is unable to support herself and
has insufficient means of subsistence is eligible. Likewise, a divorced woman who has not yet
remarried is also eligible to claim.
Child – A legitimate or illegitimate child, male or female, who is unable to support itself is a
‘child’ under this section. In case of a Female child ,the father will only be liable to maintain till
she attains majority. Furthermore ,the abnormal child is also entitled to be maintained.
Parents – Under this both father and mother are entitled to be maintained equally by son and
daughter but the court must be satisfied that the daughter has the means to support herself. Parents
also include “Adoptive father” and “Adoptive mother.”

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Maintenance under Section 125 of CrPC
Certain cases extending the scope of Section 125 of CrPC
● Daniel Latifi v. Union of India: According to Section 125 of the CRPC ,the Supreme Court
determined that Muslim women have the right to maintenance after the Iddat period. The Court
ruled that the CRPC’s provisions applied to all citizens ,regardless of their faith ,and that the
Muslim Personal Law lacked the authority to supersede the CRPC’s rules.
● Rameshchandra Pratapji Daga v. Rameshwari Rameshchandra Daga: A wife who was
living separately from her husband was the subject of maintenance in the Indian Family law.
● Adbulmuaf v. Salima: It was held that if the woman is healthy ,educated, and still unable to
support herself ,she may still request maintenance ,but the amount awarded to her will depend on
these circumstances.
● Jagannath Bhagnath Bedke v. Haribhau Jagannath Bedke (2022): The Aurangabad Bench
of the Bombay High Court stated that courts should not become overly technical when deciding
petitions under Section 125 of the CrPC. The court ruled that the aforementioned provision is
intended to provide a person with immediate support ,particularly financial support ,in order for
that person to survive.
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Maintenance under Section 18 of
Hindu Adoption and Maintenance Act (HAMA)1956
Objectives of the Section 18 of HAMA Act, 1956
a) To analyze response of Indian judiciary and legal luminaries to Right of the Hindu wife to
Maintenance under Hindu Adoptions and Maintenance Act, 1956
b) To compare the status of :
i. Right to Maintenance of the Hindu wife u/S.18 of Hindu Adoptions and Maintenance
Act, 1956
ii. Right to Maintenance of widowed daughter-in-law u/S.19 of Hindu Adoptions and
Maintenance Act, 1956
iii. Right to Maintenance of a Hindu wife, whose husband is unable to provide
maintenance to her under Hindu Adoptions and Maintenance Act, 1956
c) To study Right to maintenance in classical Hindu law
d) To suggest remedial measures to alleviate sufferings of a woman whose husband is unable to
provide maintenance to her under Hindu Adoptions and Maintenance Act, 1956 in India.

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Hindu Adoption and Maintenance Act (HAMA)1956
Applicability of Hindu Adoption and Maintenance Act
the Hindu Adoption and Maintenance Act covers everyone residing in India who is not a
Christian, Muslim, Parsi or Jew.

The Act sheds light upon:

• Valid adoption
• Who can adopt children?
• Procedure to adopt children along with other duties and obligations that occur after adoption.

Adoption: HAMA has made the definition of ‘adoption’ much wider by using the word ‘child’
instead of ‘son’ (Adoption has been described in Manusmriti as ‘taking someone else’s son and
raising him as one’s own’ ).
Child includes both a girl and a boy child, and not merely a son.

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Hindu Adoption and Maintenance Act (HAMA)1956
Who can Adopt a child?
A Hindu male who wishes to adopt a child must meet the requirements provided in Section 7 of
the act and a Hindu female wanting to adopt shall abide by Section 8 of the same.

The capacity of a Hindu male to adopt

Section 7 states that a male Hindu who is willing to adopt a child must fulfil the following
conditions:
1. Attained the age of majority; and
2. Be of sound mind.
3. Must have a wife that is alive whose consent is absolutely necessary.
4. It can be overlooked if the wife is incapable of giving consent due to insanity or other reasons.
5. If a person has multiple wives, the consent of all the wives is necessary for adoption.

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Hindu Adoption and Maintenance Act (HAMA)1956
The capacity of a Hindu female to adopt
Section 8 of the act states that a Hindu Female willing to adopt a child must:

1. Have attained the age of minority;

2. Be of sound mind;
3. Be either a widow;
4. Divorced, or
5. Unmarried in order to adopt.
6. If she has a husband who is alive, she will not have the capacity to adopt a child.

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Hindu Adoption and Maintenance Act (HAMA)1956
Who can give a child for adoption?
No one but the parents and guardian of the child can give them up for adoption as per Section 9 of
the Hindu Adoption and Maintenance Act.
As per the act:
• Only the biological father of a child has the authority to give him up for adoption;
• The consent of the child’s biological mother is necessary.

A mother will have the capacity to give the child up for adoption if:
• The father is either dead;
• Of unsound mind;
• Has renounced the world; or
• Converted to some other religion.
o The section clearly mentions that the father and mother mean biological parents and not
adoptive parents.
o Adoptive father or mother can not give the child up further for adoption.
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Hindu Adoption and Maintenance Act (HAMA)1956
Necessary Conditions to be fulfilled for adoption
Adoption of a son
• Section 11(i) of the act states that if a Hindu male or female desires to adopt a son, they must
not have a living son, grandson, or even a great-grandson at the time of adoption.
• It is irrelevant whether the son is legitimate, illegitimate, or adoptive. They should not
already have a son who is living.
Adoption of a daughter
• Section 11(ii) states that one wishing to adopt a daughter must not have a living daughter or
a granddaughter from their son at the time of the adoption.
• It is immaterial whether the daughter or granddaughter is legitimate, illegitimate, or adoptive.
Adoption of a female child by a male
• A Hindu male willing to adopt a girl child must have the capacity to adopt a child as
prescribed in Section 7 of the act,
• Section 11(iii) states that he must be at least 21 years older than the girl child that is to be
adopted.
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Hindu Adoption and Maintenance Act (HAMA)1956
Necessary Conditions to be fulfilled for adoption:
Adoption of a male child by a female
• If a Hindu female wants to adopt a male child she must first meet the requirements prescribed
in Section 8 of the act and have the capacity to adopt a child.
• She has to be at least 21 years older than the child she wishes to adopt.
Other conditions:
• Section 11(v) of the act says that the same child can not be adopted by multiple people at the
same time.
• Section 11(vi) states that a child that one wants to adopt must have been given up for
adoption as per the guidelines of this act, by their biological parents or guardian.
• The Section further states that the child shall be given up for adoption with the intention to
transfer him/her from their biological family to the adoptive one.
• In the case of an abandoned child or whose parents are unknown, the intention must be to
transfer him/her from the place or family that they have been brought up to their adoptive
family.
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Hindu Adoption and Maintenance Act (HAMA)1956
Effects of adoption:
Section 12 of the act states:
When a child has been adopted,
• They shall be considered as the child of their adoptive parents for all purposes.
• The adoptive parents shall have all the parental obligations and rights.
• The child shall have all the rights and obligations of a son/daughter.
However, there are some conditions that the child must abide by after he has been adopted, such
as:
• He/she must not have an incestuous relationship with anyone from their biological family
• Should not marry anyone from their birth family. (The rules of the Hindu Marriage Act, 1955
regarding ‘sapinda relation’ shall be applicable to them towards their birth family.)
• If the child had any property before the adoption, it shall continue to be in their possession
after. However, such property may bring some obligations over him and he shall be liable to
all those obligations, including having to maintain his biological family if required.

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The Juvenile Justice
(Care and Protection of Children) Act, 2015
• The Juvenile Justice (Care and Protection of Children) Act of 2015 refers to children in
conflict with the law as well as children who demand care and protection. It, in particular,
offers a complete framework for domestic and international adoption of orphans, abandoned
children, and surrendered children.
• Adoption is a legal procedure in which a child legally becomes the lawful child of his
adopted parents and is therefore permanently separated from his birth parents.
Objectives of the Act
1. The Act provides the basic principles for delivering justice to a juvenile or child.
2. To make the juvenile justice system, which is intended for children, more sensitive to
developmental requirements in comparison to the criminal justice system, which is intended
for adults.
3. To bring juvenile legislation into line with the United Nations Convention on the Rights of
the Child.

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The Juvenile Justice
(Care and Protection of Children) Act, 2015
Objectives of the Act
4. To set a uniform age of eighteen for both males and females.
5. To guarantee that cases involving juveniles or children are dealt with as quickly as possible
by the authorities envisioned by this Act, within a time restriction of four months, as
established in Article 21 of the Indian Constitution.
6. To define the State’s functions as a facilitator rather than a doer by involving voluntary
organizations and local governments in the execution of proposed legislation.
7. Through sensitization and training of police employees, specific juvenile police units with a
humanitarian attitude will be established.
8. To make juveniles and children more accessible by establishing Juvenile Justice Boards,
Child Welfare Committees, and Homes in each area or set of districts.
9. To reduce stigma and to accommodate the developmental needs of the juvenile or child, the
Act should be divided into two sections, one for juveniles in violation of the law and the
other for the juvenile or child in need of care and protection.

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Hindu Minority and Guardianship Act, 1956
Definitions of the Minor and the Guardian
• Section 4(a), it is defined as a minor means who has not completed the age of 18 years.
• Section 4(b), it is also defined that a guardian means a person who has completed the age of
18 and he is taking proper care of a minor and his property and as well as his own.

Types of Guardian
There are 3 types of guardian who are in the following:
1) Natural Guardian
2) Testamentary Guardian
3) A Guardian appointed by the Court

Natural Guardian
According to Section 4(c) of the Act, the natural guardian assigns to the father and mother of the
minor. For a minor wife, his husband is the guardian.

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Hindu Minority and Guardianship Act, 1956
Mother
The mother is the first guardian of a minor illegitimate child, even if the father is existing.

Case: Jajabhai Vs. Pathakhan, in this case, the mother and father got separated for some reason
and the minor daughter stayed under the guardianship of the mother. Here, it will be determined
that the mother is the natural guardian of the minor girl.

In Section 6, the terms “Father” and “Mother” do not include the step-father and the step-
mother.

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Hindu Minority and Guardianship Act, 1956
Powers of a Natural Guardian
As per Section 8, the powers of the natural guardian to impose on the child are as follows:
1. The natural guardian of a Hindu minor has the power to do all work, which are compulsory
and which are beneficial for the minor’s interest. Protection or benefits of the minor’s
condition.
2. The natural guardian should bring the prior permission from the Court, for the use of the gift
transferred to him, mortgage or any other valuable things of the minor.
3. For the lease of any part of minor’s property for about exceeding 5 years or for a term of
extending one year beyond the date on which the minor attains the majority. The prior
permission from the Court is very much needed for doing so.
4. Violation of any disposal of the immovable property by a natural guardian, it will be
voidable at the case of the minor or any other person claiming on the behalf of him.
5. No Court shall grant permission to the natural guardian to do any act which is not in the
interest of the minor.

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Hindu Minority and Guardianship Act, 1956
Testamentary Guardian
• Under Section 9, of the Hindu Minority and Guardianship Act, 1956 testamentary guardian
only authorized by a will.
• It is compulsory for the testamentary guardian to receive the guardianship adoption which
may be expressed or implied.
• A testamentary guardian has the right to decline the appointment, but once he /she receives
the guardianship then he/she can not decline to perform or resign without the permission of
the Court.
• Testamentary power of choosing a guardian has been provided on both, father and mother.
• If the father chooses a testamentary guardian but the mother rejects him, then the chosen
guardian of the father will be inefficient and the mother will be the natural guardian
thereafter.
• If the mother chooses a testamentary guardian, her chosen guardian will become the
testamentary guardian and father’s appointment will be void.

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Guardians and Wards Act, 1890
Features of the Guardians and Wards Act, 1890:
• The act authorises the District Court or any other court of the ward to appoint a guardian for a
minor.
• The guardian takes care of the minor, minor’s property or both
• The Guardian and Wards Act, 1890 is umbrella legislation as it supplements personal laws
under every religion related to guardianship
• The act is substantive law, but in some instances, the Act provides procedural law that applies
to personal laws
Appointment of Guardians:
• The court has the authority to appoint a guardian for a minor under various circumstances,
such as the death of parents, the inability of parents to take care of the child, or disputes
between parents regarding the guardianship of the child.
• The court considers the welfare of the minor as the paramount consideration while appointing
a guardian.

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Guardians and Wards Act, 1890
Types of Guardians:
• The act distinguishes between natural guardians and guardians appointed by the court.
• Natural guardians are usually the parents of the minor, and the father is considered the natural
guardian.
• However, the mother is also recognized as a natural guardian, particularly in cases where the
father is not available or capable.

Analysis of HGMA 1956 and GWA 1890

• The Guardian and Wards 1890 is a secular act that applies to every citizen and communities
of India while The Hindu Guardianship and Minorities Act of 1965 is applicable only to
Hindus and subsets of Hindus such as Jains, Buddhists, Sikhs, Lingayat, Arya Samaj,
Followers of Brahmo, Followers of Prarthana Samaj, and Virashiva.
• Other religious communities such as Muslims, Parsis and Christians do not fall within the
scope of this law. This law is added to the Law of Guardians and Wards of 1860 and does not
replace the latter. GWA 1890 covers the procedure on how to petition courts for the
appointment of a guardian.
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Cases:
• In the case of PT Chathu Chettiar vs. VKK Kanaran, it was held that if the father is alive and
if he is not unfit in any manner as per law to be the natural guardian, then the mother cannot
claim to be the guardian of the minor.
• It was seen in the case of Rajalakshmi v. Ramachandran, where the Court stated that the fact
that someone surrenders your property to a minor and appoints yourself as guardian of those
property does not mean that you are a guardian as per law.
• The Court threw light on the topic of importance of father as a natural guardian in the case of
Essakkayal Nadder v. Sreedharan Babu. According to the facts of this case, the children did
not live with their father and the mother had expired. The court stated that no one other than
the father himself could be the natural guardian of the minors as the father was very much
alive and as per law he was not declared as unfit guardian for any other reason.

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