Professional Documents
Culture Documents
Hindu Law Notes 02.10.2023
Hindu Law Notes 02.10.2023
Hindu Law Notes 02.10.2023
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Table of Contents
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Procedures of marriage and registration under the Hindu Marriage Act, 1955
Cost of registration:
Procedures of marriage and registration under the Special Marriage Act, 1954
Marriage between an Indian and a foreigner
Conditions and requirements for registration when both male and female are Hindus:
Conditions and requirements for registration when both individuals are of different religion:
Charges an individual has to pay to get married under the Special Marriage Act:
o Void and Voidable Marriage
Provisions
Void Marriages (Section 11)
Consequences of a Void Marriage
Voidable Marriages (Section 12)
Children of Void and Voidable Marriage
o Restitution of Conjugal Rights and Judicial Separation
Definition
Effects of Non-Compliance of Decree of Restitution
Rights to Set Up Matrimonial Home
Judicial Separation
Filing petition for Judicial Separation
Grounds for Judicial Separation
o Divorce
Divorce grounds
Wife‟s special grounds of Divorce
Bars to Remarriage and Matrimonial Relief
Reconciliation by Court
Irretrievable Breakdown grounds
Merits (Advantages)
Demerits (Disadvantages)
o Maintenance
Types Of Maintenance
Prior Status of Right of Maintenance
Hindu Marriage Act, 1955
Obligation To Maintain Wife
Obligation To Maintain Children And Parents
o Jurisdiction and Procedure
Procedures of Divorce (Detailed study under the Hindu Marriage Act 1955)
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o Overview of this Act
o Adoption
Who can Adopt a child?
The capacity of a Hindu male to adopt
The capacity of a Hindu female to adopt
Who can give a child for adoption?
Can the guardian give a child for adoption?
o When is adoption valid?
Necessary conditions to be fulfilled for:
Adoption of a son
Adoption of a daughter
Adoption of a female child by a male
Adoption of a male child by a female
Other conditions
Effects of adoption
o Rights of adoptive parents to dispose of their property
o Who will be the adoptive mother in case of adoption by a male?
Can a valid adoption be cancelled?
o Maintenance
o Maintenance of wife
When is the wife entitled to maintenance?
When maintenance is not to be paid to a wife?
o Maintenance of widowed daughters-in-law
o Maintenance of children and aged parents
o Maintenance of dependants
Who are dependents?
Do dependents need to be maintained?
o Amount of Maintenance
Alteration of the amount due to change in circumstances
The claimant of Maintenance should be a Hindu
Can maintenance be a charge?
Effect of transfer of property on rights to maintenance
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Introduction to Hindu law
Hindu law is considered to be the most ancient and prolific law in the world. It has been around
every phase. It is about 6000 years old. Hindu law has been established by the people, not for the
purpose of removing any crime or transgression from society but it was established so that the people
will follow it in order to attain salvation. Originally Hindu law was established so that the need of the
people gets fulfilled. The concept was initiated for the welfare of the people.
Concept of Dharma
We know that the word Dharma is related to Hindu law. Let me explain to you, the word “Dharma”
according to Hindu Mythology means “duty”. Looking at the contexts and the religious references
Dharma has different meanings just like, the Buddhists believe that the word Dharma means only a
universal law which is very much essential, and the Jains and the Sikhs believe that it is only a
religious path for the victory of the truth.
According to the Hindu Jurisprudence, Dharma means the duties in many ways. Just like the
sociological duties, legal duties or spiritual duties. Through this context, we can say that Dharma can
be referred to as the concept of justice.
Sources of Dharma
As referred to in the “Bhagwat Geeta”, God creates a life using the principles of Dharma. They are
patience, forgiveness, self-control, honesty, sanctity (cleanliness in the mind, body and soul), control
of senses, reasons, knowledge, truthfulness and absence of anger. Accordingly, The salvation which
means “Moksha” is the eternal Dharma for humans according to Hinduism.
Hindu epics like the Ramayana and Mahabharata also refers to Dharma. They say that executing
one‟s Dharma is the right aim of every individual. And also at that time, the king was known as
Dharmaraj because the main motive of the king was to follow the path of Dharma.
Nature of Dharma
Despite the other schools of Jurisprudence, the Hindu Jurisprudence takes more care over the duties
more than the rights. The nature of these Dharma changes from person to person. There are many
duties of many people in this world like earlier, the king‟s duty was to uphold the religious law and
the other hand a farmer‟s duty is to produce food, the doctor has to cure the people, the lawyers have
to fight for justice. Being a highly religious concept in nature, Dharma is multi-faceted. It contains
many laws and customs in a large range of subjects which is essential and needed to be followed by
each and every person. For example, Manusmriti deals with religion, administration, economics,
civil and criminal law, marriage, succession, etc. These we study mainly in our law books.
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Is not a Muslim, Parsi, Christian or Jews and are not governed under Hindu law.
Lodge in India.
The Supreme Court of India in the landmark case of Shastri vs Muldas expressly defined the term
„Hindu‟. This case is related to the Swami Narayan temple in Ahmedabad. There is a group of people
called the Satsangi who were managing the temple and they restricted non-Satsangi Harijans from
entering the temple. They argued that Satsangi is a different religion and they are not bound by
Hindu Law. The Supreme Court of India held that the Satsangi, Arya Samajis and Radhaswami, all
these belong to the Hindu religion because they originated under Hindu philosophy.
Hindu by Religion:
If any person follows the religion by practising it or by claiming it can be called as a Hindu.
Conversion and Reconversion to Hinduism:
Under the codified Hindu law, any person converted to Hinduism, Buddhism, Jainism or
Sikhism can be called a Hindu.
From the case of Perumal vs ponnuswami, we can say that a person can be called a Hindu
by conversion.
In this case, Perumal was the father of Poonuswami who got married to an Indian Christian. In the
future due to certain differences, they were living separately. In the future, the mother of
Poonuswami asked Perumal for the share of his properties. Perumal denied and said “marriage
between a Hindu and a Christian is void”. The Supreme Court of India held that a real intention is
sufficient evidence of conversion and no formal ceremony of purification is needed (Conversion of
Hinduism). So it is not void and Poonuswami would get a share.
For conversion, the person should have a bonafide intention and also shouldn‟t have any
reason to be converted.
Reconversion basically happens, when a person is Hindu and gets converted to a non-Hindu
religion and he will again become Hindu if he/she gets converted into any four religions of
Hindu.
If a person is born from a Hindu family, he/she is a Hindu.
When one of the parents of a child is Hindu and he/she is brought up as a member of the
Hindu family, he/she is a Hindu.
If a child is born from a Hindu mother and a Muslim father and he/she is brought up as a
Hindu then he/she can be considered as a Hindu. We can explain that a child‟s religion is not
necessarily that of a father.
The codified Hindu Law lays down that a person who is not a Muslim, Parsi, Christian or
Jews is governed by Hindu Law is a Hindu.
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Shruti
The term Shruti means what has been heard. It contains the sacred words of the god. This source is
considered to be the most important and essential source of all. Shruti‟s are the sacred pure utterance
that has been enshrined in the Vedas and the Upanishads. They have religious nexus with a person
and help him in a way to attain the knowledge of salvation and incarnation. It is considered to be the
primitive source containing the knowledge of the law.
Smritis
Smritis are considered as text which has been remembered and then interpreted by the rishis
throughout the generation. There is a further classification of the term Smrities which are as follows
Dharma Sutra (Prose)
Dharmashastras (Poetry).
Customs
Customs is the tradition that has been practiced in society since ancient times. It is the type of
practice that is under the continuous observation of the people and has been followed by the people.
Further, the customs have been classified into two categories-
Legal customs
Conventional customs
Legal customs
Legal custom is those customs which are enforceable or sanctioned by law. It can‟t be deemed
invalid until the law itself declares it invalid. There are two types of legal customs.
Local customs: Local customs are the customs that are practiced in a local area. This type of custom
is not highly recognized.
General customs: General customs are the customs or traditions which are practiced in a large area.
This type of custom is highly recognized by people.
Conventional customs
Conventional customs are customs that are related to the incorporation of an agreement and it is
conditional.
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In the instant case it was held that in order to become legally sanctioned by law and binding on the
people a custom must be continuous in practice, it should not be vague and ambiguous and should
not oppose the well established public policy. A customary rule must be in the complete observation
of society.
Laxmi v. bhagwantbuva AIR 2013 SC 1204
In the instant case, the supreme court stated that a custom becomes legally enforceable when the
majority of people make the continuous use of such practice.
Onus
Generally when a custom attains judicial recognition no further proof is required, however in certain
cases where the customary practices do not attain the judicial recognition, the burden of proving lies
on the person who alleges its existence.
Modern sources
Judicial Decisions
Judicial decisions are considered to be the most important ingredient of modern sources. Judicial
decision is considered to be authoritative and binding. The doctrine of precedent was established and
it was applied in the cases resembling the same facts and circumstances of a case already decided.
The legislation is considered to be the codification of customs which plays an essential role in
expanding the concept of Hindu law. Legislations are enacted by the parliament.
Legislation
The legislation is considered to be the most important source of Hindu law. It is considered as a base
for the growth of Hindu law in the modern world. It has been stated that in order to meet the new
conditions of society it became a necessity to codify the law.
Schools of Hindu law
Schools of Hindu law are considered to be the commentaries and the digestives of the smritis. These
schools have widened the scope of Hindu law and explicitly contributed to its development.
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Mitakshara
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.
Mitakshara is further divided into five sub-schools namely
Benaras Hindu law school
Mithila law school
Maharashtra law school
Punjab law school
Dravida or madras law school
These law schools come under the ambit of Mitakshara law school. They enjoy the same
fundamental principle but differ in certain circumstances.
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.
Dayabhaga School was formulated with a view to eradicating all the other absurd and artificial
principles of inheritance. The immediate benefit of this new digest is that it tends to remove all the
shortcomings and limitations of the previously established principles and inclusion of many cognates
in the list of heirs, which was restricted by the Mitakshara school.
In Dayabhaga school various other commentaries were followed such as:
Dayatatya
Dayakram-sangrah
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Virmitrodaya
Dattaka chandrika
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Hindu marriage is considered as one of the most important sacraments. In ancient times, there was no
need for the girls‟ consent. Fathers have to decide the boy without asking for her advice or consent. It
is the sole duty of the father to find a suitable boy. If the person was of unsound mind or minor at the
time of the marriage, it was not considered as a void marriage. But in the present world, consent and
mental soundness of the person are a very essential part of the Hindu Marriage, without the absence
of any such element marriage will be annulled or void or no legal entity.
Section 12 of the Hindu Marriage Act 1955 lays down that when one‟s consent is not obtained, the
marriage is considered void. It shows that despite the absence of consent of the bride, the marriage is
valid and legal.
The nature of modern marriage is contractual. Thus, it accepts the idea of equality and liberty. It has
been adopted due to western Ideas. There must be an agreement of voluntarily entering into it by
both parties.
Thus, the Hindu marriage is not a contract and neither is it a sacrament. But it can be said it is a
semblance of both.
Forms and Ceremonies
The normative texts, dharma texts and some G hyas tras classify marriage into eight different forms
which are Brahma, Daiva, Arsha, Prajapatya, Asura, Gandharva, Rakshasa, Paishacha. This order of
forms of marriage is hierarchical.
Even the Supreme Court of India in Koppisetti Subbharao vs the State Of A.P, recognized the
existence of 8 forms of marriage given by Aryan Hindus.
The eight forms are divided into 2 categories of approved and unapproved forms of marriage.
Approved forms
Brahma, Daiva, Arsha and Prajapatya come under the approved forms of marriage. These marriages
involve the exchange of gifts, the “gift of a maiden” (kanyādāna). Brahmins, according to the dharma
texts, have the duty to accept gifts. Therefore, the first four marriage types are generally pronounced
legal for Brahmins.
In S. Authikesavulu Chetty vs S. Ramanujam Chetty And Anr., two precedents were set:
1. Firstly, in a case where there is no proof to the contrary, it must be presumed that the marriage
is in one of the approved forms.
2. Secondly, another question arose, who will be the heir of the property of a childless mother?
It was held that the property of a childless woman married in one of the four approved forms
will go to her husband after her death.
Brahma
„Brahma‟ is one of the most practiced forms of marriage in India and has the most supreme position
out of all the eight forms of marriage. Manu-Smriti has also laid great importance on this form of
marriage.
The Brahma marriage, in dharma texts, has been explained as the gift of a daughter, after being
decked with ornaments and honoured with jewels to a man selected by the father himself and who is
learned in Vedas is called the “Brahma marriage”.
The “Brahma” marriages are the rituals of the Brahmans who according to Manu-Smriti have the
duty to accept gifts.
The Supreme court in Reema Aggarwal vs Anupam And Ors, 2004 discussed the possibility of
Brahma marriage being the origin of the dowry system in India but didn‟t come to a conclusion
regarding it. According to the author, “Brahma” marriages do not give rise to dowry cases because
the father of the girl himself voluntarily gives gifts to the bridegroom. There is no external pressure
from the bridegroom according to the Manu-Smriti. However, in practicality, the bridegroom may
use the custom of “exchanging gifts” for harassing and pressurising the bride and her parents to give
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dowry. Also, According to Manu, the son of a wife married according to Brahma rites liberates ten
ancestors and descendants.
Daiva
Daiva-vivāha means „marriage related to the rite of the gods‟. In this form of marriage, unlike
Brahma, the father gives away his daughter to a priest as a Dakshina (sacrificial fee) for officiating in
the sacrifice conducted by the father of the bride.
In this form of marriage, the groom doesn‟t come looking for a bride, the parents of the bride go
looking for the groom for her daughter.
This form of marriage is considered inferior to the Brahma marriage because, in Daiva, the father
derives a benefit by using her daughter as a sacrifice and also because it is considered degrading for
women to go looking for a groom.
According to Manu, the son of a wife married according to Daiva rite liberates seven of their
ancestors and descendants.
Arsha
The third form of approved marriage, that is Arsha Marriage, suggests marriage with Rishi or sages.
This is different from Brahma and Daiva forms of marriage because, in Arsha, the father of the bride
doesn‟t have to give anything to the bridegroom. In the Arsha, the father of the bridegroom is the one
who gives 2 cows or bulls to the father of the bride.
Marriages of this type happen because the parents of the girl couldn‟t afford the expenses of their
daughter‟s marriage at the right time according to the Brahma rite. So it is presumed that the girl is
married off to an old rishi or sage in exchange for 2 cows.
Sir Gurudas Banerjee (also known as Gooroodas Banerjee), a Bengali Indian Judge, believed that
this form of marriage indicated the pastoral state of Hindu society, where the cattle was considered
as the monetary consideration for the marriage.
However, this form of marriage was not considered noble as the marriage was treated as a business
transaction where the bride was exchanged for cows and bulls.
According to Manu, the son of a wife married according to arsha rite liberates three ancestors and
descendants.
Prajapatya
Prajapatya form of marriage is similar to Brahma form of marriage except there is no trading or
Kanyadan in Prajapatya and the father of the bride searches for the groom. Because of these
differences, Prajapatya is inferior to Brahma.
In this form of marriage, the father while giving away her daughter addresses the couple with a
condition that both the bride and bridegroom may perform their dharma together.
The basic condition requested by the father of the bride is that the bridegroom must treat the bride as
a partner and fulfil their religious and secular duties together.
According to Manu, the son of a wife married according to prajapatya rite liberates six ancestors and
descendants.
Unapproved forms
Asura, Gandharva, Rakshasa and Paisacha come under the unapproved forms of marriage. According
to Rajbir Singh Dalal vs Chaudhari Devi Lal University, 2008, the property of a childless woman
married in one of the unapproved forms goes to her family rather than her husband.
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Asura
This is one of the most condemned forms of marriage. In this form, the father gives away her
daughter after the bridegroom has provided all the wealth that he can, to the father of the bride and
the bride herself. The Ramayana mentions that an extravagant amount of price was given to the
guardian of Kaikeyi for her marriage with King Dasaratha. This is basically a commercial transaction
where the bride is purchased.
According to Manusmriti, the father of the girl should not accept the offer even for the least amount
of price.
The test for determining whether a marriage is “asura” or not was laid down in Kailasanatha
Mudaliar v. Parasakthi Vadivanni, 1931. If the bridegroom gives money or anything that has
money‟s worth (like wheat, cows etc) to the bride‟s father for his benefit or as consideration for him
to give her daughter in marriage is called Asura marriage.
Gandharva
This is a unique form of marriage and is different from other forms of marriage. There is a mutual
agreement between the girl and boy to get married. This mutual agreement arises from pure lust. The
approval of parents does not play a role.
The concept of mutual consent for marriage was prevalent in the old Hindu system, however, the
solemnization of marriage coming out of the mutual consent was very low. This was because:
1. This led to the Hindu culture shifting to child-marriage.
2. Possibility of inter-caste relations became high.
3. This form of marriage was not in accordance with Hindu cultures and practices as there was
no parental consent.
The Supreme Court in the case of Bhaurao Shankar Lokhande & Anr vs State Of Maharashtra &
Anr, 1965 discussed essential ceremonies required for performing Gandharva marriage. In this form,
there is a custom that the father of a female should touch the foreheads of the female and male to
each other and the Gandharva is completed by the act. Along with this custom, another custom which
required the presence of a Brahmin priest and a barber was pleaded not to be essential for Gandharva
marriage. However, it was held that without these essential ceremonies, a Gandharva marriage was
not solemnised u/s 17 of the Hindu Marriage Act and u/s 494 of Indian Penal Code.
Rakshasa
Rakshasa form of marriage is performed by abducting the bride and brutally slaying her family and
relatives. In some texts, another condition that needs to take place is that the bridegroom shall fight
with the family of the bride while following the ceremonial steps in a tranquil wedding. However,
this condition is not essential for having a “Rakshasa” marriage. According to P. V. Kane, a noble
Indologist, this form of marriage is named Rakshasa because Rakshasas (demons) are known from
history to have been ensuing cruelty on their captives.
This form of marriage was practised by Kshtraiyas or military classes. “Rakshasa” marriage
resembles a right of a victor over the person held captive in war.
In the modern era, this form is a criminal offence u/s 366 of IPC. Section 366 prescribes punishment
for abducting/kidnapping a woman to compel her to marriage is punishable with imprisonment up to
10 years and/or fine.
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The groom shall attain the age of 21 and the bride attains the age of 18. It is necessary at the
time of marriage the person shall attain the specified age given in this Act.
The consent shall not be given by coercion or threat. In the modern world, a father can‟t get
the girl married to any without a girl‟s consent. Marriage will be void.
They don‟t fall under the Sapinda relationship, or within the degree of prohibited relationship
unless it is allowed by their custom or tradition.
The person shall be not suffering from any insanity or mental disorder at the time of the
marriage.
Bigamy
Bigamy amounts to having two living wives at the same time which is illegal in Hindu law; without
finalizing the divorce from the first marriage, a person can‟t marry someone else. The first one will
be considered a legal marriage. The provision of section 494 and 495 of the Indian Penal Code 1860
will be applicable to the person performing the second marriage after already having a living
husband and wife.
Child Marriage
Child Marriage under the Hindu Marriage Act, 1955 is neither void nor voidable. The silence on the
part of the legislature in Section 11 & 12 and express rule in the form of provision of Section 13 (2)
(iv), renders it as valid. As a result of silence on the part of the legislature in Section 5, 11 & 12 and
express provision under Section 18 of Hindu Marriage Act, child marriage is valid as seen in the case
of Manisha Singh vs. State of NCT ,
In Neetu Singh VS the State & Ors. the High Court of Delhi held that the marriage of minors is
neither void or voidable, but is punishable.
Under the Hindu Marriage Act, none of the parties have the option to repudiate the child marriage by
way of a decree of nullity. The High Court of Rajasthan in Sushila Gothalal vs. State of
Rajasthan directed that State should take necessary steps to stop the menace of child marriage by
punishing all involved in such marriages. As a result of which, the Chief Minister of Rajasthan had
made a special appeal to all its people in the State to prevent these child marriages.
Nevertheless, a female child has been given the right to repudiate the marriage under Section 13 (2)
(4), by way of divorce. In Roop Narayan Verma vs. Union of India, the High Court upheld the
constitutional validity of Section 13 (2) (4) of the Hindu Marriage Act by terming it as the exercise
of power by the legislature under Article 15 (3) of the Indian Constitution.
In the wake of silence on the part of the legislature under Section 11 and 12 of the Hindu Marriage
Act, 1955 and express provisions in the same, the status of child marriage in Hindu Marriage Act,
1955 appears to be uncertain. There is a possibility of two arguments in this context:
1. That the child marriage in Hindu Marriage Act, 1955 is not valid in view of Section 5, or
2. That the child marriage in HMA is neither void nor voidable but renders valid.
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What does this law do?
This law:
Provides for maintenance for the girl in a child marriage;
Allows anyone who was a child at the time of getting married to legally undo it;
Treats children born out of child marriages to be legitimate, and makes provisions for their
custody and maintenance, and;
Consider certain kinds of child marriages where there was a force or trafficking as marriages
which never happened legally.
Presumption of Marriage
Registration of Marriage
Sociologically, marriage can be defined as the approval of union between two people which must be
a steady and lasting relationship. Marriage creates an environment for cultivation and fulfilment of
love. In legal terms, marriage is defined as a contract by which a man and a woman reciprocally
engage with each other so as to live together. Legally, it is important for both parties to subscribe to
the contract by will if they want to call it marriage.
It is important to know what are the legal procedures involved in a valid marriage. This article gives
a brief idea about the same. Firstly, let‟s figure out which acts are related to marriage in India. In
India, there are different marriage acts for different religions. For Hindus, there is the Hindu
Marriage Act, 1955, which is also applicable for Jains, Sikhs, and the Buddhists. Muslims also have
their personal law, which states that Nikah or marriage is a contract and may be permanent or
temporary and permits a man to have four wives, the condition being that he must treat all of them
equally. For the Parsees, there is a Parsee Marriage & Divorce Act, 1939, which governs the
provisions of their marriage and law. For an Indian Christian, there is the Indian Christian Marriage
Act 1889.
Thus the Acts related to marriage in India are:
The Hindu Marriage Act, 1955.
The personal laws of marriage and divorce.
Procedures of marriage and registration under the Hindu Marriage Act, 1955
As stated above, the Hindu Marriage Act, 1955 applies to many religions such as the Hindus, Jains,
Sikhs and the Buddhists. It is also applicable to the persons if they have converted to any of these
religions from any other religion. The primary condition according to this act is the age of the bride
and the bridegroom. While in the case of a bride it has been stated as 18 years, in the case of the
bridegroom, it is 21. This means that no male or female belonging to any of the above-mentioned
religions shall be legally allowed to marry before attaining the aforementioned ages. The Hindu
marriage act applies to all over Indian states and the Union territories, Jammu and Kashmir being an
exception to it.
According to the law and as per the recent strict guidelines of the Supreme Court, it is highly
necessary to register the marriages. Let‟s now take a look at a few registration processes and the cost
of the same.
As per the Hindu Marriage Act, 1955, following are the requirements for registration:
One can apply for marriage at any sub-divisional magistrate‟s office; the offline application
method can be initiated from there itself; the registration can be done online as well. The
details are required after confirming your district/state. In the case of Hindu Marriage Act,
one has to wait only 15 days for an appointment while it may extend to 30 days in case of
Special Marriage Act.
The registration form must be duly signed by both male and female with a sound state of
mind. Both the parties must not fall within any degree of prohibited relationship.
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The second requirement for registration under Hindu Marriage Act, 1955 is any document
that provides the date of birth of the individuals. The documents may be the birth certificate,
matriculation certificate, passports, PAN cards, etc.
Two passport size photographs of both the parties are required, also one marriage photograph
and Marriage invitation card (which although is not mandatory).
In a case where the individuals have converted to any of the religions which the Hindu
Marriage Act, 1955 covers, the conversion certificate duly verified by a priest to the religion
which the individuals have converted to, is also required.
The most important process for the registration to complete is the attestation of a Gazetted
officer. All the above-mentioned documents must be verified by a Gazetted officer.
After the submission of all the above-mentioned documents duly verified, it shall be the duty
of the district court to confirm and put a final thumbs up on the marriage registration of the
individuals.
Cost of registration:
The basic cost of registration differs from state to state; it is however in between Rs. 100-200.
Procedures of marriage and registration under the Special Marriage Act, 1954
The Indian Special Marriage Act is for those who don‟t opt the religious way of marriage, i.e. those
who prefer other methods of getting married apart from the religious methods such as court marriage.
Following are the list of documents required for registration under the special marriage act:
Passport – A valid passport is a must requirement in the case of registration under the special
marriage act.
Birth certificate.
A copy of the divorce certificate in case of divorcees.
Death certificate of the deceased spouse in case of a widowed partner.
The certificate mentions the stay of a couple in India for the period of 30 days.
The special marriage act also covers the requirements of court marriages in India. Court marriage can
be between an Indian male and a female irrespective of their caste, religion or creed. It can also be
between an Indian and a foreigner, rules of which have been already explained just above. What
court marriage does is it removes the rituals and ceremonies that happen in traditional/religious
marriages. The interested parties can directly apply to the Marriage Registrar for registration of
marriage and be granted the marriage certificate by the registrar.
There are different situations in court marriage. To mention a few, court marriages can be done
among these:
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1. Both male and female are Hindus.
2. Both male and female belong to different religions.
3. Between an Indian and foreigner.
According to the Special Marriage Act, when two individuals are willing to do a court marriage, they
need to ensure the following things:
Both the individuals must not be married substantially to any other partner, i.e. both the
parties are required to be unmarried.
Both the individuals must have attained the legal age of marriage, i.e. 21 in the case of the
groom (male) and 18 in the case of the bride (female).
Both the individuals should be marrying with the sound state of mind, and none shall be under
any sought of unsound state of mind.
Conditions and requirements for registration when both male and female are Hindus:
Now let‟s take a look at the procedure followed in case of both individuals being Hindu:
The individuals are required to fill the form and submit it to the marriage registrar in one of
the districts in which either of the individuals has resided for not less than a month.
The marriage may be allowed only after 30 days unless there is any sort of objection from any
of the individuals.
The marriage is required to take place only at the specified marriage office.
Both the individuals are required to be present physically at the time of marriage.
The presence of 3 eye witnesses.
Now we look at the most important thing.
The documents required for registration. The documents required are as follows:
Passport sized photos of the individuals along with the given form and prescribed fee.
Resident proof of the individuals.
Birth certificate of the individuals.
Photos and residential proof of eye witnesses.
Conditions and requirements for registration when both individuals are of different religion:
Under the Special Marriage Act, the procedure, as well as the documents necessary for marriage
where both individuals are of different religions is almost the same as that in the case where both the
individuals are Hindus. Both individuals must file their application in the marriage registrar‟s office
in the same process as mentioned above. The documents requirements are also the same as
mentioned above unless any special circumstances.
Charges an individual has to pay to get married under the Special Marriage Act:
There is no charge taken by the registrar. Registration form charges differ from state to state. The
individuals are required to submit the form charges along with the required documents at the time of
registration. Generally it is between Rs. 150-200.
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Void Marriages
Voidable Marriages
Provisions
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. 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.
Conversion to Islam.—The second marriage of a Hindu husband after his conversion to
Islam is a void marriage in terms of Section 494 IPC, Sarla Mudgal v. Union of India, 1995
SCC (Cri) 569.
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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 a 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.
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The right of the couple to have each other‟s society.
The right to marital intercourse.
According to Manu, “Let mutual fidelity continue till death. Let a man and woman united by
marriage, constantly beware, lest at any time disunited they violate their mutual fidelity.” This is the
only positive remedy under the Hindu Marriage Act,1955 while other reliefs tend to weaken the
marriage.
Definition
The term “conjugal” means “matrimonial”. It refers to the relationship between a married couple.
Conjugal rights are matrimonial rights of both of the spouses. One spouse is entitled to the society,
comfort and consortium of each other. The expression “Restitution of conjugal rights” means
the restoration of matrimonial rights. Provisions regarding restitution of conjugal rights are provided
in various Personal Laws such as:
Section 9, Hindu Marriage Act, 1955
Section 22, Special Marriage Act, 1954
Section 32, Indian Divorce Act, 1869
Section 36, The Parsi Marriage and Divorce Act, 1936
Allowing the wife (or husband) to stay in such a house is purely at the discretion of the house
owners. Parents-in-law have no obligation to give residence to their daughter-in-law in a house
owned by them. Therefore, a claim to reside in a house owned by the in-laws/relatives of the
husband is bound to fail.
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. By doing this,
the law allows them the free space and independence to think about their future path and it is the last
option available to both the spouses for the legal breakup of the marriage.
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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The respondent should be settled in the jurisdiction of the court where the petitioner filed the
petition.
The husband and wife lived together for a particular period of time before the filing of a
petition.
Every petition should according to Order VII Rule 1 of the Civil Procedure Code, 1973 must contain:
The date and place of marriage.
The person should be a Hindu, by his/her affidavit.
Name, status, address of both the parties
Name, DOB and gender of children(if any).
Details of litigation filed before filing the decree for judicial separation or divorce.
For the judicial separation, the evidence should prove the grounds.
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Civil death/Presumed death [Section 13(1)(vii)]- If a person is not found for 7 or more years
and their relatives or any other person have not heard from him/her or it is believed that
he/she may be dead. Here, the other spouse can file for judicial separation.
Divorce
The word „divorce‟ had not been defined under any statutory provisions but it could be defined as a
legal dissolution of judicial ties established at marriages. Thus a divorce is also a seven lettered
word, which separates the united couple at their own wish with their own consent. Thus divorce can
be considered a means to break marriage that happens not just between two individuals but also
between two families.
Divorce grounds
The grounds of divorce under the Hindu Marriage Act had been stated under Section 13 of the said
act. Thus these grounds are lawfully valid grounds for divorce and if such circumstances arise, then,
unfortunately, divorce is bound to take place.
Adultery
Adultery had been defined under Section 13(1)(i). It states that after solemnization of marriage if a
married person with the ties of marital bonds is having sexual intercourse with another person who is
not his or her spouse, is said to have committed adultery. Adultery is a crime in India and also has its
penal provision under Section 497 of the Indian Penal Code. Section 497 of the Indian Penal Code
defines as whoever has sexual intercourse with an individual who is and whom he knows or has as
reason to accept to be the wife of another man, without the assent or intrigue of husband, such sexual
intercourse not adds up to the offense of rape, but is blameworthy of the offense of adultery, and will
be punished with an imprisonment of either for a term of five years, or with fine, or with both. In
such a case, the wife will not be culpable as an abettor. However, it also draws a link with Section
198(2) of the Code of Criminal Procedure which deals with the prosecution for offenses against
marriage. Thus the Supreme court in the case of Joseph Shine v Union of India had held that Section
497 of the Indian Penal Code and Section 198(2) of the Code of Criminal Procedure together
constitute a legislative packet to deal with the offense of adultery had been held unconstitutional and
thus, it is also being struck down by the Supreme Court.
Cruelty
Cruelty in simple terms means torturing or unreasonable brutal behaviour against one. Thus Section
13(1)(ii) states that even after solemnization of marriage, treating the petitioner with cruelty can also
be considered as a ground for marriage. Cruelty is also a criminal offense and also has statutory
provisions for the same. Section 498A of the Indian Penal Code states about the cruelty by the
husband or the relative of the husband on the woman or wife. This section clearly defines cruelty as
:
any wilful behavior which is of such a nature as is probably going to drive the lady to end her
life or to cause grave injury to her life, limb or wellbeing (regardless of whether mental or
physical) of the woman; or
harassment of the woman where such harassment is with the end goal of pressuring her or any
individual identified with her to fulfil any unlawful need for any property or important
security or is because of disappointment by her or any individual identified with her to satisfy
such need.
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Thus when two such constituents of cruelty are being meted out, the person committing the same
shall be punished with imprisonment for a term which shall extend for 3 years or with fine or both.
Its link can also be drawn with Section 113(A) of the Evidence Act. Thus when such brutal acts are
committed where an individual wants to end his or her life is bound to be considered as a basic
ground of divorce.
In my opinion, it can also be concluded by criticizing that such acts of cruelty only happen on
women, but society being dynamic such cases of cruelty also happens on men but there is still no
penal provision to protect their rights and dignity. Though such cases of torture on men are rare, it is
existing in the Indian society.
Desertion
Previous cohabitation is essential for pleading desertion, except in cases of mental or physical
incapacity or other special circumstances. Desertion in simple terms can also be considered as an act
of abandoning a person. Thus it had been defined under Section 10(ib) of the Hindu Marriage Act
1955. It states that divorce can happen if the petitioner had been deserted by the respondent for a
continuous period of two years immediately after preceding the presentation of the petition. Even if
the spouse had left the home but still contacts the petitioner through emails or phone calls it cannot
be considered as a ground of divorce or it could be stated that no desertion had taken place.
However, if the respondent or the other spouse suddenly without any reasonable cause ceases to live
with the petitioner or dismisses all the rights, obligations and duties tied with the marital bond, then
the essence of the only intention which he had was to desert the partner in the marriage. Thus it could
be a valid ground for divorce as well. Therefore in the case of Ashok Kumar Arora V. Prem Arora,
AIR 1987 Del 255, it had been held that when one spouse separates himself/herself to bring
cohabitation to an end the other is entitled to seek for a decree of divorce. In the case of Jyothi Pai v.
P.N. Pratap Kumar Rai, AIR 1987 Kant 24, it had been held that the initial burden of proving
discontinuation from the society without reasonable cause lies on the petitioner.
Insanity
The word insanity had been derived from the word insane which means not in a correct state of
mind. Thus a person who is not able to understand the difference between right or wrong or who is
unable to provide consent or to approve or disapprove the happenings around him cannot be
considered as competent enough to tie himself or herself within the matrimonial bonds. Insanity had
been defined under Section 13(1)(iii).
Thus the articulation “mental disorder” implies dysfunctional behaviour, captured or deficient
advancement of the brain, psychopathic confusion or some other issue or incapacity of the
brain and incorporates schizophrenia;
And similarly, the articulation psychopathic disorder implies a tenacious issue or incapacity of
the brain (regardless of whether including sub-typicality of insight) which brings about
strangely forceful or genuinely irresponsible conduct lead with respect to the other, and
whether it requires or is susceptible to clinical treatment; thus when a person is suffering from
such an unstable mental condition, he/ she can never perform their right and duties in a
marriage, hence, it is also one of the most important grounds of divorce.
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The court held that the contention of the petitioner that the judgment of Sarla Mudgal amounts to the
violation of freedom of conscience and free profession, practice and propagation of religion as
guaranteed under Article 25 and 26 of the Constitution, is far fetched and is alleged by those who
hide behind the cloak of religion to escape the law.
The court further stipulated that the freedom guaranteed under Article 25 of the Constitution is such
freedom which does not encroach upon similar freedom of the other persons. The petition also
claimed that making converts liable for committing polygamy would be against Islam. The apex
court observed the ignorance of the petitioners and rightly said that even under Islamic law, purity of
marriage is upheld by Prophet Mohammad.
The interpretation of Islamic law in the modern sense would never allow such acts in its religion.
Islam is a progressive, pious and respected religion that cannot be given a narrow concept as has
been allegedly done by the petitioners.
Leprosy-Lepromatous leprosy is a virulent and incurable form of leprosy and thus a ground
for divorce.
Venereal Disease
Renunciation
If the husband is guilty of rape, sodomy, and bestiality after the solemnization of marriage.
1. Under s. 13(2)(ii) of the Act of a wife entitled is for a petition of divorce on the ground of
rape, sodomy or bestiality submitted on her by the husband. Rape is additionally a criminal
offense and characterized in Section 375 of the Indian Penal Code. A man is said to commit
rape who had intercourse with a lady without wanting to, without her consent, or with her
assent which is obtained by placing her in dread of death or of hurt. Thus when a wife gets to
know that her husband did such an act, she has a special power to dissolve the marriage by
letting him free.
2. Sodomy is committed by an individual who has sexual intercourse with an individual from
similar sex or with a creature or has non-coital carnal copulation with an individual from the
contrary sex. Bestiality implies sexual association by a person against the request for nature
with a creature.
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Where a decree of maintenance under Section 18 of the Hindu Adoptions and Maintenance Act
1956, or a decree for maintenance of wife under Section 125, Cr PC 1973, has been passed against
the spouse, the wife is qualified to present a petition for divorce which would be based on the
fulfillment of two conditions of the divorce. In the first place, she was living separated, and besides,
after passing of the order or decree, there had been no cohabitation between the husband and the wife
for a time period of one year.
In some situations, the wife got married before attaining the age of 15. At such an age a little bride
would have no understanding of what marriage actually means and the duties and obligations which
are associated with it. Thus she has the right to revoke the marriage before the attainment of 18 years
of age. Thus in such circumstances, the wife is being given the option to continue the marriage or to
revoke the same.
Merits (Advantages)
If the individuals, tied within the matrimonial bond feels that the marriage is not working out, then
mutually it may give the right to both of them to stay and live life separately and happily without any
botheration on either part. As there is no reasonable probability of staying together thus it gives both
of them the opportunity to start their life as per their own wishes independently and separately.
Demerits (Disadvantages)
Irretrievable breakdown of the marriage may become an excuse where the married couples
may always feel that little arguments are unreasonable as a result of which there is no
probability of them staying together. Therefore, in my opinion, the process of divorce
following the irretrievable breakdown of marriage theory is not justified.
It may also result from sudden arbitrary unreasonable decisions.
It sometimes happens based on temporary emotions such as anger, humiliation, etc. which a
couple may go through during the heat of the argument.
It fosters no communication procedure between the partners.
It is not just the breakdown of marriage but it is also the wreckage of two united families at
the time of marriage.
If children are born out of that marriage when the parents „now‟ think that there is no
reasonable probability of staying together, such broken families could be a matter of stress for
the child born out of the marriage as well.
Maintenance
The words “Hindu wife” used in Section 18 includes only lawful wife or legally wedded wife if it
does not include wife married during subsistence of first marriage. It is often referred to as
“alimony” or a kind of monetary support from the spouse i.e. spousal assistance. Maintenance on the
other hand, is an act of bearing the financial expenses or reducing the burden of the spouse whose
burden increases and if the husband is wealthy and leading an opulent life, his wife also has the right
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to be the partner in his prosperity and live with the same standards and equal dignity. It does not lie
in the mouth of the husband, after separation of the spouses, to say that the wife is no longer entitled
to the standard in which she has been living with the husband and that she should re-adopt the
standard of her parental home. The status of the parents of the wife is a totally irrelevant
consideration. After the marriage, it is the status of the husband which is determinative of the
quantum of Maintenance to be given to the wife.
Further, the main purpose of granting maintenance is to maintain the standard of living of the spouse
equivalent to that of the other spouse and in accordance with status prior to the separation. It is
granted during the proceeding of decree or after the decree of divorce and ceases to exist on the death
or remarriage of the alimony holder. The spousal maintenance is determined on the existence of
various factors by the court as follows:
1. No separate source of income. The most important factor to be considered before granting
maintenance or alimony is to check whether the spouse seeking maintenance has any separate
source of income or not or is solely dependent on the income of his/her spouse.
2. Standard of living of both the litigating parties before separation.
3. Expenses required to maintain children.
4. Requirement to maintain the same standard of living of the spouse as it was before the
separation.
5. Skills, capabilities and educational background of the spouse to earn his/her living and
maintain themselves etc.
Types Of Maintenance
On consideration of factors by the competent court, maintenance can be granted on the following
basis-
Temporary Maintenance- It is also referred to as maintenance pendente lite which is awarded
by the courts during the continuation of proceedings of the divorce. The purpose is to meet the
necessary and immediate expenses of the spouse who is a party to the proceedings. On
satisfaction, the court may grant it. Section 24 of Hindu Marriage Act,1955 deals with this
kind of maintenance. Further can be claimed under Section 125(1) of CrPC.
Permanent Maintenance- As the term suggests, it refers to the granting of a sum on
a periodical basis or on a continued basis once the proceedings have been disposed
of. Section 25 of Hindu Marriage Act, 1955. Either of a spouse is entitled to receive it.
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Thus, only hindus (the applicability of which could be checked from Section 2 of Hindu Marriage
Act, 1955) are covered under this Act.
From ancient times women have been kept at a disadvantaged position which not only weakens their
stake in society but also leads to unequal treatment with them. The Code of Criminal procedure came
into force in the year 1973 and according to Section 125 of this code, maintenance is granted to
wives, children and parents irrespective of any religion or personal laws. Hence, it has provided for a
better status to women by granting rights in a dignified manner.
Hindu Marriage Act, 1955
Delhi High Court recently in the case of Rani Sethi v/s Sunil Sethi, ordered the wife(
respondent) to pay maintenance to her husband (petitioner) of Rs 20,000 and Rs.10,000 as
litigation expenses. Further a Zen car was ordered to be given for the use of the petitioner.
Wife on being aggrieved by the same order approached the High Court, where the scope of
Section 24 of HMA was construed and it was held that the purpose of this Section was to
provide support to the supposed who is incapable of earning his/her independent income.
Further it was held that the term “support” shall not be construed in a narrow sense and thus,
it includes not only bare subsistence. It aims to provide a similar status as that of the
respondent spouse. Thus, considering all the facts and circumstances, the appeal of the wife
was dismissed.
Though Section of the above said Act provides sufficient right to both husband and wife to
move an application before the court for seeking maintenance, if they do not have an
independent source of income and have been solely dependent upon his/her spouse. But this
Section cannot be invoked in such a manner as to where husband though capable of earning
does not continue to do so intentionally for the sole purpose of depending on his wife. In such
a case the husband cannot move an application for seeking maintenance. This was held by the
Madhya Pradesh High Court in the case of Yashpal Singh Thakur vs Smt. Anjana
Rajput where husband incapacitated himself by stopping to run an auto rickshaw. Hence,
where a person intentionally incapacitates himself he loses the opportunity to file an
application for seeking maintenance.
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Obligation to Maintain Children and Parents
Live-in relationship, as such, is a relationship which has not been socially accepted in India, unlike
many other countries. A live-in relationship between two consenting adults of heterosexual sex does
not amount to any offence even though it may be perceived as immoral. However, in order to
provide a remedy in civil law for protection of women, from being victims of such relationship, first
time in India, the DV Act has been enacted to cover the couple having relationship in the nature of
marriage, persons related by consanguinity, marriages, etc. There are other legislations also where
reliefs have been provided to women placed in certain vulnerable situations. Section 125 CrPC, of
course, provides for maintenance of a destitute wife and Section 498-A IPC is related to mental
cruelty inflicted on women by their husbands and in-laws. Section 304-B IPC deals with the cases
relating to dowry death. The Dowry Prohibition Act, 1961 was enacted to deal with the cases of
dowry demands by the husband and family members. The Hindu Adoptions and Maintenance Act,
1956 provides for grant of maintenance to a legally wedded Hindu wife, and also deals with rules for
adoption. The Hindu Marriage Act, 1955 refers to the provisions dealing with solemnisation of
marriage and also deals with the provisions for divorce. For the first time, through the DV Act,
Parliament has recognised a “relationship in the nature of marriage” and not a live-in relationship
simpliciter.
Under the proviso to Section 19(1), the words used are (a) from the estate of her husband or her
father or mother and they mean that she has a right-apart from the right she has against the estate of
her husband – a personal right against her father or mother during their respective lives. The words
the estate of before the words her husband, are not to be read into the latter part of the clause as
estate of her father or mother. What the proviso does here is to create (i) a right against the estate of
her husband and also (ii) an independent and personal right against the father during his lifetime (or
against the mother) if the daughter is unable to maintain herself out of her earnings or other property
etc. That right against the father during his lifetime can be enforced against the property he is
holding. The legislature has deliberately not used the words state of her father in the proviso (a) to
Section 19(1)
Section 26 of the same act deals with the custody, maintenance and education of minor children.
Court may, as it considers necessary and deems fit, from time to time pass interim orders in this
regard and at the same time has the power to revoke, suspend or vary such an order. Obligation to
maintain lies on both father and mother of the child or on either of the parents as ordered by the
court. Section 20 of Hindu Adoption and Maintenance Act, 1956 lays down an obligation on a
hindu male or female to maintain their legitimate/ illegitimate minor children and aged/ infirm
parents, the amount of which is to be determined by the competent court on the following factors-:
1. Economic position and status of the litigating parties.
2. Reasonable wants and needs of the parties.
3. Dependence of the parties, etc.
In Sukhjinder singh saini v/s Harvinder kaur, certain observations were made by the Delhi High
Court while dealing with the issue of deciding the maintenance to be granted for a child:
Both the parents have a legal, social and a moral obligation to maintain their children and
provide them with the best standard of living, depending on the financial footing of the
parties.
They are equally obligated to provide means for best education.
It was further held that even if the child is living with the spouse whose income is sufficient
enough to maintain the child cannot be taken as a good ground by the other spouse of not
maintaining the child or taking care of the child‟s welfare.
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Jurisdiction and Procedure
Procedures of Divorce (Detailed study under the Hindu Marriage Act 1955)
Section 19 of the Hindu Marriage Act 1955 states about the court in which the petition of divorce
should be presented. It also highlights the fact that every petition which is sought to have been
presented under this Act should be presented to the district court within the local limits of the
original ordinary civil jurisdiction. The petition can, therefore, be filed in:
The place where the marriage was solemnized.
The place where the respondent resides during filing of the petition.
The place where the couple last resided together.
The place where the wife of the petitioner last resided.
If the respondent is residing at a place which is outside territorial limits to which the act
extends or not had been heard of being alive for a period of 7 years, then the petitioner could
file a petition depending upon the places where he or she is presently residing.
Section 20 states about the contents and verification of the petition.
Section 20 sub-section 1 states that every petition of divorce presented under the Hindu
Marriage Act 1955 should be distinctly examined based on the nature and facts of the case
depending on which the claim of relief is decided.
Section 20 sub-section 2 states that the statement contained in every petition under this Act
should be verified either by the petitioner or any other competent individual in a manner
presented by the law for the verification of the plaints and during hearing it may also be used
as evidence.
Section 21A states that:
Clause (a) sub-section 1 of Section 21A states that where,
(a) a petition under this Act has been exhibited to a district court having jurisdiction by the
party involved with a marriage wanting for a decree for judicial separation as being stated
under Section 10 or for a decree for divorce under Section13; and
(b) another petition under this Act has been displayed from that point by the other party to the
marriage praying for a decree of judicial separation under Section 10 or for a decree of
divorce under Section 13 on any ground, regardless of whether in a similar district court or in
an alternate or different district court, in a similar State or in an alternate or different state
State,
The petitions will be managed as indicated in sub-section (2).
Sub-section 2, states, for a situation where subsection (1) applies,
(a) if the petitions are introduced to a similar district court, both the petitions will be
attempted and heard together by that district court;
(b) if the petitions are exhibited to some other different district courts, the petition which is
being presented later will be moved to the district court in which the previous petition was
introduced and both the petitions will be heard and discarded together by the district court in
which the prior request was introduced.
Sub-section 3, states, for a situation where condition (b) of sub-section (2) applies, the court
or the Government, by and large, able under the Code of Civil Procedure, 1908 (5 of 1908), to
move any suit or proceeding from the district court in which the later appeal has been
presented to the district court in which the previous request is pending, will exercise its
authority to move such later petition as though it had been enabled so to do under the said
Code.
Section 21B states that firstly the trial of a petition shall be taken in with the interest of justice and it
shall be taken day-to-day until the case is being concluded. Day-to-day all the necessary reasons for
filing the divorce petition should be recorded. This is stated in Section 21B(1). Secondly, an attempt
should be made to conclude the cases within a period of 6 months. Therefore the cases are to be dealt
expeditiously as being stated under Section 21B(2). Thirdly in Section 21B(3) every appeal under the
29
act should be dealt expeditiously as possible and should be tried to be concluded within the period of
3 months from the date on which notice of appeal had been served to the party.
Section 21C states that no document in this regard shall be admissible if it is not duly stamped or
registered. Therefore Section 21C states about the documentary evidence.
Section 22 under this act states that all the proceedings under this Act should be conducted in a
camera, and it is unlawful for anyone to print or publish the same. However, if any act happens
contrary to the given provision then he or she shall also be punishable with a fine which shall extend
to one thousand rupees. In this section the word „camera proceeding‟ means that all the acts should
only happen in the presence of the Judge, the concerned advocates of the two parties and the two
parties i.e the petitioner and respondent themselves. Thus it is not an open court where one could be
allowed.
Section 23 of the Hindu Marriage Act 1955, provides a bar to matrimonial relief. It explains the
conditions under which the court would not be granting matrimonial relief.
The conditions are as follows under sub-section 1 of Section 23:
1. Clause (a) of sub-section of Section 23 states that the petitioner needs to show that he or she is
not taking advantage of his own wrong. For example, if the petitioner had been constantly
torturing the respondent, and the respondent also had shown some act of cruelty against the
petitioner then the petition cannot want relief on the ground of cruelty committed by the
respondent as it was the petitioner who started the act of torturing and teasing the respondent.
Hence in this regard, the Court holds up the principle of equity that one who comes for equity
must come with clean hands.
2. Clause (b) of sub-section 1 of Section 23 states that a petition which is being filed on the
ground of adultery has not in any manner been an accessory to connived at or condoned the
acts complained off. Thus „accessory‟ in the regard means aiding or assisting or actively
participating in the offense complained against. If this ground of participation by the
petitioner is being established then the court would grant no relief. Similarly „connivance
implies a willing consent to a conjugal offense. Therefore if one spouse is willingly,
intentionally or recklessly allowing the conjugal offense then no relief could be given by the
court. Lastly, condonation means to forgive. Thus, if there is a reinstatement of the spouse
who had suffered the matrimonial offense, then the court will see that such there are chances
of forgiveness and smooth functioning of a relationship, as a result, no relief would be given.
3. Clause (bb) of sub-section 1 of Section 23 if the divorce is given on the ground of mutual
consent and that consent had not been derived by any fraud, force or undue influence, then
such a relationship would also be barred from any sort of relief.
4. Clause (c) of subsection 1of Section 23 states about collusion. Thus it holds the view that if
two parties within the marital ties had consented for divorce but in order to get the relief they
trick the court, therefore in such circumstances also relief will not be given.
5. Clause (d) of sub-section 1 of Section 23 states that if there is an unreasonable, or improper
delay for filing a decree for divorce or for judicial separation then relief also be given:
As per Section 23(2), it is the duty of the court to look into the nature and circumstances of
the case and try every possible endeavor to bring about a reconciliation between the parties.
If the court thinks fit and if the parties desire, the court may adjourn the proceeding for a
reasonable period of 15 days and refer the matter to any person as named by the parties or on
behalf of the person selected by the court if the parties fail to name them with directions to
report to the court. This had been stated under sub-section 3 of Section 23 of the Hindu
Marriage Act 1955.
Section 23 sub-section 4 states that if the marriage is dissolved by the decree of divorce then
the copy of the decree passed by the court shall be given free of cost to both the parties.
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The Hindu Succession Act, 1956
Overview of this Act
The Hindu Succession Act, 1956 is an Act relating to the succession and inheritance of property.
This Act lays down a comprehensive and uniform system which incorporates both succession and
inheritance. This Act also deals with intestate or unwilled (testamentary) succession. Therefore, this
Act combines all the aspects of Hindu succession and brings them into its ambit. This article shall
further explore the applicability, and the basic terms and definitions and the rules for succession in
the case of males and females. The Nature and Object in Section 6(1) of the Act governs the law
relating to succession on the death of a coparcener in the event the heirs are only male descendants.
But, the proviso appended to Section 6(1) of the Act creates an exception. Section 6 is an exception
to the general rules. It has rights of coparcener in devolution of property where Mitakshara
coparcener dies intestate. It does not interfere with special rights of members of Mitakshara property.
However, it seeks to ensure that female heirs mentioned as Class I heirs get their shares after death of
coparcener by introducing the concept of notional partition immediately before his death.
Intestate Succession
The Hindu Succession Act, 1956 was passed to amend and consolidate the law relating to intestate
succession among Hindus. It extends and applies to all the persons who practice the religion or who
are defined as Hindu‟s (Buddhists, Jains and Sikhs) under the legal regime. The act was further
amended in 2005. As per the provisions of this Act, if a Hindu male dies intestate then
the following persons can make a claim:
First Claim: Class I legal heirs. They have equal rights to the assets.
They are mother, spouse and children. If any child has died, then their children and spouse have an
equal share;
Second Claim: In the absence of Class I heirs, the Class II heirs can make a claim. They are, father,
sibling, living children‟s grandchildren, sibling‟s children etc.;
Third Claim: In the absence of Class I and Class II heirs, the Agnates can make a claim. Agnates
can be defined as the distant blood relatives of male lineage (fathers‟ side).;
Fourth Claim: In the absence of Class I, Class II heirs and Agnates, the Cognates can make a claim.
Cognates can be defined as the distant blood relatives of female lineage (mothers‟ side).
In the case of a Hindu female the following persons can make a claim:
First Claim– the sons and daughters and the husband can make a claim;
Second Claim– In the absence of the first claimants, the heirs of the husband can make a claim;
Third Claim– In the absence of the first and second claimants, the mother and father can make a
claim;
Fourth Claim- In the absence of the above-mentioned claimants, the heirs of the father;
Fifth Claim – And even in the absence of the heirs of the father, the heirs of the mother can make a
claim.
In the case a Hindu dies intestate and without any heirs as above-mentioned, the property devolved
to the State Government under due procedure of the law.
Testamentary Succession
When the succession of the property is governed by a testament or a will, then it is referred to as
testamentary succession. Under Hindu law, a Hindu male or female can make the will for the
property, including that of a share in the undivided Mitakshara coparcenary property, in favour of
anyone. This should be valid and legally enforceable. The distribution will be under the provisions of
the will and not through the laws of inheritance. Where the will is not valid, or not legally
enforceable, then property can devolve through the law of inheritance.
The Hindu Minority and Guardianship Act, 1956
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In the Hindu Dharma Shastras, not much has been said about the guardianship. This was due to the
concept of joint families where a child without parents is taken care of by the head of the joint
family. Thus no specific laws were required regarding the guardianship. In modern times the concept
of guardianship has changed from the paternal power to the idea of protection and the Hindu
Minority and Guardianship Act, 1956 codifies the laws regarding minority and guardianship with the
welfare of the child at the core.
Under the Hindu Minority and Guardianship Act, 1956 a person who is a minor i.e. below the age of
Eighteen years is incapable of taking care of himself or of handling his affairs and thus requires help,
support and protection. Then, under such a situation a guardian has been appointed for the care of his
body and his property.
In 1956 as a part of Hindu Code Bills, the Hindu Minority and Guardianship Act along with Hindu
Marriage Act, Hindu Succession Act and Hindu Adoption and Maintenance Act were established
under the leadership of Jawaharlal Nehru in order to modernize prevalent scenario of Hindu legal
tradition. The Hindu Minority and Guardianship Act was established to empower the Guardians and
Wards Act of 1890 and provide better rights and protection to children instead of acting as a
replacement of an already prevalent act.
This act was passed with a motive of defining rights, obligations, relationships between adults and
minors. Not only Hindus are covered under this act but also Lingayat, Virashiva, Brahmo followers,
Parthana Samaj followers, Arya Samaj followers, Buddhist, Sikhs and Jains. In other words,
Muslims, Christians, Parsis and Jewish are not covered under this act.
Minority of a particular person is defined according to the age of that person. Attainment age for
being a major varies according to religion and time, for instance, in old Hindu law the age of 15 or
16 years was the age of majority but now it has been increased to 18 years, for Muslims, the age of
puberty is considered as the age of majority.
Both legitimate and illegitimate minors who have at least one parent that meets the stipulations
outlined above fall under the jurisdiction of this Act. Irrespective of personal laws followed by
individual communities a common act majority is known as Indian Majority Act, 1875 applies to
all communities.
Under this act attainment of age of majority is 18 years but if a person is under the care of guardian
attainment of age of majority increases to 21 years. The Guardians and Wards Act, 1890 applies to
everyone irrespective of their caste, creed or community unlike Hindu Minority and guardianship act
which applies to Hindus and religion considered as Hindus only.
Types of Guardian
There are 3 types of guardian who are in the following:
Natural Guardian.
Testamentary Guardian.
A Guardian appointed by the Court.
Natural Guardian
According to Section 4(c) of the Act, the natural guardian assigns to the father and mother of the
minor. For a minor wife, his husband is the guardian.
Section 6 of the Act gives 3 types of natural guardian in the following:
Father– A father is the natural guardian of a boy or unmarried girl, the father is the first guardian
and the mother is the next guardian of the minor. It is given in the Act that only up to 5 years the
mother is the natural guardian of the child.
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Case- Essakkayal nadder Vs. Sreedharan Babu. In this case, the mother of the minor died and the
father was also not living with the child, but the child was alive. the child was not declared to be a
Hindu or renounced the world and he was also not declared unfit. These facts do not authorize that
any other person adopts the child and be the natural guardian and transfer the property.
Mother– The mother is the first guardian of a minor illegitimate child, even if the father is existing.
Case- Jajabhai Vs. Pathakhan, in this case, the mother and father got separated for some reason
and the minor daughter stayed under the guardianship of the mother. Here, it will be determined that
the mother is the natural guardian of the minor girl.
Testamentary Guardian
Under Section 9, of the Hindu Minority and Guardianship Act, 1956 testamentary guardian only
authorized by a will. It is compulsory for the testamentary guardian to receive the guardianship
adoption which may be expressed or implied. A testamentary guardian has the right to decline the
appointment, but once he /she receives the guardianship then he/she can not decline to perform or
resign without the permission of the Court.
According to the Hindu Minority and Guardianship Act, 1956 testamentary power of choosing a
guardian has been provided on both, father and mother. If the father chooses a testamentary guardian
but the mother rejects him, then the chosen guardian of the father will be inefficient and the mother
will be the natural guardian thereafter. If the mother chooses a testamentary guardian, her chosen
guardian will become the testamentary guardian and father‟s appointment will be void. If the mother
does not want to choose any guardian then father‟s appointee will become the guardian. It appears
that a Hindu father can not choose a guardian of his minor illegitimate children even when he is
allowed to perform as their natural guardian.
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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.
The Act sheds light upon:
What a valid adoption is?
Who can adopt children?
Procedure to adopt children along with other duties and obligations that occur after adoption.
Hindu Adoption and Maintenance Act has made the definition of „adoption‟ much wider by using the
word „child‟ instead of „son‟. Child includes both a girl and a boy child, and not merely a son.
With the change in society over time a codified and uniform legislation was required to serve the
democracy, so, no adoption can be made without the procedure mentioned in this act. If any adoption
is made neglecting this act, the adoption shall be rendered to be void.
Adoption will be valid only if it has been made in compliance with this Act.
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The capacity of a Hindu female to adopt
Section 8 of the act states that a Hindu Female willing to adopt a child must:
Have attained the age of minority;
Be of sound mind;
Be either a widow;
Divorced, or
Unmarried in order to adopt.
If she has a husband who is alive, she will not have the capacity to adopt a child.
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.
The section clearly mentions that the father and mother mean biological parents and not adoptive
parents. Adoptive father or mother can not give the child up further 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.
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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
Similar to the conditions of adopting a son – 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.
Other conditions
When adopting a child a person must comply with some additional conditions along with all the
aforementioned conditions.
These additional conditions are basic and are very important for the welfare of the child.
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.
Effects of adoption
Adoption will completely change the life of a child in many ways. He becomes a part of a new
family and will have rights in the property as well.
Section 12 of the act states:
When a child has been adopted,
a. They shall be considered as the child of their adoptive parents for all purposes.
b. The adoptive parents shall have all the parental obligations and rights.
c. 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, and
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.
The adopted child shall not deprive any member of his birth family of any property that he
held before the adoption.
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It is important for the adoption to be valid to have any effect at all. In Sri Chandra Nath Sadhu & ors
v. The State of West Bengal & ors, the High Court of Calcutta stated that a void adoption will not
create any rights in the adoptive family for anyone that could have been obtained from a valid
adoption, nor any existing rights will end in the child‟s biological family
Rights of adoptive parents to dispose of their property
If adoptive parents wish to dispose of their properties by transfer by gift or will, they are free to do so
and adoption does not stop them. Unless there is an existing agreement that states the contrary.
Who will be the adoptive mother in case of adoption by a male?
We have already discussed that a Hindu male who has a living wife must have her consent for
adopting a child.
Section 14(1) of the act states that in such cases the wife shall be deemed to be the mother of
the adopted child.
If a male who adopted the child has multiple wives, the senior-most wife shall be considered
to be the mother of the adopted child while his other wives shall have the status of
stepmothers as stated in Section 14(2) of the act.
Section 14(3) of the act states that if a child has been adopted by a bachelor or a widower, the
woman he marries if he ever gets married will become the stepmother of the child.
A widow or bachelorette who adopts a child will be their mother and in case she gets married
to anyone, the man will be deemed to be the child‟s stepfather as per Section 14(4) of the act.
Maintenance
Maintenance has been described in the definition clause of the act i.e, Section 3(b) as
something that can provide for food, clothing, shelter, education and medical expenses.
Basically, it is financial support paid by a husband or a father that covers all basic necessities
of life.
The section also says that if the maintenance is to be provided to an unmarried daughter, it
shall also cover all the reasonable expenses required in her day to day life till the day she gets
married.
Maintenance of wife
The wife must be paid maintenance after divorce until she gets married again. The idea behind this is
to let her live with her lifestyle and comfort that existed during her marriage, and it must be paid
until she gets remarried.
There is no minimum or the maximum amount fixed for maintenance, it is to be decided by the court
according to the earning capacity of the husband.
If the husband is well to do then the maintenance shall be high in order to match the rich lifestyle the
wife was used to during the marriage.
If that is not the case, it must be a reasonable enough amount that can cover all her reasonable
expenses.
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When is the wife entitled to maintenance?
Section 18(2) of the Hindu Adoption and Maintenance Act provides a list stating when a wife will be
entitled to maintenance. As per the Section, a wife can live separately from her husband and still
have the right to claim maintenance in the following situations:
The husband has deserted his wife by abandoning her without any reasonable cause and
without seeking her consent or deliberately ignoring her wish.
The wife has been subject to cruelty during her marriage and considers living with her
husband to be endangering her life.
If the husband is suffering from an incurable and contagious disease.
The husband has another wife or a mistress in the same house or he lives with another wife or
mistress at some other place.
The husband has converted to some other religion or some other reasonable grounds that can
justify why the wife should live separately.
Maintenance can be paid every month or in a lump sum. Even when the wife has some source of
income and some property but needs some financial aid for necessary expenses such as medical
expenses. It is the obligation of the husband to pay maintenance for such expenses if required.
The same was held by the Hon‟ble Supreme Court in the case of Smt. Anita Thaukral v. Shri Satbir
Singh Tkukral.
In the aforementioned case, the wife had some source of income and also had an apartment in a good
location but she was unable to make enough money to cover up her medical expenses.
The court held that:
The wife will use one of the debit cards of the husband,
with the undertaking that she will only withdraw a reasonable amount as may be necessary for
her medical expenses.
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His daughter-in-law has no sources of income;
She has no property to sustain herself on her own;
If she has some property, it is insufficient to meet her basic expenses.
In case she has no property of her own and any property of her husband, parents or children are not
fetching her any maintenance.
The second clause of Section 19 also states:
That a father-in-law shall not be liable to pay any maintenance if:
He is not able to do so from any coparcenary property in his possession;
The daughter-in-law has no share in that property, and such obligation will end if she gets
remarried.
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Widowed daughter-in-law, or widowed granddaughter-in-law, who has not been able to
obtain maintenance from any other sources.
An illegitimate minor son or illegitimate unmarried daughter.
Amount of Maintenance
There is no fixed amount for maintenance that shall be paid. It is at the discretion of the court to
determine the amount of maintenance.
Section 23 of the act states that while deciding the amount of maintenance to be awarded to a wife,
children, or old and infirm parents – the court must do so considering the following:
Status of parties and their current position;
The claims of the parties within reasonable limits;
If the claimant living separately have justified grounds in doing do;
All sources of income of the claimant and the value of their property;
The number of people that are entitled to be maintained.
Section 23(3) further simplifies the process of deciding the amount of maintenance payable to other
dependents. It says that the amount of payment to be made should be with regard to:
The net value of the deceased‟s property after clearing off all his debts;
Will of the deceased if any;
Degree of the relationship between the claimant and the deceased and their past relationship;
What the dependents want within reasonable limits;
All sources of income of the dependent and the total value of all their properties;
The number of dependents that can be entitled to maintenance.
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In the case of Binda Prasad Singh v. Mundrika Devi, the High Court of Patna observed that there was
no set procedure mentioned in Section 25 as to how the amount can be altered.
The court stated that:
The amount of maintenance is fixed either by an agreement or by way of a decree.
The only way to alter an agreement is by way of another agreement, and the decree can be
altered by amendment of degree.
So, another suit must be filed for altering the amount of maintenance and a new decree that
supersedes the older one must be granted if the court thinks fit.
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If a third person is entitled to be maintained from the profit made out of immovable property
and such property is transferred, the transferee will be liable for the payment of such
maintenance if there was a notice or if the transfer is gratuitous.
But, if the property was transferred for consideration and notice was not provided regarding
the maintenance then the transferee will not be liable to make any payments for maintenance.
The maintenance can only be recovered from the property transferred by the person who was
originally liable to pay maintenance and cannot be recovered from any other property that the
transferee holds.
This act is one of the most important acts that protect the rights of children during the course of
adoption. It protects women, children, old & infirm from living on the streets and starving to death. It
ensures they are maintained by someone and the judicial pronouncements have further strengthened
the act in order to make our rights stronger and sections much clearer.
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