Family Law 1

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FAMILY LAW – I
MODULE 1 – MARRIAGE AND DIVORCE UNDER
HINDU LAW
I. SOURCES OF HINDU LAW
It is believed that India had a legal system of jurisprudence which
developed before 4000 B.C., i.e. a history of over 6000 years. It is
believed to be the time of beginning of Rig Veda. Hindu law is
mainly based on the concept of Dharma, which covers the civil,
religious and moral systems of law. The ancient sources of Hindu
law are
1. Shrutis (The Vedas)
2. Smrithis (Dharmasastras) &
3. Sadacharas (Customs and usages)
Shrutis / Vedas
The term Veda denotes knowledge. The four Vedas are considered
to be the foundation of Hindu religion. There are also 108
Upanishads which are considered to be a part of and supplemental
to the four Vedas. They are also called Vedantas (last part of
Vedas). Out of the 108 Upanishads, the following are the important
Upanishads.
1. AITAREYA UPANISHAD -> RIG VEDA

2. CHANDOGYA UPANISHAD -> SAMA VEDA
3. KENO UPANISHAD -> SAMA VEDA
4. KATHO UPANISHAD -> YAJUR VEDA
5. TAITTARIYA UPANISHAD -> YAJUR VEDA
6. SVETASVATRA UPANISHAD -> YAJURVEDA
7. MAITRAYANI UPANISHAD -> YAJUR VEDA
8. ISHAVASYO UPANISHAD -> YAJUR VEDA
9. BRAHADARANYAKA UPANISHAD -> YAJUR VEDA
10. MANDUKYA UPANISHAD -> YAJUR VEDA
11. MANDUKA UPANISHAD -> YAJUR VEDA
12. PRASHNA UPANISHAD -> YAJUR VEDA
Module 1 – Sources of Hindu Law, Marriage & Divorce Under Hindu Law
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Vedas or Upanishads does not contain special chapters pertaining
to law or areas specifically dealing with law. They provide only
with certain ways of life which in turn has an impact on the Hindu
legal system.
Smritis / Dharmasastras
Smritis mean recollection of traditional wisdom. Basis of smritis is
shrutis/ Vedas which were communicated to the next generation
through words. The rules and precepts of Dharma are mainly laid
down in smritis. Smritis are of two kinds
1. Sutras &
2. Dharmasastras
Sutras are considered to be of earlier origin compared to
Dharmasastras.
Sutras
A sutra is a meaningful statement which is unambiguous,
substantial universal and logically sound. Sutras are divided into
three classes based on the area each sutra deals with
1. Srauta Sutras -> Dealing with rituals
2. Grihya Sutras -> Dealing with domestic ceremonies &
3. Dharma Sutras -> Dealing with law
According to Dharmasutras administration of justice shall be
regulated by the Vedas, the Vedangas1 and Puranas.
1
Vedangas are six auxiliary disciplines of Hinduism connected with the study of Vedas they
are
1. Siksha -> regarding pronunciation
2. Chandas -> regarding poetic meters
3. Vyakarana -> regarding grammar
4. Nirukta -> regarding etymology/ explanation of words
5. Kalpa -> regarding rituals &
6. Jyothisha -> regarding time of rituals (astrology)
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Dharmashastras
Rules laid down in Dharmasastras are those of
1. Achara -> Dealing with morality
2. Vyavahara -> Dealing with rules which the King/
State is to apply in settling disputes in
the administration of justice &
3. Prayaschit -> Dealing with rules of penal provisions
for correction of wrong doing
Main Dharmastras are those by Manu (Manu smriti), Yajnavalkya
(Yajnavalkya Smriti) and Narada (Narada Smriti). Of the above
three important Smritis, Manu Smriti is considered as the most
important.
II. SCHOOLS OF HINDU LAW - The Mitakshara School and
The Dayabhaga School
After the Smritis/ Dharmasastras, the next step in the development
of Hindu Law was the composition of a number of commentaries
and digests based upon the Smritis/ Dharmasastras. These
commentaries interpreted the laws laid down in the Smritis. They
contained mention of customs and usages based upon the
interpretation of Smritis. The Mitakshara School and the
Dayabhaga School are the two schools of Hindu Law. The
Mitakshara School is followed throughout India, except Bengal,
where the Dayaghaga School is followed. (In the states of West
Bengal, Assam, Tripura, Manipur, Mizoram, Meghalaya and
Arunachal Pradesh)
The Mitakshara School is so called after the work entitled
Mitakshara written by Vijnaneswara, an eleventh century jurist
as a commentary on the Smriti of Yajnavalkya. The term
Mitakshara means measured words. It is regarded as authority
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even in Bengal with regard to all matters on which there is no
contradictory opinion expressed in by the Dayabhaga School and in
matters where the Dayabhaga School is silent. Like wise the
Dayabhga School is also referred to sometimes in areas governed
by Mitakshara School, on points on which the Mitakshara School is
silent.
The Mitakshara School is sub-divided into four sub schools
prevailing in different part of India as follows:-
1. The Banaras School, which prevails in northern India;
2. The Mithila School, which prevails in Bihar
3. The Maharashtra or Bombay School, which prevails in
Western India.; and
4. The Dravida or Madras School, which prevails in Southern
India
The Dayabhaga School is so named after the work entitled the
Dayabhaga written by Jimutavahana. Unlike the work
Mitakshara, Dayabhaga is not a commentary or any particular
code. It is a digest of all the codes. The Dayabhaga School is not
divided into any sub-schools
While the Mitakshara School is considered to be the orthodox
school, the Dayabhaga School is considered as the reformist school
of Hindu law. The Mitakshara and the Dayabhaga schools mainly
differed on issues regarding the rules of inheritance. There is also
divergence between the two Schools regarding matters connected
with the joint family system. Under the Mitakshara School, rights in
the joint family properties are acquired by birth, and as a rule
females have no right of succession to the family property and the
same passes by survivorship to the other male members of the
family. But under the Dayabhaga School, rights in the joint family
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property are acquired by inheritance or by will. The share of a
deceased male member would go to his widow.
Effect of migration on the school of Hindu law.
When a Hindu family migrates from one state to another, the law
draws a presumption that the migration carries with it its personal
law also. Thus the laws and custom which prevailed in the state
from which the family came would be the binding law for the
members. The presumption can, however, be rebutted, by showing
that the family in question had adopted the law and usages of the
new province where the family has settled down. For example, if a
Hindu family migrates from Maharashtra, where Mitakshara
School prevails, to Bengal, where the Dayabhaga School prevails, it
will be presumed that the family continuous to be governed by the
Mitakshara School. The presumption would be rebutted if the
family has abandoned the law of the province of its origin (i.e.
Maharashtra where Mitakshara School is followed), and adopted
the law of the province where it has settled. (i.e. Bengal, where
Dayabhaga School is followed).
The modern legislations on Hindu Laws, the Hindu Marriage Act,
1955, the Hindu Sucession Act, 1956, the Hindu Minority and
Guardianship Act, 1956, the Hindu Adoptions and Maintenance Act,
1956., etc. have now dissolved the differences between the two
schools .
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III. CONCEPT OF MARRIAGE – GENERAL

MARRIAGE
A marriage is a socially permitted, voluntary, stable and exclusive
union between a male and a female. It is a civil and religious
contract whereby a man is joined and united to a woman for the
purpose of a civilized society.2 Marriage can be said to be a
ceremony by which two persons are made husband and wife.
According to Hindu Law, marriage is a sacrament, i.e. a sacred act
or ceremony. According to Muslim and Christian Laws marriage is
a civil contract.
HINDU LAW
According to Hindu Law marriage is a sacrament. It is a necessary
samskara. Every Hindu must marry. Without marriage, a person
would be incomplete. Only those persons who have a wife can
fulfil their due obligation in this world. Only those having wife can
be happy.
According to Hindu concept, wife is not merely a patni but is
referred to as dharmapatni, i.e a partner in the performance of
spiritual as well as secular duties. A man cannot perform yajnas
without his wife.
Thus the concept of Hindu marriage is a sacrament union, i.e. a
sacrosanct, permanent, indissoluble and eternal union. Hinduism
never regarded marriage as contract. It is considered as a tie which
once tied cannot be untied. Thus in its strict sense, the concept of
divorce could not find any place in the traditional Hindu Law.
However some communities have recognised divorce as part of
customary law.
2
Aiyar’s Concise Law Dictionary
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Polygamy was recognised under the customary Hindu Law. But the
Hindu Marriage Act, 1955 abolished polygamy and introduced the
rule of monogamy for all Hindus. Divorce is also recognised under
the Hindu Marriage Act. The Act also provide for performance of
certain religious ceremonies for a valid Hindu marriage.
There may arise a question as to whether Hindu marriage has
become a contract by the Hindu Marriage Act, 1955? Also a
question may arise as to whether consent of the parties is a pre
requisite for a valid Hindu marriage?
Going through the provisions of the Hindu Marriage Act, consent of
the parties is not a pre requisite for a valid marriage. If the consent
of a party to a Hindu marriage is obtained by fraud or force, the
marriage is voidable. Similarly if one of the parties to the marriage
is of unsound mind, the marriage is only voidable3. Though age
3
See Section 12 of the Hindu Marriage Act
12. Voidable marriages.—(1) Any marriage solemnised, whether before or after the
commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any
of the following grounds, namely:—
(a) that the marriage has not been consummated owing to the impotence of the respondent; or (b)
that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the
petitioner was required under section 5 as it stood immediately before the commencement of the
Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)], the consent of such guardian was
obtained by force or by fraud as to the nature of the ceremony or as to any material fact or
circumstances concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the
petitioner.
(2) .....
clause (ii) of section 5 reads
5. Conditions for a Hindu marriage.—A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled, namely:—
(i) ....................
(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
(iii) ............
(iv) ............
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limit of twenty one years and eighteen years are prescribed,
marriages performed under those ages are neither void nor
voidable as per the provisions of Sections 11 and 12 of the Act.
Thus, going through Sections 5, 11 and 12 of the Hindu Marriage
Act, it cannot be said that the provisions of Hindu Marriage Act
would stand the test for a valid contract under the Indian Contract
Act. So a marriage under the Hindu Marriage Act cannot be
considered to be a contract in the strict sense.
For a valid contract, capacity of the parties is very much essential.
The act does not give much importance to the element of consent
of parties. Even if fraud or force is exercised on the parties for
obtaining the consent, the marriage would only be voidable and
not void. Indian Contract Act would render such contracts void.
However it is often argued that while the parties undergo the
ceremony of marriage, the consent may be implied.
Hindu marriage as it stands now Hindu marriage cannot be said to
be indissoluble eternal union. The 1955 Act provides for divorce.
Widow remarriage is also now allowed. Still a Hindu marriage is a
holy sacramental union. Thus it could be concluded that Hindu
marriage is neither a contract nor remains to be a sacramental
union, but has the resemblance of both.
MUSLIM LAW
Muslim marriage is a civil contract for the purpose of legalising
sexual intercourse and procreation of children. It is never treated
as sacrament. A Muslim marriage is generally solemnized with the
recitation of certain verses from the Holy Koran. Muslim law does
not prescribe any religious service essential for the solemnization
of a marriage/ nikah.
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Nikah is an institution legalises for manifold objects such as
preservation of species, the fixing of decent, restraining man from
debauchery, encouragement of chastity, promotion of love and
union between husband and wife and developing of mental help in
earning livelihood. Muslim marriage is only a civil ceremony
wherein an offer is made by one party and accepted by the other in
one and the same meeting in the presence of two witnesses.
Religious ceremony, if any appended to said civil ceremony are
only to give a sanctity. Performance or non-performance of such
religious ceremony does not affect the legality of nikah. Institution
of Muslim marriage is that of polygamous marriage limited to four
wives at a time.
CHRISTIAN LAW
Christian marriage is a contract solemnized by a Minister of
Religion licenced under the Indian Christian Marriage Act, 1872. It
can also be solemnized by a Marriage Registrar. According to the
Canon Law, marriage is a conjugal union of a man and woman
which arises only from the free consent of each spouses. This
freedom relates only to the question whether the two persons
really wish to enter into matrimony.
Once a contract is entered into, marriage is regarded as a
sacrament and indissoluble union. Only death can put an end to it.
However now a Christian marriage can be dissolved under the
provisions of the Indian Divorce Act, 1869.
SOLEMNIZATION OF MARRIAGE
Marriage, whether a contractual or sacrament union, confers the
status of husband and wife to the parties to the marriage,
legitimacy on the children and give rise to certain special mutual
rights and obligations.
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AGREEMENT TO MARRY (Engagement, Betrothal etc.)

Among all communities in India, a marriage is preceded by an
agreement to marry which is commonly known as engagement. Such
agreements to marry are generally governed by general principles of
contract. If a party commits breach of such agreement without any
lawful justification, the other party may sue for breach of contract.
A view is expressed that under the Muslim law unless a marriage
contract is completed, no rights and obligation arise there under, and
hence no suit can be filed. However, the prevalent view is that when
any two persons, whether be a Hindu, Christian or a Muslim, agrees
to marry, and if such an agreement is established, one party may sue
the other party committing its breach. This is not under the personal
law, but under the general principles of contract.
In Atma v. Banku4 it was held that marriage agreements are valid.
Not only the father of the minor, but also the minor himself can sue
for breach of the agreement. Purushotamdas v. Purushotamdas5
was a case were the marriage agreement was one between mother of
a minor boy and father of a minor girl. Suit was filed by the boy
against the father of minor girl for damages on account of breach of
contract. Father’s contention was that the agreement stood frustrated
as the girl was not willing to marry the boy. The said contention was
rejected and it was held that the boy was entitled for damages on
account of breach of contract. However a view was also expressed
that there cannot be an enforceable agreement to marry on behalf of
minor children and therefore betrothal by parents cannot be binding
on children.6
4
ILR (1930) 11 Lah. 598
5
ILR (1896) 21 Bom. 2
6
Venkata v. Govind (1937)
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KINDS OF MARRIAGE
Permanent and Temporary Marriages
In the modern context to make a distinction as to permanent and
temporary marriage may not be of much importance or
consequence, as all marriages is terminable by way of interference
of court.
The Shia Muslims recognise a type of marriage called Muta
Marriage which is usually called a temporary marriage. Other sects
of Muslims do not recognise muta marriage.
Muta Marriage
Under the Shia law, male has a capacity to contract any number of
muta marriage (even excluding the limit of four) with a woman who
is a Muslim, Christian, Jew or a fire worshiper, but with none else.
i.e. he cannot marry a woman who is an idol worshiper. However a
Shia woman can contract a muta marriage only with a Muslim male.
If the woman is a major, her guardians cannot object to such
marriage. If she is a minor, she can enter into muta marriage only
with the consent of her guardian. Otherwise the marriage will be
void.
Requirements of a Valid Muta Marriage
1. Dower must be specified. Otherwise the marriage will be void and

2. The duration of the marriage should be specified. (Duration may
be for few hours, days, weeks, months or years)
In Shorat v. Jafri Begum7 it was held that even if the term of muta
marriage is not specified, the marriage will not be void. It will be
implied that the parties intended to enter into a permanent union.
7
(1915) 17 BOMLR 13
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Incidents of Muta Marriage
➢ Spouses have no right to inheritance, even if one of the spouses
dies when muta marriage is subsisting
➢ Wife of muta marriage is not entitled to any maintenance. If
maintenance is stipulated in the marriage contract, she is entitled
to it, even if the husband does not cohabit with her.
➢ If marriage is not consummated, wife is entitled only to half the
dower. On consummation of the marriage, she will be entitled to
full dower, even if the husband does not cohabit with her during
the entire term of the marriage. If wife leaves before duration of
the muta marriage she will be entitled only for proportionate
dower.
➢ On the expiry of the term, if the marriage has been consummated,
she is required to undergo iddat for two courses. Otherwise, if
marriage is not consummated, she is not required to undergo
iddat.
➢ The husband has the right of izl, i.e. right to refuse procreation.
For this permission of the wife is not required.
➢ Children born out of muta marriage are legitimate and are
entitled to inherit the property of both parents.
➢ Marriage comes to an automatic end on the expiry of the term,
unless extended or on the death of a party, if earlier.
➢ Husband does not have the right to talaq. The parties are free to
terminate the marriage by mutual consent. But if the husband
wants to terminate the union earlier, he can do so by making a gift
for the remaining term, (hiba-i-muddat) for which the consent of
the wife is not required.
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CONTRACT OF MARRIAGE
For a man and a woman to become husband and wife, the following
two conditions are to be satisfied.
1. The parties should possess the capacity to marry &
2. They must perform necessary formalities to marry
Capacity to Marry
Rules regarding the capacity to marry differ from community to
community. Requirements regarding the capacity to marry can be
divided among following heads.
1. Monogamy and Bigamy/ Polygamy
2. Age of marriage
3. Mental capacity (Insanity, unsoundness of mind etc)
4. Prohibition on account of relationship by blood or affinity.
1. Monogamy & Bigamy/ Polygamy
Prior to the enactment of the Hindu Marriage Act, 1955, in India,
Hindus and Muslims were permitted to practice polygamy.
Christian, Parsi and Jewish laws never allowed bigamy in any form.
Polyandry was also recognised in some parts or Himachal Pradesh
and among Thiyyas of South Malabar. Bigamy among Hindus is
abolished by the Hindu Marriage Act, 1955.
Polygamy up to 4 wives is recognised among Muslims. However in
Lilly Thomas v. Union of India8 it was held that plurality of
marriage is not an unconditional right conferred on husband. He
should have the capacity to do justice between co-wives. Under the
Shia law, fifth marriage is void, but under the Sunni law, it is only
irregular. So a Shia husband having 5th wife can be prosecuted for
Bigamy, whereas Hanafi husband cannot be.
8
AIR 2000 SC 1650
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2. Age of Marriage
The Prohibition of Child Marriage Act, 20069 provides that no male can
marry below the age of 21 years and no female can marry below the
age of 18 years. The above age has been fixed under the Hindu
Marriage Act, Indian Christian Marriage Act and Special Marriage Act.
According to Muslim law, a person who has not attained the age of
puberty10 has no capacity to marry without the consent of his/ her
guardian for marriage. Puberty is a question of fact. Generally, in the
absence of any evidence to the contrary, it is presumed to have been
attained at the age of 15 years.
A marriage below the age prescribed under the Prohibition of Child
Marriage Act, 2006 is only void only in certain circumstances as
provided under Section 12 of the Act.11
3. Mental Capacity – Soundness of Mind
Under all personal laws in India, a person of unsound mind has no
capacity to marry. In some systems, marriage of a person of unsound
mind can take place with the consent of his or her guardian. Section 5
(ii) of the Hindu Marriage Act and Section 4(b) of the Special Marriage
Act provides that at the time of the marriage, neither party is incapable
of giving a valid consent to it in consequence of unsoundness of mind;
or 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 has been subject to
9
An Act to provide for the prohibition of solemnisation of child marriages and for matters
connected therewith or incidental thereto.
10
Age of puberty is the age when a person becomes capable of sexual reproduction.
11
12. Marriage of a minor child to be void in certain circumstances.— Where a child,
being a minor—
(a) is taken or enticed out of the keeping of the lawful guardian; or
(b) by force compelled, or by any deceitful means induced to go from any place; or
(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the
minor is married after which the minor is sold or trafficked or used for immoral purposes,
such marriage shall be null and void.
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recurrent attacks of insanity. Section 45 of the Indian Christian
Marriage Act, 1872 provides that if any person whose consent is
necessary to any marriage is of unsound mind the parties intending
marriage may apply by petition, to the District Judge and a declaration
is to be obtained to the effect that the marriage is proper.
In Alka v. Avinash12 it was observed that either of the above
conditions provided under the Hindu Marriage would incapacitate a
person from marriage. In this case the wife was cold and of nervous
temperament. She could not understand what marital intercourse is
and did not co-operate. She was also incapable of maintain the house
and also to keep the kitchen and understand the needs of the
members. Considering the circumstances, it was held that she is of
unsound mind. In Bennett v. Bennett13 it was observed that in
deciding whether a person is unfit for marriage, the question to be
posed is “is this person capable of living in a married state or carrying
out the ordinary duties and obligations of marriage”.
Under the Hindu Marriage Act, a marriage on account of lack of
mental capacity is voidable at the instance of the other party14. But
under the Special Marriage Act, such marriages are void15. Under
Muslim law a person of unsound mind has no capacity to marry except
with the consent of guardian. The Dissolution of Muslim Marriage Act
provides that if the husband has been insane for a period of 2 years, it
is a ground for dissolution of marriage16. According to the Christian
law, if either of the parties to a marriage is an idiot or lunatic at the
time of marriage, a decree of nullity can be obtained on that ground17.
12
AIR 1991 MP 205
13
(1969) All ER 539
14
See Section 12 of the Hindu Marriage Act
15
See Section 24 of the Special Marriage Act
16
See Section 2 (vi) of the Dissolution of Muslim Marriage Act
17
See Section 18 (c) of the Indian Divorce Act
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4. Prohibition on Account of Relationship

Personal law provides restrictions for marriage between two
persons on account of relationship between the parties to the
marriage by blood or affinity also.
Hindu Law
The Hindu Marriage Act prohibits marriage on account of
relationship under two heads
1. Sapinda Relationship [Section 3(f)] &
2. Degrees of Prohibited Relationship [Section 3(g)]
Sapinda Relationship
Sapinda relationship as defined under section 3(f)18 with reference to
any person would extend up to third generation in the line of ascent
through mother and up to fifth generation in the line of ascent
through father. The line is to be traced upwards in each case from the
person concerned who is to be counted as the first generation. Two
persons are sapindas of each other within the limits of sapinda
relationship, if they have a common lineal ascendant who is within
the limits of sapinda relationship with reference to the parties to the
marriage.
Section 5(v)19 of the Act provides that for a valid Hindu Marriage, the
parties shall not be sapindas of each other unless the custom or usage
governing each of the parties to the marriage permits a marriage
18
3 (f) (i) “sapinda relationship” with reference to any person extends as far as the third
generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the
line of ascent through the father, the line being traced upwards in each case from the person
concerned, who is to be counted as the first generation;
(ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other
within the limits of sapinda relationship, or if they have a common lineal ascendant who is
within the limits of sapinda relationship with reference to each of them;
19
5. Conditions for a Hindu marriage.— A marriage may be solemnized between any 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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between them. Further Section 11 of the Act provides that a marriage
solemnized in contravention of Section 5(v) is void20. The following
chart would represent the computation of sapinda relationship.
If there is any common ancestor for the parties to the marriage

within the limit, they are sapindas of each other and a marriage
between them would be void unless the custom governing both of
them permits for the same.
Degrees of Prohibited Relationship
Section 3 (g) of the Hindu Marriage Act21 provides that two persons
are said to be within the degrees of prohibited relationship if
20
11. Void marriages.— Any marriage solemnised after the commencement of this Act shall
be null and void and may, on a petition presented by either party thereto against the other
party, be so declared by a decree of nullity if it contravenes any one of the conditions
specified in clauses (i), (iv) and (v) of section 5.
21
3 (g) “degrees of prohibited relationship”-two persons are said to be within the “degrees
of prohibited relationship”—
(i) if one is a lineal ascendant of the other; or
(ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
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1. one of the parties to the marriage is a lineal ascendant of the
other; or
2. one of the parties to the marriage was the wife or husband of a
lineal ascendant or descendant of the other; or
3. one of the parties to the marriage was the wife of the brother
or of the father’s or mother’s brother or of the grandfather’s or
grandmother’s brother of the other; or
4. the parties to the marriage are brother and sister, uncle and
niece, aunt and nephew, or children of brother and sister or of two
brothers or of two sisters;
Explanation22 provides that for the purposes of calculating sapinda
relationship and degrees of prohibited relationship, the relationship
would include relationship by half or uterine blood as well as by full
blood; legitimate or illegitimate blood relationship and also
relationship by adoption as well as by blood.
Section 5(iv)23 of the Act provides that for a valid Hindu Marriage,
the parties shall not be within the degrees of prohibited relationship
unless the custom or usage governing each of the parties to the
marriage permits a marriage between them. Further Section 11 of
the Act provides that a marriage solemnized in contravention of
(iii) if one was the wife of the brother or of the father’s or mother’s brother or of the
grandfather’s or grandmother’s brother of the other; or
(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother
and sister or of two brothers or of two sisters;
22
Explanation.— For the purposes of clauses (f) and (g), relationship includes—
(i) relationship by half or uterine blood as well as by full blood;
(ii) illegitimate blood relationship as well as legitimate;
(iii) relationship by adoption as well as by blood;
and all terms of relationship in those clauses shall be construed accordingly.
23
5. Conditions for a Hindu marriage.— A marriage may be solemnized between any two
(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;
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Section 5(v) is void24. Unless there is a custom governing both of the
parties to the marriage permitting a marriage between them within
the degrees of prohibited relationship, such marriage would be void.
Muslim Law
Under the Muslim there is no prohibition as to inter-sect or inter-
school marriage. Inter religious marriages are restricted. A Sunni
male is allowed to marry a non-Muslim Kitabi (Christians & Jews),
but not a fire worshiper of idol worshiper. However a Sunni woman
is not allowed to marry even a non-Muslim. Under the Shia law, a
marriage of Muslim, male or female, with a non-Muslim is null and
void.
Apart from the above prohibitions, Muslim law lays down some
restrictions on marriage on the basis of relationship by
consanguinity, affinity and fosterage.
On the basis of Prohibition on the Ground of Consanguinity, a
Muslim male cannot marry persons in following relationship
i. his mother or grandmother, how high so ever
ii. his daughter or granddaughter, how low so ever
iii. his sister, full, consanguine or uterine
iv. his aunt, (both maternal and paternal), how high so ever
Prohibition on the Ground of Affinity
It is a prohibition on marriage based on relationship arising out of
marriage. This prohibition based out of affinity arises once a
marriage take place, irrespective of whether the marriage is void or
valid. This prohibition arises irrespective of whether the marriage
is consummated or not. Accordingly a Muslim male is prohibited
from marrying
i. his wife’s mother or grandmother, how high so ever.
24
Supra n. 20
20 Family Law
S.R
ii. his wife’s father’s wife or father’s father’s wife, how high so
ever
iii. his wife’s daughter or granddaughter, how low so ever. (this
prohibition arises only if the marriage is consummated.)
iv. his son’s wife or son’s son’s wife, how low so ever.
A Muslim woman cannot marry her daughter’s husband or
daughter’s daughter’s husband, how low so ever.
Prohibition on the Ground of Foster Relationship
Foster relationship arises on account of the fact that a child has
been suckled during the normal period of suckling but a woman
other his or her natural mother. Accordingly prohibition arises
from marrying between the child and the foster mother and
between the child and foster mother’s relations. The bar arises only
if the child has been actually nourished at the breast of the foster
mother.
According to Shia school in case of fosterage all prohibited
relationship arises as they arise on the basis of consanguinity or
affinity.
According to Sunni law a Muslim male cannot marry
i. his foster mother
ii. his foster mother’s daughter and
iii. his foster mother’s son’s wife
A Muslim female cannot marry
i. her foster mother’s husband.
ii. her foster mother’s son and
iii. her foster mother’s daughter’s husband
Sunni law permits marriage of the father of the child with foster
mother or with sisters of foster mother.
21 Family Law
S.R
Marriage between cousins is allowed.
Marriage between cousins, including first cousin is allowed. A
Muslim male can lawfully marry his paternal or maternal uncle’s
daughter, paternal or maternal aunt’s daughter and any female
cousins of his father or mother.
Apart from the there are prohibitions to marry based on other
Relative Impediments under Muslim Law, which are
i. prohibition on the basis of unlawful conjugation
ii. prohibition from marrying a woman undergoing iddat.
iii. Prohibition from marrying a person of unequal rank &
iv. Marriage while on pilgrimage.
Of the above, iii and iv are not practiced in India.
Unlawful Conjugation
Muslim law provides that a male is not allowed to have at the same
time two wives who are so related to each other by consanguinity,
affinity, or fosterage, i.e. if either of the two had been a male, they
could not marry each other. For e.g. marrying two sisters at the
same time or an aunt and her niece at the same time. However Shia
law permits a marriage with wife’s aunt with wife’s permission.
Marrying a Woman Undergoing Iddat
Marriage with a woman undergoing iddat is void under the Shia
law, but is irregular under the Sunni law.
Iddat is a period prescribed by Muslim law during which a woman,
after the dissolution of her marriage is not permitted to remarry.
This period is prescribed with a view to ascertain pregnancy of a
woman so as to avoid confusion of paternity. Different periods of
iddat are prescribed on the basis of the manner in which the
marriage is dissolved. They are
22 Family Law
S.R
i. If the marriage is dissolved by divorce, and if the marriage is
consummated – Three menstrual courses, if she is subject
to them. Otherwise three lunar months.
ii. Marriage dissolved by divorce and marriage not
consummated- No iddat to be performed.
iii. If marriage is dissolved by death of husband- Iddat to be
observed for four lunar months and ten days, irrespective
of whether marriage has been consummated or not.
The period of iddat commences immediately on dissolution of
marriage. If the woman comes to know of the dissolution of
marriage only after the period of iddat, she need not perform iddat.
Christian Law
Indian Christian Marriage Act does not specify any degrees of
prohibited relationships. The act provides that marriages forbidden
by personal law of the parties is not valid. Accordingly a marriage
between persons within a prohibited degree of consanguinity or
affinity are prohibited up to 5th degree as provided under Section
88 of the Act25.
###############
25
88. Non-validation of marriages within prohibited degrees. — Nothing in this Act shall
be deemed to validate any marriage which the personal law applicable to either of the parties
forbids him or her to enter into.

Family Law 1

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1 Family Law

1. AITAREYA UPANISHAD -> RIG VEDA

III. CONCEPT OF MARRIAGE – GENERAL

AGREEMENT TO MARRY (Engagement, Betrothal etc.)

1. Dower must be specified. Otherwise the marriage will be void and

4. Prohibition on Account of Relationship

If there is any common ancestor for the parties to the marriage

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