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Divorce, Maintenance and Succession Rights of Females Under Hindu Law
Divorce, Maintenance and Succession Rights of Females Under Hindu Law
Divorce, Maintenance and Succession Rights of Females Under Hindu Law
and
Succession rights of
females under Hindu
Law By:
C. Pratyusha
Matrimonial relief under Hindu
.
Law
S. 9 Restitution of Conjugal Rights
.
.
Restitution of Conjugal Rights
When either of the spouses has, without any reasonable
excuse, withdrawn from the society of the other, the
aggrieved party may apply, by petition to the district
court, for restitution of conjugal rights and the court, on
being satisfied of the truth of the statements made in
such petition and that there is no legal ground why the
application should not be granted, may decree restitution
of conjugal rights accordingly.
Essentials:
1. The other spouse has withdrawn from the
society of the petitioner.
2. There is no reasonable excuse for such
withdrawal. Should the respondent allege
reasonable excuse, the burden of proof lies on
him/her.
3. The courts satisfaction as to the truth of the
statements made in the petition.
4. No legal grounds exist for refusing the decree.
The object of this section is to preserve the
matrimonial tie as far as possible.
S.10 Judicial Separation
Either party to a marriage may present a petition
praying for a decree for judicial separation Where a
decree for judicial separation has been passed, it shall no
longer be obligatory for the petitioner to cohabit with the
respondent.
Grounds are: Desertion(2yrs), cruelty, leprosy,
venereal disease in communicable form(3yrs), unsound
mind(2yrs), adultery.
Section 13 of the Act provides that if there is no
resumption of co-habitation between the parties one year
after the decree for judicial separation is passed, the
parties can get a decree for divorce on this ground itself.
Divorce
Venereal Renounced
Adultery Cruelty Desertion Conversion Leprosy
Disease The World
Theories of Divorce
There are basically three theories for divorce-fault theory, mutual
consent theory & irretrievable breakdown of marriage theory.
S. 13(1): grounds for divorce
(i) Adultery-
Voluntary sexual intercourse between a married person while the
marriage is still subsisting and a person of the opposite sex,
the two being not married to each other.
Burden of proof
In Prem Masi vs. Kumudani Bai (AIR1974MP88) the court held
that a civil standard of proof of adultery was enough and not proof
beyond reasonable doubt. Since such acts are done in utmost
secrecy in some cases even circumstantial evidence is accepted.
13(1)(ia)Cruelty
When a spouse is subjected to any kind of mental and physical
injury that causes danger to life, limb and health he/she can file
for divorce.
Mental Cruelty
Physical Cruelty
The intangible acts of
causing physical injury
cruelty through mental
being dangerous to life or
torture are not judged upon
limb ex:
one single act but series of
Domestic violence
incidents. Certain instances
the food being denied,
like continuous ill
denying access to physical
treatment, abuses to
relationship and such are
acquire dowry, neglect,
included under cruelty.
coldness and insult
Cases on cruelty Dastane vs. Dastane
Sayal vs. Sarla The wife abused the
The wife administered a husband and his relatives
deadly poison thinking it profusely, and humiliated
was love potion to her him and his father, she
husband so that he would would say burn your
be in her palm. The fathers books and smear
husbands petition far the ashes on your head ,
divorce was granted. you are a monster in a
humans body , she would
beat the child mercilessly,
lock him of the house, turn
he light at the husband at
night and nag him. The
husband got a divorce on
the ground of mental
cruelty.
13(1)(ib) Desertion
One of the spouses voluntarily abandons his/her partner for at least
a period of two years, the abandoned spouse can file a divorce case
on the ground of desertion.
Conditions to constitute a In Bipinchandra v.
desertion: Prabhavati the Supreme Court
1. factum of separation held that where the respondent
2. animus deserdendi (intention to leaves the matrimonial home
desert) with an intention to desert, he
3. without reasonable cause will not be guilty of desertion
4. without consent of other party if subsequently he shows an
5. statutory period of two years inclination to return & is
must have run out before a prevented from doing so by the
petition is presented. petitioner.
Constructive desertion: Jyotish
chandra vs. Meera
13(1)(ii)Conversion
When either of the spouses ceases to be a Hindu by conversion
to another religion.
13(1)(iii)Insanity
Conditions:
i) The respondent has been incurably of unsound mind
ii) The respondent has been suffering continuously or
intermittently from mental disorder of such a kind and to
such an extent that the petitioner cannot reasonably be
expected to live with the respondent.
Hindu Adoption
Hindu
Marriage Act
and Maintenance CrPC
Act
Maintenance under S 25: Permanent Alimony and
maintenance: The court on application
HMA 1956: of either the husband or wife may
pass an order that the respondent shall
S24 : Maintenance pendate pay a sum for the maintenance and
lite and expenses of support monthly or periodically. On
proceedings Either of the remarriage, that person can no longer
parties to marriage if do not seek maintenance.
have sufficient income for
his/her support and necessary In case Prem Kumari vs. Om
expenses of the of the Prakash AIR 2000 P H 311 The wife
proceedings, the may, on had done B.Ed and was earning some
application order the money through tuitions, but her
respondent to pay the application was not dismissed on this
petitioners expenses of the ground because she is entitled to live
proceeding and monthly the same live as she would have had
during the proceeding. she continued to live with her
husband.
Maintenance under Hindu Adoption and
Maintenance Act, 1956
Under S.18 the wife is entitled to live separately from her
husband and claim maintenance (as long as she remains chaste
and a Hindu) provided her living apart is justified. Ex:
desertion, cruelty, leprosy, Bigamy, concubine, conversion.
S. 19 Maintenance of widowed daughter-in-law: A Hindu
wife is entitled to be maintained by her father in-law after the
death of her husband.
To the extent that she is unable to maintain herself even out
her own property or property obtained from the estate of
the husband. Such an obligation will cease on her remarriage.
The court shall decide how much maintenance is to be given
with regard to the position, capacity and requirement of the
parties.
Narinder Pal Kaur Chawla vs. M S Chawla[148
(2008), Delhi Law Times 522 (DB)]
The Second wife duped left remediless as she is not
a lawfully wedded wife thus is not entitled to a
remedy.
women placed in the position of second wife, like
Narinder Kaur Chawla, can be treated as legally
wedded wives and entitled to maintenance. The Delhi
High Court judgment lays down that a second wife
duped by her husband through concealment of his first
marriage can be treated as a legally wedded Hindu
wife and is entitled to maintenance under Section 18
of the Hindu Adoption and Maintenance Act.
Maintenance under CrPC
S. 125 Order for maintenance of wives, children
and parents
Under this section:
Wife includes divorced wife.
Only lawfully wedded wife can claim
Wife must be unable to maintain herself
Her right terminates if she is living in adultery
and on remarriage.
Savitaben Somabhai Bhatiya vs. State of
Gujarat( AIR 2005 SC 1809)
A man concealed his first marriage and married
savitaben.
Mother- Daughters
Wife/ Widow Equal share (class I heir)
as her son coparceners
P W 1/4
S 1/4 D 1/4