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HINDU FAMILY LAW : An Overview of the Laws Governing Hindu Marriage, Divorce, Ma

HINDU FAMILY LAW

An overview of the Laws governing Hindu Marriage, Divorce, Maintenance, Custody of Children, Adoption and Guardianship

Nayab Naseer

Shakespir Edition

Copyright 2017 Nayab Naseer

This ebook is licensed for your personal enjoyment only. This ebook may not be re-sold or given away to other people. If you would like to share this book with another person, please purchase an additional copy for each recipient. If you’re reading this book and did not purchase it, or if it was not purchased for you use only, then please return to your favorite ebook retailer and purchase your own copy. Thank you for respecting the hard work of this author.

TABLE OF CONTENTS

Introduction

Ancient Sources of Hindu Law

Modern Sources of Hindu Law

Customs

Who is a Hindu?

Essential Conditions of a Valid Hindu Marriage

Essential Ceremonies of a valid Hindu Marriage

Void and Voidable Marriages

Divorce in Hindu Law

Restitution of Conjugal Rights

Punishment for Matrimonial Offences

Guardianship

Maintenance of Wives, Children and Others

Adoption

Salient Features of Special Marriages Act

Family Courts

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Introduction

Traditional Hindu law is based on the guidelines and concepts elucidated in the Vedas. These guidelines evolved into rules laid down by sages, followed by the people, and enforced by the rulers, to become the de facto law of the land in ancient India. The aim of these laws is to establish dharma and through it attain moksha or salvation.

In modern times, the same laws have been retrofitted to suit present conditions and have been codified in the form of several acts, such as

•Hindu Marriage Act (HMA) 1955

•Hindu Adoption and Maintenance Act (HAMA) 1956

•Hindu Minority and Guardianship Act (HMG) 1956

Ancient Sources of Hindu Law

1..Sruti: Sruti means “what is heard”. These books are considered to be the very words of the deity. Both the language, and the rules contained therein are considered divine. It includes

-The four vedas – Rig Veda, Sama Veda, Yajur Veda and Atharva Veda

-The six vedangas (appendages to Vedas)

-Eighteen Upanishadas or Vedantas, which are concluding portions of the Vedas . There were around 1180 upanishads originally.

2. Smriti: ‘Smriti’ means “which was remembered.” It is considered to be the words of the deity, expounded by sages. The rules are divine, but the language is of human origin.

Dharmasutras: Dharmasutras, written during 800 to 200 BC, are legal decisions given by those acquainted with Vedas and local customs. These works were meant to be training manuals of sages for teaching students, and explain the duties of men in various capacities.

The following are the major authors, who wrote dharmasutras

i.Gautama: He belonged to Sam veda school and deals exclusively with legal and religious matters. He talks about inheritance, partition, and stridhan.

ii.Baudhayan: He belonged to the Krishna Yajurved school and talks about marriage, kinship, and inheritance. He refers to various specific customs such as marriage to maternal uncle’s daughter.

iii.Apastamba: His sutra is most preserved, and known for his clear and forceful language. He rejected prajapatya marriage (bride’s father goes in search of groom).

iv.Vashistha: He was from North India and followed the Rigveda school. He recognized remarriage of virgin widows.

Dharmashastras: Dharmasutras were metric verses based of Dharmasutras. These works are more systematic and clear than dharmasatras. The following are the most popular dharmasastras

i.Manusmriti: Composed in 200 BC, this is the earliest and most important of Smrithis. It aggregates the laws scattered in pre-smriti sutras and gathas, and defined the way of life in ancient India. He considers king as divine, but holds local customs to be most important, and directs king to obey the customs. He gives importance to the principle of ‘danda’ which forces everybody to follow the law. However, Manusmrithi was a Brahmin protagonist and particularly harsh on women and sudras.

ii.Yajnavalkya Smriti: Composed in around 0 BC, it is noted for its direct and clear language. It is more logical than Manusmrithi. He also gives a lot of importance to customs but hold the king to be below the law. He considers law to be the king of kings and the king to be only an enforcer of the law. He did not deal much with religion and morality but mostly with civil law. It includes most of the points given in Manusmriti but differs on many points such as position of women and sudras. He was more liberal than Manu.

iii.Narada Smriti: Narada was from Nepal and this smriti, composed in 200 AD, is well preserved. This is the only smriti that does not deal with religion and morality at all but concentrates only on civil law. This is very logical and precise. In general, it is based on Manusmriti and Yajnavalkya smriti but differ on many points due to changes in social structure. He also gives a lot of importance to customs.

3. Nibandanas (Digests and Commentaries): The Smritis did not agree with one another in all respects, and this conflict led to several interpretations, or Nibandhas, by various commentators. The commentators did not merely interpret the Smriti, but they also recounted the prevalent customs and usages. These texts gathered the scattered material available in preceding texts and present a unified view for the benefit of the society. Thus, digests were very logical and to the point in their approach.

Various digests have been composed from 700 to 1700 CE. The most popular ones are:

(i) Commentaries on Manusmriti: Kalluka’s Manavarthmuktavali, Meghthithi’s Manubhashya, and Govindraja’s Manutika.

(ii) -Vijnaneshwar’s commentary ‘Mitakshara’ on Yajnavalkya Smriti is the most important legal treatise followed almost everywhere in India except in West Bengal and Orissa. It was compiled in 11th Century.

(iii) The Dayabhaga prepared by Jimutvahana in the 12th Century, holds supreme authority in Bengal. The doctrine of factum valet ‘quod fieri non debuit’ (=“what should not be done, yet being done, shall be valid”) was first enunciated by the author of the ‘Dayabhaga’. Mitakshara and Dayabhaga are still the legal basis of Hindu law on areas where there are no legal enactments.

4..Custom & Usages: Custom is habitual course of conduct generally observed in a community. It is a set of rule of practices, which, as a result of very long usages, has obtained the force of law in a particular community or in a particular area. In Hindu law, customs modifies and supplements the written law.

5. Puranas: The puranas, eighteen in number, are codes that illustrate law by instances of applications. However, these texts are not considered authoritative, and are overridden by the Smritis.

Modern Sources of Hindu Law

1. .Legislation: Acts of Parliament which replaced customary Hindu law, such as Dayabagha and Mitakshara, in vogue before independence. The legislations modify and supplement ancient texts, in certain respect. The most important statutes are The Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, and The Hindu Minority and Guardianship Act, 1956.

2. Precedent: Judicial decisions, to some extent, have become a source of Hindu law. Decisions of the Privy Council and of high courts are binding on the subordinate courts. The doctrine of stare decisis started in India from the British rule. All cases are now recorded and new cases are decided based on existing case laws. Today, the judgment of SC is binding on all courts across India and the judgment of HC is binding on all courts in that state.

3.Justice, equity and good conscience: In a situation where no rule is given, the consensus is that a sense of ‘reasonableness’ must prevail. Equity means fairness in dealing. According to Gautama, in such situation, the decision should be given that is acceptable to at least ten people who are knowledgeable in shastras. Yagyavalkya has said that where ever there are conflicting rules, the decision must be based on ‘Nyaya’. This has been adopted in modern times as well.

Custom

Custom is the habitual course of conduct generally observed in a community. Most of the Hindu law is based on customs and practices followed by the people all across the country. Even smritis hold customs as transcendent law and have advised the Kings to give decisions based on customs after due religious consideration.

There are four kinds of customs:

1.Family Customs, prevalent to particular families. Eg: it is custom in certain families that property should remain impartable to be held by one man at a time.

Soorendranath vs Heeramonie and Bikal vs Manjura: Privy Council observed customs followed by a family have long been recognized as Hindu law.

2.Class or caste custom, prevalent in particular castes or classes, and binding on members of the caste/community. Eg: thread ceremony of the Brahmins, Custom to marry brother’s widow among the Jats

3.Local or territorial customs: prevalent in a particular locality or territory. Many such customs, relating to marriage, inheritance, adoption, and maintenance, are found all over the country.

Subbane vs Nawab: Privy Council observed that a custom gets it force due to the fact that due to its observation for a long time in a locality, it has obtained the force of law.

4.Guild Customs, or customs followed by traders.

Essential attributes of a valid / sustainable custom

1.ANCIENT: Custom should have been in existence for a long period of time, and cannot come in existence through an agreement Though there is no definition of ancientness, 40 years is deemed to be ancient enough.

Rajothi vs Selliah: a Self Respecter’s Cult started a movement under which traditional ceremonies were substituted with simple ceremonies for marriage that did not involve Shastric rites. HC held that in modern times, no one is free to create a law or custom, since that is a function of legislature.

2.CONTINUOUS: Custom must have been continued or been observed without interruption. Once abandoned, it cannot be revived. Eg: Sati.

3.REASONABILITY: Custom should be reasonable and fair. What constitutes reasonable and fairness varies over time. Eg: Devadasi system where young girls are prostituted is unreasonable and unfair now, but was an accepted norm not too long ago.

Baluswamy Reddiar v Balakrishna (1957): Custom prevalent among Reddiars of Tirunelveli of marrying daughter’s daughter struck down as unreasonable and opposed to public policy.

4.CERTAINITY: Custom must be definite and clear-cut in respect of its nature, the locality, and people whom it affects. Any vagueness that creates confusion will render the custom invalid.

5.UNIFORMITY: Custom should be uniform and obligatory on all members of the community.

6.MORAL: Custom must not he immoral or opposed to public policy. This again is relative to time. Eg: a custom to marry one’s granddaughter has been held invalid.

Chitty vs. Chitty (1894), 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.

Gopikrishna vs. Mst Jagoo (1936) a custom that dissolves the marriage and permits a wife to remarry upon abandonment and desertion of husband was held to be not immoral.

Mathur vs Esa: a custom among dancing women permitting them to adopt one or more girls was held to be void because it was against public policy.

7.CONFORMITY WITH STATUE: Custom cannot derogate from any Statute unless the statute saves any such custom, or generally makes exception in favour of rules of custom.

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Proof of Custom

The burden of proving a custom is on the person who alleges it. Usually, customs are proved by instances.

Prakash vs Parmeshwari: One instance does not prove a custom.

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Usage v/s Custom

A usage is a repetition of acts whereas custom is the law or general rule that arises from such repetition. A usage may exist without a custom, but a custom cannot arise without a usage accompanying it or preceding it.

Will clear proof of usage outweigh written text?

Yes. Legislation > Custom > Written texts

Custom overrides written text such as Smrithis, but legislation overrules customs. Customs will prevail where there is no legislation.

Collector of Madura v. Moottoo Ramalinga: A well-established custom overrides written texts such as Smrithis. The Judicial Committee of the Privy Council observed: “Under the Hindu system of law, clear proof of usage will outweigh the written text of the law”.

Padala Latchamma vs Mutchi Appalaswamy (1960): Petitioner was given a gold kunti and some silver ornaments at time of marriage. The husband died and the widow re-married. The father of the first husband filed a suit claiming the gold kunti and silver ornaments back, on the basis that according to the local custom, a widow who remarries returns the jewels to the heirs of the dead husband. However, Sn 14 of the Hindu Succession Act, 1956 gives absolute rights to the widow in the property in her hands. Petitioner claimed any custom to the contrary cannot prevail against the express provisions of the statute.

Palla Sanyasi v Kayitha Guruvilu: Gifts made to a widow at the time of her first marriage are not absolute gifts, and are subject to the customary incidents attaching to such a gift. As such, Sn 5 of the Hindu Widows’ Re-marriage Act would not affect the operation of the customary rule with reference to such gifts and they can be recovered by the husband’s family on the widow’s re-marriage. This ruling however is exception to the general ruling as established in Padala Latchamma case.

Who is a Hindu?

Who is a Hindu as per Hindu Marriage Act (HMA), 1955?

Section 2 of HMA defines who is a Hindu

•Hindu by Religion – A person who is Hindu, Jain, Buddha, or Sikh by religion.

•Converts and Reconverts to Hinduism (including Buddhists, Jains, Sikhs). A non-Hindu will become a Hindu by

oExpressing a bona fide intention to become Hindu, accompanied by conduct

oconversion by undergoing a formal ceremony of conversion or reconversion prescribed by the caste or community to which he/she converts or reconverts

•Hindu by Birth – A person who is born of Hindu parents.

If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu.

•Persons who are not Muslim, Christian, Jew, or Parsee by religion. Persons who are not governed by any other religious law will be governed by Hindu Law.

HMA does not apply to:

•Those who renounced Hindu religion

•Persons descended from Hindu ancestors and on account of marriage and converted into new community

•Children, whose either parents though a Hindu, are not brought up as Hindus.

•If one or both parents convert to another religion, child will continue to be a Hindu, unless child is also expressly converted

•Scheduled Tribes, unless the government includes them by notification (if no notification, they are governed by their traditional customs)

Case Laws:

Chandrasekhar v. Kulandaivel: A Hindu, Jain, Buddhist or Sikh by religion is a Hindu if he practises, professes or follows any of these religions and REMAINS a Hindu even if he does not practice, profess or follow the tenets of any one of these religions.

Maneka Gandhi v. Indira Gandhi (1984): Sanjay Gandhi was a Hindu because: (i): his mother was a Hindu; (ii) he was openly brought up as a Hindu.

Durga Prasad Rao vs. Sridhar Sanaswamy: Mere theological allegiance or bare declaration is not sufficient.

Mohandas vs. Devaswom Board: (1975) One becomes a Hindu by (i) bonafide intention, (ii) conduct unequivocally expressing that intention (iii) acceptance by members of that society. Jesudas, the famous play back singer, a catholic Christian by birth, filed a declaration stating that he was the follower of Hindu faith. It has been held that such a bonafide declaration amounts to his acceptance of Hindu faith and becomes a Hindu by conversion.

Ramesh Kumar vs. Kannapuram Grama Panchayat ( 1998): Even though Buddhist is considered as Hindu for HMA, Japanese Buddhist girl is not a Hindu as she is not “domiciled” in India. (Domicile= permanent residence).

Peerumal v Poonuswami (1971), SC holds a person can be a Hindu if after expressing the intention of becoming a Hindu, follows the customs of the caste, tribe, or community, and the community accepts him.

Sapna vs State of Kerala: the son of Hindu father and Christian mother was held to be a Christian.

Shastri v Muldas (1961), SC held various sub sects of Hindus such as Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they follow the same basic concept of Hindu Philosophy.

ESSENTIAL CONDITIONS OF VALID HINDU MARRIAGE

Marriage in traditional Hindu law is regarded as a permanent and eternal union. Before the enactment of Hindu Marriage Act, 1955, Hindu marriages were governed by dharma sastras and customs. The raison d’etre for marriages in Hinduism is as follows:

1 Marriage is a “samskar” or sacrament, to purify the body from inherited taint

2 Only married men can perform “yagnas” or sacrifices

3. Hindu texts recount the son (Putra) rescuing father from hell (put). Obviously there will be no son without marriage.

4. The pleasures of sexual intercourse is recognized in Hindu religion, and marriage is a legitimate way to attain it.

Section 5. of HMA lists essential conditions for a valid marriage

1. HINDU: Both parties to the marriage should be Hindus. Before the enactment of HMA, both parties to the marriage had to be from the same caste.

2. LIVNG SPOUSE: HMA recognizes only monogamous marriages. Either parties should not have a living spouse (husband or wife), at time of marriage.

3. FREE CONSENT: Either parties shall be capable of giving valid consent. They shall not be of

- UNSOUND MIND: Suffering from unsound mind which renders them incapable of matrimonial duties

-MENTAL: Suffering from mental disorder

-EPILIPSY: Subject to recurrent attacks of insanity / epilepsy

4. AGE: The male shall be minimum 21 years, and female minimum 18 years, at time of marriage

5. PROHIBITED RELATIONSHIP: The partners shall not fall under degrees of prohibited relationship (except when such union is allowed by custom or usage)

6.SAPINDA: Pinda = particle in body. 5M/3F prohibited. Sapinda marriages are prohibited except when such union is allowed by custom or usage.

7.TRADITION: Marriage shall be solemnised according to customary tradition and rituals.(Sn 7 of HMA)

Section 8 of HMA makes registration of marriage recommended, but not compulsory

PROHIBITED RELATRIONSHIPS Sn 3(g)

Sn 3g of HMA lists out the prohibited relationships for marriage

LINEAL ASCENT: If one is a lineal ascendant of the other.

AFFINITY: If one is the husband or wife of the lineal ascendants or descendants of the other. Eg: father-in-law and daughter-in-law, mother-in-law and son-in-law, step mother and step son or step father and step daughter

WIFE of certain brother relations: such as brother’s wife, mother’s brother, father’s father’s brother, pre-deceased brother

CLOSE RELATIONS: such as brother and sister, niece and uncle, nephew and aunt, children of brother and a sister, children of two brothers, children of two sisters.

ADOPTED SISTER

Sn 11 makes such marriages void and also punishable under section 18(b) of HMA. However, such marriage remains valid if local customs allow such practice, subject to validity of such customs. Eg: Marriage between a person and his eldest sister’s daughter is common in many parts of Tamil Nadu.

SAPINDA RELATIONSHIP Sn -3(f)(ii)

According to Mitaksharas, ‘Pinda’ means particle of body. A man is prohibited from marrying a girl who has the same “pinda” in her body.

Those related by body or blood or consanguinity are considered to have the same pinda in their body.

HMA limits the extent of Sapinda relationship to five degrees in line of ascent through the father and three degrees in the line of ascent through the mother. (each party to marriage is considered as the first generation)

Case Laws:

Rampyari v/s Dharamdas (1984): marriage conducted when existing husband or wife is alive is void

Tarlochan Singh v. Jit Kaur (1985): marriage void since wife suffering from schizophrenia within short period after marriage and the disease was not disclosed to the husband before marriage.

Kangawai v/s Saroj (2002): Court recommended making marriage registration necessary.

Perumal vs. Ponnuswamy Nadar (1971). Christian married Hindu. Acceptance of marriage in Hindu form is itself a form of conversion

ESSENTIAL CEREMONIES OF A HINDU MARRIAGE

Has legislation changed sacraments of Hindu marriage?

The basis of legislation is ancient texts such as Smrithis. Legislation only codifies what is already prevalent, standardizing them to prevent confusion and injustice. However, when legislations conflict with customs, legislations override custom.

Under the old law, before passing of HMA, a marriage was duly solemnised only when the nuptial ceremonies essential to the validity of a marriage were performed. The nuptial ceremonies essential to the validity of a marriage were:

1. invocation before the sacred fire

2. Saptapadi: taking of seven steps by the bridegroom and bride jointly before the sacred fire.

The fire lit at the time of marriage with the enchanting of Vedic mantras becomes sacred and parties to marriage must take seven steps around such fire. Marriage becomes complete and irrevocable on the completion of the seventh round.

These ceremonies were essential whatever the form of marriage.

HMA retains the provision relating to performance of ceremonies for a lawful marriage. Section 7(1) of HMA provides that a Hindu marriage must be solemnised in accordance with customary rites and ceremonies of either party thereto.

HMA

•does not prescribe any particular form of ceremonies for solemnisation of the marriage, and leaves the parties to choose any form of marriage.

•The presence of a priest is not essential. Parties can enter into a marriage in the presence of relatives or friends or other persons.

•When Saptapadi is the traditional custom, it is mandatory as per HMA also. When it is proved that Saptapadi is not part of the customary rites, it need not be performed. Any ceremonies, such as garlanding each other, putting a ring on any finger of the other, tying a thali, bridegroom presenting a pair of clothes to the bridge, etc would be sufficient to complete a valid marriage

The Hindu Marriage Act has removed the impediments based on religion, caste and sects with the result, the Hindus, Sikhs, Buddhists, Jains, Lingayats and others can intermarry.

Case Laws:

Bliaurao Slmnker Lokhande v. State of Maharashtra: SC states the word “solemnised” means marriage celebrated with proper ceremonies and in due form. Unless marriage is celebrated and performed with proper ceremonies and in due form, it cannot be said to have been solemnised.

In a 2001 case in Madras HC, wife accused husband of bigamy as he took a second wife. Husband countered saying first marriage was void as there was no saptapati. Court held since saptapati was not as essential requirement in the custom of either party, first marriage holds, and husband was convicted of bigamy.

Dr. Surajmani Stella Kajnr v. Ditrg Charan Hansdali: Parties to the petition are two tribals, who otherwise profess Hinduism, but since their marriage is outside purview of Sn 2(2) of HMA, they would be governed only by their customs and usages applicable to their tribe

Sujeet Kaur v/s Garja Singh (1994) Saptpadi to be performed compulsory, when required by custom.

Nilabba Somnath Tarapur v/s Divisional Controller KSRTC Bijapur (2002) When saptpadi is not necessary according to tradition and rituals, marriage solemnised without Saptpadi shall be valid.

Bibba v Ramkali (1982) Merely going through ceremonies not prescribed by law wqould not make a marriage valid.

Orrisa HC: Law presumes marriage has been performed as per religious rites and ceremonies. Only when married status is disputed, it would be required of the party relying upon that marriage to prove the said marriage had been performed as required by the customary law governing the parties thereto.

The doctrine of factum valet does not apply where two persons live as husband and wife without having performed religious ceremonies and rites.

VOID AND VOIDABLE MARRIAGES

Difference between void and voidable marriage

VOID MARRIAGES (Sn 11 of HMA)

Sn 11 of HMA prescribes void marriages, when conditions listed in Sn 5 are fulfilled

A marriage becomes VOID AB INITIO (void from beginning) whenSSP

•SPOUSE: There is living husband or wife for either party to the marriage – sn 5(i)

•SAPNIDA: When parties fall within Sapinda relation – Sn 5(v)

•PROHIBITED RELATIONSHIPS: When parties fall within degrees of prohibited relationship. – Sn 5(iv)

A void marriage is since inception, and as such no legal rights and duties flow from it. If one of the party marries again, he or she is NOT guilty of bigamy, and the validity of later marriage is not affected because of the first so called marriage.

R K Achariya v Tripathy (2014) : Wife filed petition for annualment of marriage as husband had a living wife at time of marriage, which he kept concealed. Court declared marriage as null and void.

VOIDABLE MARRIAGES (Sn 12 of HMA)

VOIDABLE marriage = which can be annulled at the option of one or both the parties.FUPI

A marriage becomes VOIDABLE (Sn 12 of HMA) on the following grounds:

•FRAUD: Consent obtained by fraud or force.

•UNSOUND MIND: Incapacity to consent or suffering from a mental disorder.

•PREGANCY: Concealment of pre-marriage pregnancy

•IMPOTENCY: Inability to consummate owing to impotency.

Marriage of minors is valid. It is voidable at the insistence of contracting party who was a minor at time of marriage. Minor girl given in marriage below 15 years can repudiate the marriage and file for divorce under Sn 13 of HMA, before she reaches 18 years.

FRAUD or FORCE

Consent obtained by force or fraud [Section 12(1)(c)] is void ipso jure, and either rparty can file a petition to nullify the marriage.

Force is the person entertaining marriage owing to some natural weakness of mind or on account of some fear, which is impossible to resist, reasonably or unreasonably.

HMA does not define “force.” Courts interpret force as all cases relating to:

•Compulsion, coercion or duress.

•Abduction, terror, coercion

•threat to commit suicide, as forceful marriages.

However, mere pressure or strong advice will not amount to force.

Fraud = any misrepresentation or of any material fact or circumstance concerning the respondent (eg false representation, concealment)

The petitioner must show but for such misrepresentation he or she would not have married the respondent.

Some important grounds of fraud:

•Nature of ceremony

•Identity of the party

•Concealment of financial status

•Concealment of nature of employment

•Concealment of age•Concealment of disease

•Concealment of religion or caste,

•Concealment of previous marriage,

•Concealment of unchastity,

•Concealment of illegitimacy,

A petition for nullity must be filed within one year of the discovery of fraud or cessation of force.

UNSOUND MIND

Sn 5(ii)(a) makes it essential for the parties to marriage being capable of giving valid consent. If parties to marriage are suffering from some mental disorder that make them unfit for marriage and/or procreation of children, marriage is voidable at the option of the other party.

•Alka Sharma v Chandra Sharma (1991): First night was cold and wife did not co-operate in having sex. Later she was unable to handle domestic appliances properly, and urinated in the verandah, in presence of family members. Husband filed decree for nullifying marriage, and the4 court granted a decree nullifying the marriage, on grounds of wife suffering from mental disorder or unsound mind.

PREGANCY

Pre-marriage Pregnancy [Section 12(1)(d)]

Marriage is voidable if:

1.The respondent was pregnant at the time of marriage.

2.The pregnancy was effected by someone else other than the would-be husband.

3.The petitioner-husband was ignorant of this fact at the time of marriage.

4.Petitioner-husband and wife has refrained from marital intercourse since such discovery.

5.The proceeding for annualing the marriage is filed within one year of the marriage.

Onus of proof lies on the petitioner husband to prove this wife’s admission of pre-marriage pregnancy

Nishit v. Anjali (1967): Bride gave birth to a mature child within 167 days from the date of marriage, which was regarded as proof to void the marriage.

IMPOTENCY

Impotency is inability to consummate the marriage.

What counts as impotency?

It requires full and complete penetration of penis into vagina. Partial straight penetration, oral sex, anal sex or other sexual acts is still impotency.

Unduly large male organ or abnormally small vagina is constructed as physical impotency

Absence of uterus is not impotency, but lack of proper vagina is deemed impotency.

Emotional, psychological or moral repugnance or aversion to the sexual act is mental or psychological impotency.

Incapacity to conceive a child or sterility is NOT impotency.

The degree of sexual satisfaction obtained by the parties is irrelevant in determining impotency.

If impotency can be cured by medical treatment or surgery, it would not amount to impotency, unless the respondent refuses to undergo treatment.

Consummation may be proved by medical evidence.

Case Laws:

Shantabai v. Tara Chand (1965): Wife alleged to have an absolute repugnance towards sexual intercourse although she had normal sexual organs. Court held it amounts to impotency.

Shewanti v. Bhaura (1971), wife was sterile but capable of having sexual intercourse. Court held she was not impotent.

Nijhawan v. Nijhawan(1973): Court made a liberal interpretation of the word ‘impotence.’ Wife felt depressed and frustrated owing to the failure of husband to perform full and complete sexual intercourse. The court considered the husband’s impotency to be a cause of mental and physical cruelty to the wife.

Rajendra Prasad v. Shanti (1977): The size of wife’s vagina was after surgical operation was one and half inch. Petitioner claimed it was not for intercourse, but the court said that wife was not impotent.

Monnia Khosla v Amar Deep Khosla (1968): Discharge of semen inside wife’s body is not a necessary condition of consummation.

Doctrine of Factum Valet

If age condition is violated, the act is punishable, but such marriage shall neither be void nor voidable.

Factum Valet (quod fieri non debuit): Certain prohibited things should not be done, but if done, they become valid. It applies only to relative prohibitions, and not to absolute prohibitions. Eg: if a 15 yr girl and 20 yr boy marry, it is invalid. But If marries and have children, it becomes valid.

Venkata Ramana vs. State 1977 – Marriage between 9 year old girl and 13 year old boy. Later had children also. Husband married again. Defence that earlier marriage was void ab initio. Court held the earlier marriage was neither void nor voidable applying factum valet. Husband was found guilty of bigamy.

Legitimacy of Children

Children of void or voidable marriage are considered legitimate and have inheritance rights from parents (but not from other relations). – Sn 16

•Rameshwari Devi v. State of Bihar (2000): SC observed marriage of parties may, because of in contravention of Sn 5(1) of HMA be void, but under Sn 16, children of void marriage are legitimate for the purpose of succession to property of father.

DIVORCE UNDER HINDU LAW

Section 13 of the Hindu Marriage Act, 1955 has introduced a revolutionary amendment to the shastric Hindu law. It provides for the dissolution of marriage. Under the Hindu law, divorce does not take place unless it has been granted by a court. Before passing of the Marriage Laws (Amendment) Act, 1976, the grounds for judicial separation and divorce were different. The Marriage Laws (Amendment) Act, 1976 makes the grounds of divorce and judicial separation common. An aggrieved party may sue for divorce (Sn 13) or judicial separation (Sn 10) of HMA.

Grounds of Divorce

Sn 13(1) of The HMA lists the following grounds on which the marriage may be dissolved

1.INFEDILITY: spouse had voluntary sex with a third person before marriage.

2.ADULTERY: Spouse living in adultery. Initially a divorce could be granted only if the spouse was living in adultery. The Marriage Laws Amendment Act, 1976 considers even the single act of adultery enough for the decree of divorce.

Swapna Ghose v. Sadanand Ghose: Wife found her husband and the adulteress lying in the same bed at night and further evidence of the neighbors that the husband was living with the adulteress as husband and wife. The offence of adultery may be proved by circumstantial evidence and contracting venereal disease also.

Hirachand Srinivas Managaonkar vs. Sunanda (2001): Husband leading adulterous life – wife obtained judicial separation – after one year, husband filed divorce petition stating no cohabitation for one year – court applied S 23(1) and denied decree stating that husband was leading adulterous life and cannot be allowed to take advantage of his own wrong doing.

3.CRUELTY: spouse treats other with cruelty. Pattern of behavior that cause reasonable fear of harm to the other party can be constructed as cruely. Cruelty includes both physical injury and mental agony.

Suseela v Mohan Das (1975): Reasonable apprehension is enough to grant divorce under grounds of cruelty. It is not necessary to prove injury to health, life or limb.

Somashekaran Nair v Thanmkamma (1987): False allegation about the character of husband and family by wife also amounts to cruelty

Sobha Rani v Muthukar Reddy (1988): Cruelly need not be intentional. Unintentional cruelty, in course of one’s conduct, is also grounds for divorce.

Gangadharan v Thankam (1988): mental cruelty in form of verbal abuse, insults, use of filthy language is ground of cruelty, but a solitary instance of such behavior cannot be constructed as cruelty. Such acts should cause constant disturbance of mental peace.

Rajani v Subaramaniam (1989): Mere demand of dowry is sufficient grounds of cruelty.

Neelu Kohli vs. Naveen Kohli( 2004): Intention to be cruel is essential for petition for divorce on ground of cruelty.

4.DESERTION: for a continuous period of not less than two years. Both physical separation and animus deserendi (intention to end cohabitation), must be proved to establish desertion.

Narayanan v Sreedevi (1989): For desertion to apply, there should be withdrawal from cohabitation, with the intention to end cohabitation permanently.

Savithri Pandey v Prem Chander Pandey (2002): Desertion requires total repudiation of the obligation of marriage. Abandoing the spouse in a state of temporary fit of anger or disgust will not amount to desertion.

Bipin Chander vs. Prabhavathi (1957): Court held four essential conditions for divorce on ground of desertion.

From Deserting spouse – (i) Factus of Separation (ii) intention to end cohabitation permanently

From Deserted spouse (iii) absence of consent (iv) absence conduct causing desertion.

The burden of proof of all four conditions is on the deserted spouse.

5.DISAPPERANACE: If the spouse has a “civil death,” i.e. not heard of or seen for seven years

6.MENTAL INSANITY: Unsound mind – Mental and physical illness

Lissy v Jaison (2000): Unsound mind is when scope for normal married life is impossible and there is no scope for improvement in future.

7.LEPROSY: of the virulent and incurable form, for a period of not less than three years immediately preceding the presentation of Swarajya Lakshmi vs. Dr. Padma Rao – Only malignant and contagious forms of leprosy can form ground for desertion.

8.VD: If the respondent is suffering from communicable venereal disease

9.RENOUNCEMENT: If respondent has renounced the world by becoming a sanyasi and entering any religious order.

10.If the respondent has ceased to be a Hindu.

Sarla Mungtal v Union of India (1995): Marriage solemnized under HMA cannot be dissolved except under provisions of Sn 132 of the same act. When husband converts to Islam or any other religion, first marriage under HMA is still valid, and any second marriage of husband is void.

Gul Mohd vs. Emperor( 1947): Hindu wife kidnapped and forced to marry a Muslim after converting to Islam – court held earlier marriage of wife is not dissolved, man liable for adultery.

A Wife can seek divorce on the following additional grounds, as per Sn 13(2) of HMA:

1.BIGAMY: If any other wife of the husband is/was alive at the time of solemnization of marriage.

2.RAPE/SODOMY: The husband, after marriage, has been guilty of rape, sodomy or bestiality.

3.UNDER-AGE: If wife was below fifteen years of age when marriage was solemnized, she can repudiate the marriage and file for divorce before attaining the age of eighteen years.

No restitution of conjugal rights for a period of two year or more after decree for restitution of conjugal rights is also reason to file for divorce

Sn 29 of HMA recognizes divorce under customary law. Such custom and usage should have been continuously observed for a long time, having obtained the force of law among Hindus in any local area, Tribe, Community, groups or family.

Although irretrievable breakdown of marriage is not a ground under HMA, SC (but not HC) can pass a special order dissolving the marriage under these grounds, as per Sn 142 of the constitution.

The 1976 Amendment to Marriage Act

1. Makes even a single instance of adultery as grounds for divorce

2. Gives ground for divorce to the wife when the marriage was solemnized before she attained the age of fifteen years, and she has repudiated the marriage, but before the age of eighteen. Such repudiation may be express (written or spoken words) or may be implied from the conduct of the wife (left husband & refused to come back).

3. Divorce by Mutual Consent (Sn 13-B). A couple can be granted a divorce if, they end the marriage by presenting a joint petition stating that they have been living separately for at least a year and have mutually agreed to dissolve the marriage. The court then requires them to have a six-month cooling-off period before the family court disposes the final petition.

•PB Prasad v Deepthi (1999), court waived the mandatory cooling period of six months, if there is no chance of rapprochement.

•Suretha Devi v Om Prakash (1991): HC disallowed wife to withdraw petition of mutual divorce, but SC allows it, since wife was induced to file petition by force.

4. Makes the condition for judicial separat5ion and divorce uniform

CONDITIONS FOR DIVORCE

Sn 13 B of HMA and Sn 28 of the Special Marriage Act, 1954 require the couple to be living separately for at least one year before divorce proceedings can begin.

Section 10A of Divorce Act, 1869 requires the couple to be separated for at least two years.

Living separately does not necessarily mean living in different locations; the couple only needs to provide that they have not been living as husband and wife during this time period. (Saju Nair v Bindu, 2000).

On the application of either party under the above grounds, court can award judicial separation (Sn 10). If co-habitation not resumed for one year since passing of decree/order, either party can seek divorce.

During judicial separation, married status remains intact. Both parties cannot re-marry, and all rights for property etc stand.

Voluntary mutual sex during this time is OK, but forceful sexual relation during this time is deemed rape.

HMA allows filing a petition for divorce only after one year of the marriage, except in case of exceptional hardship to the petitioner, on discretion of the judge

Petition for divorce is to be filed before the District Court

•Where the marriage was solemnized

•Where respondent resides

•Where the parties to the marriage last resided together

•In case the wife is the petitioner, where she is residing on the date of presentation of petition.

Custody of Children after Divorce

S.4(b) of HMG defines minor as someone

•Below eighteen years of age

•Physically and intellectually imperfect and immature, and hence requiring someone’s protection.

“Minor Children” for the purpose of HMA means

•children born of the marriage

•born to the party prior to marriage

•born of the marriage which has been declared null and void

•born of the marriage dissolved by a decree of divorce.

•children adopted by both the parties.

It does not include

•children adopted by a wife prior of her marriage

•children belonging to one of the parties prior to the marriage

Section 26 of HMA and Section 38 of the Special Marriages Act empowers the court to pass interim orders and make provisions in the decree regarding custody, maintenance and education of minor children.

A provision or order may be made by the court for the custody, maintenance and education of minor children

•before passing of a decree

•in the decree itself

•even if a decree has been passed.

Such decree may be consistent with the wishes of the children, as far as possible

The court may revoke, suspend or make changes to such orders as required

Any application for maintenance and education of minor children shall be disposed within sixty days from the date of service of notice on the respondent, as far as possible

In general, courts tend to award PHYSICAL child custody to the parent

•who demonstrates the most financial security

•adequate parenting skills

•cause the least disruption for the child.

Both parents continue to share LEGAL child custody until the minor has reached the age of 18 or becomes legally emancipated.

Case Laws:

•Prabhati Mitra vs D.K. Mitra (1984) : Girl of 14 and boy of 11 living with their mother – parents divorced in 1982 now contesting for custody of child – lower court give custody of children to father since mother had taken children away from father by force – mother appeals – court allows children to stay with mother as per children’s wishes

PUNISHMENT FOR MATRIMONIAL OFFENSE

Sn 16 of HMA lists out various punishments for matrimonial offences:

Case Laws:

•Gopal Lal V. State of Rajasthan: SC held spouse contracting second marriage while the first marriage is still subsisting, becomes guilty of bigamy under sn 494 I.P.C. only when proved the second marriage was valid in the sense that the necessary ceremonies required by law or by custom have been actually performed.

•Godawari V. State of Maharashtra: when there is absolutely no evidence to prove that essential ceremonies had been performed at the time of second marriage conviction under section 494, IPC could not be sustained.

•Sarla Mudga v Union of India: Change of religion does not permit a person to defeat the provisions of law under section 494 IPC and give license to commit bigamy

Restitution of Conjugal Rights (S. 9)

Sn 9 of HMA deals with restitution of conjugal rights.

If one spouse leaves the company of the other without reasonable justification, court can order restitution of conjugal rights. Defence is any reasonable cause or excuse.

If the parties do not follow the decree for cohabitation after the passing of the decree, continuously for one year, it becomes a ground for divorce under Section 13 of HMA.

It is a controversial provisions, which was not there in ancient Hindu law, and traces its origin to Jewish law.

Reasonable grounds on which petition for Restitution of Conjugal Rights can be rejected

Court may deny the petition seeking restitution of conjugal rights on the following grounds:

1.If respondent has a ground on which he or she can claim any matrimonial relief;

2.If petitioner is guilty of any matrimonial misconduct;

3.If petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him. Eg: husband’s neglect of his wife, constant demand for dowry,

Burden of proof is on the aggrieved/petitioner to prove that the respondent has withdrawn. Once that burden is discharged by the petitioner, it falls on the respondent to prove that there exists a reasonable excuse for the withdrawal.

Case Laws

Saritha vs. VenkataSubbayya (1982) – AP HC held s. 9 of HMA is savage, barbarian and unconstitutional as it violates privacy – civil procedures cannot be used to impose conjugal rights on a spouse. Earlier, the husband himself asked the Court to pass a decree of restitution of conjugal rights and after completion of a year he filed a petition for divorce on the ground that the decree has not been complied to.

Saroj Rani vs. Sudarshan Kumar Chadda (1984): SC held that S. 9 is not unconstitutional – it serves a social purpose in prevention of break-up of marriage and family relations and thereby overruled the AP HC and Del HC verdicts. However, in this case, since restitution order was disobeyed, court suo motu ordered divorce with permanent maintenance of Rs.200.00 to the wife and Rs.300.00 to the only daughter per month. Court also awarded costs.

Mirchumal vs. Devi Bai (1977): Wife employed in a distant place – husband insisted to resign – wife not ready to resign – court held wife cannot be compelled to resign and it is reasonable excuse, dsisallowing motion for restitution.

Kanthimathi vs. Parameswara Iyer (1979) – Husband had aged parents – wife deserted citing inability to look after hus’s parents, andinsisted on separate matrimonial home – court held such condition may not be feasible and sometimes impossible based on monetary and social circumstances – decreed restitution of conjugal rights.

Jagdish v Shymna (1960): Husband’s refusal to have sec with wife was regarded as reasonable excuse for wife’s refusal to live with the husband.

JayaKumari v Krishnan Nair (1994): Petitioner-husband was a drunkard who used to come home late and night and berate her wife. Wife withdrew from society and husband filed petition for restitution of conjugal rights. Kerala HC disallowed petition owing to mental torture inflicted on wife by husband.

Pallavi Bharadwaj v Prathap Chauhan (2011): Respondent filed decree for restitution of conjugal rights. Appellant countered saying she is not married and respondent was blackmailing her. Appellant could establish respondent was married to another girl, and as such SC dismissed the petition, ordering cost of Rs two lakhs.

The Hindu Widow Remarriage Act (1856) gives Hindu widows the right to re-marry.

GUARDIANSHIP

“Guardian” is a person having the care of the person of a minor or of his property, or of both his person and property.

In ancient Hindu law, the law relating to minority and guardianship is contained in the Smritis, and the commentaries on them.

The Hindu Minority and Guardianship Act, 1956 codify the law relating to minority and guardianship among Hindus. This act is a supplement to the Guardians and Wards Act, 1890, and overrides ancient Hindu law and customs.

HMG Act categorizes guardians into three classes:

•Natural guardians

•Testamentary guardians, or guardians appointed by will of mother or father, and

•De-facto guardians and Guardians appointed or declared by court under the Guardians and Wards Act, 1890.

Who is a Minor?

The Indian Majority Act, 1875 considers a person who attains majority on his completing the age of 18 years. Persons below this age have guardians appointed by the court.

S. 4(b) of Hindu Minority and Guardianship Act (1956) defines minor as someone

•Below eighteen years of age

•Physically and intellectually imperfect and immature, and hence requiring someone’s protection.

Natural Guardians

Section 6 of the Hindu Minority and Guardianship Act, 1956 defines the natural guardian of a Hindu Minor

-Boy or Unmarried GirlFather followed by Mother.

-Minor less than five yearsCustody is normally with mother

=Illegitimate boy or illegitimate unmarried girlMother followed by father (established by SC in In Gohar Begum v. Suggi case (1959)

Married girl (legitimate or illegitimate)Husband

Adopted sonThe natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother. The natural parents cease to be the natural guardians. In the case of death of the adoptive parents, though the natural parents are alive, necessary proceedings have to be taken under the Guardians and Wards Act, 1890 for the appointment of the guardian.

The father or mother ceses to be a natural guardian if

•They cease to be Hindus

•They renounce the world (become take up vanaprasta or become sanyasis)

•They are step-fathers or step-mothers

•The marriage proceedings are dismissed by the court, the proceedings related to children terminate automatically.

The expression “father” and “mother” do not include a step- father and a step-mother.

Case Laws:

Sundara Murthy V. Shanmuga Nadar (1980): Even if the father neglects to look after, or to discharge his obligations towards, the minor, or refuses to act natural guardian, the mother cannot be the natural guardian of the minor so long as the father is alive.

Michayel Nadar v. Sreedharan Babu (1992): Merely because the father is not residing with the family, he does not cease to be the natural guardian. A living father ceases to be natural guardian only if he ceases to be hindu or becomes an aesthetic.

Jijabhai v. Pathankhan (1971): SC held mother should be considered as natural guardian of minor daughter if mother and father had fallen out and were living separately, and daughter was under the care and protection of her mother

•Ramdas Menon v Sreedevi (2004): Alienation of immovable property of minor by natural guardian without permission of court is only voidable. The ex-minor has to challenge the validity of the alienation in a competent court within three years of attaining majority.

1999) Case

The Githa Hariharan vs Reserve Bank of India case challenged the constitutional validity of Section 6 of the Hindu Guardianship and Maintenance Act. The Supreme Court overruled Sn 6 that makes the father the “natural first guardian” and deemed both mother and father as natural guardians of a child.

Gita Hariharan applied to the Reserve Bank of India (RBI) for a 9 per cent relief bond to be held in her minor son’s name. In the application, she asserted she was the “natural guardian” of her son for investment purposes. The RBI returned the application asking for the father’s signature., since according to HGA father is the first and “natural” guardian of the minor in question.

The Supreme Court ruled the mother is also the natural guardian even when the father is living, and directed the Reserve Bank authorities to formulate appropriate methodology, so as to meet the situation as called for in the contextual facts.

Powers of natural guardian

Sn 8 of HMG lists allows a natural guardian to take all necessary and reasonable acts for the benefit of the minor or for the realization, protection or benefit of the minor’s estate

The section also imposes two major limitations on the powers of natural guardians

1.The natural guardian cannot bind the minor by a personal covenant.

2.The natural guardian shall not, without the previous permission of the court

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor

(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

Courts shall give such permission only on being convinced it is necessary, and for an evident advantage of the minor.

Any disposal of immovable property in contravention of the above stipulations is voidable at the instance of the minor or any person claiming under him.

Under the old Hindu Mitakshara Law, the manager or the karta of the family of the minor can alienate the minor’s undivided interest in the joint family property without the permission of the court, where the alienation is for legal necessity or for the benefit of the minor. Sn 12 of HMG act says when the joint family property is under the management of an adult member of the family, no guardian shall be appointed for the undivided interest of the minor in the joint family property.

Miriyalu v. Bodireddi Subbayamma (1966): The restrictions listed in Sn 8 of HMG Act regarding property apply only to the minor’s absolute estate, and not to the minor’s undivided share in the joint family property. There is no natural guardian for such joint property as it is excluded by Sn 6 of the HMG act. Natural guardian applies for such property only if the minor is the sole surviving coparcener or unless all the coparceners are minors

Testamentary Guardians

Sn 9 of HMG Act lists out who is a testamentary guardian, and their powers

A father or mother, who is a natural guardian, may appoint anyone else as a guardian, by will. The guardianship comes into effect after death of natural guardians. Testimonary guardians exercise the same powers and limitations as natural guardian (for the minor’s person and/or property, other than the undivided interest in joint property.)

The appointment of testamentary guardian will have no effect if father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian.

Power of testamentary guardian to a girl ceases after marriage, when husband becomes the natural guardian.

A minor cannot become a testamentary guardian to another minor.

Under the old Mitakshara Hindu law, a Hindu father alone and no other had the power to appoint a testamentary guardian of his minor children. A Hindu mother could not appoint a guardian by will, and management of minor’s property went to eldest male member of the family.

De-Facto Guardians

The Hindu Guardians and Wards Act, 1890 had listed de-facto guardians. De-facto guardian is any near relation or someone else, who takes the responsibility of managing the property of a minor child who does not have any legal guardian. If the de-facto guardian makes an application to court, and court approves, he becomes court appointed guardian.

Sn 11 of MHG Act restricts de-facto guardians from dealing with or disposing property a Hindu minor.

Case Laws:

•Ratan v. Bisan (1978): Court validated “de facto” guardian, which was recognized by the Guardians and Wards Act, but not listed in HMG Act.

•Rajalakshmi v. Ramachandra (1967): For all acts of a person who is not a natural or testamentary guardian or a guardian appointed by the court, s. 11 would apply if he deals with the minor’s property in any manner.

•Girdhari v. Anand (1967): During the lifetime of a natural or testamentary guardian or a guardian appointed by the court, any person who gifts the property to the minor, cannot appoint some other person in the gift deed, as the guardian.

In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. What constitutes the welfare of the minor is determined by the court after careful consideration of the facts and circumstances of each case. The expression “welfare” includes both material and spiritual welfare.

The court can appoint a guardian as per Sn 13 of HMG Act.

Joint property

A guardian of a minor, be it natural guardian, testimonary guardian, or de-facto guardian does not have jurisdiction over a minor’s undivided interest in joint family property, where the property is under the management of an adult member of the family. However, the High Court can appoint a guardian in respect of such interest.

Ramakrishna v. Manikka (1937): In a ancient Hindu Law, in the absence of the father, the eldest male member is to be the manager of the joint family property, though it is permissible for a junior member to become the manager with the consent of the other members of the family.-

MAINTENANCE

Categories of people eligible for maintenance under HAMA are

•Wife

•Widowed daughter-in-law

•Aged parents

•Other dependants as enumerated in Section 21 of the Act.

MAINTENANCE OF WIFE

A Hindu wife is entitled to be provided for by her husband throughout the duration of her lifetime per Section 18 of HAMA

Maintenance will apply even if wife is living separately from husband. Grounds of living separately are

•Husband has deserted the wife.

Meera Nireshwalia v. Sukumar Nireshwalia (1994): The wife had been living alone and all the children had been brought up by her without assistance and help from the husband. There was a clear case of desertion, the wife was entitled to separate residence & maintenance

•Husband has another wife living

•Husband keeps a concubine in the house or habitually resides with a concubine elsewhere.

•Husband has converted to a different religion other than Hinduism

•Husband exhibits cruelty.

Meera Nireshwalia v. Sukumar Nireshwalia (1994): The action of the husband of evicting the wife from house where she had been living, in collusion with the purchasers of the house and the police amounts to cruelty. Wife entitled to live separately and claim maintenance

•Husband has virulent case of leprosy.

Section 125 of CrPC also makes it mandatory for husband to provide maintenance for their wives, However, as per 125(1)(a), wife is eligible for maintenance allowance only when she is unable to maintain herself. Mere grounds of neglect by husband are not grounds for maintenance. The onus is on the wife to establish that she requires maintenance.

Mamta Jaiswal v. Rajesh Jaiswal: Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for ‘dole’ to be awarded by her husband who has a grievence against her.

In addition, maintenance can be annulled / is not applicable if:

•Wife renounces being a Hindu and converts to a different religion

•She commits adultery. Sn 125(4) of CrPC also confirms likewise

•If wife refuses to live with husband without sufficient reason. “Sufficient reason” depends on each case, and is at discretion of court. Sn 125(2) of CrPC makes husband contracting marriage with another woman or keeping a mistress as just ground for his wife’s refusal to live with him. Sn 16 of HAMA lists the following grounds as sufficient reason for living separately and still get maintetance

-Husband guilty of desertion

-Husband treats wife with cruelty

-Husband suffers from virulent form of leprosy

-If husband keeps a concubine or another wife

-If husband ceases to be a Hindu

-Any other legitimate cause

•If wife lives separately with mutual consent (Living separately owing to divorce is not mutual consent)

•Wife relinquishes right to maintenance voluntarily.

MAINTENANCE OF DAUGHTER-IN-LAW

If the wife is widowed by her late husband, and has no other means of providing for herself from the estate of her husband, father or mother; or from her son and/or daughter, the father-in-law has to provide the maintenance, from the joint family property. This provision holds until the widow remarries.

Father-is-law in not liable if the share of deceased husband in joint property is already shared and allotted to the widow.

•Raj Kishore Mishra v.Meena Mishra: If daughter-in-law can maintain herself from the estate of her parents, held question of father-in-law providing maintenance does not arise.

MAINTENANCE OF CHILDREN

HAMA obliges parents to provide maintenance for their legitimate and illegitimate children

For boys: Until they become major

For girl children: Until they are married

Infirmed daughters: until they are able to take care of themselves

MAINTENANCE OF PARENTS AND OTHER DEPENDENTS

Sn 20 of HAMA obliges a person to maintain his or her dependents. Dependents include

•aged and infirm parents

•legitimate and illegitimate minor children (both male and female)

•unmarried daughters (who are not minors)

•widowed daughter who does not get maintenance from her husband’s estate, son or daughter, father-in-law

•Son and unmarried daughter of a predeceased son, and Son and unmarried daughter of a son of a predeceased son, as long as they are minors and do not get maintenance from their parent’s estate

•Widow of son or son of a predeceased son, as long as she does not remarry, and she does not get maintenance from any other source

The obligation extends if parents and unmarried daughters are unable to maintain himself or herself out of his or her own earnings or other property.

The heirs of a deceased Hindu are bound to maintain the dependents of the deceased out of the estate inherited by them from the deceased. The liability of each of the persons who takes the estate shall be in proportion to the value of the share or part of the estate taken by him or her.

TYPES OF MAINTENANCE

Maintenance are of two types

1. Permanent maintenance

2. Interim maintenance and maintenance pendent lite

•Permanent maintenance is payable after judicial proceedings have resulted in either the dissolution of the marriage or a judicial separation. It may either be a lump sum amount or staggered payment.

•Interim maintenance is payable from the date of presentation of the petition till the date of dismissal of the suit or passing of the decree. It is meant to meet the immediate needs of the petitioner.

Maintenance pendent lite is to provide for the litigation expense. Sn 24 of HMA allows both husband and wife to seek maintenance pending litigation from the other party, if the applicant has no independent income to meet expenses of the proceedings.

Section 36 of the Divorce Act of 1869 allows wife to file a petition for interim maintenance, regardless of who instituted the suit and whether the wife obtained an order for protection.

The petition for the expenses of the proceedings and alimony pending the suit should be disposed of within sixty days of the service of the petition on the husband.

HMA allows interim maintenance to be claimed either by the husband or the wife. All other acts make only wife eligible to claim interim maintenance.

AMOUNT OF MAINTENANCE

The amount of maintenance in all cases is left to discretion of the courts. The factors to be considered are:

•Position or status of the parties

•Number of persons entitled to maintenance

•Reasonable wants of the claimants. Generally maintenance means appropriate food, clothing and lodging.

•Whether the claimant is living separately or with the parents / husband

•Value of the claimant’s estate and income.

In case of the deceased, the calculation of amount for maintenance is after payment of any debts

Sadhu Singh v. Gurdwara Sahib Narike (2006): Widow has no charge on separate property of husband.

Neelam Malhotra v. Rajinder Malhotra (1994): The suit to claim maintenance may take many years to decide, as such courts, after considering the status of the husband awards the wife “maintenance pendente lite,” even though there is no separate provision in the Act for grant of maintenance pendente lite.

Padmavathi v Lakshminarayana (2002): Court takes into consideration the income of parties before deciding on quantum of interim maintenance.

ADOPTION

Adoption in Hindu law (Hindu Adoption and Maintenance Act)

Hindu law allows adoption.

A perfect adoption fulfills all the conditions of adoption, with regards to who can adopt, who can be adopted, and who can give in adoption.

WHO CAN ADOPT?

Only Hindus who fulfill certain criteria are eligible to adopt.

Adoption by men:

•Adoptor should not be a minor. If unmarried man is adopting a daughter, he should be at least 21 years old

•The adopter should have the capacity to provide for the adopted child.

•The child must be capable of being adopted.

•Men adopting should have the consent of their wife(s). Only exception is if wive(s) are of unsound mind, have renounced the world, or ceased to be Hindu.

•If adopting a son, the adopter should not already have a son, grandson, or great-grandson, who are Hindus, either by relationship or adoption

•If adopting a daughter, the adopter should not have a living daughter or son’s daughter who are Hindus, either by relationship or adoption

Guramma v Mallapa (1964): Adoption during wife’s pregnancy is valid. Such adoption will not be affected by subsequent birth of a male or female child, and both biological and adopted child will have equal rights over property.

Adoption by women (Sn 8 of HAMA):

•Only unmarried Hindu women, widow, spinsters and divorcees can legally adopt a son or daughter in adoption

•She should be a major, of sound mind

•A married woman cannot adopt a child. She can only give consent for her husband to adopt. Exception is when husband has ceased to be a Hindu, has renounced the world (sanyasi), or has been declared to be of unsound mind by a competent court.

•If adopting a son, the adopter should not already have a son, grandson, or great-grandson, who are Hindus, either by relationship or adoption

•If adopting a daughter, the adopter should not have a living daughter or son’s daughter who are Hindus, either by relationship or adoption

If the child is adopted and there are more than one wife living in the household, then the senior wife is classified as the legal mother of the adopted child.

Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be deemed to be the step-mother of the adopted child.

Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child.

Case laws:

Devgonda Raygonda Patil v. Shamgonda Raygonda Patil (1992) Where there is no evidence to show that the female Hindu was seriously ill, mentally or physically, it has been held that she is in a position to adopt

Brajendra Singh v. State of Madhya Pradesh (2008): The appellant lived separately from her husband because of her physical deformity for a very long period right from the date of marriage. But in eye of law they continued to be husband and wife, because there was no dissolution of marriage or divorce in the eye of law. So son adopted by appellant is invalid

Narinderjit Kaur v. Union of India (1997): Subsequent marriage of the adoptive mother cannot invalidate the adoption

WHO CAN BE ADOPTED?

Qualifications a child must possess to be adopted

Sn 10 of HAMA lists out who can be adopted.

•The adopted child can be either male or female.

•The adopted child must be a Hindu.

Kumar Sursen v. State of Bihar (2008) The law does not recognize an adoption by a Hindu of any person other than a Hindu (Sn 6 of HAMA)

•The adopted child should not already be adopted

•The adopted child should be less than 16 years of age, except when customs or usage allows

•The adoptee needs to be unmarried. However, if the custom or usage of applicable parties allow, the adoptee can be married.

Devgonda Raygonda Patil v. Shamgonda Raygonda Patil ( 1992): Section 6 of HAMA does not bar a lunatic person from being adopted

WHO CAN GIVE IN ADOPTION?

Sn 9 of HAMA lists out persons capable of giving in adoption.

At the first instance, only father has the right to give child in adoption. However, consent of mother is essential (unless she has renounced the world, is of unsound mind, or ceased to be a HIndu) 

If father is dead, has ceased to be a Hindu, has renounced the world, or is declared to be of unsound mind by a court, the mother has the right to give child in adoption. 

When both father and mother is dead, has ceased to be a Hindu, has renounced the world, or is declared to be of unsound mind by a court, or when parentage of child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.

Before granting permission to a guardian, the court shall be satisfied that the adoption will be for the welfare of the child,

OTHER ESSENTIAL CONDITIONS OF ADOPTION

Sn 11 of HAMA lists out other conditions of adoption

•If the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption.

•If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption.

•if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted.

•The same child may not be adopted simultaneously by two or more persons.

•The adoptor should not have a child of the same sex of the adopted child still residing at the house. In particular, if a son were to be adopted then the adoptive father or mother must not have a legitimate or adopted son still living in the house.

•There should be an actual giving and taking ceremony for the adoption.

No adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can be adopted child renounce his or her status as such and return to the family of his or her birth.

Deed of adoption

There should be an actual giving and taking ceremony for the adoption. However, the performance of datta hormam shall not be essential to the validity of adoption. A deed of gift and acceptance executed and registered or deed of acknowledgment acknowledging adoption is NOT sufficient by itself to constitute legal adoption in the absence of actual giving or taking.

Case Laws:

Raghunath Behera v. Balaram Behera (1996): Omission of day or date of adoption in a deed of acknowledgement makes it invalid.

M. Gurudas v. Rasaranjan (2006): To prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony.

Urmila Devi v. Hemanta Kumar Mohanta (1993): The defendant’s father only wanted that he should be reared up by Sankar and Sasi after the mother’s death and there had been no formal ceremony of adoption nor were Sankar and Sasi unfit to have children of their own, thereby making the adoption invalid.

Nemichand Shantilal Patni v. Basantabai (1994): There was no evidence the plaintiff was actually given and taken in adoption by the parents or guardians, as required under section 11(vi). As such, adoption was held not to have taken place.

STATUS OF AN ADOPTEE

As per Sn 12 of HAMA, an adopted child shall be deemed to be the child of the adoptive father or mother for all purposes with effect from the date of the adoption, and shall enjoy benefit of all family ties of new family. ALL ties of the child in the family of his or her birth (including inheritance) is deemed to be served replaced by those created by the adoption in the adoptive family. However

•The adopted child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth.

•Property vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth.

•The adopted child shall not divest any person of any estate which vested in him or her before the adoption.

An adoptee can take only that property to his adoptive family from his birth family which is already vested in the adoptee prior to adoption by inheritance or by partition in the natural family or as sole surviving coparcener as he becomes its absolute owner.

Suma Bewa v. Kunja Bihari Nayak (1998): Adoption displaces the natural line of succession and therefore, a person who seeks to displace the natural succession to the property alleging an adoption must prove the factum of adoption and its validity by placing sufficient materials on record.

Basavarajappa v. Gurubasamma (2005): On adoption, adoptee gets transplanted in adopting family with the same rights as that of natural-born son. Adopted child becomes coparcener in Joint Hindu Family property after severing all his ties with natural family.

FAMILY COURTS

Before 1984 all family matters were seen by ordinary civil court judges who used to deal with matters like recovery of money or property. In 1984, based on the recommendation of the Law Commission in their 59th Report, The Family Courts Act, 1984’ was passed, establishing family courts in India.

JURISDICTION

The family courts exercise the entire jurisdiction exercised by any District Court or any subordinate civil court in

•Matrimonial causes

•Maintenance and alimony of spouses

•Custody and guardianship of children

•Settlement of spousal property

The Family court judge is vested with the power exercisable by the Magistrate of First Class under Chapter IX of Code of Criminal Procedure which is Order for maintenance of wives, children and parents.

SPECIAL FEATURES OF FAMILY COURT

Advantages of family court / Powers of Family Courts

•Family court can make its own procedure, to ensure speedy disposal of case. Recording the oral statement of the witness at length, a laborious exercise, is not a mandatory requirement.

•The person who wants to register a suit in the family court only needs to describe all the details clearly on a watermarked paper and submit it along with the court fees, and an affidavit testifying truth of the facts.

•The Family Court can receive any document or statement even if it is not admissible under Indian Evidence Act 1872.

•The Court is empowered to take assistance of medical and welfare experts, as required.

•Section 9 of FCA provides that the family court should try to resolve the matter through conciliation and settlement. If there is possibility of settlement of dispute the court should adjourn the proceedings until such settlement is arrived at.

•The parties of the proceeding are not required to hire a legal practitioner; however they are entitled to appoint an ‘amicus curie’ to assist the parties in the settlement proceedings.

•In camera proceedings can be ordered if the parties desire. (In camera proceedings means that the public is not allowed to see the proceedings)

•Judgment should be concise with the statement of the case, determination of the decision and the reason for the decision.

•Provisions of Code of Civil Procedure, 1908 are applied in the enforcement of the order or the judgment.

•The appeal from family courts goes directly to the High Court. (appeal to be filed within 30 days). Appeal can be on both question of law and question of fact. The appeal should be heard by a High Court bench of two or more judges. There can however be no appeal against an order which is passed with the consent of the parties.

Case laws:

Dipak Misra and V Gopala Gowda: SC said “Delay in adjudication by the family court is not only against human rights but also against the basic embodiment of dignity of an individual.

Salient Features of Special Marriages Act, 1954

Special Marriage Act 1954 is a legislation facilitating marriages between a male and female, regardless of their religion, caste or creed. Some marriages may not be valid in Hindu, Muslim or Christian marriage laws, but are permissible under Marriage act 1954. As such, it is called a secular marriage law. Marriages under this act are commonly known as court marriages.

Conditions for Marriage

The parties to court marriages should meet the following conditions:

1.Neither party should have a spouse living.

2.Neither party should be of unsound mind.

3.Neither party should be suffering from mental disorder which makes him unfit for marriage or procreation of children.

4.Neither party should be subject to recurrent attacks of insanity or epilepsy.

5.Male must not be less than 21 years and female of 18 years of age.

6.The parties are not within the degrees of prohibited relationship (refer Hindu Marriage Act). However, this restriction is not applied if such marriages are allowed by local customs in some particular areas or tribes.

Both parties shall file a joint application to the Marriage officer of the district in which at least one of the parties to the marriage has resided for last 30 days. The officer shall

1. enter the notices in marriage notice book

2. publish the notice in his office and in the office of the marriage officer where the parties permanently reside.

Any person, before expiry of 30 days of publishing of such notice, may object to the marriage. If not objected or the objection is found baseless, the marriage shall be solemnized.

Solemnization Procedure

The parties submit individual affidavit to the marriage officer stating the age, permanent and temporary places of residence, marital status, mental status and any mutual relation if exists.

The marriage may take in any form with any kinds of marriage customs. However, no marriage shall be valid until the parties to marriage give their consent and acceptance in presence of the marriage officer and three competent witnesses.

The marriage officer issues a marriage certificate which is signed by the parties and three witnesses. Once the certificate is entered in marriage certificate book, the marriage shall be deemed to be a valid marriage under Marriage act 1954. The children born after the date of ceremony of marriage shall in all respects be deemed to be legitimate children of their parents.

Failure to fulfill conditions provided in Marriage Act 1954 makes the marriage solemnized under this act VOID. For eg, if husband was impotent at the time of marriage but did not disclose the same, the marriage is null and void. The registration of such marriage has no legal effect.

A marriage under Special Marriages is VOIDABLE if

•Marriage has not been consummated owing to the willful refusal of the wife to consummate the marriage

•Wife was pregnant at the time of marriage by some other person than whom she married.

•Consent of either party to marriage was obtained by coercion or fraud

Divorce under Marriage Act 1954

Either of the party to marriage may file a petition for divorce when the respondent:

1.Makes a voluntary sexual intercourse with any person other than the spouse.

2.Deserts the petitioner for a period not less than two years.

3.Undergoes an imprisonment of seven years or more.

4.Been treating the petitioner with cruelty.

5.Is of unsound mind or suffering from continuous mental disorder.

6.Suffering from venereal disease, leprosy etc.

7.Is not heard of being alive for seven years or more.

A wife may also present a petition

ข.when her husband is guilty of rape, sodomy or bestiality.

Either of the party may go to court when no cohabitation is made for one year or more. They may file a joint application for mutual divorce.

Every married person who contracts another marriage during lifetime of his or her spouse is considered committing an offence under Indian Penal Code 1860. Furthermore, the second marriage shall be considered void.


HINDU FAMILY LAW : An Overview of the Laws Governing Hindu Marriage, Divorce, Ma

This book summarises the Hindu family law, or the laws governing Hindu Marriage, Divorce, Maintenance, Custody of Children, Adoption and Guardianship. The gist of the three important legislations: Hindu Marriage Act (1955), Hindu Adoption and Maintenance Act (HAMA) (1956), and Hindu Minority and Guardianship Act (HMG) (1956) are covered in this work. The book also touches on the difference between the ancient and modern sources of Hindu personal law. This book is intended as a quick reference guide for LLB students and others.

  • ISBN: 9781370400805
  • Author: Nayab Naseer
  • Published: 2017-06-06 12:55:11
  • Words: 13008
HINDU FAMILY LAW : An Overview of the Laws Governing Hindu Marriage, Divorce, Ma HINDU FAMILY LAW : An Overview of the Laws Governing Hindu Marriage, Divorce, Ma