Family Law – I
📋 Table of Contents
- Unit I — Marriage under Hindu Law
- 1.1 Nature and Concept of Hindu Marriage
- 1.2 Applicability — Section 2, HMA 1955
- 1.3 Conditions for Valid Marriage — Section 5, HMA
- 1.4 Solemnisation — Section 7 & Live-in Relationships
- 1.5 Registration of Marriage — Section 8
- 1.6 Void Marriages — Section 11, HMA
- 1.7 Voidable Marriages — Section 12, HMA
- 1.8 Bigamy — Sections 17, 494, 495 IPC
- 1.9 Child Marriages — PCMA 2006
- 1.10 Landmark Cases — Unit I
- Unit II — Matrimonial Remedies under Hindu Law
- Unit III — Maintenance under Hindu Law
- Unit IV — Adoption under Hindu Law (HAMA 1956)
- Unit V — Minority and Guardianship (HMGA 1956)
- Unit VI & VII — Muslim Law: Sources, Schools & Marriage
- Unit VIII — Divorce under Muslim Law
- Unit IX — Maintenance under Muslim Law
- Questions for Exam
- Quick Revision Cheatsheet
1. Unit I — Marriage under Hindu Law
1.1 Nature and Concept of Hindu Marriage
Hindu marriage is one of the sixteen sacraments (samskaras) prescribed in Hindu law for Hindus. Historically, it was conceived as a sacred and indissoluble union — a permanent bond between husband and wife — not a contract. The traditional view held that a Hindu marriage was a religious ceremony creating spiritual obligations and could not be dissolved.
- Sacrament (Samskara) — Not a contract; a religious ceremony creating permanent obligations
- Indissoluble — Traditional Hindu law did not recognize divorce; the bond lasted until death (and beyond)
- Sacred Fire (Agni) — Marriage rites performed before the sacred fire symbolize the divine witness
- Saptapadi — Seven steps taken jointly before the sacred fire complete the marriage and make it binding
- Modern Position — The Hindu Marriage Act 1955 modified the traditional view by introducing divorce and other reliefs, but retained the sacramental element
The Hindu Marriage Act, 1955 changed the face of Hindu marriage law radically. While it retained the sacramental character, it introduced: (a) conditions for valid marriage, (b) prohibition of polygamy, (c) right of divorce, (d) maintenance, and (e) registration. Today, Hindu marriage is best described as a sacrament with contractual elements — it retains the ceremonial and religious nature but creates enforceable legal rights and duties.
1.2 Applicability — Section 2, HMA 1955
Section 2(1) — The Act applies to:
- Any person who is a Hindu by religion in any of its forms or developments (including Virashaiva, Lingayat, or follower of Brahmo, Prarthana, or Arya Samaj)
- Any person who is a Buddhist, Jain, or Sikh by religion
- Any other person domiciled in India who is NOT a Muslim, Christian, Parsi, or Jew by religion
Section 2(2) — The Act does NOT apply to Scheduled Tribes (notified under Article 342) UNLESS the Central Government by notification so directs.
Key Rule: A Hindu is NOT defined by the Act. It is easier to say who is NOT a Hindu — a Muslim, Christian, Parsi, or Jew is not a Hindu for the purpose of this Act.
Dr. Surajmani Stella Kujur v. Durga Charan Hansdah, AIR 2001 SC 938
Facts: Appellant was an Oraon tribal; respondent was a Santhal tribal. Both were Scheduled Tribes. Appellant alleged respondent committed bigamy under S.494 IPC claiming a custom prohibiting polygamy.
Issue: Whether the HMA applied to Scheduled Tribes? Whether custom alone can create criminal liability?
Held: Scheduled Tribes are excluded from HMA under S.2(2) unless notified. Custom can determine civil rights but cannot by itself create criminal liability. To prove bigamy, the second marriage must be void either under the Act or under a proven custom having the force of law. Complaint dismissed as there was no pleading or evidence of the alleged custom making the second marriage void.
Principle: Custom must be ancient, certain, reasonable, and proved by clear and unambiguous evidence. No criminal liability can arise solely from custom without statutory backing.
1.3 Conditions for Valid Marriage — Section 5, HMA
- Section 5(i) — Monogamy: Neither party must have a spouse living at the time of marriage. Contravention → marriage void under S.11 + bigamy offence under S.17 r/w S.494 IPC.
- Section 5(ii) — Mental Capacity: Neither party must be an idiot or lunatic at the time of marriage. Contravention → marriage voidable under S.12(1)(b).
- Section 5(iii) — Age: Bridegroom must have completed 21 years; bride must have completed 18 years. Contravention → neither void nor voidable under HMA; only punishable under S.18. Under PCMA 2006, such marriage is voidable at the option of the child party.
- Section 5(iv) — Prohibited Degrees: Parties must not be within the degrees of prohibited relationship (unless custom or usage permits). Contravention → marriage void under S.11.
- Section 5(v) — Sapinda Relationship: Parties must not be sapindas of each other (unless custom or usage permits). Contravention → marriage void under S.11.
| Clause Violated | Effect | Remedy |
|---|---|---|
| S.5(i) — Living spouse | Void ab initio (S.11) + Criminal (S.17/494 IPC) | Decree of nullity; criminal prosecution |
| S.5(ii) — Idiocy/Lunacy | Voidable (S.12(1)(b)) | Petition for nullity |
| S.5(iii) — Age | Neither void nor voidable under HMA; only punishable (S.18). Under PCMA 2006 → Voidable at option of child party | Punishment under S.18; PCMA petition within 2 yrs of majority |
| S.5(iv) — Prohibited degrees | Void ab initio (S.11) | Decree of nullity |
| S.5(v) — Sapinda | Void ab initio (S.11) | Decree of nullity |
Degrees of Prohibited Relationship (Section 3(g))
Two persons are within the degrees of prohibited relationship if one is a lineal ascendant of the other, or one was the wife or husband of a lineal ascendant/descendant, or 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. Custom can override these prohibitions.
Sapinda Relationship (Section 3(f))
Two persons are sapindas of each other if one is a lineal ascendant of the other within the limits of sapindaship (3 generations on the mother’s side, 5 generations on the father’s side including the person themselves), or if they have a common lineal ascendant within those limits.
1.4 Solemnisation — Section 7 & Live-in Relationships
A Hindu marriage may be solemnized in accordance with customary rites and ceremonies of either party.
Where such rites and ceremonies include Saptapadi (the taking of seven steps by the bridegroom and bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.
Key Rule: The word “solemnize” means to celebrate marriage with proper ceremonies and in due form. Merely going through certain ceremonies with the intention to be married — without the essential ceremonies — does NOT constitute a solemnized marriage.
Bhaurao Shankar Lokhande v. State of Maharashtra, AIR 1965 SC 1564
Facts: Appellant (already married) went through a ceremony with Kamlabai (Accused 3). The prosecution alleged this was a second marriage and constituted bigamy under S.494 IPC. The alleged second marriage was in “gandharva” form but essential ceremonies (saptapadi and invocation before sacred fire) were not performed.
Issue: Whether a marriage without the essential ceremonies can be said to be “solemnized” for the purpose of S.17 HMA and S.494 IPC?
Held: “Solemnize” means to celebrate with proper ceremonies and in due form. For a marriage to be void under S.17 and attract S.494 IPC, it must have been solemnized. Invocation before sacred fire and saptapadi are the two essential ceremonies. Their non-performance means there was no solemnized marriage. Accused acquitted.
Principle: Performance of essential ceremonies is a prerequisite for a marriage to be “solemnized.” Without this, there is no valid marriage, no void marriage, and no bigamy.
Live-in Relationships and Section 114, Indian Evidence Act
Section 114 of the Indian Evidence Act provides that when a man and a woman live together for a long time as husband and wife, the court may presume that they are legally married. This is a rebuttable presumption of marriage which can be displaced by evidence to the contrary.
D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469
Held: Not every live-in relationship is the same as marriage. A “relationship in the nature of marriage” under the Domestic Violence Act requires: (a) they must hold themselves out to society as husband and wife; (b) they must be of legal age to marry; (c) they must be otherwise qualified to marry each other; (d) they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period. A “kept mistress” or a relationship outside marriage is NOT a “relationship in the nature of marriage.”
1.5 Registration of Marriage — Section 8, HMA
- The State Government may make rules for the registration of Hindu marriages in a Hindu Marriage Register
- Rules may provide for compulsory registration — but only if the State Government so specifies
- Critical Rule: Failure to register a marriage does NOT affect the validity of the marriage itself
- Registration is for the purpose of facilitating proof of Hindu marriages — it creates evidentiary value, not validity
Seema v. Ashwani Kumar, (2006) 2 SCC 578
Facts: A transfer petition where it was noticed that unscrupulous persons were denying marriages because there was no official registration record.
Held: The Supreme Court issued directions to all States and Union Territories to compulsorily register marriages. Directed that rules be notified within 3 months. Registration prevents child marriage, bigamy, denial of marriage by husbands, and protects widows’ rights. Despite S.8 making registration optional, the Court directed mandatory registration as a policy measure.
Principle: Though S.8 HMA does not make registration compulsory, compulsory registration is constitutionally justified as it prevents several evils — child marriage, bigamy, denial of marriage. States must provide for it.
1.6 Void Marriages — Section 11, HMA
Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition by either party, be declared so by a decree of nullity if it contravenes any of the conditions specified in clauses (i), (iv), and (v) of Section 5.
Grounds for Void Marriage:
- Either party had a living spouse at the time of marriage [S.5(i)]
- Parties within prohibited degrees of relationship [S.5(iv)]
- Parties in sapinda relationship [S.5(v)]
Nature of Void Marriage: A void marriage is no marriage at all — it is a nullity from the beginning. No legal rights or obligations arise from it. Either party can remarry without seeking a divorce.
S.16(1): Notwithstanding that a marriage is null and void under S.11, any child of such marriage who would have been the legitimate child of the parties if the marriage had been valid shall be deemed to be their legitimate child.
Key Point: Even children of void marriages are legitimate under S.16. However, S.16(3) limits their rights — such children have rights only in the property of the parents (the parties to the void marriage), NOT in the property of other relatives.
1.7 Voidable Marriages — Section 12, HMA
Any marriage solemnized before or after the commencement of this Act shall be voidable and may be annulled by a decree of nullity on any of the following grounds:
- S.12(1)(a) — The marriage has not been consummated owing to the impotence of the respondent
- S.12(1)(b) — The marriage contravenes the condition of S.5(ii) — either party was an idiot or lunatic at the time of marriage
- S.12(1)(c) — The consent of the petitioner, or where guardian’s consent is required, was obtained by force or fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent
- S.12(1)(d) — The respondent was at the time of marriage pregnant by some other person (not the petitioner)
Nature of Voidable Marriage: Remains valid until avoided by a court decree. Either party can live together and confirm the marriage, or seek annulment. Children of voidable marriages are always legitimate.
Impotency — Section 12(1)(a)
Impotence means inability to perform sexual intercourse in the natural and ordinary manner. It must exist at the time of marriage AND continue until the filing of the petition. Impotence may be physical or psychological. The standard is “ordinary and complete intercourse” — partial, imperfect, or unnatural intercourse does not suffice.
P. v. K., AIR 1982 Bom. 400
Facts: Husband filed for nullity alleging that wife suffered from second degree prolapse of uterus (a pre-existing condition she knew about), which she concealed before marriage. Wife refused intercourse, possibly to conceal her condition.
Held: (1) Fraud (S.12(1)(c)): After the 1976 Amendment, “fraud” includes concealment of any material fact or circumstance concerning the respondent. Prolapse causing difficulty in intercourse and likely to cause abhorrence is a material fact — its concealment constitutes fraud. (2) Impotency: If a condition makes normal intercourse imperfect, painful, or requires manipulation, it constitutes impotency. Marriage annulled.
Principle: Post-1976 amendment, “fraud” in S.12(1)(c) has been expanded to include concealment of any material fact concerning the respondent that would affect the petitioner’s decision to marry.
Fraud — Section 12(1)(c)
Fraud under S.12(1)(c) must relate to: (a) the nature of the ceremony, OR (b) any material fact or circumstance concerning the respondent. “Material fact or circumstance” means a fact that would materially affect the marital life — including pre-existing disease, prior marriage, loss of virginity (if material to the party), concealment of prior criminal history, etc.
Facts: Petitioner (wife, over 18 years) overheard her father telling her mother that the bridegroom was between 25-30 years old and prosperous. Based on this, she impliedly consented. On actually joining the husband, she discovered he was over 60 years old and of ordinary means.
Held: (1) Misrepresentation made to the petitioner’s mother (acting as her agent) was sufficient — it need not be made directly to the petitioner. (2) The fraudulent misrepresentation need not be made at the time of the marriage ceremony itself — it is sufficient if it was made at the time of negotiations and continued to operate at the time of the ceremony. Marriage annulled under S.12(1)(c).
Principle: Fraud for the purpose of S.12(1)(c) can be committed at the time of negotiations, need not be at the time of the ceremony; and can be made through agents.
1.8 Bigamy — Sections 17 HMA, 494 & 495 IPC
Section 17 HMA: Any marriage between two Hindus solemnized after the commencement of this Act shall be void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the IPC shall apply accordingly.
Ingredients of S.494 IPC Offence:
- The accused must have contracted the first marriage
- While the first marriage was subsisting, the accused contracted a second marriage
- The second marriage was valid — i.e., the necessary ceremonies for a valid marriage were performed
Critical Rule: For S.494 to apply, the second marriage must be proved to be a validly solemnized marriage. If the second “marriage” did not have the essential ceremonies, it is not a marriage at all and S.494 does not apply.
Lily Thomas v. Union of India, AIR 2000 SC 1650 (Sarla Mudgal Case Follow-up)
Held: A Hindu husband who converts to Islam and marries a second wife during the subsistence of his first (Hindu) marriage commits bigamy under S.494 IPC. Conversion to Islam does not automatically dissolve the Hindu marriage. The first marriage continues to subsist until dissolved by a court decree under HMA. The second marriage (even under Muslim law) is void under S.11 and S.17 HMA, and the husband is liable under S.494 IPC.
Principle: Change of religion does not dissolve a marriage solemnized under HMA. Conversion to Islam is only a ground for divorce under S.13 — it does not ipso facto dissolve the first marriage. Any subsequent marriage during subsistence of the first is bigamy.
Facts: Husband (Nagalingam) was married to Sivagami. He contracted a second marriage with Kasturi. The trial court acquitted him finding saptapadi was not performed. HC convicted him. He appealed to SC.
Held: The parties were residents of Tamil Nadu. Tamil Nadu’s S.7-A amendment provides that marriage between two Hindus in the presence of relatives/friends, where they declare each other as wife and husband and garland each other or tie the thali, is a valid marriage — even without saptapadi or a priest. The evidence showed that the tali was tied and garlands exchanged. This satisfied S.7-A. Bigamy conviction upheld.
Principle: The validity of the ceremonies must be judged by the personal law applicable to the parties — including any State amendments. In Tamil Nadu, S.7-A creates an alternative form of marriage without the need for saptapadi.
1.9 Child Marriages — PCMA 2006
- Child [S.2(a)]: A male who has not completed 21 years; a female who has not completed 18 years
- Child Marriage [S.2(b)]: A marriage to which either contracting party is a child
- S.3 — Voidable Marriage: Every child marriage is voidable at the option of the contracting party who was a child at the time. Petition must be filed before the child completes 2 years after attaining majority.
- S.12 — Void Marriage: Marriage of a minor child is void where the child: (a) was taken or enticed out of the keeping of a lawful guardian; OR (b) was compelled by force or deceit; OR (c) is sold for marriage or used for immoral purposes
- S.9 — Punishment: Male adult above 18 contracting a child marriage — rigorous imprisonment up to 2 years or fine up to ₹1 lakh, or both
- S.15 — Cognizable and Non-Bailable: All offences under PCMA are cognizable and non-bailable
Under HMA, violation of S.5(iii) (age) makes the marriage neither void nor voidable — only punishable under S.18. PCMA 2006 (being a later special law) overrides HMA to this extent: child marriages are now voidable under PCMA S.3 at the option of the child party. After attaining majority, if no petition is filed within 2 years, the marriage becomes valid.
Delhi HC in Court on Its Own Motion Lajja v. State, 2012: Held that after PCMA 2006, marriages with a female below 18 or male below 21 are voidable — not void — unless S.12 conditions apply.
1.10 Landmark Cases — Unit I Summary
| Case | Court/Year | Key Issue | Principle Established |
|---|---|---|---|
| Surajmani Stella Kujur v. Durga Charan Hansdah | SC, 2001 | HMA applicability to Scheduled Tribes | S.2(2) excludes STs unless notified; custom cannot create criminal liability without statutory backing |
| S. Nagalingam v. Sivagami | SC, 2001 | Validity of second marriage; Tamil Nadu S.7-A | TN S.7-A is valid substitute for saptapadi; bigamy requires valid second marriage proven by ceremonies applicable to parties |
| Bhaurao Shankar Lokhande v. State of Maharashtra | SC, 1965 | What constitutes “solemnized” marriage for bigamy | Essential ceremonies must be performed; mere intention to marry without proper ceremonies is not “solemnization” |
| Lily Thomas v. Union of India | SC, 2000 | Conversion to Islam and bigamy | Conversion does not dissolve HMA marriage; second marriage after conversion is bigamy under S.494 IPC |
| Pinninti Venkataramana v. State | AP HC, 1977 | Effect of violation of S.5(iii) — age | Violation of age condition (S.5(iii)) makes marriage neither void nor voidable; only punishable under S.18 |
| Asha Qureshi v. Afaq Qureshi | MP HC, 2002 | Fraud in marriage — concealment of prior marriage | Active concealment of prior marriage by widow amounted to fraud under S.25 Special Marriage Act; decree of nullity granted |
| Court on Its Own Motion Lajja v. State | Del HC, 2012 | Child marriage after PCMA 2006 | After PCMA 2006, child marriages are voidable (not void) at option of the child party; full discussion of custody issues for minor spouses |
| P. v. K. | Bom HC, 1982 | Impotency and fraud as grounds for nullity | Prolapse constitutes impotency; concealment of material fact about respondent’s physical condition is fraud under S.12(1)(c) post-1976 amendment |
| Babui Panmato Kuer v. Ram Agya Singh | Pat HC, 1968 | Fraud in marriage — misrepresentation of age | Fraud in marriage need not be made at time of ceremony; it can be made at time of negotiations through agents |
| Seema v. Ashwani Kumar | SC, 2006 | Compulsory registration of marriages | All States directed to make marriage registration compulsory; registration has evidentiary value but not determinative of validity |
2. Unit II — Matrimonial Remedies under Hindu Law
2.1 Restitution of Conjugal Rights — Section 9, HMA
When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition for restitution of conjugal rights, and the court shall decree restitution accordingly.
Explanation: Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.
Essential Elements:
- The respondent has withdrawn from the society of the petitioner
- The withdrawal is without reasonable excuse
Saroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562: The Supreme Court upheld the constitutional validity of S.9 HMA. The constitutional challenge (based on the argument that forced cohabitation violates right to privacy under Art.21) was rejected. The Court held that S.9 has a social purpose — to preserve the institution of marriage and save it from breakdown. A decree of RCR does not compel parties to live together — it only provides legal recourse. Non-compliance with an RCR decree may entitle the aggrieved party to enforce it through attachment of property and may itself become a ground for divorce under S.13(1A).
Kailashwati v. Ayudhia Parkash, 1977 CLJ 109 (P&H) — Full Bench
Facts: Both spouses were teachers. Wife manipulated a transfer back to her parental village, away from the husband. Husband filed for RCR.
Held: A wife’s employment elsewhere is not a “reasonable excuse” for withdrawal from the matrimonial home. A working wife, by entering into marriage, impliedly consents to the marital obligation of living with her husband. The husband, as the bread-winner with legal obligations to maintain the family, is generally entitled to determine the locus of the matrimonial home (subject to bona fide intent). RCR decreed.
Swaraj Garg v. K.M. Garg, AIR 1978 Del. 296
Facts: Wife was an established teacher at Sunam before the marriage; husband was in Delhi with irregular/lesser income. No prior agreement on where the matrimonial home would be. Husband filed for RCR.
Held: There is no absolute rule that the husband determines the matrimonial home. The choice of matrimonial home is to be settled by agreement, by give and take, and by reasonable accommodation. Where the wife has a better and more established job, and the husband cannot maintain the wife adequately, the wife has reasonable excuse for staying at her place of posting. RCR rejected. This case distinguished Kailashwati’s case on facts — particularly where the wife has the more stable and better-paying job.
Principle: There is no absolute legal right of the husband to determine the matrimonial home in all circumstances. The financial and employment realities of both parties must be considered. Where the wife is the better earner, her refusal to give up her job may constitute a “reasonable excuse.”
2.2 Judicial Separation — Sections 10 and 13(1A), HMA
Either party to a marriage (whether solemnized before or after the commencement of this Act) may present a petition for judicial separation on any of the grounds in S.13(1) and, in case of wife, additionally on the grounds specified in S.13(2).
Effect: After a decree of judicial separation, the parties are relieved of the duty to cohabit. They remain married — neither can remarry. The decree may be rescinded on application by either party.
Under S.13(1A): Either party may apply for divorce if there has been no resumption of cohabitation for a period of one year or more after the passing of a decree of judicial separation.
| Basis | Judicial Separation | Divorce |
|---|---|---|
| Nature | Suspends marital obligations; marriage continues | Dissolves the marriage permanently |
| Remarriage | Neither party can remarry | Both parties can remarry after decree becomes final |
| Rescission | Can be rescinded; parties can reconcile | Cannot be reversed |
| Grounds | All grounds under S.13 + wife’s special grounds S.13(2) | Same grounds + S.13(1A) after JS or RCR |
| Purpose | Relief without breaking the marriage; cooling period | Final dissolution of matrimonial tie |
| Effect on Succession | Parties retain succession rights | Succession rights extinguished on divorce |
2.3 Divorce — Section 13, HMA
Theories of Divorce
- Fault Theory (Matrimonial Offence Theory): Divorce is granted only when one spouse has committed a matrimonial fault/offence against the other — adultery, cruelty, desertion, etc. The aggrieved innocent party can seek divorce against the guilty party. HMA originally adopted this theory.
- Breakdown Theory (Irretrievable Breakdown Theory): Divorce is available where the marriage has so completely broken down that there is no reasonable possibility of reunion. No fault-finding necessary. This is the modern approach — partially adopted by India through the 1976 Amendment (S.13(1A)) and further through judicial development.
- Mutual Consent Theory: Both parties voluntarily agree to end the marriage. Section 13B of HMA provides for divorce by mutual consent. No fault needs to be proved.
Grounds for Divorce — Section 13(1), HMA
Either party to a marriage may present a petition for divorce on any of the following grounds:
- Adultery [S.13(1)(i)]: Voluntary sexual intercourse with any person other than the spouse after solemnization of marriage
- Cruelty [S.13(1)(ia)]: After solemnization, has treated the petitioner with cruelty
- Desertion [S.13(1)(ib)]: Deserted the petitioner for at least 2 years immediately before filing the petition
- Conversion [S.13(1)(ii)]: Ceased to be a Hindu by conversion to another religion
- Unsound Mind [S.13(1)(iii)]: Has been incurably of unsound mind / suffering from mental disorder of such a kind and extent that the petitioner cannot reasonably be expected to live with the respondent
- Leprosy [S.13(1)(iv)]: [Deleted by Marriage Laws (Amendment) Act, 1999]
- Venereal Disease [S.13(1)(v)]: Suffering from venereal disease in a communicable form
- Renunciation [S.13(1)(vi)]: Has renounced the world by entering a religious order
- Presumption of Death [S.13(1)(vii)]: Has not been heard of as being alive for 7+ years
Additional Grounds Available Only to Wife — Section 13(2)
- S.13(2)(i): Husband is guilty of rape, sodomy, or bestiality after solemnization of marriage
- S.13(2)(ii): Husband has failed to comply with a decree of maintenance under S.18 HAMA or S.125 CrPC; parties have not resumed cohabitation for at least 1 year after such decree
- S.13(2)(iii): Option of Puberty — marriage was solemnized before the wife attained 15 years and she repudiates it after attaining 15 years but before 18 years. Whether consummated or not.
2.4 Cruelty as Ground for Divorce — Section 13(1)(ia)
The Act does not define “cruelty.” It includes both physical and mental cruelty. The test is whether the conduct of the respondent is such that the petitioner cannot reasonably be expected to live with the respondent.
Physical Cruelty: Violence, assault, bodily harm. Easier to prove.
Mental Cruelty: Includes persistent harassment, false accusations, humiliation, refusal of sexual intercourse without cause, excessive demands, threats, hostile conduct, and other conduct causing mental pain and injury.
Facts: Husband petitioned for divorce on ground of cruelty. Wife had made false accusations that he was “mentally deranged” and written letters to his superior officers; she had also threatened to put kerosene on herself and burn the house.
Held: The court laid down important principles on cruelty: (1) It need not be physical — mental cruelty is equally relevant. (2) Test: Does the conduct complained of make it reasonably apprehended that it will be injurious or harmful to live with the other spouse? (3) Standard of proof: Preponderance of probabilities (civil standard) — not proof beyond reasonable doubt (criminal standard). (4) On facts: Wife’s conduct (false accusations, threats) constituted cruelty. Divorce granted.
Principle: Cruelty includes conduct that makes it reasonably apprehended that it would be harmful or injurious to continue to cohabit. Standard of proof is preponderance of probabilities. Mental cruelty is fully recognized.
Facts: Husband and wife were IAS officers. No physical cruelty. Wife had deep hostility towards husband’s family; they had essentially no marital life; the wife unilaterally decided not to have a child.
Held: The Supreme Court laid down 18 illustrative situations that may constitute mental cruelty (not exhaustive). Key observations: (1) Unilateral decision not to have children may amount to mental cruelty. (2) Long separation, cold and indifferent behavior, total absence of love and affection, and parties having no reasonable opportunity to live as a unit can amount to mental cruelty. (3) Mental cruelty must be assessed objectively — by the standard of an ordinarily reasonable person. (4) In this case, the parties had lost the possibility of living together — a case of irretrievable breakdown.
Principle: Mental cruelty is assessed by objective standards. The court provided 18 illustrative situations of mental cruelty. It also ruled that irretrievable breakdown is a relevant consideration even in the absence of a statutory provision for it.
Held: Persistent domestic violence — physical and emotional — constitutes cruelty under S.13(1)(ia). The court re-emphasized that the test is not whether the petitioner was actually harmed but whether the conduct made it reasonably apprehended that it would be injurious or harmful to continue to cohabit with the respondent.
2.5 Desertion as Ground for Divorce
Desertion means the permanent forsaking and abandonment of one spouse by the other without the other’s consent and without reasonable cause. To constitute desertion, there must be:
- Factum of separation — physical separation from the spouse
- Animus deserendi — the intention to desert permanently (to bring the matrimonial union to an end)
- The desertion must be without the consent of the deserted spouse
- Without reasonable cause
- It must have continued for a period of at least two years immediately before the presentation of the petition
Constructive Desertion: Where one spouse, by their own conduct, forces the other to leave the matrimonial home — the spouse who forced the other to leave is the “deserter” even though physically they remained. The spouse who was forced to leave is the deserted party.
Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176
Facts: Wife left the matrimonial home citing husband’s cruelty and neglect. Husband petitioned for divorce on grounds of desertion. Wife contended it was constructive desertion by the husband.
Held: Desertion is not merely a physical act — it comprises two elements: (a) the factum of separation, and (b) the animus deserendi. Even if only one spouse physically leaves, the other may be the “deserter” if they, by their conduct, forced the other to leave (constructive desertion). In this case, the husband’s conduct forced the wife to leave — she was not the deserter; he was. Husband’s petition dismissed.
Principle: Desertion requires both physical separation AND animus deserendi. Constructive desertion is recognized — the party who, by their conduct, compels the other to leave is the deserter.
Held: Non-compliance with an RCR decree does not automatically constitute desertion in all cases. The court must examine whether the non-compliance was without reasonable cause. A wife who does not comply with an RCR decree but has a reasonable cause (such as the husband’s own conduct) cannot be said to have deserted.
2.6 Divorce by Mutual Consent — Section 13B, HMA
Conditions:
- Parties must have been separated for a period of at least one year
- They must have been living separately (not as husband and wife)
- They must agree that the marriage has broken down and cannot be saved
- Both must file a joint petition for divorce
Procedure:
- First motion: filing of joint petition
- Mandatory waiting period: minimum 6 months after first motion (cooling-off period) — before second motion
- Second motion: both parties must appear and confirm their consent
- Decree: court shall grant decree of divorce on satisfaction of the conditions
Held: The 6-month cooling-off period under S.13B(2) is not mandatory in all cases. Courts have discretion to waive it if: (a) the parties have genuinely settled all issues (maintenance, custody, property); (b) there is no likelihood of reconciliation; and (c) insisting on the waiting period would be to prolong agony rather than serve any useful purpose. The court may exercise this discretion in the interest of justice.
Principle: The 6-month waiting period under S.13B is directory, not mandatory. Courts can waive it in appropriate cases where there is genuine and irreversible settlement.
Held: Either party can withdraw their consent for divorce by mutual consent at any time before the final decree. Once consent is withdrawn, the joint petition cannot be decreed — the consent of both parties must subsist until the court passes the decree. This case was later limited by Amardeep Singh.
2.7 Irretrievable Breakdown
India does not currently have a statutory ground of irretrievable breakdown of marriage. However, the Supreme Court has repeatedly exercised its power under Article 142 of the Constitution to dissolve marriages that have irretrievably broken down, even in the absence of a fault-based ground.
The 71st Report of the Law Commission of India recommended introducing irretrievable breakdown as a ground for divorce. The Marriage Laws Amendment Bill 2013 was introduced in Parliament to add this ground to HMA, but it has not been enacted. Courts continue to use Art.142 to fill this gap in appropriate cases of proven irretrievable breakdown.
2.8 Landmark Cases — Unit II Summary
| Case | Year | Key Principle |
|---|---|---|
| Kailashwati v. Ayudhia Parkash | 1977 | Working wife’s employment not reasonable excuse for deserting matrimonial home; husband generally has right to determine locus of matrimonial home (bona fide) |
| Swaraj Garg v. K.M. Garg | 1978 | No absolute rule — if wife has better-paying job, her refusal to quit may be reasonable. Matrimonial home determined by give-and-take |
| Saroj Rani v. Sudarshan Kumar | 1984 | S.9 (RCR) constitutionally valid; non-compliance with RCR decree gives ground for divorce under S.13(1A) |
| N.G. Dastane v. S. Dastane | 1975 | Cruelty includes mental cruelty; standard of proof is civil (preponderance of probabilities) |
| Samar Ghosh v. Jaya Ghosh | 2007 | 18 illustrative situations of mental cruelty; irretrievable breakdown relevant even without statutory ground |
| Bipinchandra Shah v. Prabhavati | 1957 | Desertion requires factum + animus; constructive desertion recognized |
| Hirachand Managaonkar v. Sunanda | 2001 | RCR decree followed by non-compliance is basis for divorce under S.13(1A); this is not “taking advantage” of own wrong |
| T. Srinivasan v. T. Varalakshmi | 1991 | Option of puberty under S.13(2)(iii) — girl can repudiate marriage solemnized before 15 years; repudiation between 15-18 years |
| Sureshta Devi v. Om Prakash | 1991 | Consent for S.13B divorce can be withdrawn by either party before decree is passed |
| Amardeep Singh v. Harveen Kaur | 2017 | 6-month waiting period in S.13B can be waived by court in genuine cases of settled mutual consent divorce |
3. Unit III — Maintenance under Hindu Law
3.1 Maintenance under HMA — Sections 24 & 25
Where a petition for matrimonial relief is pending, either the wife or the husband, if they have no independent income sufficient for their support and the necessary expenses of the proceeding, may apply for:
- Monthly maintenance (alimony pendente lite)
- Expenses of the proceedings
Court’s power: The court shall make an order if it is satisfied that the applicant has no independent income. The order is made having regard to the income of both parties. It covers the period from the date of application until the disposal of the main petition.
Any court exercising jurisdiction under HMA may, at the time of passing any decree or any time subsequent thereto, on application made to it by either the wife or the husband, order that the respondent shall pay to the applicant for their maintenance and support such gross sum or monthly/periodical sum as the court thinks fit.
Factors considered: Income and other property of both parties; conduct of parties; other relevant circumstances.
Termination: The right to alimony terminates on remarriage or on death of the claimant. In case of wife, also terminates on unchastity (as per court discretion).
3.2 Maintenance under HAMA — Section 18
A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
Right to separate residence (S.18(2)): A Hindu wife shall be entitled to live separately from her husband AND claim maintenance if the husband:
- Is guilty of desertion
- Has treated her with cruelty
- Is suffering from virulent form of leprosy
- Has another wife living
- Keeps a concubine in the same house or habitually resides with a concubine elsewhere
- Has ceased to be a Hindu by conversion
- For any other cause justifying her living separately
Disentitlement (S.18(3)): Wife is NOT entitled to maintenance if she is unchaste or has ceased to be Hindu by conversion.
3.3 Section 125, CrPC — Maintenance
Section 125 CrPC (now S.144 BNSS) is a secular provision — it applies to all persons regardless of religion. It provides summary remedy for maintenance to prevent vagrancy and destitution.
Who can claim under S.125:
- Wife (including divorced wife — if she has not remarried)
- Legitimate or illegitimate minor children (if married daughter, not ordinarily)
- Legitimate or illegitimate major children unable to maintain themselves due to physical/mental abnormality or injury
- Father or mother unable to maintain themselves
Pre-condition for wife’s claim: Husband must have sufficient means AND must neglect or refuse to maintain. Wife must be unable to maintain herself.
“Wife” includes divorced wife (Explanation to S.125) — divorced wife can claim maintenance until remarriage if she has not obtained any maintenance order or the order was not satisfied.
Held: A woman in a “relationship in the nature of marriage” (within the meaning of the DV Act) can claim maintenance. But not every live-in relationship qualifies. To qualify: (a) parties must hold themselves as husband and wife; (b) both must be of legal age to marry; (c) both must be otherwise qualified to enter into a valid marriage; (d) they must have voluntarily cohabited for a significant period.
Facts: Man had suppressed fact of first marriage and married a second woman. When second wife sought maintenance, he claimed she was not a legally wedded wife.
Held: S.125 is a social welfare legislation — it must be interpreted beneficially. Where a man marries a second wife by suppressing the fact of his first marriage (committing fraud), the second wife is entitled to maintenance. The husband cannot take advantage of his own fraud to deny maintenance to the woman he deceived into marriage.
Principle: Social welfare legislation should be construed liberally. A man cannot use his own fraud (suppressing first marriage) as a defense to deny maintenance to the second wife who was deceived.
3.4 Protection of Women from Domestic Violence Act, 2005
- Definition of “Domestic Violence” [S.3]: Includes physical, sexual, verbal/emotional, and economic abuse
- Aggrieved Person [S.2(a)]: Any woman who is or has been in a domestic relationship with the respondent; includes wife, girlfriend in domestic relationship, live-in partner
- Domestic Relationship [S.2(f)]: Relationship between two persons who live or have at any point lived in a shared household — includes marriage, live-in, family
- Reliefs Available [S.18-22]: Protection order | Residence order | Monetary relief | Custody order | Compensation order
- Magistrate’s Powers: Can pass ex parte interim order; can direct Shelter Home, Medical Facility
- Maintenance under DV Act [S.20]: Includes loss of earnings, medical expenses, damage to property, maintenance of aggrieved person and children
3.5 Landmark Cases — Unit III
Held: The power under S.25 to grant permanent alimony is exercised at the time of the decree and subsequent thereto. The court has wide discretion in determining the amount. Factors include: income of both parties, their property, their conduct, and all relevant circumstances. The court should aim at ensuring the applicant has reasonable means for their support — not enrichment, but reasonable support in accordance with their station in life.
Held: The court has power to order maintenance even to a husband under S.24 if the husband has insufficient income and the wife has independent income. S.24 is a gender-neutral provision — both husband and wife can claim pendente lite maintenance from each other.
4. Unit IV — Adoption under Hindu Law (HAMA 1956)
Who can adopt [S.7 & S.8]:
- Any Hindu male who is of sound mind and is not a minor (S.7) — if married, wife’s consent required (unless wife is of unsound mind, ceased to be Hindu, or has renounced the world)
- Any Hindu female who is of sound mind, is not a minor, and is unmarried OR widowed/divorced (S.8)
Who can be given in adoption [S.9]: Only the father, mother, or guardian of the child can give in adoption. Father’s right is primary; mother can give if father is dead/of unsound mind/has renounced/ceased to be Hindu.
Capacity of child to be adopted [S.10]: Child must be Hindu; not already been adopted; not married (unless custom permits adoption of married child); not completed 15 years (unless custom permits).
Conditions for valid adoption [S.11]:
- Son can be adopted only if no Hindu son/adopted son already exists
- Daughter can be adopted only if no Hindu daughter/adopted daughter already exists
- If adopting male is married — wife’s consent required
- Child to be adopted must be given and taken in adoption with intention to transfer from one family to another
- Ceremony: the actual giving and taking is essential
Shabnam Hashmi v. Union of India, 2014 (2) SCALE 529
Held: The HAMA applies to Hindus. Muslims, Christians, and others can adopt under the Juvenile Justice (Care and Protection of Children) Act, 2000 which is a secular law. The court held that the right to adopt and be adopted is not a fundamental right but is regulated by personal law and the JJ Act.
The Central Adoption Resource Authority (CARA) under the Ministry of Women and Child Development regulates adoption in India. The CARA Guidelines 2017 govern inter-country adoption, domestic adoption through recognized adoption agencies, and provide for the rights and safeguards of adoptable children. All adoptions must be registered with CARA for international recognition.
Held: Once a valid adoption is made, the adopted child severs all ties with the family of birth and becomes the child of the adoptive family for all purposes. The adoption cannot be cancelled or revoked merely because the adopter is dissatisfied with the child’s conduct after adoption. Adoption creates permanent ties.
5. Unit V — Minority and Guardianship (HMGA 1956)
Minor [S.4(b)]: A person who has not completed the age of 18 years
Natural Guardians [S.6]:
- Boy or unmarried girl: Father, and after him, the mother (Custody of child below 5 ordinarily with mother)
- Illegitimate boy or girl: Mother, and after her, the father
- Married girl: Husband
Welfare of Minor is Paramount [S.13]: In the appointment or declaration of any guardian, the welfare of the minor shall be the paramount consideration. No person is entitled to guardianship if the court is of opinion that their guardianship will not be for the welfare of the minor.
Powers of Natural Guardian [S.8]: Can do all acts reasonably necessary for the benefit of the minor’s estate. Cannot alienate (sell/mortgage/give) immovable property of the minor without prior court permission (except for urgent necessity or evident advantage to the minor).
Facts: The Reserve Bank refused to register a bond in the name of the mother as natural guardian of her minor child, insisting that the father is the sole natural guardian under S.6(a) HMGA. Mother challenged this.
Held: S.6(a) provides that the father is the natural guardian “after him” meaning the father is the guardian during his lifetime and the mother is guardian after his death. The court, however, read down S.6(a) to mean that where the father is not available (de facto), the mother can act as natural guardian even during the father’s lifetime. Reading S.6(a) as giving the father exclusive right to the exclusion of the mother (even when the father is absent) would be unconstitutional — it violates Art.14 and 21. The mother is entitled to be recognized as natural guardian when the father is unavailable or unable to act.
Principle: S.6 should be read in a gender-neutral manner consistent with constitutional guarantees. Mother can act as natural guardian when father is absent or unable to act, even during his lifetime.
6. Unit VI & VII — Muslim Law: Sources, Schools & Marriage (Nikah)
6.1 Sources and Schools of Muslim Law
- Quran (Koran): The primary and supreme source — the revealed word of God. The Quran contains approximately 200 verses dealing with legal matters.
- Sunna/Hadith: The practices (Sunna) and traditions (Hadith) of the Prophet Muhammad. Second in authority to the Quran. Contains the acts, sayings, and tacit approvals of the Prophet.
- Ijma (Consensus): The consensus of the learned scholars on a legal question. Where the Quran and Hadith are silent, the consensus of jurists is binding. Three types: Ijma of companions, Ijma of learned scholars, popular consensus.
- Qiyas (Analogical Deduction): Deduction by analogy — applying principles from existing rules to new cases by analogy. The weakest source of Muslim law; rejected by some schools (e.g., Shia).
- Custom and Usage: Local customs are sometimes recognized where they do not conflict with the Shariat.
- Legislation: The Parliament of India has passed legislations modifying Muslim personal law — e.g., Dissolution of Muslim Marriages Act 1939, Muslim Women (Protection of Rights on Divorce) Act 1986, Muslim Women (Protection of Rights on Marriage) Act 2019.
| School | Sub-School | Followed By | Key Feature |
|---|---|---|---|
| Sunni | Hanafi | Most Muslims in India (North India, Pakistan) | Liberal; accepts Qiyas and Ijma freely |
| Shafi’i | Followers in South India, East Africa | Moderate; Qiyas limited | |
| Maliki, Hanbali | Followers in Arabia and Africa | More literal interpretation of texts | |
| Shia | Ithna Ashari (Twelver) | Iran, Iraq; Dawoodi Bohras in India | Does NOT accept Qiyas; Imams are authoritative interpreters |
| Ismailia | Khoja (Ismaili) sect | Living Imam is the religious authority |
6.2 Nikah — Muslim Marriage
Muslim marriage (Nikah) is primarily a civil contract — unlike Hindu marriage (a sacrament). As a contract, it requires: (a) offer (Ijab), (b) acceptance (Qabul), (c) free consent of parties, (d) capacity of parties, and (e) consideration (Mahr/Dower).
However, Nikah is also a religious act of some significance — it is not a purely secular contract. It is governed by the Muslim Personal Law (Shariat) Application Act, 1937.
- Capacity: Both parties must be of sound mind and must have attained puberty. A minor who has attained puberty can contract marriage. Under Hanafi law, a minor can be contracted in marriage by a guardian (wali), but can exercise “option of puberty” (Khyar-ul-Bulugh) on attaining puberty to repudiate the marriage.
- Proposal and Acceptance (Ijab and Qabul): Must be made at the same meeting; must be in the presence of two male witnesses (or one male + two female witnesses under Sunni law); must be unconditional and immediate.
- Free Consent: Marriage by coercion or fraud is irregular/void depending on the school.
- Dower (Mahr): Consideration moving from husband to wife. An essential element of Muslim marriage.
- No Prohibitions: The parties must not fall within the prohibited degrees of relationship (absolute prohibition) or other disabilities.
Prohibitions on Muslim Marriage
Absolute Prohibition (Void Marriage):
- Consanguinity — blood relations (mother, grandmother, sister, aunt, niece, etc.)
- Affinity — relations by marriage (wife’s mother/grandmother, wife’s daughter, etc.)
- Fosterage — persons related by foster-relationship (breast-fed by the same woman)
Relative Prohibition (Irregular/Fasid Marriage):
- Marriage with a fifth wife (while four are already living) — only under Sunni law (polygamy limited to four wives)
- Marriage during iddah of another woman
- Marriage with a non-Muslim woman (Shia: absolutely prohibited; Sunni: permitted with Jewish or Christian woman as kitabia)
- Marriage without proper witnesses
- Marrying one’s own divorced wife after triple talaq (if she has not remarried and divorced again — see Halala)
Classification of Muslim Marriages
| Type | Arabic Term | Description | Legal Effect |
|---|---|---|---|
| Valid | Sahih | All conditions fulfilled; no prohibition applies | Full legal rights — dower, maintenance, succession, children legitimate |
| Irregular | Fasid | Relative prohibition present (not absolute); defect curable | Marriage produces no rights until consummation; consummation regularizes it (Sunni). NOT recognized under Shia law (all defective marriages are either valid or void) |
| Void | Batil | Absolute prohibition applies; incurable defect | No rights at all; no legal relationship; children illegitimate |
Dower (Mahr)
Dower (Mahr) is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage. It is not a bride price — it is the wife’s right and exclusive property.
Types of Dower:
- Prompt Dower (Mu’ajjal): Payable on demand; wife can refuse cohabitation until paid; can sue for it at any time during marriage
- Deferred Dower (Mu’wajjal): Payable on death of husband or dissolution of marriage by death or divorce; generally larger amount
- Specified Dower: Amount expressly fixed in the marriage contract
- Proper Dower (Mahr-ul-Misil): If not specified, determined with reference to the dower of women of similar status in the bride’s family
Minimum Dower: Under Hanafi law, minimum dower is 10 dirhams. Under Shia law, no minimum; any amount is valid.
Held (Privy Council): Dower is an integral part of a Muslim marriage. However, a marriage is not invalid merely because dower is not fixed or paid. Where dower is not specified, the wife is entitled to “proper dower” (mahr-ul-misil). The wife’s right to dower is a debt against the husband’s estate and is payable from his estate on his death.
8. Unit VIII — Divorce under Muslim Law
8.1 Talaq — Forms and Law
Muslim law allows both spouses to dissolve the marriage by extra-judicial means (without court intervention).
By Husband:
- Talaq — Husband’s unilateral power to divorce wife by pronouncement
- Ila — Husband takes oath of abstinence for 4+ months; after 4 months, wife may sue for dissolution
- Zihar — Husband compares wife to a prohibited female relation; wife can sue for restitution or dissolution
By Wife:
- Talaq-e-Tafweez — Husband delegates his power of talaq to the wife; she can exercise it on specified conditions
- Lian — Where husband falsely charges wife with adultery; wife can sue for dissolution
By Mutual Agreement:
- Khula — Wife purchases divorce from husband by returning dower or other consideration
- Mubarat — Mutual release; both parties agree to dissolve the marriage
Forms of Talaq
- Talaq-e-Ahsan (Best/Approved Form): One pronouncement of talaq in a single tuhr (period of purity between menstrual cycles) followed by abstinence during the waiting period (iddah) of 3 tuhrs. Most approved form — husband can revoke during iddah. Divorce becomes irrevocable only after expiry of iddah without revocation.
- Talaq-e-Hasan (Good Form): Three successive pronouncements in three successive tuhrs. After the first two pronouncements, talaq can be revoked. After the third, divorce becomes irrevocable.
- Talaq-ul-Biddat (Triple Talaq/Bid’ah Form): Three pronouncements made at once in a single sitting. Historically held to be immediately irrevocable (under Hanafi school). HIGHLY DISAPPROVED. Declared unconstitutional in India in 2017.
8.2 Triple Talaq — Shayara Bano Case
Facts: Shayara Bano was given instant triple talaq (talaq-ul-biddat) by her husband through a letter. She challenged the constitutional validity of the practice of triple talaq (pronouncing talaq three times simultaneously) before the Supreme Court.
Constitutional Bench (5 judges):
Held (3:2 majority): Instant triple talaq (talaq-ul-biddat) is unconstitutional. The practice was struck down on the ground that it violates Article 14 (Right to Equality). The majority held that the practice is “manifestly arbitrary” — it permits a husband to dissolve a marriage capriciously and whimsically by an irrevocable, instantaneous pronouncement, without giving any opportunity to the wife.
Legislative Response: Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019 — making the pronouncement of instant triple talaq (in any form — spoken, written, or electronic) a cognizable and non-bailable offence punishable with imprisonment up to 3 years and fine. The wife can also claim maintenance and custody under the Act.
Principle: Talaq-ul-biddat (instant triple talaq) is unconstitutional as being manifestly arbitrary under Art.14. The 2019 Act makes it a criminal offence.
8.3 Khula, Mubarat, and Judicial Divorce
Khula: Divorce at the instance of the wife — she initiates by offering to return or forgo her dower (or other consideration) in exchange for the husband’s agreement to divorce. Husband’s acceptance is essential — it cannot be unilaterally imposed by the wife. Once agreed upon, it is irrevocable.
Mubarat: Mutual divorce by agreement of both parties. Proposal can come from either side. Acceptance completes the divorce. The wife forfeits her dower.
Under DMMA 1939, a Muslim woman can file for dissolution of marriage on any of the following grounds [S.2]:
- Husband’s whereabouts unknown for 4 years
- Husband has failed to maintain her for 2 years
- Husband imprisoned for 7+ years
- Husband has failed to perform marital obligations without reasonable cause for 3 years
- Husband was impotent at the time of marriage and remains so
- Husband has been insane for 2+ years or is suffering from leprosy or virulent venereal disease
- Wife repudiates the marriage contracted by guardian before 15 years of age (option of puberty) — provided marriage has not been consummated
- Cruelty by husband
- Any other ground recognized under Muslim law
Held: For a talaq to be valid and effective, it must be: (a) for a reasonable cause; (b) preceded by attempts at reconciliation; and (c) actually and genuinely pronounced (not merely stated as justification in a written pleading). A talaq pleaded for the first time as a defense in a court petition (not actually pronounced by the husband) is not a valid talaq.
Principle: Talaq must be actually pronounced; it must be intentional; it should be preceded by efforts at reconciliation. A talaq statement in a legal document that was not actually pronounced to the wife is not valid.
Held: A husband who seeks restitution of conjugal rights cannot succeed if the marriage itself has irretrievably broken down by his own fault. Further, a Muslim wife who is seeking maintenance cannot be compelled to return to the matrimonial home if she was justified in leaving due to the husband’s fault.
9. Unit IX — Maintenance under Muslim Law
A Muslim husband is bound to maintain his wife during the continuance of the marriage, even if the wife has her own means. Maintenance (Nafaqa) includes food, clothing, and lodging. Obligation ceases when the wife is disobedient (Nashizah) — i.e., willfully leaves the matrimonial home without just cause.
After dissolution of marriage, the husband must maintain the wife during the iddah period (3 months / 3 menstrual cycles / until delivery if pregnant).
Context: The Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed to reverse the Shah Bano decision (AIR 1985 SC 945) where the SC had held that Muslim divorced women were entitled to maintenance under S.125 CrPC even after iddah.
Issue: Whether the 1986 Act, which limited divorced Muslim women’s maintenance to the iddah period, violated Articles 14, 15, and 21 of the Constitution.
Held (Constitutional Bench): The 1986 Act is constitutionally valid, but it must be interpreted reasonably. The husband’s obligation under S.3(1)(a) of the 1986 Act — to make “provision” for the wife within the iddah period — must include reasonable provision for the ENTIRE future life of the divorced woman, not just the iddah period. The word “provision” means the husband must make adequate arrangement for the wife’s future maintenance and not merely provide for the iddah period. This interpretation saves the Act’s constitutionality by reading it consistently with Art.14, 15, and 21.
Principle: A Muslim divorced woman is entitled to reasonable and fair provision for her entire future life from her ex-husband. The payment/provision must be made within the iddah period but must be sufficient for the future — it is not limited to the iddah duration.
Held: Under S.125 CrPC, a Muslim divorced woman who has the custody of children is entitled to claim maintenance for herself as the mother under S.125(1)(b) in respect of the children. The children’s right to maintenance from the father under S.125 is not extinguished by the divorce of their parents.
10. 📝 Important Questions for Exam
A. Short Answer Questions (2–5 Marks)
- Who is a “Hindu” for the purpose of the Hindu Marriage Act, 1955? Does it apply to Scheduled Tribes?
- Distinguish between void and voidable marriages under HMA 1955.
- What are the conditions for a valid Hindu marriage under Section 5?
- What is “solemnization” of marriage? Why is it important for bigamy cases?
- What is “saptapadi”? When does a Hindu marriage become complete and binding?
- What are the grounds for voidable marriages under Section 12 HMA?
- What is “desertion” under Section 13(1)(ib) HMA? What are its essential elements?
- What is Mahr (Dower)? Distinguish prompt dower from deferred dower.
- What was decided in the Shayara Bano case? What is the current law on triple talaq?
- What are the grounds available to a Muslim woman to seek judicial divorce under DMMA 1939?
- What is the effect of Danial Latifi’s case on maintenance of Muslim divorced women?
- Who is the natural guardian of a Hindu minor? What was held in Githa Hariharan’s case?
- What are the conditions for a valid adoption under HAMA 1956?
- State the difference between Talaq-e-Ahsan and Talaq-ul-Biddat.
- What is the “option of puberty” (Khyar-ul-Bulugh) in Muslim law?
B. Long Answer Questions (10–15 Marks)
- Explain the nature of Hindu marriage — how has it evolved from sacrament to a partly contractual institution? Discuss the applicability of HMA under Section 2.
- What are void and voidable marriages under HMA 1955? Distinguish them with reference to Sections 11 and 12, and discuss their legal consequences including legitimacy of children.
- Discuss “cruelty” as a ground for divorce under Section 13(1)(ia) HMA. What is mental cruelty? Discuss with relevant cases.
- Explain the concept of “irretrievable breakdown of marriage.” What is India’s current legislative and judicial position? Discuss the role of Article 142 in divorce proceedings.
- Explain divorce by mutual consent under Section 13B HMA. Can the 6-month waiting period be waived? Discuss Amardeep Singh v. Harveen Kaur.
- Discuss the maintenance rights of a Hindu wife under HMA Sections 24 and 25 and under HAMA Section 18. How does Section 125 CrPC differ from civil maintenance?
- Write a critical note on child marriages in India — the position under HMA, PCMA 2006, and the constitutional issues involved. Discuss relevant case law.
- Describe Nikah (Muslim marriage) — its nature, essentials, and classification (valid, irregular, void). How does Muslim marriage differ from Hindu marriage?
- Discuss the law of maintenance of Muslim divorced women in India with reference to Shah Bano case, Muslim Women Act 1986, and Danial Latifi case.
- Write a detailed note on the rights of the father, mother, and third parties as guardians of Hindu minors under HMGA 1956. Discuss Githa Hariharan’s case.
C. Problem-Based Questions
- Problem: A Hindu man (Ramesh) was already married to Sunita. He converted to Islam and married Zainab. Sunita filed a complaint for bigamy. Ramesh argues his conversion terminated the first marriage. Decide.
Hint: Lily Thomas case — conversion does not dissolve a Hindu marriage. The first marriage continues until dissolved by court. Second marriage is void under S.11 and S.17 HMA. Ramesh is guilty of bigamy under S.494 IPC.
- Problem: Priya (16 years) and Arjun (22 years) were married against Priya’s wishes through enticement. After Priya attains 18 years, she wishes to avoid the marriage. Can she?
Hint: Under PCMA 2006 S.12(a), a child marriage where the minor was enticed away from lawful guardian is void. Priya can also seek annulment under S.3 PCMA within 2 years of attaining majority (i.e., before she turns 20). If she was enticed, marriage is void under S.12 — not merely voidable.
- Problem: X married Y without performing saptapadi or invocation before sacred fire. X’s first wife filed a complaint of bigamy. X argues there was no valid second marriage. Decide.
Hint: Bhaurao Shankar Lokhande — essential ceremonies (saptapadi + invocation before sacred fire) are required. If not performed, the marriage is not “solemnized.” If not solemnized, it is not void under S.17, and S.494 IPC cannot apply. However, if state-specific amendment (like TN S.7-A) provides alternative ceremony, check if that was complied with.
- Problem: Reena and Mohan, both employed, were married. Reena was posted in Delhi; Mohan in Mumbai. Each demanded the other move to their city. Neither budged. Mohan filed for RCR. Reena says she has reasonable excuse. Decide.
Hint: Apply Swaraj Garg v. K.M. Garg + Kailashwati v. Ayudhia Parkash. No absolute rule. Courts look at who earns more, who can sustain the family unit, whether there was prior agreement. If facts show Reena has better income and Mohan cannot maintain adequately — Reena may have reasonable excuse. If both earn equally, courts may direct compromise or find no reasonable excuse.
- Problem: A Muslim husband sent a WhatsApp message saying “Talaq Talaq Talaq” to his wife. She seeks your legal advice.
Hint: The Muslim Women (Protection of Rights on Marriage) Act 2019 makes instant triple talaq in any form — oral, written, or electronic — a cognizable and non-bailable offence punishable with up to 3 years’ imprisonment. The wife can file a criminal complaint AND claim maintenance and custody under the Act. The triple talaq is itself also void as per Shayara Bano.
D. MCQ Practice
- A Hindu marriage in violation of Section 5(v) (sapinda relationship) is:
✅ (b) Void ab initio under Section 11
- For the offence of bigamy under S.494 IPC r/w S.17 HMA, which of the following must be proved?
✅ (b) The second marriage was solemnized with proper ceremonies
- In Shayara Bano v. Union of India (2017), triple talaq (talaq-ul-biddat) was struck down as:
✅ (b) Unconstitutional under Article 14 (manifestly arbitrary)
- What was held in Danial Latifi v. Union of India regarding maintenance of divorced Muslim women?
✅ (c) The “provision” under S.3(1)(a) must cover the wife’s entire future
- The 6-month waiting period in Section 13B (Mutual Consent Divorce) is:
✅ (b) Directory and can be waived by the court in appropriate cases (Amardeep Singh)
- A Muslim marriage (Nikah) is primarily:
✅ (b) A civil contract
- In Seema v. Ashwani Kumar (2006), the Supreme Court:
✅ (b) Directed all States to make marriage registration compulsory through their rules
- Githa Hariharan v. Reserve Bank of India held that:
✅ (b) Mother can act as natural guardian when father is absent or unable to act
- Under HAMA 1956, the minimum age of child for valid adoption (ordinarily) is:
✅ (b) Below 15 years (unless custom permits adoption of older child)
- Prompt dower (Mu’ajjal) in Muslim marriage is:
✅ (b) Payable on demand; wife can refuse cohabitation until paid
⚡ Quick Revision Cheatsheet
1. Key Definitions
| Term | Section | Definition |
|---|---|---|
| Hindu [Applicability] | S.2, HMA | Any person who is Hindu/Buddhist/Jain/Sikh by religion or domiciled in India and not Muslim/Christian/Parsi/Jew |
| Saptapadi | S.7, HMA | Seven steps taken jointly before the sacred fire; marriage complete on 7th step |
| Void Marriage | S.11, HMA | Null and void from the beginning; contravention of S.5(i)(iv)(v) |
| Voidable Marriage | S.12, HMA | Valid until annulled by court; grounds: impotency, lunacy, fraud, pre-marital pregnancy |
| Desertion | S.13(1)(ib) | Abandonment of spouse without consent and without reasonable cause for 2+ years |
| Mutual Consent Divorce | S.13B, HMA | Joint petition by both parties; 1-yr separation + 6-month waiting period (waivable) |
| Mahr (Dower) | Muslim Law | Sum/property wife is entitled to receive from husband in consideration of marriage; her exclusive property |
| Talaq-e-Ahsan | Muslim Law | Best form of talaq — 1 pronouncement + iddah period; revocable during iddah |
| Talaq-ul-Biddat | Muslim Law | Triple talaq in one sitting; declared unconstitutional in Shayara Bano (2017) |
| Iddah | Muslim Law | Waiting period after dissolution of marriage (3 tuhrs/3 months; or till delivery if pregnant) |
| Khula | Muslim Law | Divorce at wife’s instance; wife pays consideration (returns dower) for husband’s agreement |
| Welfare Paramount | S.13, HMGA | In guardianship appointments, welfare of minor is paramount consideration |
2. Sections at a Glance — HMA
| Section | Subject | Key Rule |
|---|---|---|
| S.2 | Applicability | Applies to Hindus, Buddhists, Jains, Sikhs; excludes STs unless notified |
| S.3 | Definitions | Custom, usage, sapinda relationship, degree of prohibited relationship defined |
| S.5 | Conditions for valid marriage | 5 conditions: monogamy, mental capacity, age, no prohibited degrees, no sapinda |
| S.7 | Ceremonies | Marriage valid per customary rites of either party; saptapadi completes if part of ceremony |
| S.8 | Registration | Registration facilitates proof; omission does not affect validity |
| S.9 | Restitution of Conjugal Rights | Remedy where spouse withdraws without reasonable excuse |
| S.10 | Judicial Separation | Suspends duty to cohabit; marriage continues; grounds same as S.13 |
| S.11 | Void Marriages | Void if contravenes S.5(i)(iv)(v) |
| S.12 | Voidable Marriages | Impotency, lunacy, force/fraud, pre-marital pregnancy by another |
| S.13 | Divorce | Adultery, cruelty, desertion, conversion, unsoundness, etc. |
| S.13B | Mutual Consent Divorce | 1-yr separation; 6-month waiting period (waivable per Amardeep Singh) |
| S.24 | Pendente Lite Maintenance | Maintenance during pendency of petition; applies to both spouse |
| S.25 | Permanent Alimony | At time of decree or thereafter; terminates on remarriage/unchastity/death |
3. Landmark Cases — Quick Table
| Case | Year | Principle |
|---|---|---|
| Surajmani Stella Kujur | 2001 | HMA not applicable to STs without notification; custom cannot alone create criminal liability |
| Bhaurao Lokhande | 1965 | “Solemnized” = proper ceremonies in due form; essential ceremonies required for bigamy |
| Lily Thomas | 2000 | Conversion doesn’t dissolve HMA marriage; second marriage after conversion = bigamy |
| N.G. Dastane | 1975 | Mental cruelty recognized; standard of proof = civil (preponderance) |
| Samar Ghosh | 2007 | 18 illustrations of mental cruelty; irretrievable breakdown relevant consideration |
| Bipinchandra Shah | 1957 | Desertion = factum + animus; constructive desertion recognized |
| Amardeep Singh | 2017 | 6-month cooling period under S.13B is directory; courts can waive in genuine cases |
| Seema v. Ashwani Kumar | 2006 | States directed to make marriage registration compulsory |
| Githa Hariharan | 1999 | Mother can be natural guardian when father is absent/unavailable |
| Shayara Bano | 2017 | Triple talaq (talaq-ul-biddat) unconstitutional under Art.14 |
| Danial Latifi | 2001 | Divorced Muslim women entitled to reasonable provision for entire future, not just iddah |
| Badshah v. Urmila | 2014 | Second wife deceived by husband’s suppression of first marriage → entitled to maintenance |
4. Memory Aid — Five Conditions of Valid Hindu Marriage (MMASP)
- Monogamy — S.5(i): No living spouse
- Mental Capacity — S.5(ii): Not an idiot/lunatic
- Age — S.5(iii): Bridegroom 21+, Bride 18+
- Sapinda — S.5(v): Not sapindas (unless custom)
- Prohibited Degrees — S.5(iv): Not within prohibited relationship (unless custom)
5. Sources of Muslim Law Memory Aid (QSIJC)
- Quran — Primary; revealed word of God
- Sunna/Hadith — Prophet’s practices and sayings
- Ijma — Consensus of scholars
- JQiyas — Analogical deduction
- Custom — Local custom where not against Shariat