Sections

1. Section 5: Condition for valid marriage in Hindu law

2. Section 5 (i): prohibits bigamy; Section 11: makes it void; Section 494, IPC: offence
3. Section 5 (ii): mental capacity; Section 5 (iii): age limit; Section 5(v): prohibits sapinda
relationship
4. Section 60 of Indian Christian Marriage Act, 1872: Condition for valid marriage in
Christian law
5. Section 7 of the Hindu marriage act 1955 : the solemnization of the Hindu marriage
6. Muslim Personal Law (Shariat) Application Act, 1937: divorce
7. Section 2 of the Dissolution of Muslim Marriages Act, 1939: grounds for divorce for
women
8. Special Marriage Act, 1954: not bound by personal laws
9. Section 13 of the Hindu Marriage Act, 1955 provides for the dissolution of the marriage
or divorce [13B - mutual consent]
10. Christian divorce under the Divorce Act, 1869: Grounds Section 10; mutual consent: 10B
11. section 7A amendment to Hindu Marriages Act: self respect marriages
12. Section 11: void; section 12: voidable
13. Family Courts Act, 1984: s7 - jurisdiction
14. Section 11 in The Family Courts Act, 1984: Proceedings to be held in camera.
15. Sub-section (1) of Section 3 of the Women (Protection Of- Rights On Divorce) Act, 1986
lays down that a divorced Muslim woman is entitled to a reasonable and fair provision
and maintenance to be made and paid to her within the iddat period by her former
husband
16. Section 2 of the Dowry Prohibition Act, 1961 defines dowry, s3 - offence, s4 -
punishment
17. Section 304(B) of IPC deals with matters of dowry deaths

Case laws
Sources of Hindu law
1. In the case of Subbane v. Nawab, Privy Council observed that a custom gets its force
due to the fact that due to its observation for a long time in a locality, it has obtained the
force of law.
2. In the case of Soorendranath v. Heeramonie and Bikal v Manjura, Privy Council
observed that customs followed by a family have long been recognized as Hindu law
3. In the case of Chitty v. Chitty, a custom that permits divorce by mutual consent and by
payment of expenses of marriage by one party to another was held to be not immoral.
4. In the case of Gopikrishna v. Mst Jagoo, a custom that dissolves the marriage and
permits a wife to remarry upon abandonment and desertion of the husband was held to
be not immoral.
5. Prakash v. Parmeshwari: If a custom is against any statutory law, it is invalid.
 6. In Kanchava v. Girimalappa, (before the passing of the Hindu Succession Act, 1956) it
was laid down by the Privy Council that the murderer was disqualified from inheriting the
property of the victim.
The rule of English Law was applied to Hindus on grounds of justice, equity, and good
conscience
Conditions for valid marriage
7. SC held in Sarla Mudgal v Union of India that, when one is already married under the
Hindu Law, he by embracing Islam cannot solemnize a second marriage under Muslim
Law, which permits polygamy.
8. In R. Lakshmi Narayan v. Santhi, it was held that to brand the wife as unfit for marriage
and procreation of children on account of a mental disorder, it needs to be established
that the ailment suffered by her is of such a nature that, it is impossible to lead a normal
married life with her, making the standard of proof quite strict.
9. In Gnanasoundari vs. Nallathambi and Others, the Madras HC clarified that section
88 of the Indian Christian Marriage Act, 1872 Act shall cover prohibitions based on blood
relations and affinity.
Solemnisation of marriage - Hindu law
10. In Deivani v. Chindavdram held that the two essential ceremonies to be performed for
the solemnization of a Hindu Marriage are namely, kanyadaan or the gift of the girl and
the saptapadi and if saptapadi is omitted and all other ceremonies are performed then it
cannot be a valid marriage.
11. In Tarapada Jana v. Kumar Bhawani Giri it was held that if Saptapadi is duly
performed, the mere allegations that shlokas were not recited would not invalidate the
marriage.
Divorce under muslim law
12. Triple talaq was declared unconstitutional by the Supreme Court in Shayara Bano v.
Union of India.
Unisex marriages
13. National Legal Services Authority v. Union of India & Ors.. It was the first attempt to
legally recognize their gender and the fundamental rights which conferred to all
irrespective of an individual’s sex.
14. Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors held, Article 21
confers freedom of life and liberty, which doesn’t merely amount to physical existence
but a qualitative and meaningful life with dignity.
15. In the case of Shakti Vahini v. Union of India and others the court held that the right to
choose a partner is a fundamental right.
Dower
16. In Abdul Kadir vs Salima, Justice Mahmood also cautioned that Dower (Mahr) in
Muslim marriage should not be confused with consideration in the context of civil
contract.
17. In Nasra Begum v. Rizwan, it was that a woman’s family can refuse to send her to her
matrimonial home if dower is not given
18. In Marina Jatoi v. Nuruddin Jatoi, a Muslim married a Christian woman in England.
The Court observed that the marriage was governed by Muslim law, and therefore, the
 husband could divorce his wife by talak. The Court also held that the wife, in turn, could
also claim dower, although no dower was initially fixed at the time of the marriage.
Factum Valet
19. In Rabia Khatoon v. Mukhtar Ahmed, it was observed that the wife may refuse to live
with her husband and to admit him to sexual intercourse, so long as the prompt dower is
not paid.
20. In Deivanai Achi And Another v. R.M.Al.Ct Chidambaram Chettiar And Others, the
doctrine of factum valet was also invoked to validate the marriage. The doctrine, it must
be remembered, enables to cure the violation of a directory provision or a mere matter of
form but does not cure the violation of the fundamental principles or the essence of the
transaction. As in the present case, no ceremonies have been observed; the doctrine of
factum valet cannot help the plaintiffs. The parties deliberately chose to deviate from law
and usage and adopted a marriage ceremony not recognised by either. The doctrine of
factum valet cannot, in our opinion, apply to such a case of deliberate transgression.
21. In Parvathy Ammal v. Gopala Gounder, the omission to do the Sapthapathi, another
equally essential thing like tying the thali has been done. The doctrine was applied and
the marriage was held valid.
22. In Hem Singh And Mula Singh v. Harnam Singh, the texts are merely directory, the
principle of factum valet was said to apply, and the act done is valid and binding. The
case was regarding adoption.
23. In Gopal Narain v. Hanmant Ganesh, a girl was allowed to be given away by her
mother as long as the other ceremonies were performed.
Divorce under Hindu and Christian law
24. Sureshta Devi v. Om Prakash: living separately does not necessarily mean living in
different places. The parties can be living together but not as spouses.
25. In the case of Amardeep Singh v. Harveen Kaur and K. Omprakash v. K. Nalini, SC
waived off cooling period
26. In Saumya Ann Thomas vs. The Union of India, the court further held that the “two
year” period in the section 10A(1) of the Divorce Act, shall be read down to a period of
“one year”. It made an exception for the christian couple.
27.

Question paper
Part - A
1. Sources of Hindu law
2. Schools of Muslim law
4. Condition for valid mrg - Hindu and Christian law
5. Solemnisation of mrg - Hindu law
10. Divorce under Muslim law

B
7. Legality and consequences of unisex marriage
8. Concept of dower and types - muslim law
12. Doctrine of factum vallet
14. Divorce by mutual consent - Hindu and Christian
21. Self respect marriage

C
3. Ceremonies of Hind mrg
6. Void and voidable mrg - Hindu law
9. Judicial separation - Hindu and spl mrg act
11. Salient features of family courts act
13. In camera proceedings
15. Iddat period
16. Anuloma and Pratiloma mrg
17. Lilly Thomas v. UOI
18.Sarla Mudgal v. UOI
19. Gowri Ammal v. Tulasi Ammal
20. Demand of dowry

Application of various personal laws

1. The Personal Laws of Hindus and Muslims find their fundamental source respectively
from the Hindu and Muslim scriptural texts in India.
2. There was a time when every aspect of human conduct revolves around them. Because
of their religious origin, they were untenable by any legislation.
3. ‘Personal laws’ derive their validity from the state rather than religion.
4. In the colonial state male elites of each religious community shaped personal laws.
5. Historically speaking many contexts of the Hindu and Muslim laws have remained
untouched due to socio-economic upheavals and political vicissitudes.
6. However, Independent India implements drastic amendments to Hindu Personal Law by
considering the followers of Buddhists, Jains, Christians, Parsi and Sikhs.
7. ‘Personal laws’ has to fall under the definition of ‘law’ or a ‘law in force’ stated in Article
13
8. In State of Bombay v. Narasu Appa Mali, the petitioner challenged the validity of the
Bombay Prevention of Bigamous Hindu Marriages Act, 1946, which states that bigamous
marriages void and criminalize bigamy among Hindus. The judgement was pronounced
by the rationale of the two-judge bench which stated that personal law is beyond the
scope of Part III of the Constitution
As per Article 14, the State may rightly bring social reform at different stages, territorial
or community-wise. Hence, the Hindus Bigamous Marriages Act does not follow any
discrimination against the Hindus on the ground of religion or race. Although the act is
not uniform it is not arbitrary or capricious, there is a reasonable basis for creating a
separate class for Muslims
9. In India Young Lawyers Association v. State of Kerala (“Sabrimala Temple case”), the
Supreme Court held the Sabarimala Temple’s custom of prohibiting women in their
 menstruating years from entering to be unconstitutional and violative of female
worshippers right to equality under Article 14 of the Constitution and freedom of religion
under Article 25
10. In the case of Shayara Bano v. Union of India, 2017, a Constitutional Bench in a 3:2
verdict ruled that talaq-ul-biddat or triple talaq is not legally valid and the Muslim
Personal Law (Shariat) Application Act, 1937
11. The legislation should aim to bring social reform by placing constitutional morality over
societal morality and to carefully scrutinise claims to deny constitutional protection in the
name of religion. It is the duty of the legislation to strike at the heart of the social evil and
provide protection of the fundamental right of every person to freedom of religion under
Section 25.

Sources of Hindu law

1. Shrutis
- The word is derived from the root “shru” which means “to hear”.
- It is the primary and paramount source of Hindu law and is believed to be the
language of divine revelation through the sages.
- The material heard by people constitutes Shruti. It is believed that Shruti contains
the very words of the Deity.
- The Shruti comprise the four Vedas (Rig-Veda, Sum-Veda, Yajur-Veda and
Atharva-Veda), the six Vedangas and eighteen Upanishads.
 - Rigveda is first and foremost among the Shrutis for the knowledge of the law. It
comprehensively deals with the duties of a king.
- It is believed that the Rishis and Munis had reached the height of spirituality
where they revealed the knowledge of Vedas. Vedas primarily contain theories
about sacrifices, rituals, and customs.
- Since Vedas had a divine origin, the society was governed as per the theories
given in them and they are considered to be the fundamental source of Hindu
Vedangas.
- The Upanishads are known as Vedantas or concluding portions of the Vedas and
embody the highest principles of Hindu religion.
- Vedas do refer to certain rights and duties, forms of marriage, the requirement of
a son, exclusion of women from inheritance, and partition but these are not very
clear-cut laws.
2. Smriti
A. The word Smriti is derived from the root “smri” meaning “to remember”.
B. Traditionally, Smritis contain those portions of the Shrutis which the sages forgot
in their original form and the idea whereby they wrote in their own language with
the help of their memory.
C. Through a series of meditation, the words were recollected by the Rishis.
D. So, the basis of the Smritis is Shrutis but they are human works.
E. The rules laid down in Smritis can be divided into three categories viz. Achar
(relating to morality), Vyavahar (signifying procedural and substantive rules which
the King or the State applied for settling disputes in the adjudication of justice)
and Prayaschit (signifying the penal provision for commission of a wrong).
F. Dharmasutras are written in prose, in short maxims (Sutras).
- The Dharmasutras were written from 800 to 200 BC.
- They were meant to be training manuals of sages for teaching students.
- They incorporate the teachings of Vedas with local customs.
- They generally bear the names of their authors and sometimes also
indicate the shakhas to which they belong.
- Some of the important sages whose Dharmasutras are known are:
Gautama, Baudhayan, Apastamba, Harita, Vashistha, and Vishnu. They
explain the duties of men in various relationships.
G. Dharmashastras are composed in poetry (Shlokas).
- Dharmashastras were mostly in metrical verses and were based on
Dharmasutras.
- They were a lot more systematic and clearer.
H. Smritis are a written memoir of the knowledge of the sages.
I. Immediately after the Vedic period, a need for the regulation of the society arose.
Thus, the study of Vedas and the incorporation of local culture and customs
became important.
J. It is believed that many Smritis were composed in this period and some were
reduced into writing, however, not all are known.
 K. Vedas were divine laws, while the Smritis were more of secular laws dealing with
morality and religion.
L. The laws laid down in Smritis included law on morality, procedural and
substantive rules applied in the adjudication of disputes and penal provisions
meted out as punishments on wrong doers.
M. Smritis are the foundation of Hindu Law. Juristically they occupy an important
position.
3. Customs:
A. Customs are a principle source
B. usage of custom prevails over the Smritis.
C. It is superior to written law.
D. From the earliest period custom (‘Achara’) is regarded as the highest ‘dharma’.
E. As defined by the Judicial Committee custom signifies a rule which, in a particular
family or in a particular class or district has from long usage obtained the force of
law.
F. Most of the Hindu law is based on customs and practices followed by the people
all across the country.
G. Even smritis have given importance to customs. They have held customs as
transcendent law and have advised the Kings to give decisions based on
customs after due religious consideration.
H. Customs are of four types:
- Local Customs:
These are the customs that are followed in a given geographical area.
In the case of Subbane v. Nawab, Privy Council observed that a custom
gets its force due to the fact that due to its observation for a long time in a
locality, it has obtained the force of law.
- Family Customs:
These are the customs that are followed by a family for a long time.
They can be more easily abandoned than other customs.
In the case of Soorendranath v. Heeramonie and Bikal v Manjura,
Privy Council observed that customs followed by a family have long been
recognized as Hindu law.
- Caste and Community Customs:
These are the customs that are followed by a particular caste or
community.
It is binding on the members of that community or caste.
By far, this is one of the most important sources of laws.
Most of the law in Punjab belongs to this type.
Ex. Custom to marry a brother's widow among certain communities is
also of this type.
- Guild Customs:
These are the customs that are followed by traders.
I. Requirements of a valid custom
- Ancient: 40 years is ancient enough
 - Continuous
- Reasonable
- Not against morality:
In the case of Chitty v. Chitty, a custom that permits divorce by mutual
consent and by payment of expenses of marriage by one party to another
was held to be not immoral.
In the case of Gopikrishna v. Mst Jagoo, a custom that dissolves the
marriage and permits a wife to remarry upon abandonment and desertion
of the husband was held to be not immoral.
- Not against law
Prakash v. Parmeshwari: If a custom is against any statutory law, it is
invalid.
- Certainty
- Consistency
J.
4. Digests and commentaries
A. Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period of
more than a thousand years from the 7th century to 1800 A.D.
B. In the later period, the works were in the nature of digests containing a synthesis
of the various Smritis and explaining and reconciling the various contradictions.
C. The work done to explain a particular smriti is called a commentary.
D. Commentaries were composed in the period immediately after 200 AD.
E. Digests were mainly written after that and incorporated and explained material
from all the Smritis.
F. Some of the commentaries were, Manubhashya, Manutika, and Mitakshara.
G. While the most important digest is Jimutvahan’s Dayabhaga which is applicable
in the Bengal and Orissa area.
H. “Mitakshara” literally means “New Word” and is the paramount source of law in all
of India. It is a very exhaustive treatise of law and incorporates and irons out
contradictions existing in Smritis.
I. The Dayabhaga and Mitakshara are the two major schools of Hindu law.
J. The Dayabhaga School of law is based on the commentaries of Jimutvahana and
the Mitakshara is based on the commentaries written by Vijnaneshwar on the
Code of Yajnavalkya.
5. Principles of equity, justice and good conscience
A. Our judicial system greatly relies on being impartial. True justice can only be
delivered through equity and good conscience.
B. Not every kind of fact or situation that arises, can have a corresponding law
governing it. The Courts cannot refuse to settle the dispute in the absence of law
and they are under an obligation to decide such a case also.
C. For determining such cases, the Courts rely upon the basic values, norms, and
standards of fair play and propriety. This is known as principles of justice, equity,
and good conscience.
D. They may also be termed Natural law.
 E. In Kanchava v. Girimalappa, (before the passing of the Hindu Succession Act,
1956) it was laid down by the Privy Council that the murderer was disqualified
from inheriting the property of the victim.
The rule of English Law was applied to Hindus on grounds of justice, equity, and
good conscience, and this was statutorily recognized in the Hindu Succession
Act of 1956.
6. Precedent:
A. The doctrine of stare decisis started in India under British rule.
B. All cases are now recorded and new cases are decided based on existing case
laws.
C. The doctrine of precedent based on the principle of treating cases alike was
established.
D. Today, the judgement of the SC is binding on all courts across India (article 141)
and the judgement of the HC is binding on all courts in that state, except where
they have been modified or altered by the Supreme Court whose decisions are
binding on all the Courts except for itself.
7. Legislations
A. Legislations are Acts of Parliament which have been playing a profound role in
the formation of Hindu law.
B. The Legislations have the effect of reforming the law and in certain respects have
superseded the textual law.
C. After India achieved independence, some important aspects of Hindu Law have
been codified. Few examples are The Hindu Marriage Act, 1955, The Hindu
Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The
Hindu Minority and Guardianship Act, 1956, etc.
D. After codification, any point dealt with by the codified law is final.
E. The enactment overrides all prior law.
F. In matters not specifically covered by the codified law, the old textual law
contains application.
8. .

Sources of Muslim law

1. Primary sources:
A. Holy Quran:
- holy book of Islam which is believed to contain the direct words of God as
perceived by Prophet Muhammad.
- is like a Constitution for the Muslims
- is the first source to be looked into.
- The book contains 6000 verses divided into 30 parts and 114 chapters.
- It is believed that Prophet Muhammad received the commandments of
God from Angel Gabriel in two places; Mecca and Medina.
 - The commandments revealed at Mecca mostly dealt with philosophical
and theological issues, i.e. study about the religion, its origin and
development.
- the messages received in Medina were mostly socio-economic in nature
and dealt with the regulation of society and the people thereof.
- All these preachings were compiled in the Holy Quran after the demise of
the Prophet.
- is the final authority on any issue related to Muslim personal law.
- In a strict sense, the Quran cannot be called a legal code and Muslim
jurists agree that it contains verses explaining the way of living and the
morals of life and it is not a legal code backed by sanctions.
B. Sunnah:
- followed by the Shia Muslims.
- Followed in their day to day lives to comprehend answers to questions
that they face
- believed to be the customs and traditions followed by the Prophet Himself
and his words, actions and assertions.
- The word Sunnah basically means ‘path’.
- It connotes that the path that the Prophet followed should be followed by
his people after him.
- According to the Quran, the Prophet preached that his traditions and his
actions should be followed even after his death and therefore, the actions
of his daughter and the Shia Imams after the Prophet are also counted in
the Sunnah.
- is second in priority after the Quran.
- teaches people what the Prophet would have done himself if he was in a
situation like this.
- Since people believe that his actions are motivated by God’s grace and
his actions are those of God Himself, adherence to Sunnah became
popular.
- The main difference is Quran is the words of Allah enumerated in a book
whereas the Sunnah is practice and language of the Prophet
C. Hadiths:
- the books containing the Sunnah.
- It means that Sunnah is the actions and words spoken by the Prophet
- Hadith is the Scripture where these are recorded.
- Hadiths are records of Sunnah maintained after the demise of the
Prophet.
- It is believed that the Prophet forbade his followers from writing his
preaching and his actions. He believed that writing what was being done
might cause confusion between his actions and the words of the Quran.
- Therefore, no hadith has been discovered from the time of the Prophet.
- Nevertheless, it is believed that after his death, the Sunnah were written
down in several books and all compiled together are called the Hadiths.
 - To ensure the authenticity of the books, the Muslim scholars wrote the
Hadith with the reference of their source and the reference of the
reference so that all the references link in some way to the Prophet or an
Imam.
D. Ijma:
- Followed by Sunni sect.
- means a consensus.
- It is law made by consensus of all Islamic jurists or other persons of
knowledge and skill.
- There are three kinds: Ijma of companions, of jurist and of people.
- It is based on the belief that when all the most revered persons of the
society having maximum knowledge of the Quran have together taken a
decision, it should be for the benefit of the Muslim community.
- Ijma comes after the Quran and Sunnah as a source of Islamic law.
- Sunni Muslims believe that Ijma is as important as the Quran or the
Sunna because it constitutes the united and congruent opinion of all
Muslims.
- However, the Shia sect believed that the Ijmas are not free from errors
and cannot be relied on.
E. Quiyas:
- As Islam spread in different parts of the world, and interacted with other
communities, difficulties arose
- To resolve them, the Muslim jurists refer to Quran and Sunnah to
compare the situations and deduce an answer to the problem on the
basis of some analogy.
- When the answer is found and all the jurists together agree to it, it is
called the Qiyas.
- Thus, Qiyas are Ijmas based on deductive logic.
- They are the analogical deductions from the existing sources.
- can only explain or interpret the law but cannot change the law.
2. Secondary sources:
A. Customs:
- Continuous
- Without any influence
- practices that people follow continuously for a long period of time that it
becomes a source of law.
B. Legislations:
- statutes enacted by the Parliament or the State legislature.
- Shariat Act, of 1937. the entire body of law that governs their day-to-day
personal laws is called Sharia
- It contained only six provisions dealing mainly with: Law relating to the
succession of a Muslim person dying intestate, vesting of properties and
gifts on females, marriage, divorce, grounds of divorce, Mehr,
guardianship and maintenance and wakfs
 - In 1939, an attempt was made to allow the woman to divorce their
husbands through the Dissolution of Muslim Marriage Act, 1939. The
woman could divorce their husband on three main grounds, viz. refusal
from maintaining the wife, ill-treatment in the matrimonial house, and
desertion by the husband.
- the Muslim Women (Protection of Rights on Divorce) Act, 1986 was
enacted that gave them the right to maintenance from their husband.
C. Judicial Pronouncements:
- The first landmark judgment that deals with Muslim personal law was the
judgment in Shah Bano Begum v. Md. Ahmed Khan: the apex court held
that Muslim women have a right to maintenance under Section 125 of the
CrPC even if the Quran or their personal laws have provided for an
alternate remedy
- In Shayara Bano v. Union of India, the apex court held the system of
instantaneous divorce by the utterance of the word ‘talaq’ thrice orally
unconstitutional because the right to instantaneous divorce is only with
the men and not women. Further, the system is arbitrary and hence,
violative of Article 14.
D. Equity justice and good conscience:
- if the existing sources are not sufficient to solve the problem arising with
the change and development in society then
- judges use their own reasoning and give judgement based on equity,
justice, and good conscience.
3.

Schools of Hindu law

1. schools of thoughts on Hindu law refers to the varied and divided opinions on the rules
and principles of Hindu Law.
2. Unlike statutes, they are not codified. They do not have the force of law.
3. However, they impact the minds of the legislature or lawmakers.
4. are commentaries and the digestives of the smritis.
5. have widened the scope of Hindu law
6. Originally there were no schools of Hindu Jurisprudence. Schools of Hindu Law came
into being when different commentaries appeared to interpret the Smritis with reference
to different local customs in different parts of India.
7.
8. Mitakshara:
A. running commentary of the Smriti written by Yajnvalkya.
B. applicable in the whole part of India except in West Bengal and Assam.
C. However different parts of the country practice law differently because of the
different customary rules followed by them.
D. Every sub-school under the Mitakshara preferably acknowledged the authority of
certain treatises and commentaries, written in a particular region.
 E. All sub schools enjoy the same fundamental principle but give preference to
certain treaties and commentaries which control the certain passage of
Mitakshara
- Benaras: covers Northern India including Orissa. Viramitrodaya,
Nirnyasindhu, and Vivada are some of its major commentaries.
- Mithila: Tirhoot and north Bihar. Commentaries are Vivadaratnakar,
Vivadachintamani, and Smritsara.
(Mitakshara was kept in high esteem here and the law laid down by it was
fully acceptable to them except in a few matters.)
- Maharashtra: covered Gujarat Karana. Commentaries: Vyavhara
Mayukha, Virmitrodaya
- Punjab: commentary: Vramitrodaya; established its own customs and
traditions
- Dravida or Madras law school: covered southern part. Authorities: Smriti
Chandrika, Vaijayanti,
9. Daya Bhaga
- a digest for the leading smritis.
- predominantly prevailed in Assam and West Bengal
- primary focus was to deal with partition, inheritance and joint family
- Various other commentaries were followed: Dayatatya,
Dayakram-sangrah, Virmitrodaya and Dattaka Chandrika
- to eradicate all the other absurd and artificial principles of inheritance. T
- immediate benefit: removes all the shortcomings and limitations of the
previously established principles and inclusion of many cognates
(maternal relatives) in the list of heirs, which was restricted by the
Mitakshara school.
10. Differences between the schools:
A. On the basis of succession:
- Under the Mitakshara school, inheritance is governed by the rule of
consanguinity, i.e. blood relationship,
- under the Dayabhaga school, inheritance is governed by the rule of
spiritual efficacy.
- Under the Mitakshara, cognates are postponed to agnates but under the
- Dayabhaga some cognates like sister’s sons are preferred over several
agnates.
- Under the modern Hindu Law, the difference between two main schools is
no longer reliable. Under the Hindu Succession Act, 1956, there is one
uniform law of succession for all Hindus.
B. Joint family:
- Under the Mitakshara, the right to property for the son arises by birth;
hence the son is a co-owner with the father in ancestral property.
- Under the Dayabhaga, the right to property appears after the death of the
last owner. Therefore, the son has no right to ancestral property during his
father’s lifetime.
 - Under the Mitakshara, the father has the limited power of separation for
an ancestral property,
- Dayabhaga: the father has absolute power of separation for ancestral
property
- Mitakshara: the son can demand partition of the joint family property even
against the father
- Dayabhaga: the son cannot demand partition against the father.
- Mitakshara: The concept of joint family property implies the belief for the
community of ownership and unity of possession. This expression means
that before partition, no individual co-parcener can say that he owns such
a share within the joint family property. The interest of co-parceners is
much variable, it lowers on birth and increases on death in the family.
- Dayabhaga: no concept of birthright under the school, interest of
co-parceners remain constant, not affected by death or birth within the
family.
- Under both, the school of unity of possession is the same.
C. Partition:
- While both the Mitakshara and the Dayabhaga schools hold that the true
test of partition is in the intention to separate, the manifestation of this
intention is different in each of the schools.
- Mitakshara: intention involves holding the property in defined definite
shares
- Dayabhaga: there has to be a physical separation of the property into
specific portions and assigning of separate shares to each coparcener.
- Mitakshara: numerical division of the property.
- Dayabhaga: physical separation of the joint property into the separate
shares of the coparceners and assigning to each of the coparceners the
specific portion of the property.
D. Women rights:
- Mitakshara: the wife cannot demand partition. She, however, has the right
to a share in any partition effected between her husband and her sons.
- Dayabhaga, this right does not exist for the women because the sons
cannot demand partition as the father is the absolute owner.
- In both the systems, in any partition among the sons, the mother is
entitled to a share equal to that of a son.
- When a son dies before partition leaving the mother as his heir, the
mother is entitled to a share of her deceased son as well as share in her
own right when there is a partition between the remaining sons.
11.
Schools of Muslim law
1. The prophet willed an election for his successor. Abu Bakr (father to the third wife of
prophet Mohammed i.e. Ayesha Begum) was elected and he became the first caliph and
successor to Prophet Mohammed.
The sect that followed this is called Ahle-Sunnat-WalJammat AKA Sunnis
2. The minority group of Muslims believed that the successor or the prophet can only be
succeeded by a person who is related to the prophet by his bloodline and followed his
daughter, Fatima and later his son in law Ali is known as Shia Muslims. They believed in
organisational power.
SUB SECTS TO THE SUNNI MUSLIMS
1. Hanafi School
- The founder of this School was Abu Hanafi.
- This man was of principle and was well known for his deduction skills.
- He did not blindly follow all the customs by the virtue of the majority following
them. He strongly relied upon his deductions from the Quran.
- His judgments were clear and straight analogical subtractions of the Quran.
- His deductions were not a result of unsighted reliance on customs.
- He understood the vitality of tradition and gave it the status quo of law.
- His contribution was in the areas of Ijma and Ithesan and hence he was very
well reputed and beloved.
- This School found its emergence in Iraq and was later also followed in India,
Pakistan, and Egypt.
2. Maliki school
- This School was prevalent in areas like Spain and North Africa.
- The founder of this School was Imam Anas Bin Malik.
- He was a strong believer in traditions when it came to the judgement of modern
rules or rules suitable for the time period he believed Quiyas and Ijmas were
sources to be resorted to as last resort.
- He had a very different and unprecedented view of a matrimonial home.
- Maliki fiqh considers the consensus of the people of Medina to be a valid source
of Islamic Law.
- He believed that in a marriage a wife was incapable of owning and maintaining
her personal properties and therefore, according to him all the property of the
wife in the marriage should be owned and maintained by her husband due to this
disability.
3. Shaefi school
- Followed in places like Indonesia, Malaysia and the Philippines.
- The founder of this School was Mohammed Ibn Idris Al-Shaefi.
- He also placed reliance on Quiyas however, it came after the Quran seconded by
traditions and Ijmas.
- He was a devotee of the Quran and believed that the Quran had all the answers
either directly in the words or through analogical deductions from the words of the
Quran. But ultimately, the Quran was his roots and solutions to all things.
 - This School further stated that the wife in the matrimony was not a free tool or
device.
- However, in cases of marriage and all, even if she is an adult she needs to take
the permission of her parents or guardian to guide her in such matters.
4. Hanbali school
- This School is the most recent and has the least followers.
- Followed in Qatar and Saudi Arabia.
- The founder of this School was Ibn Hanbali.
- He was also known to be strictly adhering to the customs laid down by the
prophet, commonly known to be very conservative.
- He hardly placed any of his judgments and interpretations to the other sources of
Muslim law.
- Rather, only Ijmas were followed in very small cases as a supplement to the
teachings of the Prophet.
- Sources like the traditions and Quiyas were not much relied upon.
SHIA SECT
1. Imamiyah School
- The followers of this School can be found in India, Iran, Iraq and Pakistan.
- AKA School of Ithna Ashriyah.
- This School believed in a Muta. The word ‘Muta’ means ‘temporary marriage’.
- The school is further divided into two.
A. Akbaris Sect:
They follow a modern form of legal deductions and reasoning when there
requires an interpretation. The traditions of the Imams hold vital
importance while following this Sect.
This Sect comes from the word Akhbari which is derived from the word
news and newspaper.
B. Usuli Sect:
Which is quite a dominance as compared to the Akbaris.
This School believed in the true sources of Muslim Law. The Quran, the
hadiths, and the Ijmas.
The word Usuli essentially means theory of jurisprudence. Meaning that
the School relies on jurisprudential principles.
2. Ismailiya School
- Followed in Pakistans, India, and Syria.
- The School refers to the Nizaris who acknowledged Aga Khan the fourth as a
true Imam.
- However, there was a division in this Sect since the ‘Khojas’ who were actually
Hindus and ‘Bohras’ believed that the true Imam was different from the two
Sects.
- This Sect as a whole believed that God is one and the teachings of the prophet
were vital and followed the same as well.
3. Zaidiyah School
- Followed in Yemen only.
 -The name of this School is from Zayd Ibn Ali who was the son of the fourth Imam.
The name of the fourth Imam was Ali Ibn Husain.
- This School believed in responsibility and political uprise.
- It was believed that untrue and un-divine leaders should be revolted against.
- Similar to the teachings of the Sunni Muslims.
- Believed that the Muslims should follow the true successor of the Prophet
Mohammed and since Faithma was the surviving daughter only her sons should
be true Imams of Muslim community.
MOTAZILA SCHOOL
- Followed as a minority in Iran.
- It does not correlate itself to either of the two Sect either Sunni Sect or the Shia
sect.
- These Muslims were although defectors of the Shia sect.
- This Sect was founded by Al-Gazzal.
- The followers of this Sect believed in true divine justice and unity and believed
that evil could be overpowered by the good and that the Quran itself can only be
the truest and divine source to overcome evil from the society

Effects of migration
1. Although it was held in Moolchand v. Marita Bai that personal law moves with whom it
covers, however, it is important to know that migration plays a huge role in determining
what school of thought governs a person.
2. From case laws, the conclusion that can be drawn is that where a Hindu migrates, he is
likely to be governed by the school of thought predominant within his new location.
3. He, therefore, has the option to adopt the law of the new place where he resides – this
was held in Notraz v. Sunbathing Raya.
4. However, before this can be obtainable, there must be an actual migration. A mere
temporary relocation does not count.
5. As observed in Keshavarao v. Swadeshrao, migration is moving to another place. If a
place is divided into two administrative areas, that will not be regarded as migration.
6. In Gope v. Manjura Goralin, it was held that the burden of proving migration lies on him
who pleads.

Condition for valid marriage - Hindu and Christian

law
Section 5 of The Hindu Marriage Act,1955: A valid marriage shall be solemnised between two
Hindus if the following conditions are fulfilled:
1. Any person doesn’t have a spouse living at the time of the marriage: not permissible to
have two living wives at the same point in time, which amounts to bigamy. It is
punishable under Section 494 of the Indian Penal Code.
 2. 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.
3. The consent shall not be given by coercion or threat.
4. They don’t fall under the Sapinda relationship, or within the degree of prohibited
relationship unless it is allowed by their custom or tradition.
5. The person shall not be suffering from any insanity or mental disorder at the time of the
marriage.
I. Bigamy
- Section 5 (i) of The Hindu Marriage Act,1955 prohibits bigamy.
- Bigamy includes both polygamy and polyandry which have been abolished and
monogamy has been made the rule for all Hindus.
- This section provides a condition precedent to every marriage that neither should
have a spouse living at the time of marriage.
- Section 11 of The Hindu Marriage Act, 1955 makes a bigamous marriage void
- Section 17 of the Act makes it a penal offence for both males and females under
Section 494, IPC.
- The offense of bigamy is committed only if the required ceremonies of marriage
are performed.
- It was by the SC in M.M. Malhotra v. Union of India that, where a husband had
married a woman, whose marriage was in substance then his subsequent
marriage would not be bigamous, his first marriage being void.
- In the case of a bigamous marriage, the second wife’ has no status of wife, but in
case she files a petition for nullity, she can claim both interim and permanent
maintenance
- SC held in Sarla Mudgal v Union of India that, when one is already married
under the Hindu Law, he by embracing Islam cannot solemnize a second
marriage under Muslim Law, which permits polygamy.
- The Supreme Court in Smt. Yamuna Bai Anant Rao Yadav v. Anant Rao Shiva
Ram Adhava has laid down that in the event of a breach of the first condition
specified in Section 5(1) the marriage is rendered null and void under Section
11(1) of the Act and since it is void ab initio, the wife cannot claim maintenance
under Section 125 of the Code of Criminal Procedure.
II. Mental capacity
- Section 5 (ii) deals with the mental capacity to consent and some mental
disorder. It lays down that neither party to the marriage should be an idiot or
lunatic at the time of marriage.
- The three clauses to Section 5(ii) lay down the rules as to unsoundness.
A. Clause (a) contemplates rules as to unsoundness which should be such
which incapacitates a person from giving a valid consent to marriage. The
unsoundness if not persistent will be a sufficient ground if it exists just
before marriage.
B. Clause (b) to Section 5 where the words ‘has been suffering’ is being
used indicates that it postulates the existence of a mental disorder that
has been there for some time.
 C. Clause (c) of the same section includes recurrent episodes of insanity or
epilepsy into its ambit making it wider.
- These conditions specified in the clause relate to pre-marriage conditions and not
to post-marriage mental conditions.
- A marriage that is in contravention of these conditions is voidable under Section
12(1)(b) of The Hindu Marriage Act, 1955.
- In R. Lakshmi Narayan v. Santhi, it was held that to brand the wife as unfit for
marriage and procreation of children on account of a mental disorder, it needs to
be established that the ailment suffered by her is of such a nature that, it is
impossible to lead a normal married life with her, making the standard of proof
quite strict.
III. Age of marriage
- Section 5 (iii) of the Hindu Marriage Act, 1955 prescribes the age of the
bridegroom to be 21 years at the time of marriage and the bride should be of 18
years at the time of marriage.
- Earlier child marriages were normal in India but, the first attempt to raise the age
of marriage was made with the Child Marriage Restraint Act, 1929 which
prescribed 15 years as the minimum age for girls and 18 for boys.
- Later, with the Child Marriage Restraint (Amendment) Act, 1978 the minimum
age of marriage was raised to what it is now. However, the marriage performed in
violation of this condition is valid.
- The Child Marriage Restraint Act was later repealed in 2006 by the Child
Marriage Prohibition Act, 2006 which made underage marriages voidable at the
instance of a minor spouse and even void under certain circumstances.
- The Prohibition of Child Marriage (Amendment) Bill, 2021, which seeks to
raise the legal age of marriage for Indian women from 18 to 21 years, was sent to
a parliamentary standing committee. The Bill aims to eradicate child marriage
and bring about parity in the marriageable age for men and women.
IV. Degrees of Prohibited Relationship
- Section 3(g) defines ‘degrees of prohibited relationship’ wherein two persons are
considered to be in the degree of prohibited relationship:
A. If one is a lineal ascendant of the other; or
B. If one was the wife or husband of a lineal ascendant or descendant of the
other; or
C. If one was the wife of the brother or of the father’s or mother’s brother or
of grandfather’s or grandmother’s brother of the other; or
D. 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;
- As per the rule of exogamy, persons were not permitted to marry within one’s
gotra as it meant family or class.
- The Smritis and Grihyasutras prohibit sagotra marriages.
- The three lineal male ancestors of the founder of the gotra are referred to as
pravara denoting the ancestors.
 - During the British period, in many parts of India, marriages performed in violation
of this norm were made valid.
- The Hindu Marriage (Removal of Disabilities) Act, 1946 validated sagotra and
sapravara marriages, and the Hindu Marriage Act, 1955 also validated such
marriages.
V. Sapinda relationships
- The prohibitions of sapinda marriage are based on the rule of exogamy.
- The Dharmashastras consider any sexual relationship with one’s mother, one’s
sister, or one’s daughter or with son’s wife as the highest sin.
- The rule consequently established was that one cannot marry a person related to
him within five degrees on the mother’s side and seven degrees on the father’s
side.
- Section 5(v) of the Hindu Marriage Act, 1955 lays down that, the parties to the
marriage should not be sapindas to each other.
- Section 3(f)(i) defines sapinda relationship wherein it states that one person will
be sapinda to the other i.e if he is in direct degrees of ascent within five degrees
to the other through the father or three degrees of ascent to the mother.
- Rules regarding sapinda relationship are as follows:
A. The sapinda relationship is always traced upward i.e in the line of ascent
and not downward i.e in the line of descent.
B. The computation of degrees is inclusive of the person concerned and the
common ancestor.
C. If both the persons are sapindas to each other and, in case one of them is
not sapinda to the common ancestor, they will not be sapindas to each
other.
D. In determining whether two persons are sapindas or not, the relationship
of the two to each other or to the common ancestors may be by legitimate
relationship, or illegitimate relationship may be by full blood or half-blood,
or maybe by natural birth or adoption as provided under the Explanation
to Section 3.
VI. Some other essential provisions
1. Solemnization of Marriage (Section 7)
- Section 7 of the Hindu marriage act 1955 states the solemnization of the
Hindu marriage, a Hindu marriage may be performed by all the
ceremonies and rituals of both the party or either anyone.
- It is concerned with the Saptapadi which means that taking seven rounds
around the fire with their partner; after its completion marriage becomes
complete and binding.
- Each party to the marriage declaring in any language shall be understood
by each of the parties.
- Each party to the marriage shall put the ring upon any finger of the other.
- Tying of the thali.
- Any child born after performing the marriage according to this section will
be legitimate.
 - Duty of the father to bring up the girl child, find a suitable boy for her and
do Kanyadan for the girl. Girl leaves their gotra and enters into the gotra
of the boy.
- It is an unbreakable bond that is tied from generation to generation.
- It is a sacrament, not a contract.
2. Registration of Marriage
- The registration of marriage as provided under Section 8 of the Hindu
Marriage Act, 1955 has is an attempt by the legislature to create a mode
of proof of marriage.
- No such provision was mandatory for the Hindus traditionally.
- Even the Hindu Marriage Act does not make the registration of marriage
compulsory though it stipulates that the facility for registration of marriage
may be provided.
- In M. Vijayakumari v. K. Devabalan that, a marriage between a Hindu
man who converted as Christian and a Christian lady in a Hindu form is
not a valid marriage. According to Section 5 of the Act, marriage can be
solemnised between two Hindus.
- As per the SC in Seema v. Ashwin Kumar the desirability of compulsory
registration was recommended. It was recommended that marriages of all
citizens of India belonging to various religions should be made
compulsorily registrable in the States where they are solemnised.
- Section 8 of the Hindu Marriage Act, 1955 enacts that the state
government may make rules relating to the registration of marriages
between two Hindus solemnised in the ceremonial form.
- The advantage of registration is that it facilitates proof of the factum of
marriage in disputed cases.
3. Procedure for Registration
- The rules can provide that the parties to any Hindu marriage may, and
where registration is made compulsory, shall have the requisite particulars
relating to their marriage entered into in the Register of Marriages.
- For the registration of marriage, presence of both the parties before the
Registrar is not necessary. If the Registrar doubts the identity of one of
the parties, only then it is needed.
- The Madras HC in Kagavalli v. Saroja has also opined that the
registration of marriage should be made compulsory. Section 8 lays down
that the State Governments may make rules for keeping of marriage
registers and for compulsory entries of all marriages or some specified
marriage therein.
- Section 8(5) specifically lays down that failure to register a Hindu
Marriage shall in no way, affect its validity.
- A marriage registered even before the actual marriage ceremony, violates
the statutory provisions.
 -A certificate of marriage is no proof of validity if the marriage is otherwise
void, it can however be proof of identity of parentage of offspring of such
marriage
- The first step in this marriage registration process is to apply to the
sub-registrar under whose jurisdiction the marriage has been solemnised,
or either party to the marriage has been residing.
- Both partners will need to fill in the application form duly signed and
submitted along with two photographs of the marriage ceremonies,
invitation, age and address proof of both parties, affidavit of
notary/Executive Magistrate to prove that the couple is married under
Hindu Marriage Act 1955.
- All the documents should be attested by a Gazetted Officer and the
parties will have to deposit a fee with the cashier at the sub-registrar and
attach the receipt with the Application Form.
- Once the application has been submitted and the documents verified, the
concerned officer will assign a date of registration when the marriage
certificate document will be issued.
- After due verification of all the documents that have been submitted by
the parties, for the concluding process, a day is fixed for the registration
which is communicated to the parties.
- Both the parties are required to be present on the said day before the
Sub-Divisional Magistrate, along with the Gazetted Officer.
- Once the marriage registration process is done, and the SDM is satisfied
with the proceedings, the certificate is granted on the same day.
4. Consequences of non-registration and penalty for failure to register
- Registration of Hindu marriages under the Act is only for the purposes of
preserving a record of the same and facilitating their proof. Omission to
do so does not, even when registration is made compulsory by the state,
affect in any manner the validity of the marriage, but will invite the penalty
of a fine, which may extend to Rs 25.
- Sub-section (4) gives an unrestricted right to any member of the public to
obtain a certified copy of an entry in the register on payment of the
prescribed fee.
5.

Christian law
1. Section 4 of Indian Christian Marriage Act, 1872 specifies that any marriage between
Christians, including a marriage where one of the parties is a Christian, must be
solemnised according to the provisions of the Act else it shall be considered as void.
2. Section 60 of the Act specifies the following conditions for a valid Christian marriage:
A. the groom must not be below 21 years of age and the bride must not be below 18
years of age;
B. neither of the parties must have a spouse still living at the time of marriage;
 C. The marriage ceremony must take place in presence of the person licensed
under section 9 and at least two credible witnesses.
3. In Gnanasoundari vs. Nallathambi and Others, the Madras HC clarified that section
88 of the Act shall cover prohibitions based on blood relations and affinity.

Marriage under Special Marriage Act:

1. The Special Marriage Act deals with inter-caste and inter-religion marriages.
2. This Act includes Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists marriages.
This act applies to all Indians including ones abroad.
3. The fundamental requirement under this Act for a valid marriage is the consent of both
parties to the marriage
4. The parties must file with the district’s Marriage Registrar a notice stating their intention
to marry each other.
5. After the expiry of 30 days from the date that such notice was published, the marriage is
then said to be solemnised.
6. But if any person related to the parties objects to this marriage and the registrar finds
that it is a reasonable cause of objection, on such grounds he can cancel the marriage.
7. For a valid marriage, the parties must give their consent to the marriage before the
marriage officer and three witnesses.
8. Conditions:
A. Groom should be 21 and bride 18
B. No bigamy
C. Mentally fit
D. not be related to themselves through blood relationships
9.

Solemnisation of marriage - Hindu law

1. The performance of shastric ceremonies has been deemed to be essential for the
solemnization of marriage under the Hindu Marriage Act, of 1955.
2. The Madras High Court in Deivani v. Chindavdram held that the two essential
ceremonies to be performed for the solemnization of a Hindu Marriage are namely,
kanyadaan or the gift of the girl and the saptapadi and if saptapadi is omitted and all
other ceremonies are performed then it cannot be a valid marriage.
3. The Calcutta High Court in Tarapada Jana v. Kumar Bhawani Giri it was held that if
Saptapadi is duly performed, the mere allegations that shlokas were not recited would
not invalidate the marriage.
4. Solemnization of Marriage (Section 7)
- Section 7 of the Hindu marriage act 1955 states the solemnization of the
Hindu marriage, a Hindu marriage may be performed by all the
ceremonies and rituals of both the party or either anyone.
 - It is concerned with the Saptapadi which means that taking seven rounds
around the fire with their partner; after its completion marriage becomes
complete and binding.
- Each party to the marriage declaring in any language shall be understood
by each of the parties.
- Each party to the marriage shall put the ring upon any finger of the other.
- Tying of the thali.
- Any child born after performing the marriage according to this section will
be legitimate.
- Duty of the father to bring up the girl child, find a suitable boy for her and
do Kanyadan for the girl. Girl leaves their gotra and enters into the gotra
of the boy.
- It is an unbreakable bond that is tied from generation to generation.
- It is a sacrament, not a contract.

Ceremonies of Hind mrg

1. Marriage in the Hindu religion is a sacred tie performed by certain ceremonies and rites
which are necessary for a valid marriage.
2. Sagai
- Hindu engagement is an important pre-wedding ritual in Indian culture, it is a type
of culture in which the bride and groom come face to face and are engaged with
a religious bond by each other’s families.
- The Hindu tradition of “Vagdanam” dates back to Vedic period where the groom’s
father gives their words to the bride’s father that they will accept their daughter
and will be responsible for their future well being.
- There are various terms which are used instead of engagement in different
places like Mangi, Sagai, Ashirbad, Nishchayam etc.
3. Kanyadan:
- The word kanyadan consists of two words- Kanya which is maiden or girl and
daan which means donation.
- It is the donation of a girl.
- It is an age-old tradition where the bride’s father presents his daughter to the
groom, giving him responsibility for her future wellbeing.
- It is an emotional and sentimental laden ritual which recognizes the sacrifice a
father makes in order to ensure her daughter’s happiness.
- It is followed till now from the Vedic times. It is an integral part of traditional Hindu
marriage.
4. Saptapadi:
- Saptapadi is a very important and integral component of a typical Hindu
marriage.
- It is an activity which is undertaken by the bride and groom in front of the fire god,
where couples go around the sacred fire seven times while reciting certain vows.
- This movement is also known as phera.
 - Fire or Agni is considered highly sacred in the Hindu religion, vows taken in front
of the Agni are unbreakable.
- The god of fire, Agni deva is considered to be a witness to the solemnization of
the marriage as well as a representative of the supreme being to provide his
blessing to the newlywed couple.
- Section 7 of the Hindu marriage act 1955 states the solemnization of the Hindu
marriage, a Hindu marriage may be performed by all the ceremonies and rituals
of both the party or either anyone.
- It is concerned with the Saptapadi which means that taking seven rounds around
the fire with their partner; after its completion, marriage becomes complete.
5. Valid for solemnization of marriage under Section 7

Void and voidable marriage - Hindu law

1. Void Marriages
- Section 11 of the Hindu Marriage Act 1996 states that any marriage solemnised
after the commencement of the Hindu Marriage Act 1955, if it contravenes any of
the provisions of this act, the marriage will be void. The marriage will have not
any legal entity nor will it be enforceable.
2. Voidable Marriages (Section 12) Any marriage solemnised after or before the
commencement of this will be voidable on the following grounds:
A. No sexual intercourse has been done after the marriage due to the impotence of
the Husband.
B. Marriage is in contravention of Section 5 (ii) of this Act which states that the bride
shall attain the age of 18 and the groom shall attain the age of 21.
C. There shall be a consent of the bride.
D. If the husband is pregnant with another woman other than the wife.
E. The wife has filed a request for annulling the marriage.
3. In Naurang Singh Chuni Singh v. Sapla Devi, voidable marriages were held to valid
and binding and continues to subsist for all purposes unless a decree is passed by the
Court annulling the same.

Marriage under Muslim law

1. The Arabic word Nikah (marriage) literally means the union of the sexes
2. Under S2 of Muslim Women (Protection Of Rights On Divorce Act 1986)– Nikah among
Muslim is a “Solemn Pact” or “Mithaq-e-ghalid” between a man and a woman, soliciting
each other life companionship which in law takes the form of a contract.
3. In Hedaya- “Nikah” in its primitive sense means carnal conjunction.
4. Objects Of Marriage
A. A glossary on Tarmizi sets out five objects of marriage :-
- the restraint of sexual passion
 - the ordering of domestic life
- the increase of the family
- the discipline of the same in the care and responsibility of wife and
children
- the upbringing of virtuous children.
B. Hedaya on the other hand speaks of the ends of marriage as-: (i) cohabitation, (ii)
society, (iii) equal friendship.
5. Nature of marriage:
A. There are divergence of opinion with regard to the nature of Muslim marriage.
Some jurists are of the opinion that Muslim marriage is purely a civil contract
while others say that it is a religious sacrament
B. A civil contract:
- This observation seems to be based on the fact that marriage, under
Muslim law, has similar characteristics as a contract.
- As marriage requires proposal (Ijab) from one party and acceptance
(Qubul) from the other
- there can be no marriage without free consent and such consent should
not be obtained by means of coercion, fraud or undue influence.
- entered into by a guardian, on attaining majority, so can a marriage
contract in Muslim law, be set aside by a minor on attaining the age of
puberty.
- The parties to a Muslim marriage may enter into any ante-nuptial or
post-nuptial agreement which is enforceable by law provided it is
reasonable and not opposed to the policy of Islam.
- The terms of a marriage contract may also be altered within legal limits to
suit individual cases.
- Although discouraged both by the Holy Quran and Hadith, there is a
provision for the breach of marriage contract
- The analogy was made in Abdul Kadir vs Salima
C. Religious sacrament:
- Though the sacramental nature of marriage is considered as an
Orthodoxy view, it is also supported by the Judiciary.
- Taking religious aspects into account muslim marriage is an Ibadat
(meaning a devotional act).
- The Prophet is reported to have said that marriage is essential for every
physically fit Muslim who could afford it.
- Prophet Mohammed says- “He who marries completes half of his religion;
it now rests with him to complete the other half by leading a virtuous life in
constant fear of God.”
- He also says- “There is no act of worship except marriage and faith,
which has continued from the days of Adam and which will continue in
paradise as well.”
- Found to be a religious sacrament in Anis Begum vs Mohammed Istafa
- It is not similar to a contract in various cases:
 ❖ it cannot be made contingent on future events.
❖ It cannot be made for a limited time
❖ the analogy of lien cannot be applied to a marriage contract.
❖ Cannot be cancelled by an unpaid seller
-
D.
6. Scope: The Mohamedan law provides for religious and legal aspects to Islamic marriage.
Because along with the Quran and Ijmas also the legal principles laid down are followed
in India
7. Aspects of marriage: Legal, religious and social, Ordinary Contract kept Juxtapose to
Marriage Contract

Essential conditions
1. It was Prophet Mohammad who brought a complete change in the status of women. He
advocated for almost equal rights for women in the exercise of all legal powers and
functions.
2. In pre-Islamic Arabia, women were treated as movable possession of men and were not
given any right of inheritance, and were totally dependent on men
3. Marriage or ‘nikah’ under Muslim law bears much resemblance to a civil contract.
4. Its essential conditions involve:
A. A clear offer and acceptance, which must be given in the same meeting
B. A consideration from the husband’s side to the wife’s known as mehr or mahr,
C. Between parties competent to contract
D. Following Islam as a religion, or even those devoted to similar scriptures in the
Sunni sect
5. This is subject to certain prohibitions under the law, such as:
A. Bar to marriage during the period of iddat
B. Bar by Consanguinity
C. Bar by Affinity
6. Offer and acceptance
A. In Abdul Kadir v. Salima: An offer is called ijab in Muslim law and an
acceptance is called qubul. Hence, a marriage is similar to a contract
B. The offer is made by the husband. It can be either made by the man or a person
who has been authorised by the man
C. since a Muslim marriage is a contract, it is allowed to have certain pre-conditions
to the marriage and on the fulfillment of the same, the marriage can be accepted
by both the parties.
D. These terms and conditions should be in consonance with legal principles and
public policy.
E. These terms and conditions are to ensure that the rights of the woman in the
marriage are safeguarded. Because, the man has the right to divorce the woman
by way of talaq which is wider in effect than a Muslim woman’s right to divorce,
called ‘khula’.
 F. the man or someone on his behalf and the woman or someone on her behalf
needs to give their acceptance to the marriage. This needs to be taken in the
presence of at least one male and two female witnesses who should be adult,
sane Mohammedan.
G. The Shia sect of Muslims does not mandatorily require the norm of witnesses
H. Moreover, if there is no witness to the marriage, it becomes a mere irregularity
and not invalidation.
I. acceptance can also be made by way of accepting the dower.
J. the offer and acceptance must occur in the same meeting.
K. offer of marriage should begin the marriage immediately i.e., an offer of marrying
someone the next month is not a valid offer.
7. Consideration
A. woman must receive as a matter of right, a sum of money from the husband’s
side called mehr or dower.
B. According to the prophet, this dower is a form of honour and respect given to a
woman when she agrees to marry a man by way of accepting the dower.
C. The practical purpose is to ensure the financial security of the woman in and after
marriage.
D. The right to the dower of a woman can be exerted before cohabitation.
E. Nasra Begum v. Rizwan Ali: a woman’s family can refuse to send her to her
matrimonial home if dower is not given. Once the dower is accepted by the
woman, she in return agrees to marry the man. Therefore, the contract is
complete.
8. Competency of parties
A. Two factors decide the competency: the age, and soundness of mind.
B. Once the girl and boy have attained puberty, they become competent to be a
party to the institution of marriage.
C. This also means that when the girl and the boy are sexually competent to
consummate a marriage, they are allowed.
D. Hence, difficult to ascertain the exact age at which it would be a valid marriage.
E. Throughout history, the usual age is 9 for a girl and 12 for a boy.
F. In Muhammad Ibrahim v. Atkia Begum & Anr. has set the maximum age at
fifteen years and this age criterion applies to both the man and the woman. The
Privy Council gave two conditions:
- Attainment of the age of 15 years of the woman
- Attaintment of puberty, whichever is earlier
G. Once puberty is attained, the power of authorization either by self or to whoever
is accepting on their behalf arises.
H. Soundness of mind, where it must be seen whether it is a case of idiocy, i.e.,
consistent and permanent unsoundness, or lunacy, i.e., acquired unsoundness
with periods of sanity in between.
I. The former is entirely incompetent to contract but the latter may marry by giving
consent in the period of sanity.
 J. In the case of a minor or a lunatic person who is not capable to authorise, then
the power of guardians, parents and family can be regarded.
K. The guardians who are allowed to authorise the marriage of a minor are:
- The father
- The paternal grandfather or anyone higher
- Brother
- Mother
- Maternal uncle or aunt or someone from the family.
- But when none of the guardians mentioned above is there, then a qazi or
any government authority can assume the position of a guardian in the
case of a minor child.
L. The offer and acceptance on their behalf can be given by the guardian in the
hierarchy above
9. Religion of the parties
A. Since the marriage will be governed by Muslim laws, it needs to be given a
certain status.
B. However, the rules and sunnah (tradition) differ in the communities of Sunni
Muslims and Shia Muslims
C. Sunni law:
- when a man marries a woman from another sect, then such a marriage is
purely an inter-sect marriage. Such marriages are perfectly valid.
- However, there is a difference when a woman is a Christian or a Jew.
These are called the kitabia communities.
- such marriages are allowed and are valid as well.
- However, if the woman is a non-Muslim and also does not belong to the
kitabia community, then the marriage is a ‘Fasid’. Such marriages are
irregular though they are not void.
- This irregularity can also be done away with if the woman converts into a
Muslim woman. Thereby, the irregularity is removed and the marriage
automatically becomes a valid marriage.
D. Shia law:
- The Shia man traditionally can only marry a Muslim girl.
- this would include inter-sect marriage.
- Shia man cannot marry a kitabi or a Hindu girl.
- And if such marriage takes place, then it automatically becomes void in
Muslim law.
- However, if the girl converts into a Muslim, this deformity can be removed.
- Shia law allows muta marriages. Muta marriage is one that is temporary
or for a limited period of time.
10. Free consent
A. For a valid marriage, the free consent of the parties is a must.
B. If the consent is obtained by means of coercion, fraud, or mistake of fact, it is
considered invalid and the marriage is considered void.
 C. Mohiuddin v. Khatijabibi: a marriage is invalid if it is held without the free
consent of the parties.
11. Certain Prohibitions to Marriage
A. Marriage during Iddat
- Iddat is a time period after the divorce or death of the husband in which
the wife is not allowed to marry anyone else.
- The purpose behind this is to see whether the woman remains pregnant
with that husband’s child or not, so as to avoid any doubts regarding
parentage.
- The period is 3 months in case of divorce, and 4 lunar months and 10
days in case of death.
- The status of marriage entered into during iddat differs in the case of the
Sunni and the Shia sects of Muslims.
- The Sunni men are not allowed to marry during the iddat period.
- However, if they do, then the marriage shall assume the status of a mere
irregularity and the validity of such a marriage cannot really be
questioned. What this means is that the marriage will be deemed as
invalid till the irregularity, i.e., till the period of iddat exists and upon its
end, the irregularity will be removed and the marriage will become valid.
- In the Shia sect, men are prohibited to marry during the iddat period. If a
man does so, then such a marriage is considered void. This disability
cannot be removed. It needs to be highlighted that the period of iddat is
only for a specific period of time.
- As soon as the expiry of this period, the women are allowed to remarry
and there is no prohibition or restriction for the same either in the Sunni
sect or in the Shia sect.
B. Consanguinity:
- Marriage between people within the prohibited degree of blood relation is
barred in Muslim law as well.
- This means that marriage between people in blood relation up to a certain
number of generations is invalid.
C. Affinity:
- Some other relationships are also considered void based on the
closeness of the relationship. For example, a man cannot marry his wife’s
grandmother.
- Similarly, relationships based on fosterage are also barred to some
extent.
- A man cannot marry one’s foster grandmother or foster sister.
- Under Sunni law, some relationships in fosterage are allowed. In the Shia
sect, fosterage and consanguinity are on the same pedestal and both
render a marriage invalid.
D.
12.
Void and Voidable marriages
1. Sahih Nikah (Valid Marriage) Batil Nikah (Void Marriage) Fasid Nikah (Irregular
Marriage) Muta Marriage
2. Sahih Nikah (Valid Marriage):
A. sahih is an Urdu term for the word ‘correct’ or ‘valid’
B. When all the essential conditions of a Muslim marriage are duly fulfilled
C. social and legal implications of a valid marriage
- The spouses become legally married owing to which they can legally
consummate their marriage.
- parties acquire the rights of inheritance over the properties which can be
inherited.
- the wife has to right to alimony and maintenance for her and the children.
- The right to maintenance is an independent right beside the right to
receive the promised dower.
- The spouses have to be loyal and faithful to each other.
- However, a Muslim man is allowed to commit polygamy
- The Quran allows a man to reprimand or chastise his wife by reasonable
means if the wife is disobedient or disloyal towards him.
- The kids, if any, who are born due to the consummation of a sahih
marriage are considered to be legitimate children.
- In case of the wife being a widow or being divorced by her husband, she
is obliged under the Muslim law to perform the ritual of Iddat
D.
3. Batil Nikah (Void Marriage)
A. According to the Indian Contract Act, 1872, an agreement that is not legally
enforceable is a void agreement.
B. Similarly, an agreement between a prospective bride and a groom which does
not meet all the essential conditions of a Muslim marriage is a void agreement
and any marriage that takes place in furtherance of a void agreement is called a
void marriage or Batil nikah.
C. In Munshi v. Mst. Alam Bibi, when there is a permanent or perpetual prohibition
from marriage due to non-adherence of a condition, it is void marriage.
D. When one or more of the prerequisites to a valid marriage mentioned above are
not fulfilled by the spouses before marriage, the marriage is void and not binding.
E. The following are certain situations in which a Muslim marriage is void:
- When a marriage takes place between persons who are absolutely
incapable.
- When a person marries the wife of another man when the marriage of the
lady was subsisting.
- Marrying more than four wives. In such a case, the fifth marriage and so
on becomes void.
- Marriage with a Non-Muslim.
 - In Tanjela Bibi v. Bajrul Sheikh, a marriage with a woman who is
pregnant from before the marriage is void.
- mere examples and not an exhaustive list of void marriages.
F. The essential social and legal implications of void marriage are:
- The marriage is void-ab-initio, i.e. void from the very first day of the
marriage even if the marriage is consummated.
- A void marriage does entitle the parties to any legal right or bestow any
legal duties upon them.
- If the marriage turns out to be void, the right to receive maintenance after
divorce is lost.
- The kids, if any, born from the consummation of a void marriage are
considered illegitimate and have no right of succession or inheritance.
- The spouses do not require to obtain a decree of divorce in case of void
marriages. They can simply part without any legal formalities.
4. Fasid Nikah (Irregular Marriage)
A. In Ata Mohammed. v. Saiqul Bibi, when a marriage is temporarily prohibited
and not certainly restricted it is merely irregular or fasid and not void.
B. Irregular marriages exist only in the case of Sunni Muslims
C. an irregular marriage, under Shia law, is void marriage.
D. When a marriage is conducted by violating certain or partial conditions of a valid
marriage, it is called an irregular marriage.
E. The best instance of an irregular marriage is the marriage between a Muslim and
a Christian or a Jew.
F. an irregular marriage is voidable marriage and not void-ab-initio.
G. If the irregularity can be removed from an irregular marriage, the marriage
becomes valid when it is removed.
H. So, if a Muslim man of the Sunni sect marries a Jewish woman but gets her
converted to Islam, the marriage is valid.
I. The social and legal implications of an irregular marriage depend upon the
question of whether the marriage was consummated or not.
J. Implications if the marriage is not consummated:
- wife has no right to receive a dower from the husband in case he divorces
- The wife is not bound to follow the rule of iddat
- wife has no right to claim maintenance from the husband during the iddat
period of three months.
- If the irregular marriage is consummated and results in the birth of
children, the children will be considered legitimate and shall have all rights
of inheritance of properties.
- Those marriages which are irregular under Sunni law are void under Shia
Law.
- However, under Shia Law marriage contracted without witnesses is valid.
it is not void.
5. Muta marriages
A. occurs only in Shia Muslims and not Sunni
 B. Most of the Arabian countries have Shia sects of Muslims. The people usually
called the Sheikhs were involved in the business of oil-producing, refining and
exporting. Due to business agreements, they were required to travel far places
and stay there for several days or even months.
C. During this period, the Sheikhs were required to fulfil their sexual needs and
desires but, however, Islam does not allow cohabitation with any woman other
than a person’s own wife. Therefore, the Sheikhs used to marry the women for a
temporary period till they were in that town and at the time of leaving, they get
divorced and the dower was paid as the consideration for marrying.
D. recognized in Muslim personal law by the Shia sect and is called Muta marriage.
E. temporary marriage between a Shia Muslim man and a woman of Islam, Jew or
Christian religion for a fixed period of time and in return of the payment of a fixed
amount of dower at the time of divorce.
F. The time period and the dower must be informed and accepted by the bride as
well.
G. This marriage is not followed in Sunni Muslims which consider marriage to be a
permanent union and not a temporary affair.
H.
6.

Special marriage act

1. Applicability:
A. includes Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists marriages.
B. applies to all Indian states, except Jammu & Kashmir.
C. applies to Indian citizens who belong to different castes and religions AND to
Indian nationals who live abroad
2. Requirements:
A. consent of both parties to the marriage.
B. For marriage under this Act, the parties must file with the district’s Marriage
Registrar a notice stating their intention to marry each other
C. in which at least one of the parties to the marriage has lived for at least 30 days
prior to the date on which such notice is filed.
D. After the expiry of 30 days from the date that such notice was published, the
marriage is then said to be solemnised.
E. But if any person related to the parties objects to this marriage and the registrar
finds that it is a reasonable cause of objection, on such grounds he can cancel
the marriage.
F. For a valid marriage, the parties must also give their consent to the marriage
before the marriage officer and three witnesses.
3. Conditions for Marriage:
A. The bridegroom must be at least 21, and at the time of the marriage, the bride
must be at least 18 years of age.
 B. At the time of their marriage, both parties must be monogamous; i.e., they must
be unmarried and at that time should not have any living spouse.
C. the parties should be mentally fit, i.e., they must be sane at the time of marriage.
D. They should not be related to themselves through blood relationships; i.e. they
should not be subjected to prohibited relationships that otherwise act as a ground
for dissolving their marriage.
4. Changes with the Emergence of Special Marriage Act in India:
A. Succession to the Property
- succession to the property of persons married under this act or any
marriage registered under this act and that their children will be governed
under the Indian Succession Act.
- But if the parties to the marriage belong to Hindu, Buddhist, Sikh, or Jain
religions, then the Hindu Succession Act will govern the succession to
their property.
B. Registration of Marriage under the Special Marriage Act in India
- In India, all marriages can be registered either under their respective
personal laws or under the Special Marriage Act,1954.
- A marriage under the Special Marriage Act, 1954 enables people from
two distinct religious backgrounds to unite in the marriage bond.
- Although marriage laws allow only the registration of an already
solemnised marriage under personal laws, the Special Marriage Act
provides for both solemnizations and legal registration.
- simple means of legally registering a marriage between two people of
different religions, but even if both the concerned parties belong to the
same religion, they may choose to register the marriage under this Act.
5. Power of objection:
A. Any objections to marriage regarding age, consent capacity, incest, etc. may be
addressed to the Marriage Officer within 30 days of the notice being published.
B. The Marriage Officer is mandated to conduct an inquiry into its validity within a
30-day window period of time, during which the marriage can not be solemnized
in case of any objections.
C. If the marriage officer finds it valid and decides against the marriage of the
parties concerned, within thirty days of such refusal, appeal to the district court.
D. If all the objections concerned are dealt with, a declaration must be signed by the
bride, groom, and any three witnesses in the presence of the Marriage Officer,
who would then countersign it. T
E. he marriage will be solemnized upon the cessation of the objection period in the
absence of any objections.
6. Power of enquiry:
In receiving an objection, marriage officers are granted the following rights:
A. Summoning and enforcing witnesses’ attendance.
B. Examining the witnesses on oath.
C. Demanding documents to produce.
D. Demanding the evidence on affidavits.
 E. Issue of commissions for the witness scrutiny.
7. Unreasonable Objections:
If the marriage officer believes that the objection he/she has received is not reasonable
and is not made in good faith, the person making the objection may be on the receiving
end of objective costs of up to Rs. 1,000.
The sum received will be awarded to the parties of the proposed marriage.
8. Issues with the act: Harassment by anti-social elements and incompetence of the officer

Unisex marriage
1. The right to marriage is considered a human right. However, there exists no law nor any
legislation which legally enforces such right of transgenders. They were given a hope
when Supreme Court delivered the NALSA judgement, ie, National Legal Services
Authority v. Union of India & Ors.. It was the first attempt to legally recognize their
gender and the fundamental rights which conferred to all irrespective of an individual’s
sex.
2. Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors held, Article 21
confers freedom of life and liberty, which doesn’t merely amount to physical existence
but a qualitative and meaningful life with dignity.
3. Although the right to marry according to one’s will have been recognized as a
fundamental right the current scenario doesn’t allows homosexuals to exercise their
rights.
4. Various advantages which are available to heterosexual couples like maintenance,
succession, pension rights are denied to homosexual couples.
5. After the decision in Suresh Kumar Koushal v. Naz Foundation which upheld
constitutional validity of section 377 of Indian Penal Code criminalising carnal intercourse
against nature’s order, most of the arguments have focused around the efficient ways to
overturn the decision of the court.
6. Discrimination on the basis of sex is violative of our fundamental rights enshrined under
Article 15. Sex includes sexual orientation within it and discrimination based on an
individual’s sexual orientation is objectionable under criminal as well as civil laws.
7. The current legislations on personal laws only recognizes heterosexual marriages, which
undoubtedly denies homosexual couples of the legal and social recognition as well as
the benefits which is conferred by these legislations to married people.
8. Most personal laws describe marriage as sacrament and union of two souls between
individuals belonging to different sex. Same sex relationships are considered grossly
immoral and violative of custom and religious beliefs.
9. The Rigveda mentions, ‘Vikriti Evam Prakriti’ which means what seems to be unnatural
is also natural.
I. Under Hindu Marriage Act
1. Hindu Marriage Act governs the marriage and related aspects like divorce etc, of
any two individuals belonging to the Hindu religion. It is applicable to any other
person who is by religion Jain, Buddhist or Sikh within the territory of India
 2. The Hindu Marriage Act very specifically states that at the time of marriage the
bridegroom must be of twenty-one years of age bride of eighteen years of age. A
similar provision is made in the Christian Marriage Act using the term man and
woman. Almost every Indian personal law considers marriage as union of
heterosexuals. However, same sex marriages are not expressly prohibited Hindu
Marriage Act.
3. Approaches to accommodate same sex marriage
A. One person identifies as the groom, the other as the bride. This is against
the rules of interpretation of statute.
B. recognise LGBT community as a separate community, one which have its
own customs and practices allowing same sex marriage.
C. interpretating the Act in such a manner so as to allow same sex marriage.
If not, then the Act may be held unconstitutional on the ground it
discriminates on basis of sex and denies them of their basic right.
D. make desired amendments in the respective personal laws: controversial
4. Hindu Marriage Act says “Union of spirits”, “between 2 hindus” and does not have
any express prohibition which allows accommodative interpretation
II. Under Special Marriage Act
1. The Special Marriage Act, 1954 allows for a special type of marriage between
parties irrespective of their faith and religion who don’t wish to be bound by their
personal laws.
2. An alternative which ought not to incite religious hatred is make amendment in
the Special Marriage Act to facilitate same-sex marriages.
3. Marriages under this Act don't require religious rites and practices to be
performed for a valid marriage unlike marriages under Hindu Marriage Act.
4. However, the current form of the Act is only applicable to heterosexual couple as
it describes the age criteria by using words such as “male” and “female”.
5. To incorporate homosexual marriages under the Act an amendment to section 4
(c) is required or it may add a specific provision to expressly allow the same.
6. The decision of Naz Foundation stressed on Article 15 of the Constitution which
prohibits discrimination on the ground of caste, race, sex, religion and place of
birth. The court observed that the term “sex” in Article 15 included sexual
orientation within it. Several foreign judgments were cited in this case for
supporting the propositions. It will be discriminating and violative of Article 15
against homosexual couples if the legislation and personal laws prohibited them
based on their sexual orientation.
7. Hence, it’s clear that if Special Marriage Act permitted same sex marriages, an
argument could have been made.
8. In the case of Shakti Vahini v. Union of India and others the court held that the
right to choose a partner is a fundamental right.
9.
Living together
1. There is no particular law as specified with regards to “live-in relationships” in India and
no enactments to define the rights and liabilities of the partners cohabiting in a live-in
relationship.
2. There is no particular law as specified with regards to live-in relationships in India and no
enactments to define the rights and liabilities of the partners cohabiting in a live-in
relationship. The law is unclear on this but over the period live-in relationships have been
recognized by the courts. The legal recognition of live-in relationships was for the first
time acknowledged in the Protection of Women from the Domestic Violence Act, 2005
extending protection to those women who are not legally married but living with a male
individual in a relationship. Section 114 of the Indian Evidence Act, lays down that, the
court may presume the existence of any fact which it thinks likely to have happened,
regard being given to the common course of natural events, human conduct, and public
and private business, in a relationship as to the facts of the particular case. Therefore,
where a man and a lady live respectively for a long spell of time as a couple then there
would be an assumption of marriage. Where independent evidence of solemnization of
marriage is not available, it will be presumed to be a valid marriage by continuous
cohabitation between the parties unless the contrary is proved. It was held in Madan
Mohan Singh v. Rajni Kant[12] by the Supreme Court that law presumes in favour of
marriage against concubinage. Therefore, going by the principle, where a man and a
woman have cohabited for a long time they are presumed to be married. It has been also
observed that a long-continued live-in relationship cannot be just a walk-in-and-walk-out
relationship and children out of such relationships are legitimate. It was held in Anandi v.
Onkar[13] that, if a community of neighbours treats a couple as husband a wife, they are
thus reputed to be married and the burden of proof that they were not properly married
lies on the party asserting so. In a landmark judgment of S. Khushboo v. Kanniammal,
The Supreme Court broadened the horizons and held, that live-in relationships come
within the ambit of the right of life under Article 21 of the Constitution of India and
recognized it as a permissible act of two major living together which cannot be
considered illegal or unlawful.
3. In the case of Indira Sarma v. V.K.V. Sarma(2013), 15 SCC 755 the Supreme Court
observed that a live-in or marriage-like relationship is neither a crime nor a sin though
socially unacceptable in the country. The decision to marry or not marry or to have a
heterosexual relationship is intensely personal. In this case, the court gave out five
categories of life in relationships which can be considered and proved in the court: ▪
Domestic relationship between an adult unmarried man and an adult unmarried woman.
▪ A domestic relationship between a married man and an adult unmarried woman
entered willingly. ▪ A domestic relationship between an adult unmarried man and a
married woman entered willingly. This kind of relationship was punishable under IPC
section 497-adultery but this section has been deemed unconstitutional since 2018. It is
still a ground to get divorced. ▪ A domestic relationship between a married man and an
adult unmarried woman entered unknowingly. ▪ Domestic relationships between
same-sex partners
4. In the case of Tulsa & Ors v. Durghatiya (2008), while referring to Section 114 of the
Indian Evidence Act, 1872 the court held that the provisions under the said section refer
to a common course of natural events, human conduct, and private business. The court
shall presume the existence of facts that are likely to have happened. While interpreting
Sections 50 and Section 114 of the Indian Evidence Act, 1872 combinedly, it is evident
that the act of marriage is to be presumed from the view of the common course of
natural events. In a landmark judgment of Dhannu Lal v. Ganeshram(2015), the
Supreme Court decided that couples living in live-in relationships will be presumed
legally married. It was also held that the woman in the relationship would be eligible to
inherit the property after the death of her partner.
5. Validity of living together and legitimacy of a child born out of them
A. There is no particular law as specified with regards to “live-in relationships” in
India and no enactments to define the rights and liabilities of the partners
cohabiting in a live-in relationship.
B. The legal recognition of live-in relationships was for the first time acknowledged
in the Protection of Women from the Domestic Violence Act, 2005 extending
protection to those women who are not legally married but living with a male
individual in a relationship.
C. S114 of the Indian Evidence Act:
Where a man and a lady live respectively for a long spell of time as a couple then
there would be an assumption of marriage. Where independent evidence of
solemnization of marriage is not available, it will be presumed to be a valid
marriage by continuous cohabitation between the parties unless the contrary is
proved
D. S. Khushboo v. Kanniammal: living together comes under the ambit of Art 21
E. Indira Sarma v. V.K.V. Sarma: 5 categories of live in relationships
- Domestic relationship between an adult unmarried man and an adult
unmarried woman.
- A domestic relationship between a married man and an adult unmarried
woman entered willingly.
- A domestic relationship between an adult unmarried man and a married
woman entered willingly. This kind of relationship was punishable under
IPC section 497-adultery but this section has been deemed
unconstitutional since 2018. It is still a ground to get divorced.
- A domestic relationship between a married man and an adult unmarried
woman entered unknowingly.
- Domestic relationships between same-sex partners.
F. Dhannu Lal v. Ganeshram: couples in live-in relationships will be presumed
legally married. It was also held that the woman in the relationship would be
eligible to inherit the property after the death of her partner.
G. Bharatha Matha v. R Vijay Renganathan: children born through live-in relations
will be considered legitimate children and will be allowed share in the ancestral
undivided property.
6. .
Dowry
1. There is a thin line difference between gifts given under pressure and gifts given out of
good faith, and luckily, we don’t have to use the same word for both of them. Gifts given
under pressure, abuse or in a form of agreement for wedding amounts to dowry but gifts
given in good faith, without any undue-influence are treated as streedhan. It includes any
form of gift or valuables that are only given to the bride. Streedhan is also in accordance
with the Hindu Succession Act, 1956. The husband or his relatives can be held liable in
case they deny to return this when the time comes under Section 405 and 406 of Indian
Penal Code. Even the courts have ensured that no woman should be denied her right
over Streedhan.
2. Dowry is defined, in simple words, as any form of money, goods or estate that a woman
brings at the time of marriage to her husband’s house
3. Gifts given under pressure, abuse or in a form of agreement for wedding amounts to
dowry but gifts given in good faith, without any undue-influence are treated as
streedhan.
4. In Pratibha Rani vs. Suraj Kumar case, the honourable Supreme court held that a
woman has every right over her Streedhan.
5. In Pandurang Shivram Kawathkar v. the State of Maharashtra, the SC held that
merely demand without any exchange of dowry amounts to an offence under Section 4
of the Dowry Prohibition Act.
6. In Bhoora Singh v. State of Uttar Pradesh, a wife was being ill-treated and even set on
fire. She wrote letters to her father explaining her condition and mentioning her inlaws’
demands for dowry. The court held that the husband and his family members were liable
under Section 4 of the Act.
7. Section 304(B) of IPC deals with matters of dowry deaths. If a wife dies within seven
years of the marriage with any burns or bodily injury or occurs otherwise under normal
circumstances and it is shown that she was subjected to cruelty or harassment by her
husband or any relative of her husband or in connection with, for any demand of dowry,
such death will be considered as ‘dowry death’
8. They can be punished for imprisonment for seven years which may extend to
imprisonment for life.
9.

Dowry Prohibition Act

1. Dowry is defined, in simple words, as any form of money, goods or estate that a woman
brings at the time of marriage to her husband’s house
2. Section 2 of the Dowry Prohibition Act, 1961 defines the term dowry as “any property or
valuable security given or agreed to give, directly or indirectly.”
3. Dower or mahr is not included as dowry in case the person’s marriage falls under Muslim
Personal Law (Shariat) Application Act, 1937.
4. Section 3 of the Act makes accepting as well as giving dowry an offence. This means if
the bride’s family demands dowry and the bridegroom’s family agrees to it, then both
parties will be held liable under this Act.
 5. Section 4 of the Act deals with the punishment for demanding dowry. Any person who
directly or indirectly demands dowry shall be held liable and punished with imprisonment
of a minimum of six months to a maximum of two years and the fine may extend to ten
thousand rupees.
6. In Pandurang Shivram Kawathkar v. the State of Maharashtra, the Supreme Court
held that merely demand without any exchange of dowry amounts to an offence under
Section 4 of the Dowry Prohibition Act.
7. Section 304(B) of IPC deals with matters of dowry deaths.
8. Under S498 (A), IPC: a married woman can file a complaint against her husband or
in-laws or any person connected to them when she suffers cruelty at their hands.
Kinds of cruelty are covered: Cruelty by vexatious litigation, by deprivation and wasteful
habits, by persistent demand, by extra-marital relations, Harassment for non- dowry
demand, by non-acceptance of girl child, by false attacks on chastity and taking away
children

Concept of dower and types - muslim law

1. Marriage in Islam is considered to be a social contract. The husband and the wife and
their respective families enter into an agreement whereby the husband’s family pays an
amount of money called the dower (mehr) to the girl and her family and in return, the girl
agrees to marry the boy. Therefore, this is a social arrangement which is called nikah in
Islam.
2. In Abdul Kadir vs Salima, Justice Mahmood also cautioned that Dower (Mahr) in
Muslim marriage should not be confused with consideration in the context of civil
contract. Dower, under the Mohammedan law, is a sum of money or other property
promised by the husband to be paid or delivered to the wife in consideration of the
marriage.
3. In Hedaya, it is laid down, The payment of dower is enjoined by the law merely as a
token of respect for its object (the woman), wherefore the mention of it is not absolutely
essential to the validity of a marriage, and, for the same reason, a marriage is also valid,
although the man were to engage in the contract on the special condition that there
should be no dower.
4. This acquisition of women as property by the mode of accepting the dower given by the
man to the woman and once the woman accepts the dower, it is deemed that she has
accepted the nikah as well
5. The wife cannot leave or divorce her husband if the dower is unpaid.
6. the woman cannot just deny the restoration of conjugal rights until the dower is not paid.
7. Before the Prophet, the principles of Mohammedan law stated that the woman is a
chattel and the dower was consideration for the acquisition of women in the marriage
and she was treated as an inheritance after her husband died. But after the Holy
Prophet, a woman has been given a higher pedestal in society.
8. acceptance can also be made by way of accepting the dower. Once the man offers the
dower to the woman and she accepts the same, it means that the marriage is accepted.
 9. Consideration under contract law simply means ‘something for something’. Hence, it is
construed in a Muslim marriage that the woman must receive as a matter of right, a sum
of money from the husband’s side called mehr or dower.
10. According to the prophet, this dower is a form of honour and respect given to a woman
when she agrees to marry a man by way of accepting the dower. The practical purpose
is to ensure the financial security of the woman in and after marriage.
11. The right to the dower of a woman can be exerted before cohabitation. The Allahabad
High Court has said in Nasra Begum v. Rizwan that a woman’s family can refuse to
send her to her matrimonial home if dower is not given
12. Muta marriage is a temporary marriage between a Shia Muslim man and a woman of
Islam, Jew or Christian religion for a fixed period of time and in return of the payment of
a fixed amount of dower at the time of divorce.
13. Dower or mahr is not included as dowry in case the person’s marriage falls under Muslim
Personal Law (Shariat) Application Act, 1937.
TYPES OF DOWER
I. Based on the mode of determination of its amount.
1. Specified dower
- Specified dower is fixed by agreement between the parties, either before or at the
time of marriage or even after marriage.
- Under Sunni law, the specified dower must not be less than the value of 10
dirhams. The wife is entitled to this minimum amount even if the specified dower
is less.
- Under Shia law, there is no fixed minimum for dower.
- But there is no upper limit, and a dower is never invalid on the grounds of its
being excessive.
- The Court must decree the whole amount of the specified dower, though the
husband had no means of paying it when it was stipulated or though its payment
would leave nothing to the heirs of the husband.
- Thus, in an old Peshawar case, it was held that if a husband transfers a field to
his wife as dower, she is entitled, as against him, to a decree for possession.
- If, however, there is any specific legislative enactment on the point, the Court
need not decree the entire amount of the specified dower.
- The Oudh Laws Act, 1876, contained a provision that the Court could not award
the amount of dower stipulated in the agreement, but only such sum as was
reasonable, regard being had to the means of the husband and the status of the
wife.
2. Proper Dower (Mahr-I-Misl or Mahr-Ul-Misl):
- If nothing is said about dower at the time of marriage, the wife may claim to have
a reasonable amount of dower settled for her, even if the marriage was
contracted on the express condition that she should not claim any dower.
- In fixing the proper dower, the Court is guided by the amount of dower settled
upon the other female members of the family of the wife’s father.
- In such cases, the social position of the husband and his means are not of much
importance.
 - As the Hedaya lays down, the wife’s “age, beauty, fortune, understanding and
virtue” must be kept in mind when fixing proper dower.
- Under Shia law, the proper dower should not exceed 500 dirhams.
- In Marina Jatoi v. Nuruddin Jatoi, a Muslim married a Christian woman in
England. The Court observed that the marriage was governed by Muslim law,
and therefore, the husband could divorce his wife by talak. The Court also held
that the wife, in turn, could also claim dower, although no dower was initially fixed
at the time of the marriage.
II. Based on time when it is payable.
1. Prompt Dower (Marjjal)
- The amount of dower is usually split into two parts prompt and deferred.
- Prompt dower is that which is payable on demand
- Prompt dower is dower which is payable immediately on the marriage taking
place, and it must be paid on demand, unless delay is stipulated for and agreed.
- Prompt dower may be realised at any time before or after consummation.
- Proof of intercourse between the parties is not necessary for its payment.
- It is only on payment of the prompt dower that the husband becomes entitled to
enforce his conjugal rights, unless the marriage is already consummated.
- The right of restitution, so far from being a condition precedent to the payment of
prompt dower, arises only after the dower has been paid.
- In Rabia Khatoon v. Mukhtar Ahmed, it was observed that the wife may refuse
to live with her husband and to admit him to sexual intercourse, so long as the
prompt dower is not paid. If the husband sues her for restitution of conjugal rights
before sexual intercourse takes place, non-payment of dower is a complete
defence to the suit, and the suit will be dismissed.
- It was laid down in Abdul Kadir v. Salima that if the suit is brought after sexual
intercourse has taken place with her free consent, the proper decree to pass is
not a decree of dismissal, but a decree for restitution, conditional on payment of
prompt dower.
2. Deferred Dower (Muwajjal)
- Deferred dower is payable on the dissolution of the marriage either (i) by the
death of either of the parties, or (ii) by divorce.
- In Huseinkhan v. Gulab Khatun, no specific proportion of prompt and deferred
dower has been fixed by agreement at the time of the marriage, or by custom —
(i) The whole is regarded as prompt according to Shia law;
(ii) Part is regarded as prompt, and part as deferred according to Sunni law; the
proportion is regulated by the status of the parties and the amount of the dower
settled. The Court has, however, the power to award the whole as prompt.
III. Muta marriage is a temporary marriage between a Shia Muslim man and a woman of Islam,
Jew or Christian religion for a fixed period of time and in return of the payment of a fixed amount
of dower at the time of divorce.
Divorce under Muslim law
1. The Muslim Personal Law (Shariat) Application Act, 1937, under Section 2 states that
notwithstanding any custom or usages in matters of dissolution of marriage, where the
parties are Muslims will be governed by the Shariat or the Muslim Personal Law.
2. Further, the dissolution of marriage for a party that is a Muslim can be divided into the
following:
I. Divorce by husband
- A Muslim husband can seek dissolution of marriage by pronouncing talaq
to the wife.
- It is a form of divorce only available to the husband by which he can sever
ties with his wife without the intervention of any court or without seeking
prior approval of the wife.
- Every husband who has attained puberty and is of sound mind can talaq
his wife.
- There are no grounds or conditions for pronouncing talaq and is an
arbitrary act based on the whims & fancies of the husband.
- Under different schools of Muslim law, some additional conditions may or
may not be applicable.
- Such as under Hanafi law the pronouncement of talaq under coercion,
compulsion, fraud, and voluntary intoxication etc. is valid whereas under
other schools, the same is not applicable and the consent of the husband
at the time of pronouncing talaq must be free.
- The talaq operates from the day it was pronounced and the words used
therein must be clear & not ambiguous.
- The Sunni sect does not prescribe any formalities for the talaq whereas
the Shia sect insists that it be pronounced in front of two witnesses and in
oral form.
- Talaq further can be in a revocable form or irrevocable form also known
as Talaq-ul-Sunnat and Talaq-ul-Biddat respectively.
- Talaq-ul-Sunnat is considered as a proper form of divorce which is further
categorised into Talaq Ahsan and Talaq Hasan.
- Talaq-ul-Biddat in any form is considered improper and is not recognized
by majority of the schools except Sunnis. It is also popularly known as
triple talaq.
- Triple talaq was declared unconstitutional by the Supreme Court in
Shayara Bano v. Union of India.
- Soon after the judgment, the parliament enacted The Muslim Women
(Protection of Rights on Marriage) Act, 2019 wherein any declaration of
Talaq by the Muslim husband is supposed to be void and illegal.
- The Act also provides for stringent punishment in case of any violation of
the said provision.
 - A husband can also delegate the power of talaq to any person or even his
wife to pronounce divorce and the same form of talaq is known as
Talaq-i-Tafweez.
II. Divorce by wife
- The divorce by a Muslim wife is recognized under the personal law by the
Muslim Personal Law (Shariat) Application Act, 1937.
- Khula is a divorce purchased by the woman from her husband; where
compensation is paid by the wife to the husband from her property in
order to dissolve the marriage.
- When this form of divorce is affected all the rights of spouses are
extinguished and only the right of maintenance during the period of iddat
is available apart from any right expressly agreed between the parties.
- Ila which in literal terms means an oath. In law, it means that, when a
husband takes an oath that he will not have sexual intercourse with his
wife for four months or above on the expiry of four months after making
ila, if the husband has abstained from sexual intercourse during this
period, the marriage shall stand dissolved.
- Zihar is available when the husband compares the wife with his female
relations who are in the prohibited degree of relationship such as his
mother. The same is recognized under the Shariat Act and enables the
wife to seek divorce in such a case.
- A divorce can be affected by the wife if the husband accuses her of
adultery. If the accusation levelled by the husband against her is not
proved, it gives her a right to file a divorce suit against the husband.
III. Divorce by mutual consent
- AKA Mubaraat which means to release from each other mutually.
- It is a form of divorce where both the spouses agree to severe their
marital ties mutually.
3. Judicial divorce
After the enactment of the Dissolution of Muslim Marriages Act, 1939, a Muslim woman
has a right to get a divorce through the courts in India on the grounds mentioned in
Section 2 of the act.
4. Judicial separation
In certain cases, a Muslim wife is entitled to seek judicial separation such as in case of
impotency of the husband, cruelty by the husband rendering it unsafe for her to live in
the dominion of the husband if the marriage was irregular and on the failure of the
husband to perform marital obligations imposed upon him by the contract of marriage,
etc.
Restitution of conjugal rights under Hindu law
1. rights and duties which are binding upon both the spouses under Hindu law are termed
as Conjugal or Marital rights.
2. restitution could be sought for only in the case of a valid marriage.
3. A decree of restitution of conjugal rights means that the respondent spouse is ordered to
cohabit with the plaintiff spouse and have to fulfil his/her duty against the other.
4. Under the Hindu Marriage Act or the Special Marriage Act restitution is the only remedy
which could be availed by a deserted spouse against his/her partner if he/she wants to
continue with the marriage.
5. The decree of restitution of conjugal rights can be enforced through coercive measures
in the form of attachment of property when the party complained against wilfully disobeys
the decree and could also be punished for contempt of court.
6. Provisions for restitution: Section 9 of the Hindu Marriage Act, 1955, Section 22 of the
Special Marriage Act, 1954 and Order 21, Rules 32 and 33 of the CPC, 1908.
7. In Saroj Rani v. Sudarshan Kumar Chadha, SC while validating the constitutionality of
Section 9 of the Hindu Marriage Act dealing with restitution observed that in cases of
restitution of conjugal rights the respondent spouse (here the husband) becomes liable
as per court’s order should cohabit with the aggrieved petitioner and fulfil his marital
obligations.
8. Provisions for restitution of Conjugal Rights under Hindu Marriage Act, 1955 and Special
Marriage Act, 1954:
A. Provision for restitution of Conjugal Rights under the Hindu Marriage Act, 1955 is
given under S. 9 whereas under the Special Marriage Act, 1954 it is given under
Section 22.
B. The provisions read identically and are as follows –
- When either of the spouses has, withdrawn from the society of the other
without a reasonable reason, the aggrieved party may file a suit to the
district court, for restitution of conjugal rights.
- The court, on being satisfied with the petitioner’s arguments in the petition
and after confirmation that there is no legal embargo on such claim can
decree restitution of conjugal rights.
9. This concept is even under Muslim Law which according to Tayabji is as follows – Where
either one of the spouses has withdrawn from the society of the other or has neglected
his duties against the partners without a reasonable reason, the court may interfere and
can decree restitution of conjugal rights.
Therefore, this concept under Muslim Law is directed towards securing the spouse
his/her legal rights.
10. The concept of Restitution of Conjugal Rights in Muslim Law was explained in Abdul
Kadir v. Salima, where it was held that restitution must be decreed as per Muslim Law
(Sharia) and not based on Judicial Morality or Natural Law.
 11. In Asfaq Qureshi v. Aysha Qureshi, in cases of conversion followed by a marriage
where conversion was improper, decree of restitution of Conjugal Rights cannot be given
because the marriage is itself null and void. The court also observed that a decree of
restitution can only be given in case of a valid marriage.
12. The essential conditions for filing a suit for restitution (As affirmed in Sushila Bai v.
Prem Narayan):
A. the respondent has withdrawn from the petitioner’s society
B. the withdrawal neither has a reasonable reason nor is legal.
C. no other legal ground for the refusal of relief.
D. the court is satisfied with the petitioner’s arguments.
13. Defences available:
A. the respondent can claim a matrimonial relief as against the suit.
B. The facts show and it is proven that the petitioner is guilty of misconduct.
C. Due to certain acts or omissions it becomes impossible for the spouses to live
together.
14. onus is on the shoulders of the petitioner to prove the wrong done against him
15. The onus of proof of reasonability of the excuse for withdrawal is upon the person who
has withdrawn from the society or the respondent: P. RajeshkumarBagmar v. Swathi
Rajeshkumar Bagmar
16. A party can file a suit for restitution to the District Court in whose jurisdiction – the
marriage was solemnised, the couple stayed or the couple last stayed.
17. Section 9 also provides for an opportunity to the petitioner spouse to seek maintenance
under Section 25 of the Act
18. Maintenance under these provisions could be sought for even in cases where the action
concerning maintenance is still pending. Therefore, a wife who does not want the
disruption of marriage can get maintenance from her husband directly through these
provisions even without actual dissolution.
19. In Seema v. Rakesh Kumar, SC held that in cases for decree of restitution of conjugal
rights, the petitioner wife becomes entitled to receive maintenance from her husband if
the two are living with each other and the wife is unable to live a decent life on her own.

Judicial separation - Hindu and spl marriage act

1. Judicial Separation is an alternative to divorce, through which both the parties to a
marriage are given time to resolve their issues and make efforts to save their failed
marriage by living separately
HINDU LAW
2. Any person who is a Hindu by religion or who is a Buddhist, Jain or Sikh can apply for
judicial separation under the Hindu Marriage Act, 1955. Once the judicial separation has
been granted, it shall not be obligatory for the parties to cohabit together.
3. Either husband or wife may present a petition for judicial separation on any of the
following grounds:
- Adultery i.e., voluntary sexual intercourse with any person other than his or her
spouse: Subbarama Reddiar v. Sakaswathi Ammal
 In Revathi v. Union of India and Ors, adultery was held not to be used as a
criminal arm but as a ground for judicial separation
- Cruelty including both mental and physical cruelty: Balram Prajapati v.
Susheela Bai - mental cruelty through violence
- Desertion for a continuous period of not less than two years without reasonable
cause and consent
- Conversion from Hinduism to any other religion: Suresh Babu v. Leela
- Unsoundness of mind
- Suffering continuously or intermittently from mental disorder: Vinita Saxena v.
Pankaj Pandit: schizophrenia
- Suffering from a virulent and incurable form of leprosy
- Suffering from venereal disease in a communicable form
- Renunciation of the world by entering any religious order
- Not heard of being alive for seven years or more by those persons
4. A wife may also present a petition for the judicial separation on the following grounds:
- Bigamy
- Guilty of rape, sodomy or bestiality
- Cohabitation between the parties has not been resumed for one year or upwards
after an order from the court
- The marriage took place before attainment of the age of fifteen years
5. The grounds and procedure for judicial separation and divorce are the same.
6. While divorce ends all the obligations and responsibilities associated with the marital
relationship, judicial separation doesn’t take away the legal status of a married husband
and wife.
7. Judicial separation doesn’t put an end to the marriage, both partners are still required to
fulfil all the marital obligations except for the fact that they’re allowed to reside
separately.
8. After one year, if there is no resumption of cohabitation, then the couple may be granted
divorce by the Court
SPECIAL MARRIAGE ACT
1. Section 23 of the Act enables the husband or the wife to present a petition for judicial
separation-(a) on any of the grounds specified in sub- section (1) and sub-section (1-A)
of section 27 on which a petition for divorce might have been presented; or (b) on the
ground of failure to comply with a decree for restitution of conjugal rights.
2. Maybe filed by husband or wife on the grounds:
- had voluntary sexual intercourse with any person other than his or her spouse;
- has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition
- is undergoing a sentence of imprisonment for seven years or more for an offence
as defined in the IPC
- Cruelty
- Mental disorder
- psychopathic disorder
- has been suffering from venereal disease in a communicable form
 - Suffering from leprosy
- has not been heard of as being alive for a period of seven years or more
3. A wife may do so on the grounds:
- guilty of rape, sodomy or bestiality

Doctrine of factum valet

1. The doctrine of “factum valet quod fieri non debuit” means what ought not to be done
becomes valid when done.
2. This principle was formulated by the authors of the Dayabhaga school and was
recognised to a limited extent by the followers of the Mitakshara school.
3. The doctrine of factum valet states that once an act is done or a fact is accomplished it
can’t be altered by the written texts of laws.
4. As the fact is considered to be a concrete establishment and is deemed to be legally
binding.
5. It originated from the Roman maxim “Factum Valet Quod Fieri Dabuit”. This theory was
introduced to justify the girl’s marriage who was given away by her parents. The doctrine
of factum valet is ineffective in curing the act done in contravention of the mandatory
things. Therefore, if the marriage was once performed and solemnised, it is valid even if
it is done without consent.
6. While enforcing Hindu Law, the British Courts enforced the doctrine of factum valet
applied to equity, justice, and good conscience.
7. This doctrine is applicable when there is obligation and not the legal prohibition for a
thing. In other words, if the act is accomplished and eventually completed, the action will
be considered lawful and binding.
8. The doctrine is also applied to validity of the marriages which have been performed
irregularly or disregard to the Hindu Law which are directory.
9. In Venkatacharyulu v. Rangacharyulu And Anr., it was held that when a marriage rite
is set aside on the ground that it is forbidden by the very law which prescribes the rite,
the girl's prior legal status remains without taint, the rite being defiled and being
inefficacious on that ground. But the religious theory mentioned above and the social
difficulty which may arise from the marriage being set aside is a legitimate ground for
recognizing the doctrine of factum valet except in cases of clear fraud or force when the
religious ceremony may be presumed to be defiled by fraud upon its policy.
10. In Deivanai Achi And Another v. R.M.Al.Ct Chidambaram Chettiar And Others, the
doctrine of factum valet was also invoked to validate the marriage. The doctrine, it must
be remembered, enables to cure the violation of a directory provision or a mere matter of
form but does not cure the violation of the fundamental principles or the essence of the
transaction. As in the present case, no ceremonies have been observed; the doctrine of
factum valet cannot help the plaintiffs. The parties deliberately chose to deviate from law
and usage and adopted a marriage ceremony not recognised by either. The doctrine of
factum valet cannot, in our opinion, apply to such a case of deliberate transgression.
 11. In Parvathy Ammal v. Gopala Gounder, the omission to do the Sapthapathi, another
equally essential thing like tying the thali has been done. The doctrine was applied and
the marriage was held valid.
12. In Hem Singh And Mula Singh v. Harnam Singh, the texts are merely directory, the
principle of factum valet was said to apply, and the act done is valid and binding. The
case was regarding adoption.
13. Dayabhaga lays down that " a fact cannot be altered by a hundred texts."
14. This principle has been recognized by the Privy Council as such in a number of cases
which need not be referred to.
15. The principle of factum valet is applicable within certain well-recognized limits, and
generally speaking, it is applicable to cases where a legal precept has been reduced by
independent reasoning to a mere moral suggestion.
16. In Gopal Narain v. Hanmant Ganesh, a girl was allowed to be given away by her
mother as long as the other ceremonies were performed.

Divorce by mutual consent - Hindu and Christian

HINDU
1. Divorce under the Hindu personal law is recognized under the Hindu Marriage Act, 1955
which applies as per Section 2 of the Act to any person who is a Hindu by religion in any
of its forms or developments, to any person who is a Buddhist, Jain or Sikh by religion, to
any other person domiciled in the territories to which this Act extends who is not a
Muslim, Christian, Parsi or Jew by religion.
2. Section 13 of the Act provides for the dissolution of the marriage or divorce, for which
either spouse can file an application before the appropriate court for granting a decree.
3. In a case where none of the aforementioned grounds is available, but the parties decide
they do not want to remain married to each other or can not live with one another they
can seek divorce by mutual consent under Section 13B of the Hindu Marriage Act.
4. Section 13-B provides for divorce by mutual consent where both the parties living
separately for a period of one or more years, present a petition for divorce on the ground
that they have not been able to live together and therefore agreed mutually to dissolve
the marriage
5. Essentials:
A. Parties should be living separately:
- This period of one year where the parties have lived separately must be
immediately before the filing of the petition. “Living Separately” in the
context of Section 13B does not necessarily mean physically living in
different places. The parties could be living in the same house, sharing
the same roof but there can still be a distance between the two.
- Sureshta Devi v. Om Prakash: living separately does not necessarily
mean living in different places. The parties can be living together but not
as spouses.
B. Parties have not been able to live together
 - In Pradeep Pant & anr v. Govt of NCT Delhi, the parties were married
and had a daughter from their wedlock. However, due to temperamental
differences between them, they were not able to live together and decided
to live separately. Despite putting their best efforts they were unable to
reconcile their marriage and could not see themselves living together as
husband and wife ever again. A divorce petition was jointly filed and
issues such as maintenance and custody of their child were decided and
agreed upon by both.
- Both parties gave their free consent without any undue influence. The
court observed that there was no scope of reconciliation and granted a
decree of divorce.
- After filing a petition for divorce by mutual consent, the parties are given a
waiting period of 6 months, also known as a cooling period and it may
extend up to 18 months. During this time the parties must introspect and
think about their decision.
- If the parties are still not able to live together after the cooling period, then
the divorce petition shall be passed by the district judge.
C. They have mutually agreed that marriage should be resolved
- After the first motion has been passed, the parties have a total of 18
months to file for second motion and if they fail to do so within those 18
months, both parties are deemed to have withdrawn their consent
mutually.
6. Procedure for getting a decree of divorce by mutual consent:
- Jointly filing a petition
A divorce petition in the form of an affidavit is to be signed by both parties and
filed before a family court in their region.
- First Motion
After filing the petition the parties shall appear before the court and give their
statements. If the court is satisfied and the statements are recorded then the first
motion is said to have been passed, following which a waiting period of 6 months
(Prescribed by S13 (2)) will be given to the parties before they are able to file the
second motion.
- Second Motion
This is when final hearings take place and statements are recorded again. If the
issues of alimony and child custody (if any) are mutually agreed upon the decree
of divorce is passed after this step.
7. In the case of Amardeep Singh v. Harveen Kaur, it was observed that the couple had
internal disputes and their married life was not the best one. The disputes escalated and
many civil and criminal proceedings followed. After all these issues were mutually sorted
by the parties they just wanted a quick divorce and sought to waive off the waiting
period. The parties could no longer be with each other and the waiting period would only
prolong their agony.
Keeping this in view, Hon’ble Supreme Court laid down the waiting period of six months
can be waived off if the court is satisfied that the spouses have lived separately for more
 than the statutorily prescribed time of at least one year and have settled the issues of
alimony and custody of children(if any).
8. In K. Omprakash v. K. Nalini, the parties were not happy with their marriage anymore
and were allegedly having extramarital relationships.Both parties prayed for an instant
divorce and a waiver of the waiting period. Observing that the parties had lived
separately for long enough and there was no scope of getting the marriage to work
again.
The High Court of Andhra Pradesh held that Section 13B(2) of the Hindu Marriage Act
should be read not as a statutory mandate, but only as a directory.
9. The phrase “Divorce by Mutual Consent” is self-explanatory, it simply means that the
consent of both parties is required in order for the court to grant the decree of divorce. In
Sureshta Devi v. Om Prakash, the wife’s consent was fraudulently obtained by the
husband for filing a divorce. The wife was unwilling to give her consent for divorce and
therefore she did unilaterally revoked her consent.

CHRISTIAN
10. A person professing Christian religion can get a divorce under the Divorce Act, 1869.
The act is applicable if one of the parties to the marriage is a Christian and the marriage
can be dissolved by bypassing a decree by the court under the Act.
11. The grounds provided by the Act for dissolution of a marriage under Section 10
12. The parties to the marriage can also file a petition together for seeking divorce by mutual
consent under Section 10-B on the ground that they have mutually agreed to divorce
after living separately for a period of two years or more and have not been able to live
together.
13. Under the Indian Divorce Act (Christian marriages), the parties need to live separately
for at least two years before filing the mutual consent petition.
14. The parties need to come to court twice – first to file the petition, and then six months
after the filing of the petition to record their evidence. This six-month period is known as
the “cooling off period”, for the parties to re-consider and think about their decision to
separate.
15. In 2017, the Supreme Court held that if parties have already been separated for over
one-and-a-half years (two-and-a-half years for Christian marriages), and do not wish to
wait for six months, they may be permitted to waive this six month waiting period after
fulfilling certain formalities.
16. In Saumya Ann Thomas vs. The Union of India, the court further held that the “two
year” period in the section 10A(1) of the Divorce Act, shall be read down to a period of
“one year”. It made an exception for the christian couple.
17. Same was followed in Shiv Kumar Vs. Union of India & Ors.

Self respect marriage

1. The first file that legalised self-respect marriages in India was signed in 1967 by CN
Annadurai. He was also the founder of DMK (Dravida Munnetra Kazhagam). The file in
1968 became an Act by introduction of section 7A amendment to Hindu Marriages Act.
 2. Marriages were performed without the use of a priest as part of the Self-Respect
Movement.
3. The Self-Respect Movement is a South Asian movement aimed at attaining a society
where backward castes had equal human rights and encouraging backward castes to
have self-respect in a caste-based society that believed them to be at the bottom of the
hierarchy.
4. S. Ramanathan, who encouraged E. V. Ramasamy to lead the movement in Tamil Nadu,
India, against Brahmanism founded it in 1925.
5. The self-respect marriage system, in which marriages were performed without the
presence of a Brahmin priest, was one of the primary socio-cultural changes brought
about by the self-respect movement.
6. Periyar saw traditional marriages as merely financial transactions that frequently resulted
in significant debt due to dowry. Inter-caste weddings were fostered by the Self-Respect
Movement, which aimed to replace arranged marriages with love marriages that were
not bound by caste.
7. Marriage without a priest was the self-respect marriage concept.
8. In Lediya v. Union of India, limiting the scope of self respect marriages, Mad HC said
such marriages recognised under Hindu Marriages Act could be performed only between
two Hindus.
The plea moved by a Hindu-Christian couple who performed self-respect marriage and
wanted to register the same under the Special Marriages Act was rejected.
It was held that Section 7A was introduced in 1967 to confer recognition for marriages
held without religious ceremonies. However, suyamariyathai marriages
(reformist/self-respect marriages) can be performed only between two Hindus.
9.

Family courts’ jurisdiction and procedure

1. Family Courts came into existence with the passing of the Family Court Act, 1984.
2. It was pointed out by various women associations and welfare organisations that
family-related dispute matters should be resolved quickly and harmoniously.
3. It was advocated that such matters are fragile and require a non-adversarial method of
family dispute resolution.
4. Further, it was realised that family matters should not be looked upon as two parties
against each other fighting to win but as a social therapeutic problem needing solution.
5. The root reasons for the establishment of Family Courts and the passing of the Family
Court Act, 1984 can be narrowed down to two:
A. The Indian judiciary system is piled up with numerous civil and criminal cases
which lead to years of litigation before the matter could be settled peacefully.
Keeping in mind the nature of family disputes and the aim of preserving the
institution of marriage, there was a need for speedy trials.
B. Matters concerning the family are different and involve different jurisprudence.
The courts dealing with family disputes should aim at ‘conciliation’ rather than
 ‘confrontation’. The aim is to conserve family life and provide maximum fairness
and minimum bitterness in case of irretrievable breakdown.
6. S3 of the Family Courts Act, 1984 establishes Family Courts in India for those towns and
cities whose population exceeds one million or other areas if deemed necessary.
7. The act deals with the appointment of judges, the association of welfare agencies, the
duty of the Family Courts, assistance of medical and welfare experts, application of the
Indian Evidence Act, 1872, provisions regarding appeal and judgment and procedures
and jurisdiction of Family Court under Family Court Act, 1984.
8. Shalinaz v, Shirim: the Family Court Act has precedence over other statutes.
9. Jurisdiction:
A. S7 of the Family Courts Act, 1984 deals with the Jurisdiction of Family Courts in
India.
B. It was decided that all matters related to the family, such as separation, divorce,
alimony and maintenance, custody, guardianship, education and financial support
to children, etc. should fall under the jurisdiction of the family court.
C. The list of matters concerning the family that can be filled in a family court is as
follows:
- For nullity of marriage, restitution of conjugal rights, judicial separation,
and divorce.
- For a declaration of matrimonial status of a person.
- For the property of the spouses.
- For a declaration as to the legitimacy of a person
- For maintenance
- Guardianship or custody of minor
D. Whether the para-family issues should be included under the jurisdiction of the
family court is still controversial. The parra-family matters include the issue of
dowry, assault on either spouse, inter-familial contracts, familial assaults, and
other criminal matters.
10. Procedure:
A. The concept of family court is to transfer from the traditional adversarial
procedure to inquisitorial, wherein judges play an active role in the reconciliation
of the parties concerned.
B. S10 of the Family Court Act describes Procedures to be followed in the family
court. It states that the procedure laid down by the Code of Civil Procedure, 1908
applies to proceedings of family court.
C. Family Court falls under the branch of the civil court.
D. S10 (3) allows the family court to form its own rules of procedures to arrive at a
settlement between the parties.
E. If the family court forms its own rules of the procedure, then it will override the
rules of procedure laid down in Civil Procedure Code, 1908 and Code of Criminal
Procedure, 1973.
F. The proceedings of the family court can take place on camera, i.e., privately.
G. S11 of the Family courts Act, if a party desires it can hold the proceeding in
camera and the court is obligatory to accept such a request.
 H. However, confidentiality should not be confused with the secrecy of proceedings.
11. Functioning:
A. Own rules: free to evolve their own rules of procedure, which override the rules of
procedure contemplated under the Code of Civil Procedure.
B. Conciliation: Special emphasis is put on settling the disputes by mediation and
conciliation, when the matter is solved by an agreement between both the
parties, it reduces the chances of any further conflict.
C. Away from the legal system: The cases are kept away from the trappings of a
formal legal system, which can be a very traumatic experience for the families
and lead to personal and financial losses that can have a devastating effect on
human relations as well.
D. No legal representation: A party is not entitled to be represented by a lawyer
without the express permission of the Court.
E. Appointment of experts: Conciliators are professionals who are appointed by the
Court.
F. Method: The proceedings before the Family Court are first referred to conciliation
and only when the conciliation proceedings fail to resolve the issue successfully,
the matter is taken up for trial by the Court.
G. Appeal: Once a final order is passed, the aggrieved party has an option of filing
an appeal before the High Court.
12. Issues: no continuity, less power, Not perceived well, no uniformity and no legal
representation

Salient features of family courts act

1. The Family Courts Act, 1984 provides for establishment of Family Courts by the State
Governments in consultation with the High Courts with a view to promote conciliation
and secure speedy settlement of disputes relating to marriage and family affairs
2. To take the cases dealing with family matters away from the intimidating atmosphere of
regular courts and ensure that a congenial environment is set up to deal with matters
such as marriage, divorce, alimony, child custody etc.
3. To tackle the problem of pendency by improving the efficiency of the system, where
courts are equipped with counsellors and psychologists to ensure that while there may
be core legal issues to be dealt with; there is also a human and psychological dimension
to be dealt with in these matters.
4. It is mandatory for the State Government to set up a Family Court for every area in the
State comprising a city or a town whose population exceeds one million
5. To make conciliation proceedings on Family courts mandatory.
6. To simplify the rules of evidence.
7. To make efforts for settlement
8. Jurisdiction: Section 7 of this act confers those power and jurisdiction on the family
courts which are exercised by the District Court or Subordinate Civil Courts in their suits
and proceedings.
Family Courts Act, 1984
1. The Family Courts Act, 1984 provides for establishment of Family Courts by the State
Governments in consultation with the High Courts with a view to promote conciliation
and secure speedy settlement of disputes relating to marriage and family affairs
2. To take the cases dealing with family matters away from the intimidating atmosphere of
regular courts and ensure that a congenial environment is set up to deal with matters
such as marriage, divorce, alimony, child custody etc.
3. To tackle the problem of pendency by improving the efficiency of the system,
4. Courts are equipped with counsellors and psychologists to ensure that while there may
be core legal issues to be dealt with; there is also a human and psychological dimension
to be dealt with in these matters.
5. It is mandatory for the State Government to set up a Family Court for every area in the
State comprising a city or a town whose population exceeds one million
6. To make conciliation proceedings on Family courts mandatory.
7. To simplify the rules of evidence.
8. To make efforts for settlement
9. Jurisdiction: Section 7 of this act confers those power and jurisdiction on the family
courts which are exercised by the District Court or Subordinate Civil Courts in their suits
and proceedings.

In camera proceedings
1. Section 11 in The Family Courts Act, 1984: Proceedings to be held in camera.-In every
suit or proceedings to which this Act applies, the proceedings may be held in camera if
the Family Court so desires and shall be held if either party so desires.
2. ‘in-camera’ proceeding is a proceeding carried out in private, in the absence of the public
and the press.
3. Chief Justice of India Dipak Misra and Justice A.M. Khanwilkar on Monday agreed that
matrimonial disputes should be conducted in camera in the spirit of Section 11 of the
Family Courts Act of 1984 and video conferencing would destroy the privacy of the
proceedings and probably defeat the cause of justice.

Domestic violence
1. According to the United Nations, domestic abuse or violence means a relationship in
which a pattern of behaviour is used to gain power or dominance over an intimate
partner.
2. Abuse can be physical, economical, sexual, emotional or psychological. Also, a
dominative behaviour includes any act which frightens, hurts, humiliates, terrorizes,
injures, blames or wounds someone.
3. It can happen to anyone irrespective of race, gender, age or sexual orientation.
4. In India, we do not consider men to be the victims of domestic violence. Though in
different cases, respected courts have ruled that cruelty against men is a valid ground for
divorce, they do not consider it to be domestic abuse.
 5. In Sanjay Yadav v. Anita Yadav, Bombay Hc ruled in favour of the husband and granted
divorce on the grounds of cruelty but the wife’s act did not amount to domestic abuse
which it would have if the scenario was opposite.
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
6. The Protection of Women from Domestic Violence Act, 2005 was enacted by the
Parliament of India to provide for more effective protection of the rights of women
guaranteed under the Constitution who are victims of violence of any kind occurring
within the family and other related incidents.
7. Domestic violence: harms or injures or endangers the health, safety, life, limb or
well-being of the aggrieved person
8. Its a human right violation
9. Abuse maybe physical, sexual, verbal or emotional and economic
10. Salient features:
A. Recognising that a woman requires assistance with legal procedures and other
forms of support, the PWDVA allows for the appointment of Protection Officers
B. recognises the role of Service Providers in providing medical, shelter, legal,
counselling and other kinds of support services.
C. provides only temporary and emergency relief.
D. law in response to the needs of the woman.
E. It has certain crossovers from civil to criminal law – so when the protection order
or Magistrate’s order is violated, the criminal law will start.
F. The shelter homes and the medical facility are under a legal obligation to provide
shelter or medical facility to the aggrieved person.
G. The Act does not make any changes in the existing personal law regime on
family matters.
H. Having obtained relief under the law, a woman can still go for relief under other
laws later.
I. The Act includes provisions for making Domestic Incident Reports, which will
serve as important records at the stage of evidence taking.
J. the Act provides that the breach of an order obtained is a criminal offence
11. A child is also entitled to relief under the Domestic Violence Act.

Iddat period
1. Iddat is a time period after the divorce or death of the husband in which the wife (widow
or divorcee) is not allowed to marry anyone else.
2. The purpose behind this is to see whether the woman remains pregnant with that
husband’s child or not, so as to avoid any doubts regarding parentage.
3. The period is 3 months in case of divorce, and 4 lunar months and 10 days in case of
death.
4. The Sunni men are not allowed to marry during the iddat period. However, if they do,
then the marriage shall assume the status of a mere irregularity and the validity of such a
marriage cannot really be questioned.
 5. What this means is that the marriage will be deemed as invalid till the irregularity, i.e., till
the period of iddat exists and upon its end, the irregularity will be removed and the
marriage will become valid.
6. In the Shia sect, men are prohibited to marry during the iddat period. If a man does so,
then such a marriage is considered void. This disability cannot be removed.
7. Iddat is only for a specific period of time. As soon as the expiry of this period, the women
are allowed to remarry and there is no prohibition or restriction for the same either in the
Sunni sect or in the Shia sect.
8. Sub-section (1) of Section 3 of the Women (Protection Of- Rights On Divorce) Act, 1986
lays down that a divorced Muslim woman is entitled to a reasonable and fair provision
and maintenance to be made and paid to her within the iddat period by her former
husband

Anuloma and Pratiloma marriages

1. There are 8 types of marriage in ancient hindu culture
2. Marriage between a bridegroom from an upper caste and bride from a lower caste is
known as Anuloma vivah
3. Anuloma marriage was recommended by the ancient Hindu law writers for the first three
varnas or classes of the then society
4. Anuloma refers to the hypergamy form of marriage
5. According to the Dharmashastrakaras, a girl should marry in her own varna, failing which
she may marry one in any of the higher varna. In the Rig Vedic period, the priests who
performed Yajnas [sacrifices] arranged by the kings, married Kshatriya girls offered to
them as ‘dakshina” or fees for their services.
6. Anuloma marriage was normally associated with Hindu polygamy. This often led to
dowry.
7. The urgency to find a bridegroom of equal strata or even higher strata also contributed to
the practice of child marriages.
8. The reverse of Anuloma vivah is known as Pratiloma vivah.
9. Some Dharmashastrakaras had even permitted the practice of ‘pratiloma” while many
condemned it.

Lily Thomas v. UOI

1. A petition was being filed in the Supreme Court on the status of the earlier marriage
regarding a case where a non-Muslim gets converted to the ‘Muslim’ faith with no real
change or belief without divorcing from the first wife.
2. It was held that the mere conversion of religion would not result in the marriage’s
dissolution solemnised in accordance with the Hindu Law unless a decree of divorce is
obtained.
3. Petitioner was married to a man who changed faiths and asked for divorce. She resisted.
 4. He insisted on a divorce and stated that she will have to put up with a second wife
nevertheless.
5. The Respondent has converted to Islam solely to remarry and had actually no faith in
Islam.
6. It was held that the conversion or apostasy does not automatically dissolve a marriage
already solemnised under the Hindu Marriage Act but only provides a ground for divorce
under Section 18. Till a decree of divorce is passed, the marriage subsists. Any other
marriage, during the subsistence of the first marriage would constitute an offence under
Section 494 read with Section 17 of the Hindu Marriage Act, 1955 and the person,
despite his conversion to some other religion, would be liable to be prosecuted for the
offence of bigamy.
7. SC judgement

Sarla Mudgal v. UOI

1. Petitioner was married to Jitender Mathur and had three children born out of wedlock.
2. Petitioner found out that her husband had married another woman, Fathima, after they
both converted themselves to Islam.
3. She contends that the conversion of her husband to Islam was only to marry Sunita,
thereby avoiding Section 494, IPC.
4. The respondent asserts that after converting to Islam, he can have four wives
irrespective of the fact that his first wife continues to be Hindu.
5. It was held that when a marriage takes place under Hindu Marriage Act, 1955 certain
rights and status are acquired by both the parties, and if one of the parties is allowed to
dissolve the marriage by adopting and enforcing a new personal law, it would destroy the
existing rights of the spouse who continues to be Hindu.
6. A marriage performed under the act cannot be dissolved except on the grounds given
under Section 13 of the same act. Until this is done neither can marry again.
7. The second marriage of an apostate would, therefore, be illegal marriage qua his wife
who married him under the Act and continues to be Hindu.
8. It further held that such marriage is violative of justice, equity, and good conscience. It
also emphasised the need for harmonious working of the two systems of law, in the
same manner as to bring harmony between two communities.
9. The court further held that the apostate husband would be guilty under Section 494 of
IPC. The expression ‘void’ used in the Hindu Marriage Act, 1955 and the Indian Penal
Code have different purposes. Conversion to Islam and marrying again would not, by
itself, dissolve the previous Hindu marriage under the Act, but it will be a ground for
divorce.
10. The court advocated the necessity of the Uniform Civil Code (hereinafter UCC) in the
Indian legal system, that will stop Indians from trespassing the personal law of one
another.
Gowri Ammal v. Tulasi Ammal
1. Periyasami married the respondent and had a child through her before the Hindu
Marriage Act was passed and had a second marriage and a child with the respondent
after.
2.

Maintenance under personal laws

1. Obligation of a husband to maintain his wife arises out of the status of the marriage.
Right to maintenance forms a part of the personal law.
2. CrPC, 1973: right of maintenance extends not only to the wife and dependent children,
but also to indigent parents and divorced wives.
3. Claim of the wife, etc., however, depends on the husband having sufficient means.
4. Claim of all dependent persons is limited to Rs 500 per month.
5. divorced wives who have received money payable under the customary personal law are
not entitled to maintenance claims under the Code of Criminal Procedure.
6. Under Hindu Law, the wife has an absolute right to claim maintenance from her
husband. But she loses her right if she deviates from the path of chastity. Her right to
maintenance is codified in the Hindu Adoptions and Maintenance Act, 1956
7. In assessing the amount of maintenance, the court takes into account various factors like
position and liabilities of the husband. It also judges whether the wife is justified in living
apart from husband.
8. Under Muslim law:
A. the Muslim Women (Protection of Rights on Divorce) Act, 1986 protects rights of
Muslim women
B. Objective of the act: the protection of the rights of Muslim women who have been
divorced by, or have obtained divorce from, their husbands
C. Section (a) of the said Act says that a divorced woman is entitled to have a
reasonable and fair provision and maintenance from her former husband, and the
husband must do so within the period of iddat and his obligation is not confined to
the period of iddat.
D. S3(1): reasonable and fair provision and maintenance to be made and paid to
her within the iddat period by her former husband;
E. An application of divorced wife under Section 3(2) can be disposed of under the
provisions of Sections 125 to 128, Cr. P.c. if the parties so desire.
F. There is no provision in the Act which nullifies orders passed under section 125,
Cr. P.c. The Act also does not take away any vested right of the Muslim woman.
G. All obligations of maintenance however end with her remarriage and no claims
for maintenance can be entertained afterwards. T
H. he Act thus secures to a divorced Muslim woman sufficient means of livelihood
so that she is not thrown on the street without a roof over her head and without
any means of sustaining herself.
 I.where she maintains children born to her before or after her divorce, a
reasonable and fair provision and maintenance to be made and paid by her
former husband for a period of two years from the respective dates of birth of
such children;
J. an amount equal to the sum of mehr or dower agreed to be paid to her at the
time of her marriage or at any time thereafter according to the Muslim Law
K. All property given to her by her family or husband
L. If unable to maintain herself after the period of iddat the magistrate shall order
directing such of her relatives as would be entitled to inherit her property on her
death according to the Muslim Law, and to pay such reasonable and fair
maintenance to her as he may determine fit and proper, having regard to the
needs of the divorced woman, standard of life enjoyed by her during her marriage
and means of such relatives, and such maintenance shall be payable by such
relatives in proportion to the size of their inheritance of her property and at such
periods as he may specify in his order.
M. Where such a divorced woman has children, the Magistrate shall order only such
children to pay maintenance to her, and in the event of any such children being
unable to pay such maintenance, the magistrate shall order parents of such
divorced women to pay maintenance to her.
N. In the absence of such relatives or where such relatives are not in a position to
maintain her, the magistrate may direct the State Wakf Board established under
Section 13 of the Wakf Act, 1995 functioning in the area in which the woman
resides, to pay such maintenance as determined by him.
9. The Parsi Marriage and Divorce Act, 1936:
A. recognizes the right of wife to maintenance-both alimony pendente lite and
permanent alimony.
B. The maximum amount that can be decreed by court as alimony during the time a
matrimonial suit is pending in court, is one-fifth of the husband's net income.
C. In fixing the quantum as permanent maintenance, the court will determine what is
just, bearing in mind the ability of husband to pay, wife's own assets and conduct
of the parties.
D. The order will remain in force as long as the wife remains chaste and unmarried.
E. If the Husband refuses to pay maintenance ,wife can inform the court that the
Husband is refusing to pay maintenance even after the order of the court. The
court can then sentence the Husband to imprisonment unless he agrees to pay.
The Husband can be detained in the jail so long as he does not pay.
F. S.40: Permanent alimony and maintenance
- (1) Any Court exercising jurisdiction under this Act may, at the time of
passing any decree or at any time subsequent thereto, on an application
made to it for the purpose by either the wife or the husband, order that the
defendant shall pay to the plaintiff for her or his maintenance and support,
such gross sum or such monthly or periodical sum, for a term not
exceeding the life of the plaintiff as having regard to the defendant?s own
income and other property, if any, the income and other property of the
 plaintiff, the conduct of the parties and other circumstances of the case, it
may seem to the Court to be just, and any such payment may be secured,
if necessary, by a charge on the movable or immovable property of the
defendant.
- (2) The Court if is satisfied that there is change in the circumstances of
either party after it has made an order, it may, at the instance of either
party, vary, modify or rescind any such order in such manner as the Court
may deem just.
- The Court if it is satisfied that the partly in whose favour, an order has
been made under this section has remarried or, if such party is the wife,
that she has not remained chaste, or, if such party is the husband, that he
had sexual intercourse with any woman outside wedlock, it may, at the
instance of the other party, vary, modify or rescind any such order in such
manner as the Court may deem just
G.
10. The Indian Divorce Act, 1869:
A. Act only applicable to those persons who practise the Christianity religion
B. A Christian woman can claim maintenance from her spouse through criminal
proceeding or/and civil proceeding. Interested parties may pursue both criminal
and civil proceedings, simultaneously, as there is no legal bar to it.
C. S37: of the Indian Divorce Act, 1869, she can apply for alimony/ maintenance in
a civil court or High Court and, husband will be liable to pay her alimony such
sum, as the court may order, till her lifetime
D. The provisions are the same as those under the Parsi law and the same
considerations are applied in granting maintenance, both alimony pendente lite
and permanent maintenance.
E. S36: Alimony pendente lite: available to the wife during the pending suit instituted
by any party
Provided that alimony pending the suit shall in no case exceed one fifth of the
husband's average net income for the three years next preceding the date of the
order, and shall continue, in case of a decree for dissolution of marriage or of
nullity of marriage, until the decree is made absolute or is confirmed, as the case
may be.
F. S37: Permanent Alimony: The HC may, if it thinks fit, on any decree absolute
declaring a marriage to be dissolved, or on any decree of judicial separation
obtained by the wife, and the District judge may, if he thinks fit, on the
confirmation of any decree of his declaring a marriage to be dissolved, or on any
decree of judicial separation obtained by the wife, Order that the husband shall,
to the satisfaction of the Court, secure to the wife such gross sum of money, or
such annual sum of money for any term not exceeding her own life, as, having
regard to her fortune (if any), to the ability of the husband, and to the conduct of
the parties, it thinks reasonable; and for that purpose may cause a proper
instrument to be executed by all necessary parties.
 G. Power to order monthly or weekly payments. -In every such case, the Court may
make an order on the husband for payment to the wife of such monthly or weekly
sums for her maintenance and support as the Court may think reasonable:
Provided that if the husband afterwards from any cause becomes unable to make
such payments, it shall be lawful for the Court to discharge or modify the order, or
temporarily to suspend the same as to the whole or any part of the money so
ordered to be paid, and again to revive the same order wholly or in part as to the
Court seems fit.
H. S38: Court may direct payment of alimony to wife or to her trustee.
I.
11. The relief of maintenance is considered an ancillary relief and is available only upon
filing for the main relief like divorce, restitution of conjugal rights or judicial separation
etc.
12. Further, under matrimonial laws if the husband is ready to cohabit with the wife,
generally, the wife's claim is defeated.
13. However, the right of a married woman to reside separately and claim maintenance,
even if she is not seeking divorce or any other major matrimonial relief has been
recognised in Hindu law alone. In order to realise her claim, the Hindu wife must prove
that one of the situations (in legal parlance 'grounds') as stated in the Act, exists.
14. Grounds for award of maintenance:
A. The husband has deserted her or has willfully neglected her;
B. The husband has treated her with cruelty;
C. The husband is suffering from virulent form of leprosy/venereal diseases or any
other infectious disease;
D. The husband has any other wife living;
E. The husband keeps the concubine in the same house as the wife resides or he
habitually resides with the concubine elsewhere;
F. The husband has ceased to a Hindu by conversion to any other religion;
G. Any other cause justifying her separate living
15. Bar to relief:
Even if one of these grounds exists in favour of the wife, she will not be entitled to relief if
she has indulged in an adulterous relationship or has converted herself into any other
religion thereby ceasing to be a Hindu.
Moreover, the marriage should be legal to begin with.
16. Other dependents who can claim maintenance:
A. Widowed DIL from her FIL to the extent of the share of her deceased husband in
the said property.
B. The minor children of a Hindu, whether legitimate or illegitimate, are entitled to
claim maintenance from their parents.
C. the aged and infirm parents of a Hindu from their children.
The term parent here also includes an issueless stepmother
17.
Maintenance under special marriage act
1. Alimony pendente lite:
Where in any proceeding under the Special Marriage Act, 1954, it appears to the District
Court that the wife has no independent income sufficient for her support and the
necessary expenses of the proceeding, it may, on the application of the wife, order the
husband to pay to her the expenses of the proceeding, and weekly or monthly during the
preceding such sum as having regard to the husband’s income, it may seem to the Court
to be reasonable.
2. Permanent Alimony and Maintenance:
- Any Court exercising jurisdiction under the Special Marriage Act, 1954 may, at
the time of passing any decree or at any time subsequent to the decree, on
application made to it for the purpose, order that the husband shall secure to the
wife for her maintenance and support, if necessary, by a charge on the husband’s
property, such gross sum or such monthly or periodical payment of money for a
term not exceeding her life,
- as having regard to her own property, if any, her husband’s property and ability,
the conduct of the parties and other circumstances of the case it may seem to the
Court to be just.
- If the District Court is satisfied that there is a change in the circumstances of
either party at any time after it has made an order under sub-section (1), it may at
the instance of either party, vary, modify or rescind any such order in such
manner as it may seem to the Court to be just.
- If the District Court is satisfied that the wife in whose favour an order has been
made under this section has remarried or is not leading a chaste life, it may, at
the instance of the husband vary, modify or rescind any such order and in such
manner as the Court may deem just.
3. Amount of consideration:
purely the discretion of the Court.
Considerations:
A. the position and status of the parties;
B. the reasonable wants of the claimant;
C. if the claimant is living separately, whether the claimant is justified in doing so;
D. the value of the claimant’s property and
E. any income derived from such property, or from the claimant’s own earnings or
from any other source;
F. Any other relevant fact and circumstance.
4.
Maintenance Under Hindu Adoption and
Maintenance Act, 1956
1. Apart from the Hindus, this act also applies to Buddhists, Jains, Sikhs and any other
person who is not a Muslim, Christian, Parsi or Jew.
2. Maintenance includes:- provision for food, shelter, education, clothing, medical
attendance and treatment, in the case of an unmarried daughter, maintenance also
includes reasonable expenses for her marriage
3. This Act provides rules for the maintenance for wife, children, aged or infirm parents,
widowed daughter-in-law and dependents.
4. Aims to provide financial support for sustenance
5. The Act provides that a Hindu wife is entitled to be maintained by her husband
throughout her lifetime.
6. A Hindu wife can live separately while getting the alimony from her husband if:-
A. her husband is guilty of desertion, i.e., abandoning her without reasonable cause
and without her consent or against her wish, or willfully neglecting her;
B. her husband has treated her with such cruelty as to cause a reasonable
apprehension in her mind that it will be harmful or injurious to live with her
husband;
C. her husband has any other wife living;
D. her husband keeps a concubine in the same house in which his wife is living;
E. her husband habitually resides with a concubine elsewhere;
F. her husband has converted to another religion and ceased to be a Hindu;
G. if there is any other cause justifying her living separately.
7. Bar for relief:
A. she was unchaste, meaning, she engaged in illicit relations or had an extramarital
affair;
B. she ceases to be a Hindu by converting to any other religion
8. A Hindu is obliged under this Act to maintain her/his children and aged or infirm parents
if they are unable to maintain themselves out of their own earnings
Children include minors who are below the age of 18 years; be legitimate or illegitimate.
9. The Act lists out the considerations the Court takes into account to decide the amount of
maintenance to be awarded to the wife, children, aged or infirm parents, widowed
daughter-in-law and dependents
10. Considerations:
A. The position and status of the parties:
- financial and social
- must evaluate the earning potential of that party and accordingly fix the
amount
- If the wife is earning, the husband cannot deny his liability to maintain her
if her income is not sufficient to sustain her.
- Unmarried daughter above the age of 18 years can claim maintenance.
 - The amount of maintenance fixed by the Court must suit the position and
status of the aged parents or the children
B. The reasonable wants and claims of the claimant:
- The claims must be reasonable and match the standards of necessities in
their lives.
- If their claims are not feasible keeping in mind various factors like the
earning potential of the party against whom the award of maintenance
has to be made, the claimant’s necessities, etc., or if their claims are not
reasonable and excessive and redundant, the Court shall not entertain
such claims.
C. Whether the claimant is justified in living separately if she is doing so:
- The wife is entitled to the claim of maintenance even if she lives
separately but only if she is justified in doing so.
- The grounds on which a Hindu wife can live separately while being
maintained by her husband are mentioned above under the sub-heading,
‘Maintenance for women’.
- Only when she satisfies any of those grounds and the Court finds her
justified, the Court shall award maintenance to her.
- The same rule is applicable to children and aged parents who live
separately from the party against whom the award of living expense has
to be made.
- Though the Act does not provide any grounds on which the children and
the aged parents shall be justified in living separately but the Court shall
consider their reasons for living separately which depend on the facts and
circumstances of each case.
- The Court shall also consider this factor to determine the amount of
maintenance because the standards of living and expenses incurred while
living with the party against whom the award of maintenance has to be
made, may differ from the standards of living and expenses incurred while
living separately.
D. The value of the claimant’s property and all sources of their income:
- If Court finds that the income and/or the properties of the claimant(s) is
not enough to fulfil their needs, to meet their standards of living and to
meet their expenses, the Court shall try to fill the lacuna by accordingly
fixing the maintenance amount to support them
E. The number of persons entitled to be maintained under this Act:
- The number of persons entitled to be maintained plays an important role
in fixing the amount of maintenance because the earning potential and
the status of the party against whom the award of maintenance has to be
made should not be ignored.
- If the number of persons entitled to be maintained is more as compared to
the earning potential of the party against whom the award of maintenance
has to be made, the Court shall accordingly reduce the maintenance
amount and vice versa.
 - The claimant(s) shall not be entitled to claim maintenance under this Act if
they cease to be a Hindu.
- The amount of maintenance may be changed with a change in
circumstances and factors affecting the decision to fix the amount of
maintenance.
11.

Maintenance under CrPC

1. Under chapter IX of Criminal Procedure Code, 1973,
A. S125: Maintenance of wives, children and parents.
B. S126: procedure to initiate proceedings under Sec. 125,
C. S127: Alteration in allowances ordered u/s 125
D. S128: enable the enforcement of order of maintenance.
2. Nature of S125:
A. Noor Saba Khatoon Vs. Mohd. Quasim: secular in nature
B. Badshah Vs. Urmila Badshah Godse & Another: Social welfare legislation
C. Vijay Kumar Prasad Vs. State of Bihar: Not strictly criminal
D. Nagendrappa Natikar Vs. Neelamma: summary in nature and intended to provide
speedy remedy
E. Rajnesh v. Neha: need for CrPC to deal with maintenance for strict enforcement
3. The Magistrate I class may order to give monthly allowance at such monthly rate for
maintenance, upon proof of neglect or refusal to maintain to above-mentioned person/s
as Magistrate time to time directs
4. Can be claimed by:
A. Wife, unable to maintain herself
B. Legitimate/illegitimate minor children, unable to maintain itself
C. Legitimate/illegitimate major children but not a married daughter, if they are
unable to maintain itself by reason of physical or mental injury.
D. Father or mother, unable to maintain himself or herself.
5. Claimed against a person who has sufficient means and neglects or refuses to maintain
6. Three proviso clauses are attached to clause (1):
A. Magistrate may order the father of “minor married female child” to make
allowance if her husband is not possessed with sufficient means to maintain her,
until she attains majority.
B. Magistrate may order the person to pay “interim maintenance along with
expenses incurred in proceedings” during pendency of proceeding under S125
C. The application for monthly allowances and expenses of proceeding shall be
disposed of within 60 days from date of service of notice of application u/s 125
7. Bhagwan Dutt v Kamla Devi: only a wife who is “unable to maintain herself” is entitled
to seek maintenance. The object of these provisions is to prevent vagrancy and
destitution
8. Rajnesh v. Neha: maintenance amount awarded must be reasonable and realistic, and
it must avoid either of the two extremes
9. Chaturbhuj Vs. Sita Bai: earning wife is also entitled to claim maintenance if her
income is insufficient to maintain herself.
10. Dalip Kumar Vs. Family Court, Gorakhpur: Where the person who is ordered to make
allowances fails to comply with the order of maintenance, then Magistrate may issue
warrant against him in the same manner as provided for recovery of fine and he may be
sentenced to imprisonment for a term which may extend to one month or until payment
of allowances if they remain unpaid even after execution of warrant.
11. A wife is not entitled to maintenance or interim maintenance if she is living in adultery,
lives separately by mutual consent or refuses to live with her husband without sufficient
grounds.
12. On proof that the wife is living in adultery, lives separately by mutual consent or refuses
to live with her husband without sufficient grounds, the Magistrate can cancel the order
of maintenance, interim maintenance and expenses of proceedings.
13. S126(1): proceedings can be initiated in the courts in the districts where the husband
resides, last resided with his wife/mother of his illegitimate child or where his wife resides
14. S126(2): All the evidence must be taken in the presence of that person or in-absentia,
his pleader and can be recorded as per summon-case. Provided that if Magistrate is
satisfied that person is willfully avoiding or neglecting the proceedings, he has the power
to proceed to hear and determine the case ex-Partee but it can be set-aside within 3
months if reasonable and good cause is shown by that person for not attending the court
15. S127: Alteration in Allowances
A. On proof of changing financial circumstances the Magistrate may alter the
amount of allowance or interim maintenance of person receiving or person
ordered to pay and make such allowance as it thinks fit.
B. If the sum of maintenance is already provided under any proceeding of personal
law in a competent Civil Court, then the magistrate should cancel or vary any
order made.
C. Rajnesh v. Neha: if maintenance is allowed in any other proceeding of personal
laws, then it should be intimidated to the court so that it can take into
consideration for ordering maintenance allowances or grant an adjustment or
setoff of the said amount
D. Where the order is in favour of a woman who has either obtained divorce or been
divorced, has now re-married or willfully surrender right to maintenance after
divorce or has obtained the whole sum after divorce of which she is entitled
under customary or personal law applicable to her , then the Magistrate on his
satisfaction of same shall cancel the order.
E. Where a civil suit of recovery of maintenance or dowry is pending between
parties and in meanwhile order u/s 125 CRPC is made, the Civil court at the time
of making decree shall take into consideration the sum recovered from or paid by
the person who is ordered to make allowances.
16. S128: Enforcement of order of Maintenance
- Copy of order u/s 125 CRPC shall be given to person in whose favour it is made
- or to person who has to pay without taking any payment and
 - it may be enforced at any place by any Magistrate in whose jurisdiction the
person against whom it is made is,
- after Magistrate being satisfied as to the identity of the parties and the non-
payment of the allowance due

Maintenance of parents and senior citizens:

1. Ashwani Kumar v. Union of India: Article 21 includes right to live with dignity, to
shelter, to medical care/ assistance and to health for the elderly.
2. Ministry of Social Justice and Empowerment formulated and declared the National Policy
on Older Persons in 1999
3. Pursuant to the NPOP and in furtherance to aims and objects envisaged therein,
Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (“Senior Citizens
Act”) was enacted.
It aims to provide for more effective provisions for the maintenance and welfare of
parents and senior citizens guaranteed and recognised under the Constitution.
4. It defines parents to include biological, adoptive and step
5. S2(h): Senior citizen is anyone 60 years or above
6. S2(b): maintenance includes provision for food, clothing, residence and medical
attendance and treatment.
7. S4: application for maintenance can be maintained by a senior citizen, including parent
who is unable to maintain himself from his own earning or out of the property owned by
him, against one or more of his children not being a minor, in case of parent or
grandparent.
8. In case of a childless senior citizen, such application can be made by the senior citizen
against any his relatives
9. S4(4): such obligation of maintenance extends to any person who is a relative of a
senior citizen, having sufficient means and is in “possession of the property of such
senior citizen or he would inherit the property of such senior citizen.
VIVA PREP
1. Sources of Hindu law:

- The Shruti comprise the four Vedas (Rig-Veda, Sum-Veda, Yajur-Veda and
Atharva-Veda), the six Vedangas and eighteen Upanishads.
- The rules laid down in Smritis can be divided into three categories viz. Achar (relating to
morality), Vyavahar (signifying procedural and substantive rules which the King or the
State applied for settling disputes in the adjudication of justice) and Prayaschit (signifying
the penal provision for commission of a wrong).
- Dharmasutras are written in prose, in short maxims (Sutras). Dharmashastras are written
in poetry (Shlokas)
- Customs are superior to written law and are of 4 types: Local, family, Caste and
Community and guild. Min 40 years to be considered ancient.
- Commentaries (Tika or Bhashya) explained a particular smriti. Ex Manubhashya,
Manutika, and Mitakshara.
- Digests (Nibandhs) Ex Jimutvahan’s Dayabhaga
- Our judicial system greatly relies on being impartial. True justice can only be delivered
through equity and good conscience. AKA natural law, rely upon the basic values,
norms, and standards of fair play and propriety.
- Precedent: The doctrine of stare decisis + Article 141 (SC is binding on all courts)
- Legislations are Acts of Parliament. Ex. The Hindu Marriage Act, 1955, The Hindu
Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu
Minority and Guardianship Act, 1956.

2. Schools of Muslim law:

A. Sunnis: elected successor
- Hanafi: founded by Abu Hanafi. Not blindly follow customs, rather use
deductions of Quran
- Maliki: by Anas Bin Malik. Believed in traditions; Quiyas and Ijmas as last
resort
- Shaefi: by Mohammed Ibn Idris Al-Shaefi. Quran had all answers.
- Hanbali: by Ibn Hanbali. Strict follower of customs.
B. Shias: bloodline supremacy
- Imamiyah: believed in Muta (temporary marriage). Further divided into
Akbaris Sect (legal deductions and traditions) and Usuli sect (Quran, the
hadiths, and the Ijmas)
- Ismailiya: believed that God is one and the teachings of the prophet were
vital
- Zaidiyah: believed in responsibility and political uprise against undivine
leaders
C. Motazila:
- By Al Gazzal
- defectors of the Shia sect.
- true divine justice and unity
- evil could be overpowered by the good
- Quran is the truest source

3. Conditions for a valid marriage under Hindu law:

A. Section 5 of The Hindu Marriage Act,1955: A valid marriage shall be solemnised
between two Hindus if the following conditions are fulfilled:
- S5(1) Bigamy: Any person doesn’t have a spouse living at the time of the
marriage: not permissible to have two living wives at the same point in
time, which amounts to bigamy. It is punishable under Section 494 of the
Indian Penal Code. S11 of the HMA makes Bigamy marriage void.
Sarla Mudgal v Union of India
- S5 (ii) : The person shall not be suffering from any insanity or mental
disorder at the time of the marriage
- S5 (iii): 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.
 - They don’t fall under the Sapinda relationship, or within the degree of
prohibited relationship unless it is allowed by their custom or tradition.
B. S3(g) prohibited relationship if:
- If one is a lineal ascendant of the other; or
- If one was the wife or husband of a lineal ascendant or descendant of the
other; or
- If one was the wife of the brother or of the father’s or mother’s brother or
of grandfather’s or grandmother’s brother of the other; or
- 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;
C. Section 3(f)(i) defines sapinda relationship wherein it states that one person will
be sapinda to the other i.e if he is in direct degrees of ascent within five degrees
to the other through the father or three degrees of ascent to the mother.

4. Ceremonies of marriage under Hindu law

A. Sagai:
- Hindu engagement is an important pre-wedding ritual in Indian culture, it
is a type of culture in which the bride and groom come face to face and
are engaged with a religious bond by each other’s families.
- “Vagdanam” dates back to Vedic period where the groom’s father gives
their words to the bride’s father that they will accept their daughter and
will be responsible for their future well being.
- AKA Mangi, Sagai, Ashirbad, Nishchayam etc.
B. Kanyadan:
- Kanya is maiden or girl and daan which means donation. It is the donation
of a girl.
- bride’s father presents his daughter to the groom, giving him responsibility
for her future wellbeing.
- It is an emotional and sentimental laden ritual which recognizes the
sacrifice a father makes in order to ensure her daughter’s happiness.
C. Saptapadi:
- It is an activity which is undertaken by the bride and groom in front of the
fire god, where couples go around the sacred fire seven times while
reciting certain vows.
- AKA phera.
- Fire or Agni is considered highly sacred in the Hindu religion, vows taken
in front of the Agni are unbreakable.
- Agni deva is considered to be a witness to the solemnization of the
marriage as well as a representative of the supreme being to provide his
blessing to the newlywed couple.
- Section 7 of the Hindu marriage act 1955 states the solemnization of the
Hindu marriage, a Hindu marriage may be performed by all the
ceremonies and rituals of both the party or either anyone. It is concerned
 with the Saptapadi which means that taking seven rounds around the fire
with their partner; after its completion, marriage becomes complete.

A.
5. Legality and consequences of Unisex marriage:
A. Suresh Kumar Koushal v. Naz Foundation upheld constitutional validity of section
377 of Indian Penal Code criminalising carnal intercourse against nature’s order
B. The Rigveda mentions, ‘Vikriti Evam Prakriti’ which means what seems to be
unnatural is also natural.
C. Hindu marriage Act: talks about groom and bride but also does not expressly
prohibit unisex marriages
D. An alternative which ought not to incite religious hatred is make amendment in
the Special Marriage Act to facilitate same-sex marriages. Currently, it makes
provisions for heterosexual marriages only.
E. In the case of Shakti Vahini v. Union of India and others the court held that the
right to choose a partner is a fundamental right.

6. Types of marriage and option of puberty under Muslim law:

A. Sahih Nikah (Valid Marriage)
- When all the essential conditions of a Muslim marriage are duly fulfilled
- the parties acquire the rights of inheritance
- the wife has right to alimony and maintenance
B. Batil Nikah (Void Marriage)
- an agreement between a prospective bride and a groom which does not
meet all the essential conditions of a Muslim marriage is a void
agreement and any marriage that takes place in furtherance of a void
agreement is called a void marriage or Batil nikah.
- Munshi v. Mst. Alam Bibi: following circumstances of void marriage
- When a marriage takes place between persons who are absolutely
incapable
- When a person marries the wife of another man when the marriage of the
lady was subsisting.
- Marrying more than four wives. In such a case, the fifth marriage and so
on becomes void.
- Marriage with a Non-Muslim.
C. Fasid Nikah (Irregular Marriage)
- Irregular marriages exist only in the case of Sunni Muslims whereas an
irregular marriage, under Shia law, is void marriage.
- when a marriage is temporarily prohibited and not certainly restricted it is
merely irregular or fasid and not void
- When a marriage is conducted by violating certain or partial conditions of
a valid marriage, it is called an irregular marriage
- Is voidable and not void-ab-initio.
 - Unless the marriage is consummated, the wife has no right to dower and
maintenance and is not bound by iddat
D. Muta Marriage
- occurs only in Shia Muslims and not Sunni
- Temporary marriages
- Sheikhs were required to fulfil their sexual needs and desires but,
however, Islam does not allow cohabitation with any woman other than a
person’s own wife.
- Therefore, the Sheikhs used to marry the women for a temporary period
till they were in that town and at the time of leaving, they get divorced and
the dower was paid as the consideration for marrying.
E.
7. Solemnisation of marriage under Christian law
A. Section 5 of the Act prescribes a list of people who are competent or eligible to
conduct the marriage valid under the Indian Christian Marriage Act. If the
wedding is solemnised by anyone other than the mentioned people, that
marriage shall have no legal standing and be deemed void. These are as follows:
- Provided the marriage is to be executed following the ceremonies, rules,
rituals, and customs of the Church of Scotland, a Clergyman from the
Church of Scotland is required to solemnise the marriage.
- A Minister of Religion who is listed and sanctioned under this Act for the
purpose.
- A Marriage Registrar should either conduct or be a witness of the
marriage ceremony of the couple.
- A legally licensed person under the provisions of the Indian Christian
Marriage Act to grant marriage certificates to Indian Christians.
B. Notice for the planned marriage: stipulates the notification by either of the parties
(provided they are residing within the same territorial limits) to the Minister of
Religion regarding their intention of getting married as per the provisions of the
Christian Marriage Act.
C. In cases where they do not reside in the same areas, separate notices have to be
sent to the respective district Marriage Registrars authorised in their areas about
their intention of marriage.
D. It is the responsibility of the Minister to issue certificates for solemnising the
marriage post receiving the notices.
E. In case one of the intending parties is minor, Section 15 provides for the Minister
to return the notice within 24 hours or otherwise, forward it to the Senior Marriage
Registrar or the District Marriage Registrar. The notice has to be returned within
24 hours under the provisions of section 13 of the Act.
F. It is mandatory to have two witnesses other than the Church’s Priest or the
Minister to be present in the ceremony.
G. Individual registration of marriage by the parties in their respective area or
territorial jurisdictions are to be made to the concerned authorities.
 H. The Registrar, who was present in the marriage and/or also conducted the same,
shall register it in the Marriage Register.
I. An acknowledgement slip is annexed to the Register as proof of the culmination
of the marriage with the signatures of the two witnesses and the parties who
have got married.
J. Towards the completion of thirty days, the copies of these acknowledgement slips
are sent to the Registrar General of Births, Deaths, and Marriages.

8. Judicial separation under Hindu law

A. Judicial Separation is an alternative to divorce, through which both the parties to
a marriage are given time to resolve their issues and make efforts to save their
failed marriage by living separately
B. Any person who is a Hindu by religion or who is a Buddhist, Jain or Sikh can
apply for judicial separation under the Hindu Marriage Act, 1955.
C. Once the judicial separation has been granted, it shall not be obligatory for the
parties to cohabit together.
D. Either husband or wife may present a petition for judicial separation on any of the
following grounds:
- Adultery i.e., voluntary sexual intercourse with any person other than his
or her spouse
- Cruelty including both mental and physical cruelty:
- Desertion for a continuous period of not less than two years without
reasonable cause and consent
- Conversion from Hinduism to any other religion
- Unsoundness of mind
- Suffering continuously or intermittently from mental disorder
- Suffering from a virulent and incurable form of leprosy
- Suffering from venereal disease in a communicable form
- Renunciation of the world by entering any religious order
- Not heard of being alive for seven years or more by those persons
E. A wife may also present a petition for the judicial separation on the following
grounds:
- Bigamy
- Guilty of rape, sodomy or bestiality
- Cohabitation between the parties has not been resumed for one year or upwards
after an order from the court
- The marriage took place before attainment of the age of fifteen years
F. The grounds and procedure for judicial separation and divorce are the same.
G. While divorce ends all the obligations and responsibilities associated with the
marital relationship, judicial separation doesn’t take away the legal status of a
married husband and wife.
 H. Judicial separation doesn’t put an end to the marriage, both partners are still
required to fulfil all the marital obligations except for the fact that they’re allowed
to reside separately.
I. After one year, if there is no resumption of cohabitation, then the couple may be
granted divorce by the Court
9. Nullity of marriage under Hindu law
A. Nullity of marriage is a judicial declaration that marriage was not in existence. It
means that there was not a valid marriage performed between the parties.
B. Before the parliamentary enactment there was no concept of nullity of marriage
under hindu personal law and marriage was treated as holy and strong wedlock
for whole life.
C. after enforcement of Hindu Marriage Act, 1955 there are certain grounds on
which marriage shall be declared null and void.
D. These grounds are given under Clause (i), (iv) and (v) of Section 5 of The Hindu
Marriage Act, 1955. These grounds are as follow:
- If either party has living spouse at the time of marriage i.e. bigamy
- If marriage between prohibited degree relations unless customs and
usage are allowed,
- If marriage between sapindas unless customs and usage are allowed
such marriage
E. Voidable marriage shall be annulled by the decree of nullity under section 12 of
Hindu Marriage Act, 1955.
F. It is at the option of the parties to continue with marriage or to annul marriage by
decree of court. Grounds:
- Impotency of the respondent
- Incapacity to give valid consent or forced consent of parties or mental
illness or person unfit for procreation of child
- Under aged marriage
- If the respondent was pregnant by some other person at the time of
marriage.
G. Sagotra marriage is valid under Hindu Marriage Act, 1955
10. Divorce under Hindu law
A. Divorce under the Hindu personal law is recognized under the Hindu Marriage
Act, 1955
B. Section 13 of the Act provides for the dissolution of the marriage or divorce, for
which either spouse can file an application before the appropriate court for
granting a decree.
C. The grounds are:
- The spouse had voluntary sexual intercourse with any other person.
- The partner has treated the applicant with cruelty.
- Has deserted the partner for a continuous period of not less than two
years.
- Has converted to another religion.
 - Has been of incurable unsound mind or mental disorder making it
unreasonable to live with him.
- Has been suffering from a communicable form of venereal disease.
- Has renounced the world by entering into a religious order.
- Has not been heard alive for a period of seven years or more.

Grounds under Breakdown theory

- there is no resumption of cohabitation for a period of one year or upwards
after the passing of decree of judicial separation.
- there is no restitution of conjugal rights for a period of one year or
upwards after the passing of the decree for restitution of conjugal rights.
D. Wife can seek divorce on the grounds of:
- That the husband already married another woman, who was alive at the
time the application for divorce, is filed.
- husband is guilty of rape, bestiality or sodomy.
- Where a decree for maintenance was passed in favour of the wife and
there is no cohabitation between them for a period of one year or more.
- Where the marriage of the wife took place when she was below the age of
15 years (consummated or not), and where she repudiated the marriage
before attaining the age of 18 years.
E. Section 13-B provides for divorce by mutual consent where both the parties living
separately for a period of one or more years, present a petition for divorce on the
ground that they have not been able to live together and therefore agreed
mutually to dissolve the marriage.

11. Divorce by mutual consent under all personal laws

A. Hindu law: Section 13-B provides for divorce by mutual consent where both the
parties living separately for a period of one or more years, present a petition for
divorce on the ground that they have not been able to live together and therefore
agreed mutually to dissolve the marriage.
B. Muslim law: The divorce by mutual consent is known as Mubaraat which means
to release from each other mutually. It is a form of divorce where both the
spouses agree to severe their marital ties mutually
C. Essentials:
- Parties should be living separately:
This period of one year where the parties have lived separately must be
immediately before the filing of the petition. “Living Separately” in the
context of Section 13B does not necessarily mean physically living in
different places.
- Parties have not been able to live together:
Both parties gave their free consent without any undue influence. The
court observed that there was no scope of reconciliation and granted a
decree of divorce.
 After filing a petition for divorce by mutual consent, the parties are given a
waiting period of 6 months, also known as a cooling period and it may
extend up to 18 months. During this time the parties must introspect and
think about their decision.
If the parties are still not able to live together after the cooling period, then
the divorce petition shall be passed by the district judge.
- They have mutually agreed that marriage should be resolved
After the first motion has been passed, the parties have a total of 18
months to file for second motion and if they fail to do so within those 18
months, both parties are deemed to have withdrawn their consent
mutually.
D. Procedure:
- Jointly filing a petition
- First motion
- Cooling period of 6 months (initially 24 months for Christians)
- Second motion
E. In Saumya Ann Thomas vs. The Union of India, the court further held that the
“two year” period in the section 10A(1) of the Divorce Act, shall be read down to a
period of “one year”. It made an exception for the christian couple.
12. In camera proceedings
A. Section 11 in The Family Courts Act, 1984: Proceedings to be held in camera.-In
every suit or proceedings to which this Act applies, the proceedings may be held
in camera if the Family Court so desires and shall be held if either party so
desires.
B. ‘in-camera’ proceeding is a proceeding carried out in private, in the absence of
the public and the press.
C. Chief Justice of India Dipak Misra and Justice A.M. Khanwilkar on Monday
agreed that matrimonial disputes should be conducted in camera in the spirit of
Section 11 of the Family Courts Act of 1984 and video conferencing would
destroy the privacy of the proceedings and probably defeat the cause of justice.
13. Maintenance
A. Maintenance is a right to get necessities which are reasonable from another. It
includes not only food, clothes and residence, and the things necessary for the
comfort and status in which the person entitled is reasonably expected to live.
B. Right to maintenance is not a transferable right.
C. The Hindu Adoptions and Maintenance Act, 1956, provides any dependent
person including wife, children, aged parents and widowed daughter or daughter
in law with maintenance.
D. Grounds:
- The husband has deserted her or has willfully neglected her;
- The husband has treated her with cruelty;
- The husband is suffering from a virulent form of leprosy/venereal
diseases or any other infectious disease;
- The husband has any other wife living;
 - The husband keeps the concubine in the same house as the wife resides
or he habitually resides with the concubine elsewhere;
- The husband has ceased to a Hindu by conversion to any other religion;
- Any other cause justifying her separate living;
E. she will not be entitled to relief if she has indulged in adulterous relationship or
has converted herself into any other religion thereby ceasing to be a Hindu or if
the marriage is invalid
F. Muslim law: "Women (Protection Of- Rights On Divorce) Act, 1986:
- Section (a) says that a divorced woman is entitled to have a reasonable
and fair provision and maintenance from her former husband, and
- the husband must do so within the period of idda and his obligation is not
confined to the period of idda.
- section (b) states that If she fails to get maintenance from her husband,
she can claim it from relatives failing which, from the Waqf Board.
G. Christian law:
- A Christian woman can claim maintenance from her spouse through
criminal proceeding or/and civil proceeding
- Under S.37 of the Indian Divorce Act, 1869, she can apply for alimony/
maintenance in a civil court or High Court and, husband will be liable to
pay her alimony such sum, as the court may order, till her lifetime
- Part 9 of the act deals with alimony
H. CrPC:
- Under the CrPC, 1973, right of maintenance extends to the wife,
dependent children, indigent parents and divorced wives.
- S125 deals with maintenance
- Claim of maintenance for all dependent persons was limited to Rs 500 per
month
- now it has been increased and the magistrate can exercise his discretion
in adjudging a reasonable amount.
- Made remedy both speedy and cheap
I. Special marriage Act:
- Where in any proceeding under the Special Marriage Act, 1954, it
appears to the District Court that the wife has no independent income
sufficient for her support and the necessary expenses of the proceeding,
it may, on the application of the wife, order the husband to pay to her the
expenses of the proceeding, and weekly or monthly during the preceding
such sum as having regard to the husband’s income, it may seem to the
Court to be reasonable.
- The court may change the amount based on change in circumstances
- The amount of the maintenance shall be purely the discretion of the
Court. It is based on position and status of the parties; the reasonable
wants of the claimant; if the claimant is living separately, whether the
claimant is justified in doing so; the value of the claimant’s property and
 any income derived from such property, or from the claimant’s own
earnings or from any other source.
J.
14. Legitimacy of children born out of void and voidable marriages
A. Status of legitimacy defines the rights and liabilities of the children. It gives the
rightful status of children in the society. It gives the title and the surname of the
father to the child. It gives the right of inheritance to the child in the father’s
property and ancestral property.
B. Void marriages
section 16 of Hindu Marriage Act, 1955 and Special Marriage Act, children born
out of void marriage, irrespective of being declared annulled/void by court or not,
shall be treated as legitimate children, but they will inherit the property of their
parents’ only, not the ancestral property. They do not have coparcenary rights.
C. Voidable marriages:
section 16 of Hindu Marriage Act, 1955 and Special Marriage Act, the legitimacy
of the children born out of voidable marriages has certain cases, which are as
follows:
- Children begotten or conceived before the decree of nullity is made,
would be legitimate as if the decree would have dissolved rather than
annulling the marriage.
- Children born out of such voidable marriage which is not rendered
void/annulled/avoided by the either party to the marriage would be
legitimate in the same way that of children born out of valid marriage.
- Children born out of such voidable marriage that has been rendered void/
annulled/unavoided by the either party to the marriage would be
legitimate, but they can only inherit the property of their parents only, not
others. No coparcenary right is given to them.
D. The enactment of the Amendment Act, 1976 empowered the children born out of
such marriages. It gave the legitimate status to the children born out of void and
voidable marriage.
15. Adoption under Hindu law
A. Hindu Law legalises adoption in India.
B. It defines the adoption under the Hindu Adoption and Maintenance Act, 1956.
C. It teaches the parents to treat the adoptive children as their natural child. There
must be no discrimination between the adoptive children and natural children.
D. There will be no discrimination between a girl child and a boy child. Even girl
child get all the facilities they give to their natural son.
E. Bal Gangadhar Tilak vs Shrinivas Tilak: adopted children have the right and
duties of religious obligations and sacrifices.
F. Features of the act:
- Females can adopt a child and even give for adoption.
- Female can adopt the child with the consent of his husband
- A widow can also adopt the child.
- The male has to take the consent of his wife if he wants to adopt the child.
 G. Capacity to adopt:
- Unmarried males can also adopt the child.
- An unmarried female can also adopt the child after the HAMA act, 1956
- If any married male wants to adopt a child he has to take the consent of
his wives.
- If any married woman wants to adopt the child she has to take the
consent of her husband.
- Divorced and widow can also adopt the child.
H. Capacity to give for adoption:
- Guardian upon the death of parents
- Father after the death of the mother
- Father after the mother becomes mentally unfit
I. Effects of adoption:
- When children get adopted he/she gets right in the property of their
parents.
- They become part of the natural family. All the rights and obligations of a
natural-born child of the family fall on the adoptive child with some
exceptions.
- These exceptions are as follows:
❖ An adopted children can only marry the adopted child. He cannot
marry anyone who is not adopted.
❖ Any property which is vested in the adopted child before adoption
continues to vest in him subject to the obligation, if any, attached
with the ownership of the property, including the obligations to
maintain relations of his/her birth.
❖ The adoptive child cannot divest any person of any estate which
vested in him or her before adoption.
J.
16. Inter country adoption
A. There is no law governing adoption by a different religion, nor is there any
statutory provision providing for the adoption of a child by foreigners living
abroad.
B. Central Adoption Authority is a statutory body of the Ministry of Women and Child
Development, Government of India. It functions as the nodal body for the
adoption of Indian children and is mandated to monitor and regulate in-country
and inter-country adoptions.
C. Authorised Foreign Adoption Agency:
- Register the prospective adoptive parents interested to adopt children
from India and to complete their home study report.
- Follow-up with Specialised Adoption Agency for ensuring early adoption
after receipt of No Objection Certificate for the Adoption from the
authority.
- Give orientation to the prospective adoptive parents on culture, language,
and food of the place to which the adopted child belongs.
 - Ensure the submission of post-adoption follow-up of the progress of
adopted children and to address the cases of disruption, as specified in
regulation
- Arrange get-together of children of Indian origin and their adoptive
families from time to time with the involvement of the Indian diplomatic
missions concerned.
- Facilitate root search by older adoptees.
- Upload attested copies of the adoption application of the prospective
adoptive parents in the Child Adoption Resources Information and
Guidance System and forward the original of the same to the allotted
Specialised Adoption Agency
- Fulfill the legal requirements of the host country as well as the terms and
conditions of the authorisation given by the Authority.
-
D. There is also a Specialised Adoption Agency functioning
17. Adoption under Juvenile Justice Act
A. Chapter VIII: “Adoption under the Juvenile Justice (Care and Protection of
Children) Act, 2015: Section 56-73.
B. The Juvenile Justice (Care and Protection) Act of 2000, which was last updated
in 2015, was the first step toward a secular adoption law
C. The Juvenile Justice Act establishes elaborate procedures for both in-country
and intracountry adoption, which are governed by the Central Adoption Resource
Authority.
D. A prospective parent can apply at their state’s Adoption Coordination Agency
(ACA), which is a CARA-accredited agency in each state.
E. This adoption agency prepares a complete assessment of the family, including
pre-adoptive counseling that is valid for three years.
F. At this point, potential parents can express their preferences. Once a suitable
child has been selected, the agencies can arrange for potential parents to meet
the youngster.
G. If the match is made, the child can be placed in pre-adoption foster care after
signing the foster care agreement. Meanwhile, within 10 working days of
matching, the Specialized Adoption Agency/Child Care Institution and the
prospective parents submit an application with the District Court as co applicants.
H. According to Section 61(2) of the Juvenile Justice Act, all processes must be held
in private and concluded within two months after filing.
I. However, there are a lot of pending cases
18. Guardianship
A. HINDU LAW: 3 types of guardian:
- Natural Guardian
- Testamentary Guardian: authorized by a will. It is compulsory for them to
receive the guardianship adoption which may be expressed or implied.
 They have 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.
- A Guardian appointed by the Court: a certified guardian appointed by
court for the advantage of the minor
B. As per Section 8 of the Hindu Minority and Guardianship Act, 1956, the powers of
the natural guardian are:
- should bring the prior permission from the Court, for the use of the gift
transferred to him, mortgage or any other valuable things of the minor.
- For the lease of any part of a minor's property for about exceeding 5
years or for a term of extending one year beyond the date on which the
minor attains the majority, the prior permission from the Court is needed
- Violation of any disposal of the immovable property by a natural guardian,
will be voidable at the case of the minor or any other person claiming on
the behalf of him.
- No Court shall grant permission to the natural guardian to do any act
which is not in the interest of the minor.
C. MUSLIM LAW: Types of guardians:
- A natural or legal guardian: father is the natural guardian, then paternal
grandfather
- Testamentary guardian
- Guardian appointed by courts or statutory guardian: on the absence of
father, the court may appoint a guardian under Guardianship and Wards
Act, 1890
- De-facto guardian: when the person assumes the role of guardian without
any legal or statutory authority.
D. The court may remove guardianship if:
- the husband has abused the trust of the woman
- He has not performed any duties as the husband
- The husband does not have any capacity to perform the duties
- the husband has not treated the woman well
- there is no regard to the orders of the court by the husband
- When the husband has been found guilty for moral turpitude
- Have different interests as a guardian
- That the wife ceases to be a minor.
E. Categories of guardianship:
- Guardianship in marriage of a minor (Wilayat-ulnikah)
- Guardianship of property of a minor (Wilayat)
- Guardianship of person of a minor (Hizanat)
F. GUARDIAN AND WARDS ACT, 1890:
- The Guardian and Wards 1890 is a secular act that applies to every
citizen
- It covers the procedure on how to petition courts for the appointment of a
guardian.
 - The act authorises the District Court or any other court of the ward to
appoint a guardian for a minor. The guardian takes care of the minor,
minor’s property or both
- S7 provides the power of the Court to pass an order for guardianship. It
states that the court can appoint a guardian for the welfare of minors. The
guardian can take care of the minor and his property.
- The court also has the power to remove any guardian, when appointed by
the court.
G. Ms. Githa Hariharan vs. Reserve Bank Of India: mother could also be a guardian
on her own
19. Doctrine of Factum Valet
A. The doctrine of “factum valet quod fieri non debuit” means what ought not to be
done becomes valid when done.
B. This principle was formulated by the authors of the Dayabhaga school and was
recognised to a limited extent by the followers of the Mitakshara school.
C. The doctrine of factum valet states that once an act is done or a fact is
accomplished it can’t be altered by the written texts of laws.
D. As the fact is considered to be a concrete establishment and is deemed to be
legally binding.
E. If the marriage was once performed and solemnised, it is valid even if it is done
without consent.
F. This doctrine is applicable when there is obligation and not the legal prohibition
for a thing.
G. The doctrine is also applied to validity of the marriages which have been
performed irregularly or disregard to the Hindu Law which are directory.
H. In Parvathy Ammal v. Gopala Gounder, the omission to do the Sapthapathi,
another equally essential thing like tying the thali has been done. The doctrine
was applied and the marriage was held valid.
I. Dayabhaga lays down that " a fact cannot be altered by a hundred texts."

20. Talaq under Muslim law

A. The talaq operates from the day it was pronounced and the words used therein
must be clear & not ambiguous.
B. The Sunni sect does not prescribe any formalities for the talaq whereas the Shia
sect insists that it be pronounced in front of two witnesses and in oral form.
C. Talaq further can be in a revocable form or irrevocable form also known as
Talaq-ul-Sunnat and Talaq-ul-Biddat respectively.
D. Talaq-ul-Sunnat is considered as a proper form of divorce which is further
categorised into Talaq Ahsan and Talaq Hasan.
E. Talaq-ul-Biddat in any form is considered improper and is not recognized by
majority of the schools except Sunnis. It is also popularly known as triple talaq.
F. A husband can also delegate the power of talaq to any person or even his wife to
pronounce divorce and the same form of talaq is known as Talaq-i-Tafweez.
 G. Triple talaq was declared unconstitutional by the Supreme Court in Shayara
Bano v. Union of India.
21. Dissolution of marriage under Christian law
A. A person professing Christian religion can get a divorce under the Divorce Act,
1869. The act is applicable if one of the parties to the marriage is a Christian and
the marriage can be dissolved by bypassing a decree by the court under the Act.
B. The grounds provided by the Act for dissolution of a marriage under Section 10
C. The parties to the marriage can also file a petition together for seeking divorce by
mutual consent under Section 10-B on the ground that they have mutually agreed
to divorce after living separately for a period of two years or more and have not
been able to live together.
D. Under the Indian Divorce Act (Christian marriages), the parties need to live
separately for at least two years before filing the mutual consent petition.
E. The parties need to come to court twice – first to file the petition, and then six
months after the filing of the petition to record their evidence. This six-month
period is known as the “cooling off period”, for the parties to re-consider and think
about their decision to separate.
F. In 2017, the Supreme Court held that if parties have already been separated for
over one-and-a-half years (two-and-a-half years for Christian marriages), and do
not wish to wait for six months, they may be permitted to waive this six month
waiting period after fulfilling certain formalities.
G. In Saumya Ann Thomas vs. The Union of India, the court further held that the
“two year” period in the section 10A(1) of the Divorce Act, shall be read down to a
period of “one year”. It made an exception for the christian couple.
22. Cruelty and adultery as a ground for divorce
A. S13 of Hindu Marriage act gives grounds for divorce:
- The spouse had voluntary sexual intercourse with any other person.
- The partner has treated the applicant with cruelty.
B. There are then some specific grounds which are available to a wife who may
seek a decree of divorce on the ground that:
- That the husband already married another woman, who was alive at the
time the application for divorce, is filed.
- Divorce can also be sought by the wife if the husband is guilty of rape,
bestiality or sodomy
C. Under the Muslim Personal Law (Shariat) Application Act, 1937, a divorce can be
affected by the wife if the husband accuses her of adultery. If the accusation
levelled by the husband against her is not proved, it gives her a right to file a
divorce suit against the husband.
D. S10 of the Divorce Act, 1869 gives grounds:
- Where the spouse committed adultery.
- Where it is harmful for the petitioner to live with the spouse on account of
cruelty committed against him/her.
E.
23. Gita Hariharan v. RBI
A. The petitioner and Dr. Mohan Ram tied a nuptial knot in 1982 and from the
wedlock their son (Riahab Bailey) was born in 1984.
B. The petitioner by an application requested the RBI for a 9% relief bond in favor of
her son with a proclamation, that being the mother she would act as a natural
guardian and supervise all the investments.
C. However, the application was returned, and the Court instructed the petitioner to
present the application signed by the father of the minor son and additionally
furnish the certificate of guardianship by a competent authority in her favor.
D. There was a divorce proceeding pending between the petitioner and her husband
in which the husband prayed for the custody of the child.
E. In association with this, he had written many letters to the petitioner asserting that
he is the natural guardian of the minor child and they could take no decision
without his approval, which has resulted in the present case.
F. As the literal meaning of section 6 conveys the natural guardian of a boy or
unmarried girl is the father and after him, such right rests with the mother, the
term “after” in a general sense refers to the lifetime of the father providing
secondary status to mothers.
G. This contravenes Article 15 of the constitution and constrains the right of
guardianship from the women.
H. Gender equality is a critical element in constitutional law consequently when the
term “after” characterises as disqualification of the mother as a natural guardian
during the lifetime of the father will be considered a contravention to
constitutional law.
I. “father being a dominant personality cannot be given preferential rights over
mother” therefore, the term “after” in section 6 of the act, should not be
interpreted in a narrow sense as “after the lifetime” on the contrary it should be
characterised as “in absence of father” i.e. be it temporary or otherwise or total
apathy by father because of any sickness or otherwise the mother would be
considered as the natural guardian of the child.
24. Doctrine of relation back
A. A principle that something done today will be treated as if it were done earlier
B. The doctrine of relation back under old Hindu Law states that if a Hindu widow
adopts a son after the death of his husband then the adopted son will be deemed
to have been adopted on the death of the husband.
C. the adopted son will be entitled in the interest of his deceased adoptive father.
D. The theory is against the rule that a property once vested cannot be divested.
E. The theory was based upon the legal fiction that the continuity of the line of the
adoptive father should not break.
F. Under the Act, the doctrine of relation back has been abrogated according to
section 12 of the said Act.
G. Earlier, however, the adopted child came into being in the adoptive family from
the date of the death of his adoptive father, but now, in accordance with proviso
 (c) to section 12 of HAMA, the adopter came into being from the date of the
actual adoption.
H. The new Act has abrogated the principle of relation back only for a limited
purpose of vesting and divesting land.
I. The doctrine of relation back still exists in a sense that, by making an adoption,
by a widow, the adopted child entails the relationship with the deceased husband
of the widow and is (the deceased husband) thereby becomes the adoptive
father of the child.
J.
25. Acknowledgment of paternity under Muslim law
A. Muslim law does not recognise adoption
B. In Muslim law, adoption is recognised as “Acknowledgment of paternity”.
C. Acknowledgement of Paternity is the principle that establishes the legitimacy of
the child.
D. In this principle child gets acknowledges to become a legitimate child means
paternity of the child is established upon him.
E. The only way to establish paternity is by marriage to the mother of the child. So
as per Islamic law, maternity is by fact but paternity can only be by marriage.
F. Hence, if there is no marriage between the mother and the father of the child,
then such a child is illegitimate.
G. As per Sunni Law, such child has no paternity.
H. According to Shia Law, such a child has neither paternity nor maternity.
26. Sareetha v. Venkatta Subbiah
A. Sareetha, at the age of 16, got married to the respondent, Venkata Subbaiah in
1975. However, they immediately stopped living together and continued to live
apart for a duration of five years. As a consequence, Venkata filed a petition for
restitution of conjugal rights to compel her to live with him under Section 9 of the
Hindu Marriage Act, 1955
B. Her second claim was that Section 9 of the Act is a sheer violation of the
fundamental rights enshrined in the Constitution of India. She claimed that by
legally imposing cohabitation between two spouses without their mutual
willingness, the Section violates the right to human dignity and decency, personal
liberty, and the right to life.
C. The objective of obtaining a decree of restitution of conjugal rights is to compel
the unwilling legally wedded spouse to cohabitate with the other spouse. It would
transgress the sanctity of the union of marriage by invading the privacy, integrity
and suppressing the voice of an individual. The State invades the domestic
intimacy of an individual and commits a coercive act.
D. the Court held that Section 9 of the Act was null and void.
27. Seema v. Ashwani Kumar
A. The Case arises out of the issue of the registration of marriage which was a
matter of the States.
B. Numerous harassment in matrimonial & maintenance cases due to
consequences of non registration of marriages in some states took place.
 C. The decision was taken by the court and directions sent to the state to
compulsorily register marriages and report back with the procedure for
registration in 3 months.
D. The registration of marriage would serve as the presumption of marriage, and
non-registered marriages would not have the benefit of the presumption.
E. Held that the registration of marriage would serve as the presumption of
marriage, and non-registered marriages would not have the benefit of the
presumption.
F. The Supreme Court upheld the mandatory registration of marriages of all the
religion in their respective States.
G. The court also directed the state and central government –
- To create rules/regulation/ procedure for registration of marriages
- To appoint an officer who should be authorised to register the marriage,
the age and marital status of the parties.
28. Shamim Ara v. State of UP
A. In 1979, petitioner Shamim Ara filed suit against her husband, Abrar Ahmad,
alleging that he deserted and failed to support her.
B. Ahmad responded, in 1990, that he was under no obligation to support Shamim
Ara because he had divorced her in 1987 via triple ṭalāq.
C. He uttered Talaq in front of witnesses but outside his wife’s presence, and later
informed Shamim Ara in writing in 1990
D. The Court concluded that ṭalāq outside of the wife’s presence and delivered to
her later by writing is so inequitable to Muslim wives as to be without legal
sanction.
E. The marriage was held not dissolved on 05-12-1990. Neither the liability of the
husband came to an end. Such liability shall continue until the obligation comes
to an end in accordance with the law.
29. Shayara Bano v. Union of India
A. Shayara Bano, a Muslim girl, was married to Rizwan Ahmed for 15 years. But in
2016, he divorced her by way of triple talaq without stating any reason.
B. In return, she filed a writ petition in the Supreme Court challenging the
constitutionality of talaq-e-biddat along with practices of polygamy and nikah
halala as they infringe upon the fundamental rights of women (Article 14, 15, 21,
25).
C. Women’s rights organisations like BEBAK collective and Bhartiya Muslim Mahila
Andolan supported her.
D. The opposition i.e. All India Muslim Personal law argued on the fact that Muslim
law is not codified and hence not subject to judicial review and that divorce is a
religious practice under Article 25 of the Constitution and thus protected.
E. It declared the practice of Triple Talaq unconstitutional and directed the
legislature to take measures against it in order to stop the abuse against women.
F. While delivering the judgment, the Court opined that many other Muslim
countries in the world have already abolished this practice on the ground that it
 lacks sanction from the Quran and was neither encouraged nor followed by the
Prophet.
G. The Court held the practice to be violative of fundamental rights under Part III of
the Constitution.
30. Harvinder Kaur vs Harmander Singh
A. The parties in the appeal married each other on 10th December 1976. Both were
working professionals. A child was born to them on 14th July 1978.
B. According to the husband, the wife had left the matrimonial home in May 1978.
C. Following this, on 14th February 1979, the husband filed a petition under Section
9 of the Hindu Marriage Act.
D. The wife claimed that she was oppressed by her husband and his mother and
that she was turned out of her matrimonial home by her husband on 19th
January 1978.
E. The burden of proof was on the wife to prove that she was maltreated.
F. Following the witness statements and the trial, the wife was unable to prove her
mistreatment.
G. The Additional District Judge granted the restitution of conjugal rights to the
husband.
H. Aggrieved by that decree, the wife appealed to Delhi High Court.
I. Issue: Is Section 9 of the Act unconstitutional?
J. Section 9 of the Act was held to be constitutional.
K. Cohabitation was broken when the wife left the matrimonial home.
L. The person leaving the matrimonial home must have a definite and reasonable
explanation for their action. The burden of proof is on them to prove the same.

31. Hunooman Prasad v. Mussumat Babooee

A. The father of the appellant was a money lender who lent money to the
grandfather of the respondent. Upon the demise of the grandfather and father,
the mother of the respondent mortgaged the property of the minor respondent.
B. Upon attaining majority, he challenged the mortgage.
C. They decided that the mortgage was executed, but that because the mortgagee
obtained the mortgage from a restricted owner, he bore the burden of proving
necessity. Their Lordships believed that the case of a mortgage for anything had
been established prima facie.
D. The Manager’s right to charge an estate other than his own for an infant heir is
restricted and qualified under Hindoo law. It can only be properly used in an
emergency or for the advantage of the estate.
32. Saroj Rani v. Sudarshan Kumar
A. It overruled Sareetha vs. Venkata Subbaiah
B. The wife was allegedly maltreated and thrown out of their marital home by the
husband, two years after their marriage and after the birth of their second
daughter.
 C. Thereafter, the Appellant filed a suit for restitution of conjugal rights under
Section 9 of the HMA before the sub-judge 1st class, who passed a consent
decree.
D. While the Appellant claimed that she had briefly cohabited with the Respondent
following the decree, this was not believed by subsequent courts.
E. The Respondent after one year filed for divorce under Section 13 of the HMA
before the district judge, on the ground that a year had lapsed since the consent
decree was passed, but no cohabitation had taken place between the parties.
F. The district judge dismissed the divorce petition because the decree for
restitution of conjugal rights was a consent decree, following which the
Respondent filed an appeal before the High Court, where the Single Judge
referred the matter to the Chief Justice.
G. The Division Bench held that the consent decree could not be termed as
collusive and granted the Respondent the decree of divorce. The Appellant
preferred an appeal before the Supreme Court.
H. The Supreme Court considered both the views and held that Section 9 of the
HMA did not violate Article 21.
I. It sided with Harvinder Kaur in observing that matrimonial consortium did not
necessitate sexual cohabitation.
J. The Court thus granted the Respondent the decree for divorce, and ordered him
to pay maintenance to the wife until she remarried and for the daughter up till her
marriage.
33. Dastane v Dastane
A. The parents of respondent i.e. Sucheta, made the proposal for marriage to the
appellant in April, 1956.
B. Before finalising the marriage proposal, the respondent father sent aletter to
appellant to inform him about the incident that respondent suffered from a ‘severe
attack of sunstroke’ which affected her mental condition for some time and now
she has recovered from that attack.
C. Further, the father of the respondent stated she was cured at Yeravada Mental
Hospital.
D. No further enquiries raised by the appellant after confirming the incident with the
Doctor.
E. They performed the marriage on 13th may, 1956. Two daughters have been born
from this wedlock.
F. In the year 1961, the appellant asked for the Police Protection by stating that
respondent is a threat to his life.
G. The respondent asked for the maintenance for herself and for her two daughters
and addressed a letter to the Ministry of Food and Agriculture stating the cruel
behaviour of the appellant.
H. The appellant moved a petition to the court for revoking the marriage under
section 12(1)(c) of Hindu Marriage Act, 1955 because his consent had been
obtained by fraud.
 I. The respondent claimed that the appellant was having sexual intercourse by
deseting her, which amounted to cruelty.
J. The respondent was held liable for cruelty by the Trial Court and later on; the
husband was ordered to pay maintenance and arrears. The court granted
custody of children to the wife until the age of the majority of children with their
interests.
34. Sitabhai v. Ramachandra
A. Plaintiff 1 is the widow of deceased Bhagirath, who was brother of Dhulichand.
B. After Bhagirath died, the plaintiff Sitabai was living with Dhulichand as a result of
which connection, an illegitimate child defendant Ramchandra was born in 1935.
C. Dhulichand died on March 13, 1958.
D. Plaintiff 1 adopted plaintiff 2, Suresh Chandra and an adoption deed was
executed on March 4, 1958.
E. After the death of Dhulichand, Ramchandra took possession of the joint family
properties.
F. The plaintiffs therefore brought the present case for removal of the defendant, the
illegitimate son of Dhulichand from the disputed properties.
G. The defendant contested on the ground that Dhulichand had in his lifetime
surrendered the properties entirely to him.
H. The trial court stated that Dhulichand was valid so far as half of his share in the
properties was concerned and, therefore, the defendant was entitled to claim half
the share of the properties in dispute.
I. The present case states the dispute regarding the Joint Hindu Family property
between the son born in the family and an adoptive son. The dispute arose
between the two regarding who will get the family properties.
J. The Supreme Court set aside the order made by the High Court and retained the
decree passed by the trial Judge.
35. Vuyyuru Pothuraju v. Radha
A. There was a prenuptial agreement between the husband and wife that after
marriage, the husband would live with the wife at her foster-father’s house.
B. Subsequently, he was ill-treated there and returned to his village and requested
his wife to come to his house.
C. On her refusal, he initiated a suit of restitution of conjugal rights.
D. The court held that prenuptial agreement was unenforceable and subsequently
allowed the petition.
E. As a general principle, any agreement, be it under Hindu law or Muslim law,
between husband wife to live separately, is considered to be void for being
contrary to public policy.
36. Lily Thomas v. UOI
A. Petitioner was married to a man who changed faiths and asked for divorce. She
resisted.
B. He insisted on a divorce and stated that she will have to put up with a second
wife nevertheless.
 C. The Respondent has converted to Islam solely to remarry and had actually no
faith in Islam.
D. It was held that the conversion or apostasy does not automatically dissolve a
marriage already solemnised under the Hindu Marriage Act but only provides a
ground for divorce under Section 18.
E. Till a decree of divorce is passed, the marriage subsists.
F. Any other marriage, during the subsistence of the first marriage would constitute
an offence under Section 494 read with Section 17 of the Hindu Marriage Act,
1955 and the person, despite his conversion to some other religion, would be
liable to be prosecuted for the offence of bigamy.
37. Mohd. Ahmed Khan v. Shah Bano Begum
A. Mohd Ahmed Khan married to Shah Bano in 1932, had three sons and two
daughters from this marriage.
B. In 1975, when Shah Bano’s age was 62 years, she was disowned by her spouse
and was tossed out from her marital home together with her children.
C. In 1978, she filed an appeal in the presence of Judicial Magistrate of Indore,
because she was abandoned from the maintenance of Rs. 200 per month, which
was guaranteed to be provided by him. She demanded Rs. 500 per month as
maintenance.
D. Subsequently, the husband gave her irrevocable triple talaq on November 6th,
1978, and used it as a defence to not pay maintenance.
E. The high court directed a maintenance of Rs. 179 per month.
F. The same was challenged by the spouse within the Supreme Court as a special
leave petition to the High court’s decision.
G. Supreme Court said Section of the code applies to all citizens independent of
their religion and consequently Section 125(3) of Code of Criminal Procedure is
pertinent to Muslims as well.
H. The court further stated that Section 125 overrides the personal law if there is
any conflict between the two.
I. Subsequently the obligation of the husband to pay maintenance to the wife
extends beyond the iddat period in the event that the wife does not have
sufficient means to maintain herself.
J. It was further stated by the court that this rule according to Muslim Law was
against humanity or was wrong because here a divorced wife was not in a
condition to maintain herself.
K. Supreme Court concluded that the husbands’ legal liability will come to an end if
a divorced wife is competent to maintain herself. But here, she will be entitled to
get maintenance or alimony under Section 125 of CrPC.
38. Sarla Mudgal v. UOI
A. Petitioner was married to Jitender Mathur and had three children born out of
wedlock.
B. Petitioner found out that her husband had married another woman, Fathima, after
they both converted themselves to Islam.
 C. She contends that the conversion of her husband to Islam was only to marry
Sunita, thereby avoiding Section 494, IPC.
D. The respondent asserts that after converting to Islam, he can have four wives
irrespective of the fact that his first wife continues to be Hindu.
E. It was held that when a marriage takes place under Hindu Marriage Act, 1955
certain rights and status are acquired by both the parties, and if one of the parties
is allowed to dissolve the marriage by adopting and enforcing a new personal
law, it would destroy the existing rights of the spouse who continues to be Hindu.
F. A marriage performed under the act cannot be dissolved except on the grounds
given under Section 13 of the same act. Until this is done neither can marry
again.
G. The second marriage of an apostate would, therefore, be illegal marriage qua his
wife who married him under the Act and continues to be Hindu.
H. The court further held that the apostate husband would be guilty under Section
494 of IPC. The expression ‘void’ used in the Hindu Marriage Act, 1955 and the
Indian Penal Code have different purposes.
I. Conversion to Islam and marrying again would not, by itself, dissolve the
previous Hindu marriage under the Act, but it will be a ground for divorce.
39. Danial Latifi vs. Union of India
A. Danial Latifi, the counsel of Shah Bano, viewed the Muslim Women (Protection of
Rights on Divorce) Act, 1986 to be in derogation of certain provisions of the
Constitution because a wife who depended on her husband before marriage has
the right to life even after marriage.
B. Section 3(1) of the Act stated that divorced Muslim women are entitled to
reasonable and fair maintenance during the “Iddat” period, denying divorced
wives from their former husbands subsequent and further maintenance.
C. As a result, this Act infringes on Article 21 of the Constitution. The Act violated
Articles 14 and 15 as well as denied divorced Muslim women the same
maintenance benefits as other divorced women under Section 125 of the CrPC.
D. Therefore, Daniel Latifi filed a Writ Petition in the Supreme Court challenging the
constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act,
1986.
E. The SC interpreted the section: nowhere does it state that reasonable and fair
provision and maintenance is limited to the iddat period and not beyond it.
F. The Court ruled that a husband’s obligation to support and maintain his wife
extends for the rest of the divorced wife’s life unless she marries again
G. Act was held constitutional
40. Satyanarayana v. Veeramani
A. A sues his wife В for restitution of conjugal rights.
B. В resisted the suit on the ground that A had deserted her and so she was obliged
to live separately
C. B claimed that as she obtained an order for maintenance A has brought the suit
as a counter blast to her maintenance claim.
 D. Held the wife could resist the claim for restitution of conjugal rights on the
grounds of desertion.
41.