SUBJECT : FAMILY LAW - I

SUBJECT CODE : FA3E

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 SYLLABUS
FA3E - FAMILY LAW - I
Unit - I Source:
Traditional and modern sources of personal Laws. Evolution of the Hindu Joint
Family - The Classical schools
Unit - II Law of Marriage:
Hindu, Muslim and Christian Laws of marriage and divorce. The nature of the
institution of marriage and its development, the capacity and nuptial rights and the effect
of void and voidable marriage under the aforesaid systems of law. Hindu law of marriage
and divorce with reference to the changes brought about by modern legislation. Muslim
law of marriage and divorce will include Law of Dower.
Unit - III Law of Adoption:
Hindu law of Adoption with special reference to the juristic concept and development
of case laws and changes brought about by the Hindu Adoption and Maintenance Act,
1956. The Muslim Laws of Legitimacy. Parentage and the Doctrine of Acknowledgement
of paternity.
Unit - IV The Law of Guardianship:
The Hindu Law of Minority and Guardianship and Maintenance and changes brought
about by modern legislation. Muslim Law of
minority and Guardianship and Maintenance.
Unit - V Maintenance:
The Hindu, Muslim and Christian law relating to Maintenance.
Statutory Materials with Amendments
1. Hindu Widows Re Marriage Act, 1956.
2. Child Marriage Restraint Act, 1929.
3. Special Marriage Act, 1954.
4. Hindu Marriage Act, 1955.
5. Hindu Adoptions and Maintenance Act, 1956.
6. Hindu Minority and Guardianship Act, 1956.
7. Hindu Women's Right to separate Residence & Maintenance Act, 1956.
8. Prohibition of Child Marriages
9. Guardianship and Wards Act, 1890.
10. Guardianship Act.
11. Indian Majority Act, 1875.
12. Personal Laws (amendment Act) 2010.
13. The Dissolution of Muslim Marriage Act, 1939.
14. The Christian Marriage Act, 1872.
15. Indian Divorce Act, 1896.

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Books for Reference:
1. Mulla - Hindu Law
2. Thakir Mohammed - Hindu Law
3. N.R. Raghavachari - Hindu Law
4. Mulla - Mohammedan Law
5. Thakir Mohammed - Muslim Law
6. A.A. Fyzee - Outlines of Mohammedan Law
7. S.N. Gupta - Maintenance and Guardianship Act.
*******************

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 UNIT-1
INTRODUCTION TO HINDU LAW.
In India, the Hindus are not fully governed by Hindu law. Limited matters, the Hindu
are governed by Hindu law. But for the remaining matters, the Hindus are governed by
Indian territorial laws. The origin of Hindu society and Hinduism is prior to 4000BC.
Originally, the Hindu law was comprehensive system of law. So, therefore, the Hindu
law dealt all kinds of law that is, criminal law, civil law, law of evidence, law of
contract, law of transfer etc. in India, 85% of the people are Hindu and are governed by
Hindu law. Originally the Hindu law consists of body of principles or rules which are
contained in various Sanskrit books. The Hindu law is neither pure customary law nor
pure state made law. These Hindu laws were recognized and enforced by ancient Hindu
rulers without any modification though they had power to modify it. After
establishment of British power in India, the British Government adopted and applied the
English policy to Hindus in India.

In the beginning stage of British rule, the rights and obligations of a Hindu were
determined by Hindu law unless otherwise any part of such laws may be altered or
abrogated or modified by legislation. As per Warren hasting plan of 1772, the Hindus
were governed by Hindu law in respect of Inheritance, marriage, caste and other
religious usages or institutions. In independent India, the Hindus are governed by Hindu
law in the following matters, namely,
1. Succession (inheritance)
2. Marriage and dissolution of marriage
3. Guardianship
4. Maintenance
5. Joint family and partition
6. Adoption
7. Religious Institutions

This Hindu law applicable to Hindu, who may be,

1. Hindu by Birth
2. Hindu by conversion
3. Hindu by reconversion
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 1. Hindu by Birth:
If both the parents are Hindu, the children are Hindu from the date of birth.
After birth, if any one or both of the parents is or are converted from Hindu to other
religion, such conversion does not itself affect the children’s religion unless the children
themselves converted to parent’s converted religion.

If one of the parents is Hindu and the other is non Hindu, the children are
called Hindu provided that they are brought as Hindu.

Offshoots of Hinduism:
1. Buddhism, Jainism and Sikhism are offshoots of Hinduism; they are governed by
Hindu law.
2. The followers of Brahma Samaj, Prathana Samaj and Arya Samaj and the followers
of Lingayats and Virashaivas are sect of Hindus and they are, now, governed by Hindu
law.

Person domiciled in India:

Hindu law applicable to all people domiciled in India, who are not Muslims,
Christians, Parsi or Jew by religion, unless it is shown that they would not have been
governed by Hindu law.
In “Rajkumar vs Barbara”, a child was born to a Hindu father and Christian
mother and it was neither shown that child was brought as Hindu nor to show the child
was a Christian, Parsi , Muslim or Jew. The Calcutta High Court held that the child was
a Hindu.
In “Myna Baee vs Ootram”, a Hindu wife deserted her husband and illegally
cohabited with a christian and she had two illegitimate sons, B and C and they were
brought as Hindu. On the death of B, two questions are raised, that are:
1. By what laws are B and C governed?
2. Can C succeed to B as collateral?
Held: The Privy Council held that since they were governed by Hindu law, C
would not succeed his brother’s property as collateral.

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 2. Hindu by conversion:
The concept of Hindu law is that “A Hindu is born, but is not made”. It
means that “No one could claim to be governed by Hindu law by simply professing
Hinduism if he was not a Hindu by birth”. Now this concept is not sound and the
Hindu law recognised not only Hindu by birth but also Hindu by. Conversion

In “Ratansi Morarji vs Administrator-General of Madras”, an Australian

Christian lady was converted to Hinduism by the Hindu Missionary Society of Bombay.
She married a Hindu and died leaving a will which was executed in Adyar in Madras
provinces. The will was not attested. It would be valid, if she was a Hindu and it would
not be valid, if she was a Christian. It was held that she was a Hindu and was governed
by Hindu law and the will was upheld by the court.

Other related cases:

1. Perumal vs Ponnuswamy
2. Mohandas vs Devaswom Board
3. Hindu by reconversion:
The following two questions are raised when a Hindu converted to some other
religion and then reconverted to Hinduism.
1. Whether he would be treated as Hindu?
2. Whether he would be admitted to his original sub caste?

Answer to this questions are considered by Supreme Court in “Rajagopal vs

Arumugham. Rajagopal, an Adi-Dravida community, had converted to Christian in
1949. Thereafter he began to professing Hinduism and married a Hindu Adi-Dravida
woman and brought up his children in Hinduism and showing them as Hindu in ‘school
records’. The question is whether he could stand for election as Adi-Dravida
community for a seat reserved for Scheduled Caste.

The Supreme Court held that though there was no formal process for reconversion, he
could be treated as a person belonging to Hindu faith. But he could be treated as having
reverted to his previous sub caste only if the said caste re-admitted him into its fold
unequivocally. In this case, there was no such evidence for re admission of Rajagopal

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 by the said Adi-Dravida community. So the Supreme Court held that Rajagopal could
not be entitled to stand for election for seat reserved for Adi-Dravida community.

Effects of conversion from Hindu to other religion:

The following are some of the legal effects of conversion from Hindu to other
religion.
1. Application of law:
From the date of conversion, he would not be treated as Hindu and he is not
governed by Hindu law. The application of law by converted person was considered by
the Privy Council in “Abraham vs Abraham”. M. Abraham and F. Abraham were
brothers. Their ancestors were Hindus who were converted to Christianity. On the death
of M. Abraham, his widow brought the suit for recovery of her husband’s property. This
suit was resisted by his brother F. Abraham who contended that his ancestors continued
to be governed by the Hindu law in spite of conversion. So, he claimed the entire
property according to the Mitakshara law of survivorship.

The Privy Council held:-

1) The effect of conversion of a Hindu to Christianity is to sever his connection with
the Hindu family.

2) Such converted person may elect either to abide by the old Hindu law
notwithstanding that he has renounced the old religion or to abide by Christian
law.

3) The converted party’s course would show what law he had elected to be governed.
Under the 3rd principle it was found that M. Abraham had married a Christian
woman and adopted English dress code and manner. Therefore, the court held that he
had elected against the Hindu law and rejected the contentions of the F. Abraham.

2. Right of inheritance:
From the date of conversion, he would not be governed by Hindu law for
inherit property.

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3. Effect of conversion on marital status
The other party to the marriage is entitled to obtained decree for divorce
according to Hindu Marriage Act, 1955.

4. Effect of conversion on right to guardianship:

For welfare of the minor, if the guardian converted from Hinduism, it is a factor to
be taken into account in considering the fitness of the guardian for continues as a
guardian.

5. Effect of conversion on right to maintenance:

Under section 24 of the Hindu Adoption and Maintenance Act, 1956, if the
claimer converted from Hinduism, he cannot claim maintenance from other Hindu.

*****
SOURCES OF HINDU LAW.
The sources of Hindu law may be either literary or material sources of Hindu law.
In literary sense, it is a source from which we seek our knowledge of the law. In
material sense, it is a method by which law is evolved. The legislation, judicial
decisions and custom are material sources of law. The sources of Hindu law may be
either Traditional or Modern sources of law.

The Traditional sources are,

1. Srutis
2. Smritis
3. Digest and Commentaries
4. Custom.

The Modern sources are,

1. Legislation
2. Judicial decision
3. Justice, equity and good conscience

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 Traditional sources of Hindu law:
SRUTIS:
The “Srutis” means that which has been heard. It is the voice of the God. It is
fundamental sources of law for other sources. The Srutis consists of,
1. Vedas
2. Upanishads

1. VEDAS:
It consists of revelation made by Supreme Being and experiences received by
the Rishis. It is voice of the God. So it cannot be altered by anyone. It is a primary
source of Hindu law. It is said to be sources for all other sources of Hindu law. Vedas
do not contains any direct statement of law, but it contains disconnected statement on
different aspects of dharma from which the law has been gathered.

Types of Vedas:
They are four Vedas, that Is,
1. RIG VEDA
2. YAJUR VEDA
3. SAMA VEDA
4. ADHARVANA VEDA
Rig Veda:
It is the oldest among the four Vedas. It consists of hymns and songs in the praise
of the God. It consists of 1028 slogams and arranged in ten mandalams.
Yajur Vedas:
It deals with rituals and sacrifices and mandaras pertaining there to.
Sama Vedas:
It consists of prayers composed to metre and set to music.
Adharvana Vedas:
It is devoted to magic, spell and incantation.
Upanishads: It is nothing but philosophical treaties in Sanskrit language and forming
pare of Vedas.

SMRITIS:
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 In literary sense, Smritis means that which has been remembered. It is
recollection of Rules of Dharma handed down by authorised Sages or Rishi of antiquity
of the precept of God. Rishi had no temporal authority. They did not have any rule
making powers, but on the other hand, they were only exponents of rules of Dharma.

Types of Smritis:
The Smritis are classified into,
1. Sutras
2. Dharma Sastras

SUTRAS:
Sutra is anterior in point of time. The time of Sutras is 800BC to 200BC.
1. It is mainly prose in nature, but some time it partly prose and partly verses in nature.
2. It is very sort one.
3. It is very concise in its meaning.
4. It is comprehensive in nature.
5. It is easy memorable one.
6. It deals with the duties of man in various ways.

Types of Sutras:
They are three types of Sutras,
1. Srauta Sutra: It deals with rituals, sacrifice and mandaras.
2. Grahaya Sutra: It deals with domestic ceremonies.
3. Dharma Sutra: It deals with secular law, that is civil and criminal law. It plays a
very important roles of human being.
Examples of Dharma Sutras:
They are so many examples of Dharma Sutra, the followings are important one:
1. Gouthama Dharma Sutra
2. Bauthayana Dharma Sutra
3. Apastamba Dharma Sutra
4. Vishnu Dharma Sutra

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 1. Gouthama Dharma Sutra:
It was written Gouthama. He belonged to Sama vedin. It deals with both
religious and legal matters. In legal matters, it deals with Srithana property, inheritance
and partition. In his works, he recognized the practice, tradition, usage and custom of
Hindu law.
2. Baudhayana Dharma Sutra:
It was written by Baudhayana. He belonged to Yajur vedin. He lived in Andhra-
Pradesh. It deals with both religious and legal matters. In legal matters, it deals with
Sonship, Adoption, Partition and inheritance. In his work, he mentioned several
customs, in which three are important, namely,
a) South-Indian Custom: It permitted a male Hindu to marry his maternal uncle’s
daughter or his sister’s daughter.
b) North-Indian Custom: It permitted a man for trading into arms and going to sea
c) Another custom permitting the king to impose excise duties

3. Apastamba Dharma Sutra:

It was written by Apastamba. He also belonged to Yajur vedin. It also deals
with both legal and religious matters. In his work, he did not recognize the practice of
Niyoga, Prajapatya marriage, paisasa marriage, secondary and adopted son.

4. Vishnu Dharma Sutra:

It is partly prose and partly verses in nature. It deals with both legal and
religious matters. His work is based on Manusmritis. In respect of legal matters, it deals
with civil law, criminal law, adoption, partition, marriage, sonship, inheritance, debt
and interest.

DHARMASASTRAS:
It is posterior in point of time to compare with Sutras. The period of Dharma
Sastras is above 200BC. It is verses in nature. It deals with the subject of Hindu law
very systematically and a logically. Every Dharma Sastra consists of three parts,
namely,
1. Acharya- deals with rituals and sacrifices
2. Vyavahara- deals with Secular law

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 3. Prayaschitta- Deals with Penance and Expiation

Examples of Dharma Sastras:

1. Manusmriti
2. Yajnavalkaya’s Smriti
3. Naradha’s Smriti

Manusmriti:
The period of Manusmriti is 200 BC. It is complete work and deals both legal and
religious matters. It consists of 2694 slokas, arranged in 12 chapters. Out of 12 chapters,
4 chapters deals with religious matters and remaining 8 chapters deals secular law, that
is civil, criminal and domestic law and pointed out all these laws into 18 titles of law,
these are,

1. Recovery of debt
2. Pledge and deposit
3. Sale without ownership
4. Concerns among partners
5. Resumption of gift
6. Disputes regarding boundaries
7. Dispute between master and servants
8. Sale and purchase
9. Non-payment of wages
10. Unfulfilled agreement
11. Assault
12. Defamation
13. Theft
14. Robbery and violence
15. Adultery
16. Duties between husband and wife
17. Partition
18. Gambling and betting

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 If the right of man comes under any one of the above titles and if it is violated,
he can seeks relief before the court of law. But on the other hand, if there is violation of
any other right apart from it, he cannot claim remedy before the court.
2. Yajnavalkaya’s Smriti:
The period of this Smriti is 100AD. Yajnavulkaya belongs to Yajur vedin and
Mithila School. It is verses in nature. It is mainly based upon Manusmriti. However, his
work is more logical, scientific and constructive. This work consists of three parts, these
are
1. Acharya
2. Vyavahara
3. Prayaschitta
This work deals both civil and criminal law which consists of,
1. Law of Mortgage and Hypothecation
2. Marriage and divorce
3. Adoption
4. Inheritance
5. Sale
6. Partnership
7. Assault
8. Defamation
9. Theft and robbery
10. Adultery
As per Yajnavalkaya's Smriti, the rights of human being are not restricted within
the above titles of law, but if any right of human being is violated by anyone, he can
seek relief before the court of law.
In his work, he also pointed out and recognized 12 kinds of sons, these are,
1. Legitimate son
2. Son of appointed daughter
3. Son of wife
4. Son of hidden origin
5. Damsel’s son
6. Widow’s son
7. Adopted son given by parents

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 8. Son made
9. Son bought
10. Son self given
11. Adopting a forsaken son
12. Son of wife pregnant at the time of marriage
Naradha’s Smriti:
The period of this Smriti is 200AD. It is a social code, dealing with secular law.
This work is divided into two parts,
First part dealt with judicature and administration of justice.
Second part dealt with 18 titles of law specified by Manu in his work.
This Smriti pointed out 4 fold stages for deciding every dispute, these are,
1. By means of Dharma
2. By means of Vyavahara (evidence of witnesses, in the absence of Dharma)
3. By means of Charitra (evidence of documents, in the absence of above two)
4. By means of Raja Sasana (Edicts or knowledge of the king)

DIGEST AND COMMENTARIES:

During the course of time, the Hindu society underwent some changes. In
changed society, the old concepts and rules which were found in Sruti and Smriti were
not appropriately applicable. So a need arose to make some change in the Smritis. It
was done by commentators and digest writers. Since Sruti is voice of the god, no
commentaries on Srutis.
Since all the Smritis did not agree with one another in all aspects, several
interpretations put upon the Smritis. This gave rise to commentaries, which are called as
“Nibandhas”. These commentaries did merely not only interpret the Smriti, but also
recited the customs and usages which are found among them. So the commentators
introduced modifications in order to bring the Smriti into harmony with the current
customs and usages.
Since the original texts were modified by the commentators in order to bring
them in line with the local customs and usages and conditions, it is more authoritative
than original texts.
Commentaries were written on,
1. Manusmriti

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 2. Yajnavalkaya's Smriti
3. Naradha's Smriti

Commentaries on Manusmriti:
1. Manutika written by Govindha Raja
2. Manubhashyam written by Medhatithi
3. Manu Vartha Mutha Valli written by Kulluka Bhatta

Commentaries on Yajnavalkaya’s Smriti:

1. Aparaditya written by Apararka
2. Bala Kritia written by written by Visva Ruba
3. Vira Mitrodaya written by Mithra Misra
4. Mitakshara written by Vijnaneswara

Digest:
Alongside the commentaries, digest literature grew with a minimum of
comment. Digest is not complete interpretation of other sources, but is a codification of
law that are prevalent in particular area. The followings are some examples of digests,
1. Daya Bhaga written by Jumootavahana
2. Smriti Chandrika written by Devanna Bhatta
3. Vivadha Chinthamani written by Vaschaspathi Misra
4. Vivadha Rathanakara written by Chandeswara

Modern sources of Hindu law:

1. Custom
2. Legislation
3. Judicial decisions
4. Justice, equity and good conscience

1. CUSTOM:
The custom is one of the sources of Hindu law not only in traditional period but
also in modern period.

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 Custom is one of the fruitful sources of Hindu law. In ancient time, custom is
recognised as secondary source of law, but now it is recognised as primary source of
Hindu law. Hindu law originated from customs and conventions. During the course of
time, the customs was defined and reshaped by great Rishi and Sages and the Smritis
took the place of unrecorded customs.

Definition:
Custom signifies a rule in which a particular family or class or district has from long
usage obtained the force of law.

Where there is a conflict between a custom and the text of the Smritis, the custom will
prevail and overrule the text. That is “ under Hindu system of law, clear proof of
usage will outweigh the written text of law”

According to Goudhama, regarding country or family custom which was not opposed to
Smriti and Sruti, is one of the sources of Hindu law. The Privy Council also has
recognized the supreme authority of custom in Hindu law. In the famous case of
“Collector of Madura vs Mootoo Ramalinga Sethupathy”, the question arose
whether in the Dravida country, a widow could make an adoption even in the absence
of express authority from her husband. In this case, the Zamindar of Ramnad died
without sons. The Zamindar of Ramnad did not give authority to his widow Rani
Parvathavardhani to adopt a son. But she adopted a son with the permission of the
nearest sapindas of her husband and then died. If the adoption would be valid, the
Zamindari would be vested in adopted son. If the adoption would not be valid, the
Zamindari would have escheated to Government. The collector of Ramnad notified on
the death of Rani Parvathavardhani, the Zamindari would escheat to the state.

So, the adopted son, Mooto Ramalinga Sethupathy filed a suit for declaration of the
validity of the adoption. The question rose before the court was whether under Dravida
school of Hindu law, an adoption made by a widow without the consent of the husband
was valid when there was consent of her husband’s sapindas.

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 In this time, the Privy Council elaborately and carefully noticed the various authorities
for sources of Hindu law. The Privy Council found that in the Dravida School, the
Smriti Chandrika and Parasara Madhaviya are authorities of law. The above authorities
authorize the widow to adopt a son for her husband with the consent of her father in law
and other husband’s Sapindas. This is a received authority of the Dravida School.

Therefore, the Privy Council concluded that in Dravida School, in the absence of
authority from her husband, the widow may adopt a son with the assent of her
husband’s Sapindas. So, therefore, the Privy Council held that the adoption made by
widow with consent of her husband’s Sapinda was valid.

Essentials of valid custom:

1. It should be antiquity or ancient one.
It should be a long standing that is by common consent, it has been accepted as
the law governing a particular locality, class or family. Unlike that of English law, it is
not immemorial one, but a long usage is absolutely necessary.

2. It must be in certain
It should be in certain in respect of nature, locality and person who claim custom.

3. It must be reasonable:
It means, it should not be unreasonable that is it should be in accordance with justice,
equity and good conscience.

4. It must be continuous: If there is any discontinuous, it is invalid one.

5. It should not be immoral: So it should be moral and morality is nothing but a social
value.

6. It should not be opposed to public -policy:

For example, if a custom permitting a dancing girl to adopt a girl for prostitution, it is
invalid on the ground that it is opposed to public-policy.

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 7. It should not be oppose to law:
The custom should not be opposed to any law for the time being in force.

Kinds of customs:
Hindu law recognized three kinds of customs, these are,
1. Local customs
2. Family customs
3. Caste customs

1. Local customs: This is a custom prevailing in particular locality. The Ramnad case
deals this type of custom.

2. Family customs: This is a custom governing a particular family only.

3. Caste customs: This is a custom prevailing among a particular castes or community

or tribes.

Onus and proof of customs:

The burden of proof of a custom of Hindu law which is derogatory to that law, is upon
the person who asserts it. But on the other hand, when a custom has been proved, the
custom of proving its discontinuous lies on the party who alleges such discontinuance

2. LEGISLATION:
Legislation is one of the modern sources of Hindu law. Before and after British
period, it plays a vital role for deciding disputes among Hindu. Some of the legislations
are,
1. The Cast Disabilities Removal Act, 1850
2. The Hindu Widows Remarriage Act, 1856
3. The Native Converts Marriage Dissolution Act, 1866
4. Indian Majority Act, 1875
5. The Guardian and Wards Act, 1890
6. The Indian succession Act, 1925
7. The Hindu Inheritance Disabilities Removal Act, 1928
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 8. The Child Marriage Restraint Act, 1929
9. The Hindu Gains of Learning Act, 1930
10. The Hindu Women’s Right to Property Act, 1937
11. The Hindu Women’s Right to Separate Residence and Maintenance Act, 1946
12. The Hindu Marriage Act, 1955
13. The Hindu Succession Act, 1956
14. The Hindu Minority and Guardianship Act, 1956
15. The Hindu Adoption and Maintenance Act. 1956
16. The Marriage Laws Amendment Act, 1976

3. JUDICIAL DECISIONS:
Binding nature of previous judicial decisions on a subsequent similar case is one of the
modern sources of Hindu law. The principle of Stare decisis is applied by the Indian
courts. It may be noted that the judicial decisions on Hindu law have superseded the
commentaries.

The view of law enunciated and expressed by the Privy Council and the Supreme court
in particular cases serve as a guide in similar cases arising subsequently.

Now, the judicial decisions of the Supreme Court are binding upon all courts except
upon itself and the Judicial Decisions of the High Court are binding upon all of its
subordinate courts.

4. JUSTICE, EQUITY AND GOOD CONSCIENCE:

The principles of justice, equity and good conscience can also be regarded as one of the
sources of Hindu law. In the event of conflict between the Smritis or in the absence of
any specific law on particular subject matter, the principles of justice, equity and good
conscience would be applied

It is observed by Supreme Court in “Gurunath vs Kamalabal, that in the absence of

any clear Shastric text, the court have the authority to decide cases on the principles of
justice, equity and good conscience.
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 SCHOOLS OF HINDU LAW
Before the establishment of Commentaries and digest, there is no school among Hindus.
Commentaries are differed in their authority in different parts of the country. This gave
rise to what is called “Schools of Hindu Law”.

Since the customs are not uniform throughout the countries and customs plays an
important role for commentaries, different schools of Hindu law arose as a result of the
emergence various commentaries on Smritis.

There are two main schools among Hindu.

1. Mitakshara
2. Dayabhaga

In Bengal, the Hindus followed the Dayabhaga digest which is written by

Jumootavahana, in the matter of inheritance, they are called Dayabhaga. In rest of the
country, Hindus followed the Mitakshara commentary written by Vijnaneswara, in all
the matters and they are called Mitakshara.

Difference between Mitakshara and Dayabhaga School:

1. Right by birth:-
During the life time of the father, the son, grandson and great grandson acquire
an interest in the coparcenary property by birth in Mitakshara law. But in Dayabhaga
law, during the life time of the father, the son, grandson and great grandson does not
acquire an interest in the coparcenary property by birth.

2. Right of survivorship:
Mitakshara law recognized the doctrine of survivorship for acquiring brother’s
coparcenary’s property before 1956. But the Dayabhaga law does not recognized the
doctrine of survivorship for acquiring brother’s property.

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 3. Widow’s Right:
Dayabhaga law recognized the right of widow to inherit property from her
deceased husband. But Mitakshara law does not recognized the right of widow to
inherit property from her deceased husband

4. Sapinda Heirship:
In Mitakshara law, the Sapinda relationship arises by propinquinity or
community of blood. But in Dayabhaga law, Sapinda relationship arises by offering
Pinda to deceased ancestors. So, Spiritual benefit is the main criteria for heirship under
Dayabhaga law, whereas consanguinity is guiding principle under Mitakshara law.

Sub-schools under Mitakshara law:

Since the customs prevalent in different parts of the country are not uniform and
the sub commentaries are also not uniformly followed by through the country, there are
four sub schools under Mitakshara law, these are,
1. Dravida school
2. Maharashtra
3. Benaras school
4. Mithila school

All the above sub schools are followed Mitakshara commentary as their main
commentary, but they followed their own sub commentary which recites the customs
and usages prevalent in that places.

1.Dravida school:
i. Parasara Madhaviya– Written by Madhavacharya, commentary on Parasara
Smriti.
ii. Smritichandrika– Written by Devanna Bhatta
iii. Saraswativilas– Written by Prataparudra Deva
iv. Vyavakhara Nirnaya – written by Varadharaja

2. Maharashtra:
i. Vyavahara Mayukha– Written by Nilakantha Bhatta.

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 ii. Nirnaya Sindhu– Written by Kamalakara

3. Benaras school:
i. Viramitodaya – written by Mitra Misra
ii. Nirnasindhu– written by Kamalakara

4. Mithila school:
i. Vivid Chinthamani– written by Vaschaspati Misra.
ii. Vivada Ratnakara—written by Chandeshwara
iii. Madhanaparijatha– written by Visweswarabhatta.

*****
SOURCES OF MUSLIM LAW.
By sources of any law, we mean the original materials where the contents of that law are
to be found and are made available to us. Study of these sources is necessary because
without having any knowledge of the origin of a particular law, its proper explanation and
interpretation is not possible. Sources of Muslim law may be classified into two
categories:

(a) Primary sources, and

(b) Secondary sources.

Primary sources are those which the Prophet himself directed to be the sources of Muslim
law. There is an old tradition according to which once the Prophet asked Muadh, one of
his companions, as to what law he would apply in deciding a case?

The companion replied that first he would judge a case according to the words of God;
failing that, according to the traditions (precepts) of the Prophet and failing that too he
would interpret with his own reason. The Prophet approved these sources in the same
order.

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These sources are, therefore, of highest quality and importance in their respective order of
merit. The whole of Muslim personal law is based on the primary sources. They are also
called the formal sources of Muslim law.

Secondary sources explain or modify the primary sources of Muslim Personal Law
according to the changing needs of the Islamic society. To meet the requirements of the
society, Muslim law has been developed or modified also by local customs, judicial
decisions and the State.

Therefore, the rules of Muslim law are found also in the customs, legislations and the
judicial decisions. Local customs, legislation and judicial decisions are, therefore, the
secondary sources of Muslim law. Secondary sources are also called as extraneous
sources.

A. The Primary Sources:

(1) Quran:
The word Quran is derived from the Arabic word “Qurra” and properly signifies, “the
reading” or “that which ought to be read”. It is believed that Quran is of divine origin and
was revealed to Prophet Mohammad for the benefit of mankind. Quran is the first source
of Muslim law in point of time as well as in importance. It is the first source in point of
time because, before Quran there was no Islamic society as it exists today.

As pointed out earlier, the first revelation (Wahi) came to the Prophet in 609 A.D. Since
then the revelations continued to come to the Prophet in fragments during a period of 23
years, till 632 A.D. when the Prophet expired.

The revelations were the communications of God and were made by angel Gabriel to the
Prophet. These communications or messages from God were conveyed to the society by
the Prophet through his preachings.

The Prophet from time to time used to deliver preachings to his followers saying that
these were the messages to them from God. The communications were in the form of
verses and were remembered by the followers of the Prophet. Some of them were also

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reduced to writing on palm-leaves, camel hide or even on mud so that they may not be
forgotten.

The communications were in scattered form and were not systematically revealed. After
the Prophet’s death, the revealed verses were collected, consolidated and systematically
written under the authority of Osman who was the third Caliph.

A peculiar feature of the verses of Quran is that they are believed to be the very words of
God; Prophet Muhammad was simply the messenger of God to the society. Quran is of
divine origin, therefore, in importance it is the first source of Muslim law.

Salient Features of Quran as Source of Law:

Salient features of Quran as a source of Muslim law, may be summarised as under

(i) Divine Origin:

Quran is of divine origin. It is believed in Islam that the words and the verses of this holy
book are made by Almighty God and not by any human being. The Prophet simply
uttered these words on behalf of God. Since Quran is compilation of the very words of
God, its words are unchangeable and its authority is unchallengeable.

(ii) First Source:

Quran is the first and fundamental source of Islam in point of time. The present Muslim
religion was bom with the words of Qurar. Any study of Islamic principles or the Muslim
law must therefore, begin with it.

(iii) Structure:
Quran is in the form of verses. Each verse is called ‘Ayat’. There are 6237 verses in
Quran which are contained in 114 Chapters. Each Chapter of Quran is called ‘Sura’. The
various chapters are arranged subject-wise and have their specific titles. The first ‘Sura’
of Quran is Surat-ul-Fatiha which is an introduction to the holy book and consists of
verses in the praise of Almighty God.

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Similarly, other chapters contain generally the verses on the subject which justify their
titles. Some of the important chapters of Quran are, Surat-un-Nisa (rales relating to
women), Surat-ul-Talaq (rules relating to divorce), Surat-ul-Baqr (rules relating to
religion and morality), Surat-ul- Ikhlas (principle of absolute surrender to God) and,
Surat-ul-Noor (rules relating to home-life).

(iv) Admixture of Religion, Law and Morality:

Quran is mixture of religion, law and morality. Religion, law and morality are, at some
places, mixed in such a manner that it is difficult to separate them. In holy books of other
religions too, we find the same peculiarity.

For example, in Vedas and Smritis (the fundamental sources of Hindu Law), the legal
rales are mixed with the moral code of conduct.

It is believed that the verses of Quran pertaining to religion and morality were revealed at
Mecca and those pertaining to ‘law’ were revealed at Medina. The whole of Quran,
therefore, may not be treated as a source of law. Only the law-making Ayats, which are
about 200 scattered in different chapters, may be regarded as the fundamental source of
Muslim law.

(v) Different Forms of Legal Rules:

The verses of Quran deal with law in different forms. Some of the verses have removed
objectionable and evil customs like child infanticide, unlimited polygamy, gambling,
usuary (charging very high interest in loans) etc.

Some of them have laid down specific law-making ‘rules’ to settle the question that
actually arose in day-to- day life. Quran contains also the general injunctions which have
formed the basis of important juristic inferences.

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(vi) Unchangeable:
The words of Quran are the words of God; therefore, it is the most authoritative source of
Muslim law. If any specific meaning has been attributed to a particular verse of Quran,
either by Shia or by Sunni authorities then, the courts have no power to give any other
meaning to that verse.

(vii) Incompleteness:
Quran is not a complete code of Muslim personal law. It generally contains verses
relating to the philosophy of life and religion. Only about 200 verses deal with legal
matters. Out of these, only about 80 verses deal with personal law. Thus, only basic
principles of Muslim personal law are given in Quran.

(viii) Silence of Quran:

On many legal issues the Quran is found to be silent. For new problems of the society no
legal solutions were available in the apparent words of Quran.
We have seen that Quran is such a source of Muslim law which has came directly from
God. It was revealed to the Prophet for the socio-religious reform of the Arabian society
of that time and therefore we may find solutions to almost all the problems of that society.
But the religion of Islam spread so rapidly that within a short period the Islamic society
became a big Islamic Commonwealth. It was obvious that in such a progressive society
new problems arose day by day.
It was, therefore, necessary to explain and supplement the verses of Quran so that solution
to new problems could be found. Accordingly, as a source of law, Quran was
supplemented by another source called Sunna.

(2) Sunna or Ahadis (Traditions of the Prophet):

Sunna or Ahadis means the traditions of the Prophet. Whatever the Prophet said or did
without reference to God, is treated as his traditions and is the second source of Muslim
law. Traditions are the injunctions of God in the words of the Prophet.
Where the words of God could not supply an authority for a given rule of law, ‘Prophet’s
own words’ were treated as an authority because it is believed that even his own sayings
derived inspiration from God.

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In Islam it is believed that the revelations were of two kinds, manifest (Zahir) and internal
(Batin). Manifest or express revelations were the very words of God and came to the
Prophet through angel Gabriel; such revelations, as pointed out earlier, formed part of
Quran.

Internal or implied revelations on the other hand, were those which had been ‘Prophet’s
own words’ but the ideas contained in the slayings were inspired by God. Such internal
revelations formed part of Sunna. Tradition therefore differs from Quran in the sense that
Quran contains the very words of God whereas a Tradition is in the language of the
Prophet.

What Constituted Sunna?

All the preachings and the practices of the Prophet (except when direct revelations from
God used to come) formed part of Sunna. What the Prophet said what he did and also his
silence in a question put before him, was all taken to be authoritative and become a
precedent. Traditions as a source of Muslim law consist of:
(i) Sunnat-ul-Qaul (words spoken) which means the utterances or the sayings of Prophet
Mohammad;
(ii) Sunnat-ul-Fail (conduct) which includes the doings of the Prophet i.e. his behaviour;
and
(iii) Sunnat-ul-Taqrir (silence) which is the ‘silence of the Prophet’ in answer to a
question which was put before him for his decision. Silence amounted implied consent or
approval of a rule of law. Sunnat-ul-Taqrir also includes such pre-Islamic customs which
were not disapproved by the Prophet. He allowed the continuance of some customs in the
society by his silent approval.

Narrators of the Traditions:

The preachings and precepts could become an authoritative source of law when some
competent and qualified person called Narrator, had narrated it. In other words, the
Narrator used to testify that he heard the Prophet Saying it, or seen him doing it or has
seen his silence over that matter. If this narration was found to be reliable, it became
Sunna.

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As the narration of a tradition amounted to the creation of a new rule of law, the Narrator
was required to be a qualified person. According to Abdur Rahim a person must possess
following qualifications for being a competent Narrator: (i) he must have understanding
(sane and adult), (ii) he must possess the power of retention, (iii) he must be a Muslim,
and (iv) he must be of righteous conduct. Having these qualifications, following class of
persons was recognised as Narrators:

(a) Companions of the Prophet:

They were such Muslims who lived during the life-time of the Prophet and had the
privilege of being in his close contact. This narration was treated as most reliable.

(b) Successors of the Companions:

Those Muslims who did not live during the life of the Prophet but had the occasion of
being in contact with the Companions of the Prophet were called the Successors.
Authority of the narrations of the successors was second in priority.
(c) Successors of the Successors:
Such Muslims who neither lived during the life of the Prophet nor during the life of any
of the Prophet’s Companions, but were in contact with the Successors, were called the
Successor of the Successor of a Companion. Their narration was last to be relied upon.
Thus we see that the nearer was a Narrator to the Prophet, greater was the force of his
narration.

Kinds of Traditions:
Recognition and acceptance of a tradition as a source of law depends upon its authority
and, its authority depends upon its proof given by the Narrators. From the point of view
of their authority and acceptance in the society, traditions may be classified as under:

(i) Ahadis-i-Mutwatir (Universally Accepted Traditions):

They are the traditions which have continuously been narrated by indefinite number of
persons. They are most authoritative because there is no doubt in their genuineness and
certainty. These traditions have universal acceptance and are followed by all the sects of
Islam. Abdur Rahim rightly observes that traditions of this class, like verse of the Quran,
ensure absolute certainty as to their authenticity and demand implicit belief.

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(ii) Ahadis-i-Mashhoor (Popular Traditions):
Traditions, which have been narrated by some Companion of the Prophet but
subsequently accepted by majority of the people, are called Ahadis-i-Mashhoor or the
well known traditions. These traditions are not accepted unanimously by all Muslims but
a great majority has always recognised them as a source of law.

(iii) Ahadis-i-Ahad (Isolated Traditions):

Isolated traditions have neither been continuously followed nor followed by majority of
the people. Only a certain section of the society has accepted them as source of law.
Where the authenticity of any narration was doubtful, it was followed for some time only
by few persons. Such traditions are called isolated traditions because their acceptance and
recognition is localised one. Majority of the jurists do not recognise these traditions as a
source of Muslim law.

Traditions are narrations of law and religion which were communicated from one
generation to another and thus became the practices in the society. They were for a long
time neither written nor systematically arranged.
For the first time, Abu-Ibn-Zuhri attempted to collect and write down the scattered
traditions. But Muvatta of Malik Ibn- Anas is regarded to be the first systematic
collection of traditions, arranged and classified according to subjects. Traditions are in a
very large number. Ibn Hanbal has collected about 80,000 traditions in his book Masnad.

Drawbacks of Traditions:
The importance of traditions as a source of Muslim law is unquestionable. But as source
of law it suffers from following drawbacks:
(1) There are many traditions of doubtful origin. On several occasions, the prevalent
customs were treated as a rule of law in the name of the practices of the Prophet.
Narrators of such traditions are unknown persons.

(2) There are several traditions which are contradictory to each other. There is, therefore,
no uniform and certain law on many issues.

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(3) Traditions have laid down religious, moral and also the legal codes of conduct for the
society. Sometimes it is difficult to separate a religious or moral principle from a legal
rule.

(4) Traditions got their authority from the narrators. After sometimes when successor of
the successor also died, the formation of this source of law was stopped. For any new
situation, therefore, traditions, as a source of law were not available.
Because of the above-mentioned reasons, some other source of law was necessitated for
the rapidly increasing Islamic society. The next source of Muslim law is Ijma, which is
discussed below.

(3) Ijma (Unanimous Decisions of Jurists):

When Quran and traditions could not supply any rule of law for a new problem, the ‘law-
knowing persons’ (jurists) used to agree unanimously and gave their common opinion
over that point. Persons having knowledge of law were called Mujtahids (Jurists).

Such consensus opinion or unanimous decision of the jurists was termed Ijma, and is the
third primary source of Muslim law. According to Abdur Rahim, Ijma may be defined as
the agreement of the jurists among the followers of the Prophet Mohammad in a
particular age on a particular question.

This source of Muslim law has played a very important role in the subsequent
development of Muslim law because; through Ijma it was possible to lay down new
principles in accordance with the changing needs of the Islamic society. Validity of Ijma
as a source of Muslim law is based on a tradition of the Prophet. In this ‘tradition’ he has
said that, ‘God will not allow His people to agree on an error.

Formation of Ijma:
When a new principle of law was required, the jurists (Mujtahids) used to give their
concurrent opinion and a new law was laid down. Every Muslim was not competent to
participate in the formation of Ijma. Only Mujtahids could take part in it.
Qualification for being a Mujtahid was that he must be a Muslim having adequate
knowledge of law and was also competent to give independent judgments. This process of

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formulating a law through the consensus of the jurists was termed as Ijtihad which
technically means exercise of one’s own reasoning to deduce a new rule of law. But, the
jurists were not free to give the decisions without any basis. They had to justify their
opinions in the light of some well settled principles already given in Quran or the
traditions. Public policy, ‘interest of the community’ and equity were also taken into
account as the basis for a new explanation of law.

Kinds of Ijma.
Authority of Ijma depended upon the merit of the participator in its formation. There were
different categories of the jurists. Better was the category of jurists, greater is the value of
their opinions. From the point of view of authority and importance, there are three kinds
of Ijma:

(1) Ijma of the Companions:

The concurrent opinions of the Companions of the Prophet were taken to be most
valuable and reliable. It was presumed that the Companions were the best persons to act
as jurists. Such Ijma, being most authoritative, could not be overruled or modified by any
subsequent Ijma. Hanbalis recognise only this kind of Ijma.

(2) Ijma of the Jurists:

This was the unanimous decision of the jurists (other than Companions) over a point of
law in a particular age. In the absence of the opinions of the Companions of the Prophet,
it was natural that the opinion of other learned scholars of any age was taken to be the
law. A great mass of Hanafi rules of law have been formulated through this kind of Ijma.

(3) Ijma of the People:

The third category of Ijma is the opinions of the majority of the Muslims. Sometimes the
general agreement of the great majority of Muslims was also accepted as law. As a source
of law, this kind of Ijma has little value because of two reasons.
Firstly, it was not possible to have the concurrent opinion or even the absolute majority of
the community at large. Secondly, every Muslim cannot be supposed to be a learned
scholar. Ijma of this kind generally relates to religious practices such as the observance of
fasts, Zakat, prayers, etc.

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Importance of Ijma:
New facts and new situations required new laws. Quran and traditions were adequate only
for the past and not for the future society. Fyzee rightly observes that, “Quran and Sunna
look to the past; consensus and qias deal with the future of Islamic jurisprudence”. In fact
a major portion of the positive Muslim law (fiqh) came through Ijma. As a source of law
importance of Ijma is twofold:

First, further explanation and clarification of Quran and traditions was possible through
consensus opinions of the jurists.
Secondly, new principles of law, not found in the words of Quran or the traditions were
also formulated according to the changing needs of the society.

Quran and Traditions being rigid, no change was possible in their words. But Ijma had
opened the doors for new interpretations of Islamic legal rules. Ijma has rightly been
termed as a ‘movable element in law. It is movable element in law because it is flexible
and not rigid like Quran or Traditions.

According to J. Schacht, it is ‘living tradition’. Through Ijtihad (process of Ijma) rule of

law may be obtained for any society in any age. In this manner, it is a living source of
legislation. Reform in Muslim personal law is possible even to-day in the same manner as
Ijma was being formed in the past.

Defects of Ijma:
As a source of Mulsim law, Ijma had following defects:
(i) The consensus of opinion of the jurists was based on several grounds, such as Quran,
traditions, custom, public policy, equity etc. This led to differences in the approach of
scholars in arriving at a decision. The result was that different schools and sub-schools
were formed and law became complicated.
(ii) After sometime, it was doubted whether the consensus or unanimity in the opinions,
was at all necessary. Different views were expressed regarding the nature of consensus.
According to some, a unanimous decision was necessary but according to others, opinions
of the majority were sufficient to constitute the Ijma.

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(iii) Except the Ijma of the Companions, other two kinds of Ijma could be modified or
overruled by a subsequent Ijma. There was, therefore, no certainty in law.
(iv) In a very short period, Islam spread to distant places. It became practically difficult to
consult all the jurists and obtain their opinions.
(v) Only learned scholars could take part in the formation of Ijma. By and by these
scholars died and it was felt that no jurists are available for its formation. The result was
that about the 10th century, Ijma had to be abandoned.

(4) Qiyas (Analogical Deduction):

In the Arabic language Qiyas means ‘measurement’. In other words, it means measuring
or comparing a thing in relation to a standard, or ‘to establish an analogy’. If there was
any problem before the society on which the texts (Quran, Sunna and Ijma) were silent
then Qiyas was applied to get the law.

It was a method of comparing the problem of society with a similar problem for which
solution was given in the texts. Wilson defines Qiyas as an analogical deduction from the
reason of a text to a case not actually covered by its language.

In obtaining a law through Qiyas, following method was applied by the jurists
(Mujtahids):
(a) A similarity was established between the new problem (for which the law was
required) and an identical problem given in the text. For establishing similarity, ‘reason’
or the sense behind a text was taken into account rather than the meaning of its apparent
words. In this manner, the ‘common cause’ (Illat) of the two problems was found and
analogy was established between the given problem and a similar problem available in
the text.

(b) After establishing the analogy, the solution of the problem given in the text was
applied to the new problem. Thus, the required law was directly deduced from the texts of
Quran or Sunna or the Ijma. It is significant to note that in this method new principles
were not formulated. The law was simply discovered from the spirit or the implied
meaning of the text.

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In drawing conclusion through Qiyas, unanimity among the jurists who used to establish
the analogy, was not necessary. Only following conditions were required:
(1) The person who established analogy was a Mujtahid (jurist) and that,
(2) He deduced the law from a definite text of Quran or Sunna or the Ijma.
Qiyas may be distinguished from other similar concepts namely, Istihsan and Istidlal.

Qiyas and Istihsan.

Istihsan means juristic equity. It is a principle of interpretation recognised only under
Hanafi School. Istihsan is a conclusion of law based upon the jurist’s own sense of justice
without reference to any text. Qiyas on the other hand, is a conclusion of law based on a
definite text of Quran, tradition or Ijma.

Qiyas and Istidlal.

Istidlal means infering a ‘thing’ from another ‘thing’. For example, if the statement is that
a particular thing is permitted then, the inference will be that the thing cannot be
forbidden. The basis of such reference is generally the welfare of the public.

This too is a rule of interpretation and, is recognised by Maliki and Shafei Schools only.
Thus, under the principle of Istidlal only an inference is drawn and analogy is not
established whereas, in Qiyas the rule of law is deduced by establishing analogy.

Primary Sources under Shia Law.

The primary sources under Shia law may be summarised as under:
(1) Quran.

(2) Traditions (only those which have come from the Prophet’s family).

(3) Ijma (only those which were confirmed by Imams).

(4) Reason (Aql).

It may be noted that Shia sect does not recognise Qiyas as a source of law. Traditions too
are recognised as source of law only if they have come from the Prophet’s family. But,

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besides such Traditions of the Prophet, Shia law recognises also the ‘sayings and doings’
(conduct) of Imams as source of law.

It is significant to note that in addition to Quran, other sources are recognised under Shia
law only where such sources have come through Imams. Generally, it is believed that
whatever has been laid down by Imams shall be accepted as law. Fyzee observes thus:
“The Imam is the law-giver himself, the speaking Quran; he may in a proper case even
legislate, make new laws and abrogate old ones; but as he is hidden…, the Mujtahids who
are present at all times are his agents, the recognised interpreters of the law.”

B. Secondary Sources:
(1) Custom (Urf or Taamul).
Before Islam, the Arabs were governed by customary laws. When Islam came into
existence, most of the customs were found by the Prophet to be evil and bad. Such bad
customs were totally abolished by him and he declared them to be un-Islamic. But there
were certain pre-Islamic customs (e.g. dower, talaq etc.) which were good and tolerable.
The Prophet did not abolish them, and they continued in the society because the Prophet
sanctioned them by his silent approval. In this manner some of the good customs became
a part of the traditions of the Prophet i.e. Sunnat-ul-taqrir.
Moreover, there were customs on the basis of which the jurists gave their unanimous
decisions on a given point of law and they formed part of Ijma. Thus, we see that custom
is not any independent source of Muslim law. A customary law exists in Islam either
because it has got the approval of the Prophet or, has been incorporated in Ijma.

Importance of Customs.
Although custom is not any formal source yet, its importance in Muslim law cannot be
under-estimated. In the absence of a rule of law in the texts of any of the four primary
sources, the customary practices have been regarded as law.

The four formal sources namely, Quran, Sunna, Ijma and Qiyas being fundamental
sources, could not include minute details in respect of certain matters. In such specific
cases the customs and usages became a rule in order to complete the law.

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Therefore, the customary law has been used to supplement the four primary sources of
Muslim law. British courts in India had on several occasions recognised the legal force of
customs and usages. Those courts have made the maximum use of customary practices in
respect of Muslim law and recognised a custom even if it was opposed to a clear text of a
primary source. For example, in Abdul Hussein v. Sona Dero, the Privy Council observed
that if proved, a custom would prevail over a written text of law provided the custom was
ancient and invariable.

The orthodox Muslims felt that by giving general application to this rule, the courts have
attempted to violate the original Muslim law (Shariat). They demanded that there should
not be any place for customs in the Muslim personal law as it was un-Islamic.
Accordingly, the Muslim Personal Law (Shariat) Application Act, 1937 was enacted and
is still in force. Now, under this Act, custom is not any independent source of Muslim
personal law.

Present Position of Custom under Muslim Law.

The Shariat Act, 1937, which applies to Muslims all over India (except Jammu and
Kashmir) abolishes most of the customs from Muslim law. Section 2 of this Act provides
that if the parties are Muslim, only Muslim personal law (Shariat) will be applied to them
in matters of inheritance, special property of females, marriage, dower, divorce,
maintenance, guardianship, gift, waqf and trust. In respect of these ten matters, therefore,
customs or usages cannot be applied now.

But customs are still applicable to Muslims in the matters, relating to their (a) agricultural
lands, (b) charities, and (c) religious and charitable endowments, because these matters
have not been included in Section 2 of this Act.

Moreover, Section 3 of the Shariat Act provides that adoption, wills and legacies would
be regulated by customary law unless a Muslim had expressly declared that in these three
additional matters too his rule of law should be Muslim personal law (Shariat).

The result is that at present Muslims in India may still be governed by the customary law
except in the ten matters enumerated in Section 2 of the Shariat Act. In Jammu and

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Kashmir, where the Shariat Act, 1937 is not applicable, the rules of Muslim law have
always been subjected to custom and usage. The custom of adoption by Muslims of this
State is valid although under Muslim personal law adoption is not possible.

(2) Judicial Decisions.

Judgment of a superior court becomes an authority for the courts subordinate to it. The
subordinate courts are bound to follow the law laid down in that decision. This is called
the principle of precedents and is followed in India on the pattern of the British courts.
Thus, a judicial decision of the Supreme Court of India is binding on all the High Courts
in so far as the law decided in that case is concerned. Similarly decision of a High Court
is binding on the subordinate courts. Muslim law is no exception to this judicial practice
and therefore, a point of law decided by the Supreme Court or a High Court of India
becomes a ‘source of law’ for the courts subordinate to them.

There is not much scope for the judicial decisions as source of Muslim law. But, in the
absence of any clear text of Muslim law, the courts may interpret a rule of law according
to their own concepts of justice. In such cases, the Muslim law becomes what the courts
say.
For example, generally the taking of interest in a loan is prohibited in Islam, but the Privy
Council allowed simple interest on die amount of unpaid dower. Accordingly, the
realisation of interest on unpaid dower has now become a rule of Muslim law through
precedent.

Similarly, in Katheessa Umma v. Narayanath Kunhamu the Supreme Court has held that
a gift by a husband to his minor wife above the age of fifteen years but under eighteen
years is valid even if the gift was accepted by any incompetent guardian under Muslim
law. Although such a gift is invalid under pure Muslim law but after this decision the law
in India is that under the given circumstances a gift is valid.

Judicial decisions have played an important role in laying down rules of Muslim law in
accordance with the socio-economic conditions of the Indian Muslims. The courts have
given some very important judicial decisions. In Begum Subanu v. Abdul Gafoor the
Supreme Court has held that despite the fact that a Muslim husband has legal right to

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contract second marriage, if the first wife lives separately only on the ground of
husband’s second marriage, she would be entitled to get maintenance from husband.
Section 2 of the Dissolution of Muslim Marriages Act, 1939 provides eight grounds on
the basis of any one of which a wife may seek dissolution of her marriage.

Clause (ix) of this Act provides ‘any other ground recognised under Muslim law’. Under
this clause the Indian courts used to pass decree of dissolution on ground of ‘false charge
of adultery by husband against wife’ (Lian) because this ground is not included
specifically.

But, in Muhammad Usman v. Sainba Umma the Kerala High Court has held that Section
2(ix) is a ‘residuary clause’ under which the court at its discretion may dissolve the
marriage on any ground if it is satisfied that the dissolution is necessary in the case. It
may be noted that in this case the ground on which wife wanted dissolution of marriage
was her ‘hate towards her husband’.

This was found a reasonable ground and the court dissolved the marriage under clause
(ix) of the Act. Law of pre-emption is a glaring example where judicial decisions have
modified the rules of pure Muslim law according to the changing needs of the Indian
Muslims.

It may be concluded therefore, that to some extent, the courts in India have attempted to
modify the rules of Muslim personal law as applied in India. Unless overruled or negative
by some legislative enactment, these rules through the decisions, continue to be a source
of Muslim law.

(3) Legislation:
In Islam it is generally believed that God alone is the Supreme Legislator and no other
agency or body on earth has authority to make laws. This belief is so deep-rooted that
even today; any legislative modification may be treated as an encroachment upon the
traditional Islamic law. The result is that as independent source of Muslim law, the
legislative enactments are almost insignificant.

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However, there are certain Acts which modify or otherwise lay down principles of
Muslim law, and for the modern courts in India these enactments are the only source of
law on the points covered by them. Some important enactments on Muslim personal law
are given below:

(i) The Mussalman Waqf Validating Act, 1913:

This Act re-establishes the validity of Waqf-al-al-aulad (family waqf). This enactment has
not changed the rule of pure Muslim law. It has simply re-established the law relating to
family-waqfs which was modified by the judicial decision.

(ii) The Child Marriage Restraint Act, 1929:

To some extent this Act modifies the Muslim law regarding the age of marriage. The Act,
(as amended by the Act of 1978) provides that the marriage of a boy under the age of 21
years and of a girl less than 18 years is a ‘child marriage’ and is punishable. Under
Muslim personal law the age for the marriage is fifteen years. However a marriage
against the provisions of this Act is perfectly valid.

(iii) The Muslim Personal Law (Shariat) Application Act, 1937:

We have already seen that this enactment confirms the general principle of Muslim
jurisprudence that customs have no place in Muslim law. Thus, this enactment too has not
made any significant change in the pure Muslim law. It has simply established the rule of
pure Muslim law that custom is not to be taken as an independent source of Muslim
personal law.

(iv) Dissolution of Muslim Marriages Act, 1939:

This is an enactment which may be said to have modified the pure Muslim law. Under
this Act, a Muslim wife is given a right of judicial divorce on any of the grounds
mentioned in it. Under pure Muslim law a wife had no independent right to seek divorce.

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(v) Muslim Women (Protection of Rights on Divorce) Act, 1986:
Besides other provisions, this Act gives statutory recognition to the established rule of
pure Muslim law that a former husband is liable to pay maintenance to his divorced
woman only up to her period of Iddat.

In the controversial Shah Bano’s case the Supreme Court held that under Section 125 Cr.
P.C., 1973 a divorced Muslim woman is entitled to get maintenance from her former
husband even beyond the period of Iddat. Under pure Muslim law, a divorced Muslim
woman is entitled to get maintenance only upto the period of her Iddat which is normally
three months.

It was argued that Section 125 of the Cr. P.C. was un-Islamic and was inapplicable to
Muslim women. But the Supreme Court held that Section 125 is not un-Islamic and is
equally applicable to Muslims as well. However, on demand of a section of the Muslim
community, the Parliament negatived the effect of Shah Bano’s case and passed this
enactment. Besides other things, The Muslim Women Act, 1986 now enacts the rule of
pure Muslim law in respect of maintenance of a divorced Muslim woman.

Besides these Acts, there are also enatcments which regulate the law of pre-emption and
the law of waqfs. For example, the Punjab Pre-emption Act, 1913, the Rewa State Pre-
emption Act, 1946 etc. and the Mussalman Waqf Act, 1923 or the Waqfs Act of 1954.
The Pre-emption Acts do not lay down any new provision regarding the well-known right
of pre-emption under Muslim personal law; they simply provide that the right is available
to all persons within the jurisdiction of respective Act.

Similarly, the various Waqfs Acts provide generally the rules for the supervision and
administrative control of a waqf and waqf-properties. The Family Court Act, 1984 is
applicable also to Muslims. This Act too does not modify the substantive rules of Muslim
personal law. It generally deals with the procedure

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 UNIT-2
HINDU LAW OF MARRIAGE.
Historical development of marriage:
Now we have seen well established marriage. This type of marriage did not exist
among the primitive men. At the time man lived more or less like any other animals. He
was so much engaged in the satisfaction of his primary needs, hunger and shelter. There
was no time or occasions to think of refinement. Sex promiscuity was absolutely free.
Sex promiscuity was rule. During the course of time, primitive society underwent
several changes. In the changed society, two discoveries are made,
1. Discover of Milch cattle
2. Discovery of fire

In the initial stages of discovery of fire, man used fire to ward or escape of his
enemies, wild animals and other group of man who attacked him. The use of fire for
cooking purpose was made latter. With the emergence of herds of cattle, the idea of
possession and ownership also emerged. Men started leading some civilized life.

So long as the sex relationship remained unregulated, the maternity alone could be
known, but paternity could not be determined. Whenever the idea of property came into
exist, the idea of marriage also emerged. That is the man was seized with the idea of
knowing of his own children. If sex promiscuity was rule, it is not possible to identify
his children. If sex relationship could be made an exclusive union of man and woman, it
is possible to identify his own children.

The idea of marriage would not sudden origin. But it was slow and prolonged
process. In development of marriage, there are five important stages, these are,

1. In the primitive society, woman belonged equally to every man. The sexual relation
prevailed throughout entire society without any restriction.

2. During the course of development,( at the beginning) the promiscuous sexual

intercourse prevailed with in a tribe. The woman in the tribe belonged equally to every
man. But sexual intercourse outside the tribe was prohibited.
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 3. During the further course of development, the sexual relationship within the closer
relationship was prohibited. That like between son and mother, father and daughter and
brother and sister.

4. During the further course of development, the process of prohibition of sexual

intercourse continued. In this stage, the sexual intercourse with remoter relations was
excluded.

5. In the time of final stage, the idea of property came into existence. For giving his
property to his own children, the man was seized with the idea of knowing his children.
So they ruled an exclusive union of man and woman.

Hindu law of marriage has been classified into two heads:

I. Law of marriage prior to the Hindu Marriage Act, 1955:-
II. Law of marriage after the passing of the Hindu Marriage Act, 1955:-

I. LAW OF MARRIAGE PRIOR TO THE HINDU MARRIAGE ACT,

1955:-
1. Concept of Marriage:
a). Marriage is the basis of Hindu social organization.

b). Marriage is one of the found of legal rights and obligation

c). Marriage means a “Holly union between male and female” for the performance of
religious duties and for the begetting of male progeny.

d). Marriage is treated as a Samskaras or Purificatory Ceremonies.

There are 10 Samskaras in Hindu law. The last one is marriage Samskaras and is
enjoined by every Hindu for “regeneration of man” and “purifying the body from
inherited taint”. Since the marriage is not a civil contract, there are three essentials:

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 1. As the marriage is sacramental, it cannot take place without the performance of
sacred rites and ceremonies.

2. Sacramental union implies that it is a permanent union. Marriage is a tie which once
tied cannot untie. This implies that marriage cannot be dissolve

3. Thirdly, the sacramental union means that it is an eternal union. It is valid not merely
in this life but in lives to come.

2. Marriage: compulsory?
Every Hindu, male and female, could marry whatever be his or her age. In the case of
female, it was compulsory without any exception. If there was no competent guardian
or where such had neglected to arrange her marriage, such girl might choose herself a
husband and marry him.

But in the case of male, the marriage was also compulsory subjected two exceptions,
that are,
1. If he could remain perpetual student
2. If he desire to become sanyasi

3. Marriage: monogamy?
1. In the case of female, monogamy was compulsory. A second marriage of female
during subsists of 1st marriage would be void. But after the death of the husband, she
could be allowed for second marriage if custom allowed.

2. But in the case of male, monogamy was also compulsory, but they are some
exception for second marriage on the basis of legal justification. Therefore monogamy
was recommended, but not compulsory for male. As a result of this, a male could be
allowed to have more than one wife.

4. Forms of marriage:
Hindu marriages are 3 kinds:
1. Sastra Marriage; 2. Customary Marriage; and 3. Statutory Marriage.
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Sastra Marriage: If a marriage has been solemnized by the performance of sacred rites
and ceremonious, it is called as Sastra Marriage.
There are 8 forms of Sastra Marriage among Hindus.
(i) Brahma Marriage:
A marriage is said to be Brahma marriage, if there was a gift of a daughter by her
father or in the absence of father by the next guardian to a man learned Veda whom he
voluntarily invited. It is to be considered as best form of marriage.
Originally this type of marriage is available only to persons belongs to three
superior castes.
The main requirement is that the girl was decked with jewels and costly garments
and bridegroom should be learned in the Vedas.

(ii) Daiva Marriage:

In Daiva form of marriage, the girl was given in marriage to the priest officiating
at sacrifice performed by her father in lieu of Dakshina or the fee due to the priest. The
gift of the daughter to priest is in the nature of a fee for performing the sacrifice.

(iii) Arsha Marriage:

When the father gave his daughter in marriage after having received from the
bridegroom a pair of kine or pairs for uses prescribed by the law, the marriage was said
to be in the Arsha form.

(iv) Prajapatya Marriage:

In this marriage was a nuptial rite in which the father gave his daughter to
bridegroom and saying “may both of you perform together your civil and religious
duties”.

(v) Asura Marriage:

In this form of marriage, the bridegroom took the bride voluntarily after giving
wealth to her parents and kinsman and also to the damsel herself.

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 (vi) Gandharva Marriage:
With her own consent, if the bride gives herself away to the bridegroom, the
marriage is called Gandharva Marriage. Therefore it is voluntary union of maiden and
her lover. If the bride and bridegroom mutually bind themselves and bride says that you
are my husband and bridegroom says that you are my wife, the marriage is called
Gandharva marriage.

(vii) Rakshasa Marriage:

If a girl was seized by force or fraud and then married, it is called as Rakshasa
Marriage.

(viii) Paisacha Marriage:

If a girl was ravished when she was sleeping or drunken or when she was mental
disorder and afterwards married, such marriage is called Paisacha Marriage.

(ix) Customary form of Marriage:

If a Marriage is solemnised according to customs and usages followed by the
parties to the marriage, such marriage is called customary marriage.

(x) Statutory Marriage:

If a marriage is performed as the norms of the Act passed by parliament or state
Legislature, it is Statutory Marriage.

5. Ceremonies of Marriage:
Whatever the form of marriage, the marriage was marked by the performance of
certain religious ceremonious. Usually there were 3 stages in ceremonious.

1. Betrothal: Formal promise to give the girl in marriage.

2. Kannikadhana: The actual gift of the girl in marriage.
3. Saptapathi:
The taking of seven steps by the bride and bridegroom before sacred fire or
holly fire is Saptapathi. Consummation of marriage was not essential to make a

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 marriage complete. But on the other hand, on the performance of Saptapathi, the
marriage became complete and irrevocable.

6. Who may give the girl in marriage?

Under the Mitakshara law, the following persons are entitled to give the girl in
marriage successively,
1. Father
2. Paternal grand father
3. Brother
4. Paternal kinsmen
5. Mother

Under the Dayabhaga law, the following persons are entitled to give the girl in
marriage successively,
1. Paternal grand father
2. Brother
3. Father
4. Paternal kinsmen
5. Maternal grand father
6. Maternal uncle
7. Mother

7. Conditions for valid Marriage:

a).Both bride and bridegroom belong to same caste. (Rule of Endogamy)
b).They should not have the same Gotra. (Rule of Exogamy)
c). They should not be within the degree of prohibited relationship to each
other (Rule of Avoidness of Sapindas)
d. Minority and Impotency was no bar for Marriage.

8. Intercaste and inter religious marriages

They are two types of inter caste marriage, these are:
1. Anuloma Marriage: Marriage of Brahmin male with Ksatriya female.
2. Pratiloma Marriage: Marriage of Brahmin female with Ksatriya male.
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 There is no inter-religious marriage under Hindu law. But inter religious
marriage may be allowed only under “The Special Marriage Act 1872.”

9. Divorce:
According to Sastra, marriage was irrevocable. Divorce was not known to the
general Hindu law. Unless the custom allowed, there is no divorce. In the three upper
caste, there is no custom for divorce. But only under certain caste in Sutra, there is a
divorce as per custom.
The Native Convert’s Marriage Dissolution Act, 1866.
This Act enables a convert from Hinduism to Christianity to obtain dissolution of
marriage with a Hindu spouse contracted to prior to conversion.

10. Re-Marriage of Widow:

A widow could not allow for re marriage. If custom allowed, she will re
married. In certain caste in sutra, custom allowed remarriage of widow. But the
remarriage of widow is expressly legalized by “The Hindu Remarriage Act, 1856.”

11. Legal effects of valid marriages:

1. From the movement of marriage, the wife was passed into the protection of her
husband and she was bound to live with him.
2. The wife was entitled to get maintenance from her husband.
3. Both the parties become entitled to get conjugal society to each other.

II. MARRIAGE UNDER THE HINDU MARRIAGE ACT, 1955

This Act has been passed for the purpose of amend and codify the law relating to
marriage among Hindus.
Salient feature of this Act:-
1. The Hindu marriage Act 1955 has provided uniform and comprehensive rules of
marriage applicable to all Hindus.

2. A Hindu marriage under this Act is more or less secular than sacramental.

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 3. The conditions and requirements of a valid marriage have been very much simplified.

4. Monogamy has been made compulsory for both male and female.

5. Under this Act, caste considerations are irrelevant and all restrictions on inter caste
marriages have been eliminated.

6. The restrictions based on Gotra and Sapinda relationship are either abolished or with
held.

7. The different form of marriage are no longer material since the only form of marriage
will be that which are adopted by the parties to the marriage as prevailing in his or her
community.

8. Provisions relating to Divorce, Divorce by Mutual consent, judicial separation and

annulment of marriage by decree of nullity have been introduced.

9. The children of void and voidable marriages shall be treated as legitimate children
irrespective of passing of a decree of nullity.

10. Provisions have been made for award alimony pendente lite, permanent alimony
and maintenance.

11. Courts are vested with wide discretion to pass suitable orders relating to the
custody, maintenance and education of the minor children of the parties, in any
proceeding under the Act.

12. Provision has been made for registration of marriage under this Act for facilitating
proof of such marriage.

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Definition of Hindu marriage:
A Hindu marriage is a marriage solemnised between two Hindus in accordance
with the customary rites and ceremonious of at least one of the parties to the marriage
after satisfying the prescribed requirements.

Interpretation clauses: Section 3 of the Act interprets the following terms,

1.Custom and usage 3(a)
2.Full blood 3(c)
3.Half blood 3(c)
4.Uterine blood 3(d)
5.Sapinda relationship 3(f)(i)
6.Sapinda 3(f)(i)
7.Degree of prohibited relationship 3(g)

1. Custom and Usage:

The expression “custom” and “usage” signify any rule which, having been
continuously and uniformly observed for long time, has obtained the force of law
among Hindus in any local area, tribe community, group or family.

2. Full blood :
Two persons are said to be related to each other by full blood when they are
descended from common ancestor by the same wife

3. Half blood:
Two persons are said to be related to each other by half blood when they are
descended from common ancestor but by different wife.

4. Uterine blood:
Two persons are said to be related to each other by uterine blood when they are
descended from common ancestress but by different husband.

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 5. Sapinda relationship:
“Sapinda relationship” with reference to any person extended as far as third
generation (inclusive) in the line of ascend through the mother, and the fifth generation
(inclusive) in the line of ascend through the father, the line being traced upwards in
each case from the person concerned, who is to be counted as the first generation.

6. Sapinda:
(a) Two persons are said to be “Sapinda” of each other if one is a lineal of the
other within the limits of Sapinda relationship
(b) Two persons are said to be “Sapinda” of each other if they have a common
lineal descendant who is within the limit of Sapinda relationship with reference to each
of them.

7. Degree of prohibited relationship:

Two persons are said to be within the “degree of prohibited relationship”—
1. If one is the lineal ascendant of the other
2. If one was the wife or husband of a lineal ascendant or descendant of the other
3. If one was the wife of the brother of the other
4. If one was the wife of the father’s brother of the other
5. If one was the wife of the mother’s brother of the other
6. If one was the wife of the grandfather’s brother of the other
7. If one was the wife of the grandmother’s brother of the other
8. If two are brother and sister
9. If two are uncle and niece
10. If two are aunt and nephew
11 .If two are children brother and sister
12. If two are children of two brothers
13. If two are children of two sisters

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Kinds of Marriage:
Under the Hindu Marriage Act,1955, there are 3 types of marriage, these are:-
1. Valid Marriage– Section 5
2. Void Marriage –Section 11
3. Voidable Marriage –Section 12

VALID MARRIAGE:
Under section 5 of this Act, there are 5 conditions for valid marriage, these are:-
1. First condition relating to monogamy
2. Second condition relating to sound mind
3. Third condition relating to age limits
4. Fourth condition relating to degree of prohibited relationship
5. Fifth condition relating to Sapinda relationship

1. Monogamy:
Neither party has a spouse living at the time of marriage. So the bride must be a
spinster or widow or divorced wife and bridegroom must be a bachelor or widower or
divorced husband at the time of marriage. During subsists of 1st marriage, if any one of
the party to marriage enters into another marriage, is void marriage. Such party is liable
for punishment for bigamy under section 494 & 495 0f IPC. Section 17 of this Act also
gives punishment for violation of this condition.
In “Surjeet Singh vs Mahendra Paul Singh”, the husband entered into 2nd
marriage during the subsist of 1st marriage. The court held that it is not only a ground
for divorce, but also the wife is entitled to get degree of Nullity of her husband’s second
marriage under section 9 of the CPC and section 34 of the Specific Relief Act.

2. Sound Mind ( Section 5(ii):

This clause was amended in 1976 by Marriage Laws amendment Act, 1976.
Before 1976, this clause says:
“Neither party is an idiot or lunatic at the time of marriage”
The idiot refers congenital permanent disability, but lunacy permits lucid
intervals. The term unsound mind covers both idiot and lunacy.
After amendment, this clause read as follows:

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 at the time of marriage, neither party,--
(a) is incapable of giving valid consent to it in consequence of unsoundness
of mind; or
(b) though capable of giving valid consent, has been suffering from
mental disorder of such kind or to such extent as to be un fit for marriage and
procreation of children; or
(c) has been subject to recurrent attacks on insanity;

3. Age Limit: section5 (iii):

This clause says,-
The bridegroom has completed the age of twenty one and the bride has completed
the age of eighteen years at the time of marriage.
This clause was amended in the year 1978 by way of the Child Marriage
Restraint Amendment Laws 1976. Before this amendment, the age for male was 18 and
female was 15 years.
If this condition is violates, such violation does not vitiates the marriage, but the
marriage is always valid, only punishment alone given under section 18 of this Act.
The leading case in this subject is “Venkataramana vs State”. A male Hindu
aged about 13 married a female aged about 9 in year 1959. Treating this as void,
husband entered into another marriage in the year 1975. The question is whether the
child marriage of 1959 was void or not. The court held that it was valid.

STATUS OF CHILD MARRIAGE AFTER 2006

After 2006, if the condition relating to age limit is violated, such marriage is
comes under the purview of the “Prohibition of Child Marriage Act, 2006”. It
repealed the Child marriage Restraint Act, 1929.
Under section 3 of this Act, all child marriages are declared to be voidable at the
option of the contracting party who was a child at the time of marriage.
Child means a boy who has not completed twenty one years of age and girl who has not
completed eighteen years of age. However, a child marriage is null and void in cases,
i. If the child is taken or enticed out of the keeping of its lawful guardian
ii. If the child is, by force, compelled to go from any place
iii. If the child is, by any deceitful means, induced to go from any place

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 iv. If the child is sold for the purpose of marriage and is made to go through a form of
marriage
v. If the child is sold or trafficked or used for immoral purposes after marriage.
4. Degree of prohibited relationship:
According to clause iv of section 5,
“The parties are not related with the degree of prohibited relationship unless custom
governing each of them permit of marriage between the two”
What is Degree of Prohibited Relationship?
3(g) deals with degree of prohibited relationship.
Two persons are said to be within the “degree of prohibited relationship”—
1. one is the lineal ascendant of the other
2. one was the wife or husband of a lineal ascendant or descendant of the other
3. one was the wife of the brother of the other
4. one was the wife of the father’s brother of the other
5. one was the wife of the mother’s brother of the other
6. If one was the wife of the grandfather’s brother of the other
7. If one was the wife of the grandmother’s brother of the other
8. If two are brother and sister
9. If two are uncle and niece
10. If two are aunt and nephew
11. If two are children brother and sister
12. If two are children of two brothers
13. If two are children of two sisters

If this condition is violated, the marriage is void under section 12 and punishable under
section 18

In “Jaganathan vs Sadhu Ram”, the bride was widow of the lineal ascendant
of the bridegroom. The court held that the marriage was void on the ground of
prohibited relationship. Even though the party contented that custom permits, the court
otherwise decided.

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 5. SAPINDA RELATIONSHIP
According to section 5 (v), “the parties are not Sapinda of each other unless
custom governing each of them permit the marriage between the two”
(a) Two persons are said to be “Sapinda” of each other if one is a lineal of the
other within the limits of Sapinda relationship

(b) Two persons are said to be “Sapinda” of each other if they have a common
lineal descendant who is within the limit of Sapinda relationship with reference to each
of them.

“Sapinda relationship” with reference to any person extended as far as third

generation (inclusive) in the line of ascend through the mother, and the fifth generation
(inclusive) in the line of ascend through the father, the line being traced upwards in
each case from the person concerned, who is to be counted as the first generation.

Ceremonies for a marriage before 1955:

Whatever the form of marriage, the marriage was marked by the performance of certain
religious ceremonious. Usually there were 3 stages in ceremonious.

1. Betrothal: Formal promise to give the girl in marriage.

2. Kannikadhana: The actual gift of the girl in marriage.

3. Saptapathi: The taking of seven steps by the bride and bridegroom before sacred fire
or holly fire. Consummation of marriage was not essential to make a marriage complete.
But on the other hand, on the performance of saptapathi, the marriage became complete
and irrevocable.
If the parties do not observe any ceremonies, it is void marriage.

In “Deivanai Achi vs Chidambara Chettiar”, the parties of marriage belonged

to an Anti- Purohit Association of Self Respectors. Since they opposed to having priests
officiating at marriage, they exchange garlands for marriage in the presence of their

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 friends. The court held that since the customary ceremonial for marriage cannot be
altered by society or association, the marriage was void.

Ceremonies for a marriage after 1955:

Section 7 of the Act,
(1) A Hindu may be solemnized in accordance with the customary rites and
ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptapathi ( that is the taking of
seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage
becomes complete and binding when the seventh step is taken.

Special provision regarding Suyamariyathai and Seerthiruththa Marriage:

The Tamil Nadu government inserted section 7A to this Act, which deals with
Suyamariyathai and Seerthiruththa Marriage. Tamil Nadu Act 21 of 1967 inserts this
Section 7A. (w.e.f.20.1.1968)

Section 7A allowed Suyamariyathai and Seerthiruththa Marriage, which is

solemnized in the presence of relatives, friends or other persons,-
(a) by each party to the marriage declaring that each takes the other to be his wife
or as the case may be, her husband; or

(b) by each party to the marriage garlanding the other or putting a ring upon any
finger of the other; or

(c) by the tying of the thali.

Matrimonial Remedies:
The Hindu Marriage Act, 1955 provides five kinds of matrimonial reliefs.
1. Restitution of Conjugal Rights
2. Judicial Separation
3. Annulment of Marriage by Decree of nullity
4. Divorce
5. Divorce by Mutual consent

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 1. RESTITUTION OF CONJUGAL RIGHTS
Section 9 of the Act deals the Restitution of Conjugal Rights. The aim of this section is
to preserve the marriage and bringing the parties together. After marriage, each party to
the marriage is bound to live together for conjugal society and entitled to conjugal
society of other.

If the wife or husband has withdrawn the conjugal society without any reasonable
cause, the aggrieved party may apply by petition to the District Court for Restitution of
Conjugal Rights.

There are certain conditions for granting decree for Restitution of Conjugal Rights.
These are:
1.The court satisfied that the respondent has withdrawn the conjugal society without
reasonable excuses.

2.The court satisfied that the statement made in the petition is true.

3.The court satisfied that there is no legal ground why the application should not be
granted.

If all these conditions are fulfilled, the court may decree restitution of conjugal
rights accordingly.

Defence for Restitution of Conjugal Rights

When there is any reasonable cause for withdraw, the decree is not granted by the
court. For reasonable excuse, there is no hard and fast rule about it and it may be
decided by the court by means of justice, equity and good conscience. The followings
are some of the examples of reasonable excuses,
1. The petitioner has treated the other party with cruelty.
2. The petitioner has converted to other religion
3. The petitioner has been suffering incurable form of leprosy.
4. The petitioner has been of unsound mind.
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 5. The petitioner has been suffering venereal disease
6. The petitioner has entered religious order.

Who may prove the reasonable excuse:

Where a question arises whether there has been reasonable excuse for
withdrawal from the society, the burden of proving the reasonable excuse shall be on
the person who has withdrawn from the society.

Whether section 9 of the Act is unconstitutional ?

This question is raised before High Court of Andhra Pradesh on the ground that
the remedy of restitution of conjugal rights violates the right to privacy guaranteed by
the Article 21 and right to equality guaranteed by Article 14 of the Constitution of
India.

In “ Sareetha vs Venkata Subbaiah”, the Andhra Pradesh High Court held

that section 9 is unconstitutional as it offends against the Article 21 of the Constitution
(Right to liberty which includes right to privacy) and Article 14 of the Constitution
(Right to equality).

On the behalf of Sareetha, it was argued that the right to privacy confers on a
woman “a right to free choice as to whether, where and how her body is to be used for
the procreation of children and also the choice of when and by whom the various parts
of her body are to be sensed”.

This freedom of choice is part of her right to privacy. By recognising under

section 9 of the Act, the State violates this fundamental liberty guaranteed by Article
21. Further section 9 of the Act violates Article 14 by making this remedy available to
both married men and married women, thereby treating as equals those who are
inherently unequal and this is forbidden by Article 14. So it was argued that section 9 is
unconstitutional.

The Andhra Pradesh High Court accepted this argument and struck down
section 9 holding that it violates the wife’s right to privacy by compelling her to have
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 sexual intercourse against her will. The husband’s petition for conjugal rights was
accordingly dismissed.

However a different view was taken by Delhi High Court in “Harvinder Kaur
vs Harmander Singh Chouhry”. Though the decision of Andhra Pradesh High Court
was cited in support of the argument that section 9 is invalid, but the Delhi High Court
held that section 9 of the Act does not violate of Articles 14 and 21.

The above controversy was set at rest by Supreme Court in “Saroj Rani vs
sudharsan Kumar Chadha”, where the court expressly overruled the judgment of the
Andhra Pradesh High Court and held that section 9 of the Act is not violative of
Articles 14 and 21 of the Constitution.

The Court pointed out that a decree for restitution of conjugal rights serves a social
purpose as an aid to the prevention of break up in a marriage. Even if such an order of
the Court is willfully disobeyed, the Court cannot enforce sexual intercourse between
the spouses. The only remedy of the other party would be to apply for attachment of the
property of the defaulting spouse, presuming that he or she has any property.

2. JUDICIAL SEPARATION
A Decree of judicial separation permits the parties to the marriage to live apart.
Judicial Separation suspends active marital life between the parties. The decree does not
dissolve the marriage tie, but the marriage tie continues to subsist. The Judicial
separation gives an opportunity for reconciliation and adjustment. The parties are
allowed to reconciled to join together and in that case the marital rights of the parties
are restored.

Even though a decree for judicial separation has been passed, it shall not be
obligatory for either party to conjugal society with each other.

After passing decree of judicial separation, the parties are not allowed to
another marriage. If any one of the party commits adultery, it will be a good
ground for divorce.

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 If there is no cohabitation for a period of one year or upwards after passing
decree, it is one of the ground for divorce.

Grounds for Judicial Separation:

Either party to the marriage may present a petition praying for a judicial
separation on any of the grounds specified in sub-section(1) of section 13, and in the
case of wife also on any of the grounds specified in sub-section(2) thereof, as grounds
on which a petition for divorce might have been presented.

3. ANNULMENT OF MARRIAGE BY DECREE OF NULLITY

This matrimonial relief is available only to void and voidable marriage.
Section 11 deals with void marriage.
Section 12 deals with voidable marriage.

The Hindu marriage Act distinguishes between void and voidable marriage.
1. The void marriage is totally nullity. It does not affect or alter the status of the parties.
It does not create any rights and obligations between them.

But voidable marriage is not a totally nullity. It remains valid and binding the parties
and continue unless the decree of nullity is passed under section 12.

2. In the case of void marriage, the parties are criminally liable, but in the case of
voidable marriage, the parties are not criminally liable.

3. In the case of voidable marriage, annulment of marriage by decree of nullity is

essential to put to an to the marriage, but in the case of void marriage, there is no such
obligation.

4. In the case of void marriage, the parties are allowed for subsequent marriage before
the decree of nullity is granted.

But in the case of voidable marriage, the parties are not allowed for subsequent
marriage before the decree of nullity is granted.

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 5. The only remedy available for void marriage is Annulment of Marriage by Decree of
Nullity But in voidable marriage, all remedies which are granted for valid marriage, are
available to party.

The children of void and voidable marriage are called legitimate children.

Void marriage:
As per section 11 of the Act, A marriage is said to be void marriage if it
contravenes any of the grounds specified in clauses I, iv and v of section 5.
In regards to void marriage, either party to the marriage may present a petition
against the other party for declaration of nullity of his or her marriage.

There are three circumstances, under which a marriage is void.

1. If the party has a spouse living at the time of marriage.
2. If the parties to the marriage are with in the degree of prohibited relationship.
3. If the parties to the marriage are Sapinda of each other.

Voidable marriage:
Section 12 deals with voidable marriage. A voidable marriage is valid until set
aside by the parties by a decree of nullity It is not void abinitio. But initially it is valid,
but it is annulled by decree of nullity. Any marriage shall be voidable and may be
annulled by Decree of Nullity on any of the following grounds, namely:
1. The marriage has not been consummated owing to the impotence of the
respondent.

2. The marriage is in contravention of the condition specified in clause (ii) section 5.

3. The consent of the petitioner was obtained by force or fraud as to the ceremony or
as to any material fact or circumstances concerning the respondent.

4. The respondent was at the time of marriage pregnant by some other person other
than the petitioner.

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 1. Impotency (sub section 1 of clause (a) of section 12 )
If the marriage has not been consummated owing to the impotency of any one of
the party to the marriage, it is voidable and annulled by decree of nullity. This clause
was amended in 1976. before 1976, it runs as follows:
“that the respondent was impotent at the time of marriage and continues to be so
until the institution of the proceeding”

Therefore for decree of nullity on the ground of impotency, it had been shown that
the disability existed from the time of marriage onwards. Now this stringent condition is
removed.

Two types of impotency, namely,

1. Impotency of the husband.
2. Impotency of the wife

Impotency of the husband:

If the marriage has not been consummated owing to the impotency of the husband, the
marriage is voidable and the wife is entitled to file a petition for annulment of marriage by
decree of nullity.
In “Nijhavwan va Nijhawan”, the court held that after marriage when the wife
admittedly became pregnant once during the marriage, the above mentioned ground is not
satisfied and so she cannot be granted a decree of nullity.

In “Kanti vs Harry”, the marriage could not be consummated in the ordinary and normal
way on the account of abnormal size of husband’s male organ, so a decree was passed in
favor of the wife.

Impotency of the wife:

If the marriage has not been consummated owing to the impotency of the wife, the marriage
is voidable and the husband is entitled to file a petition for annulment of marriage by decree
of nullity.

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In “Lakshmi Devi vs Babulal”, since the wife had no vagina at all, though by surgical
treatment an artificial vagina was formed, the court held that the husband is entitled to a
decree for nullity.

In “Samar son vs Sadhana”, the wife’s uterus was removed before marriage. It does not
furnish a cause for annulment of marriage on the ground of wife’s impotency. Though, in
the absence of procreation or conceptive power, the wife is capable of complete sexual
intercourse in the absence of uterus. So no decree for annulment of marriage was granted.

2. Unsound Mind (sub section 1 of clause (b) of section 12):

If the marriage is in contravention of condition specified in clause (ii) of section 5, the
marriage is voidable.
This clause was amended in 1976 by Marriage Laws amendment Act, 1976. Before 1976,
this clause says:
“Neither party is an idiot or lunatic at the time of marriage”
The idiot term refer congenital permanent disability, but lunacy permits lucid
intervals. The term unsound mind covers both idiot and lunacy.

After amendment, this clause read as follows:

at the time of marriage, neither party,--
(a) is incapable of giving valid consent to it in consequence of unsoundness of mind;
or
(b) though capable of giving valid consent, has been suffering from mental disorder
of such kind or to such extent as to be un fit for marriage and procreation of children
or
(c) has been subject to recurrent attacks on insanity;

3. Consent of the petitioner (clause (c) of sub section 1 of section 12 ) :

This clause was amended in the year 1976. Before amendment, it runs,
“that the consent of the petitioner or the consent of guardian as the case may be, was
obtained by force or fraud”

1. Fraud means deception as to identify of the other party to the marriage.

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 2. Fraud means deception as to the nature of ceremonies being performance

Therefore it does not includes as to any material fact or circumstances concerning

the respondent.

In “Raja ram vs Deepa bai”, the respondent had concealed the fact that he had been
already married once before. It was held that the fraud did not relate to the identity of
other party or the nature of ceremonies. So it was held not to be a fraud for which relief
under section 12 (1) (c) could not be obtained.
After amendment, this clause runs,

If the consent of the petitioner or the consent of guardian as the case may be, was
obtained by force or fraud as to the nature of ceremony or as to any material fact or
circumstance concerning the respondent, is voidable marriage.

In “Aunjona Dasi vs Prahlad Chandra”, when a minor girl was staying with
her sister, she was abducted forcibly and her marriage was solemnised without the
knowledge of guardian. Her mother sued set aside the marriage. It was held that there was
a fraud upon the policy underlying the religious ceremony and so it was held that there
was no valid ceremony at all and granted the declaration sought by mother for a decree of
nullity.

Conditions to be fulfilled --Section 12 (2) (a)

There are two conditions for decree,
1.The petition is presented within one year after the force had ceased to operate or
as the case may be, the fraud has been discovered.
2. With his or her full consent, the petitioner has not lived with the other party to
the marriage as husband or wife after the force had ceased to operate or as the case may
be, the fraud has been discovered.

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 4. Respondent being pregnant by someone else
(clause (d) of sub section 1 of section 12 )
The marriage shall be voidable and may be annulled by decree of nullity on the
ground that the respondent was pregnant by some other person other than the petitioner
at the time of marriage.

Conditions to be fulfilled --Section 12 (2) (b):

No decree can be passed under this ground unless the court is satisfied--
1. that the petitioner was at the time of marriage ignorant of the facts alleged

2. that the proceedings have been instituted in the case of marriage

solemnized before the commencement of this Act within one year of
such commencement and in the case of marriage solemnized after the
commencement of this Act within one year from the date of the marriage

3. that the marital intercourse with the consent of the petitioner has not
taken place since the discovery by the petitioner of the existence of wife’s
pregnant.

4. DIVORCE (Section 13)

This is new remedy introduced by The Hindu Marriage Act, 1955.
A decree of divorce puts to an end to the marriage. Before this Act, this remedy was
available only to certain castes in sudhara if custom permitted. Now it is available to all
Hindus.
The divorce is available only to valid marriage, but not for void marriage.
Therefore a valid marriage may be dissolved by decree of divorce on the grounds
specified in section 13.

Sub section 1 of section 13 provides the following grounds for divorce for both the
parties to the marriage-
1.Adultery
2.Cruelty
3. Desertion

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 4. Conversion to another religion
5. Unsound mind
6. Leprosy
7. Venereal disease
8. Renouncing the world by Entering religious order
9. Unheard of seven years or more by the respondent

Sub section 1A of section 13 which is inserted in the year 1964, which provides the
following grounds for divorce for both the parties to the marriage-
1. Non resumption of cohabitation for one year or more after passing decree for judicial
separation.
2. No restitution of conjugal rights for one year or more after the passing the decree for
restitution conjugal rights.
Sub section 2 of section 13 provides the following four grounds for divorce for wife only,
1. Subsequent marriage of husband during the subsists of 1st marriage.
2. Guilty of husband for rape, sodomy or bestiality
3. After passing decree or order for maintenance for wife against husband, no
resumption of cohabitation between the parties for one year or more.
4. Repudiation of marriage by wife after she attain the age of 15 but before 18 years.

1. Adultery-(clause (i)Sub section 1 of section 13)

The other party has, after solemnization of marriage, had voluntarily sexual intercourse
with any other person other than his or her spouse.

This clause was amended in the year 1976. Before amendment, living in adultery was a
ground for divorce, while even an isolated act of adultery is not ground for divorce.

But after amendment, an isolated act of adultery is sufficient to claim divorce. Adultery
is consensual sexual intercourse between a married person and a person of opposite sex
during the subsists of marriage. A mere attempt to commit adultery is not enough for
divorce. If sexual intercourse has taken place under coercion, fraud or mistake, it cannot
adultery and it is not ground for divorce.

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 Who may prove the adultery?
The petitioner is bound to prove the adultery. It may be proved either direct or
circumstantial evidence.
The circumstantial evidence are,

1. Adultery can be inferred from non access and long period of gestation of a
child born to the wife.

2. Adultery can be inferred from contracting venereal disease.

3. Adultery can be inferred from the presence of a unrelated young man with the wife in
her bed room in mid night

4. Adultery can be inferred from confession and admission of the party and other
person.

The evidence should be established not only opportunity to that commit adultery but
also opportunity could be used.

In “Chinuthakutti vs Subramanian”, the husband sought divorce on the ground

of wife’s adultery. He submitted a doctor’s report of his vasectomy operation on
8.1.1976. A child was born on 30.8 1978. He has to establish his infertility in November
1977, when the child was conceived. Taking in to the account of fact that vasectomy
operation is not 100% successful, the court held that the adultery was not proved and
dismissed the petition.

2. Cruelty- (clause (Ia) Sub section 1 of section 13

The respondent has, after the solemnization of marriage, treated the petitioner with
cruelty.
Cruelty must be of such character as to be cause danger to life, limp or health or to
give rise to a reasonable apprehension of such a danger. The cruelty may be
1. Physical cruelty
2. Mental cruelty

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 Examples of cruelty:
By husband:
1. False charge of immorality and adultery against the wife
2. Beat his wife
3. Taking her salary entirely
4. Returning to home late at midnight to the house in drunken condition frequently.
5. Husband leads immoral life
6. Demand dowry

By wife:
1. Threat by wife to commit suicide
2. Threat by wife to set house on fire
3. Threat by wife to make the husband loss his work
4. The wife undergone abortion willfully against wishes of the husband
5. Leaving the husband’s house without informing the husband or his family member
6. Making police complaint against husband about matrimonial different.
7. Writing a letter to her husband’s office address about their matrimonial differences
8. Calling the husband an impotent person in the presence of public, friends and
relations.
9. Refusal for sexual intercourse with the spouse without reasonable causes.

In “Sree Padachan vs Vasantha Bai”, the wife abusing the husband in public place
and insulting him and threatening the husband to burn herself and bring her husband to
police trouble. The court held that it was amount to mental cruelty to husband.

In “ Kasinath Sahu vs Devi”, the insulting the behavior of husband’s relative. The
court held that it amounted to mental cruelty to husband.

In “Rooplal vs Rooplal”. The wife was suffering from atrophic rhinitis. As a result a
bad smell coming from her nose always. The court held that it was amount to mental
cruelty to husband.

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3. Desertion- (clause (I b) Sub section 1 of section 13
This clause was inserted in the year 1976, by way of amendment laws. It runs,
The respondent has deserted the petitioner for a continuous period of not less than
two years immediately preceding the presentation of the petition.
Desertion means the desertion of the petitioner by the other party to the marriage
without reasonable cause and without the consent of such other party and include the
willful neglect of the petitioner by the other party to the marriage.
For the offence of desertion, two conditions must be present. These are,
1. Factum of separation: That means the respondent living apart and away from the
petitioner.

2. Animus Descerendi: Intention to withdraw the conjugal society permanently.

Further it should be proved that on the part of the petitioner there was,
(i) Absence of consent to the separation
(ii) Absence of conduct giving reasonable cause to the petitioner to leave the
matrimonial home.

4. Conversion to another religion- (clause (ii) Sub section 1 of section 13

The respondent has ceased to be Hindu by conversion to another religion

5. Unsound mind- (clause (iii) Sub section 1 of section 13

The respondent has been incurably of unsound mind, or has suffering
continuously or intermittently from mental disorder of such a kind and to such an extent
that the petitioner cannot reasonably be expected to live with the respondent.
Explanation- In this clause-
(a) the expression "mental disorder" means mental illness, arrested or incomplete
development of mind, psychopathic disorder or any other disorder or disability of mind
and include schizophrenia.

(b) the expression "psychopathic disorder" means a persistent disorder or disability of

mind (whether or not including sub-normality of intelligence) which results in abnormally
aggressive or seriously irresponsible conduct on the part of the other party and whether or
not it requires or is susceptible to medical treatment.

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6. Leprosy - (clause (iv) Sub section 1 of section 13
This clause was amended in the year 1976. Before amendment, it runs,
The respondent has, for a period of not less than three years immediately
preceding the presentation of the petition, been suffering from a virulent and incurable
form of leprosy.
The Marriage laws Amendment Act, 1976 removed the time period. Now it runs
as follows,
The respondent has been suffering from a virulent and incurable form of leprosy.

7. Venereal disease- (clause (v) Sub section 1 of section 13

This clause was amended in the year 1976. Before amendment, it runs,
The respondent has, for a period of not less than three years immediately
preceding the presentation of the petition, been suffering from venereal disease in
communicable form.
The Marriage laws Amendment Act, 1976 removed the time period. Now it runs
as follows,
The respondent has been suffering from venereal disease in communicable form.

8. Renouncing the world by Entering religious order- (clause (vi) Sub section 1 of
section 13
The respondent has renounced the world by entering any religious order.

9. Unheard of seven years or more by the respondent- (clause (vii) Sub section 1 of
section 13
The respondent has not been heard of as being alive for a period of seven years or
more by those person who would naturally have heard of it, had that party been alive.

Grounds for divorce under sub section 1A of section 13

Sub section 1A of section 13 which is inserted in the year 1964, which provides
the following grounds for divorce for both the parties to the marriage-
1.Non resumption of cohabitation for one year or more after passing decree for judicial
separation.

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 2.No restitution of conjugal rights for one year or more after the passing the decree for
restitution conjugal rights.

1. Non resumption of cohabitation- clause (i) of sub section 1A of section13

There has been no resumption of cohabitation as between the parties to the
marriage for a period of one year or upwards after passing of a decree for judicial
separation in a proceeding to which they were parties.

2. No restitution of conjugal rights- clause (ii) of sub section 1A of section13

There has been no restitution of conjugal rights coh as between the parties to the
marriage for a period of one year or upwards after passing of a decree for restitution of
conjugal rights in a proceeding to which they were parties.
Special grounds for divorce for wife under sub section (2) of section 13
As per subsection 2 of section 13, the wife may also present a petition for the
dissolution of marriage by a decree of divorce on any one of the following grounds,
namely:
1. Subsequent marriage of husband during the subsists of 1st marriage.
2. Guilty of husband for rape, sodomy or bestiality
3.After passing decree or order for maintenance for wife against husband, no
resumption of cohabitation between the parties for one year or more.
4. Repudiation of marriage by wife after she attain the age of 15 but before 18 years.

1. Subsequent marriage of husband during the subsistence of 1st marriage

As per clause (i), in the case of any marriage solemnized before the
commencement of this Act, that the husband had married again before such
commencement or that any other wife of the husband married before such
commencement was alive at the time of the solemnization of the marriage of the
petitioner.

Condition for getting divorce under this ground

Provided that in either of the case, the other wife is alive at the time of
presentation of the petition.

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 2. Guilty of rape, sodomy and bestiality-
As per clause (ii), The husband has, since the solemnization of the marriage, been
guilty of rape, sodomy and bestiality
3. No resumption of cohabitation after passing decree or order for maintenance for
wife
As per clause (iii), in a suit under section 18 of the Hindu Adoption and
Maintenance Act, 1956, an decree has been passed or in a proceeding under section 125
of the Code of Criminal Procedure, 1973, a order has been passed against the husband
awarding maintenance to the wife notwithstanding that she was living apart and that
since the passing of such decree or order, cohabitation between the parties has not been
resumed for one year or upwards.
4. Repudiation of marriage by wife after she attain the age of 15 but before 18
years.
As per clause (iv), her marriage (whether consummated or not) was solemnized
before she attained the age of fifteen years and she has repudiated the marriage after
attained that age but before attaining the age of eighteen years.

5. DIVORCE BY MUTUAL CONSENT: SECTION 13-B

The section 13 B was inserted in the Hindu Marriage Act, 1955 in the year 1976
by Marriage Laws (Amendment) Act. Prior to this amendment, such a type of divorce
was possible only under the Special Marriage Act, 1954.

As per section 13B, a petition for dissolution of marriage by decree of divorce

may be presented to the district court by both the parties to the marriage together on the
grounds.
1. That they have been living separately for a period of one year or more,
2. That have not been able to live together
3. That they have mutually agreed that the marriage should be dissolved.

On the motion of both the parties made not earlier than six months after the date
of presentation of the petition and not later than eighteen months after the said date, if
the petition is not withdrawn in the mean time, the court shall pass a decree of divorce

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 declaring the marriage to be dissolved provided that the following two conditions are
fulfilled,
1. The court is satisfied, after hearing the parties and making such enquiry as it
think fit, that marriage has been solemnized.
2. The court is satisfied that the averments in the petition are true.

When a divorce petition can be presented (Section 14)

No petition for dissolution of marriage by decree of divorce can be presented unless at
the date of presentation of the petition one year has elapsed since the date of the
marriage.

But in fit cases, by special leave, the may allow a petition to be presented even before
one year after the marriage on the ground that the case is one of the exceptional
hardship to the petitioner or of exceptional depravity on the part of the respondent.

When divorced person can Re-Marry ( section-15)

When a marriage has been dissolved by decree of divorce, it shall be lawful for
either party to the marriage to marry again provided that
1. there is no right of appeal against the decree,
or
2.if there is such a right of appeal, the time for appealing has expired without an
appeal having presented, or an appeal has been presented but has been dismissed

Legitimacy of children of void and voidable marriage ( section 16)

When a marriage is said to be void under section 11, the child born in such
marriage shall be legitimate child.
Where a decree of nullity is granted in respect of voidable marriage under section
12, any child begotten or conceived before the decree is made, shall be deemed to their
legitimate child notwithstanding the decree of nullity.

Punishment for contravention of conditions specified in section 5

1. Contravention of section 5 (i)- Liable for punishment under section 494 and 495 of
Indian Penal Code (section 17)

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 2. Contravention of section 5 (ii)- Liable for punishment under the Prohibition of Child
Marriage Act, 2006
3. Contravention of section 5 (iii)- Liable for punishment of simple imprisonment up to
15 days or fine up to Rs1000 or both- s.18
4. Contravention of section 5 (iv) & (v)- Liable for punishment of simple imprisonment
up to one month or fine up to Rs1000 or both – section-18

Court to which petition shall be presented- Section 19

Every petition under the Hindu Marriage Act shall be presented to the district
court within the local limits of whose ordinary original civil jurisdiction,-
(i) the marriage was solemnized, or
(ii) the respondent, at the time of presentation of petition, resides, or
(iii) the parties to the marriage last resided together, or
(iii-a) in case the wife is the petitioner, where she is residing on the date of
presentation of the petition, or
(iv) the petitioner is residing at the time of presentation of the petition, in a case
where the respondent,-
(a) is at that time residing outside the territories to which the Act extends, or
(b) has not been heard of as being alive for a period of 7 years or more by those
person who would have naturally heard of him if he were alive

*****

MUSLIM LAW OF MARRIAGE AND DIVORCE.

Marriage is the ‘nucleus’ of the family. The very foundation of the family and society is
the marriage. It confers on parties, the status of husband and wife and gives rise to certain
rights and obligations and of legitimacy of their children. Meaning and Definition:- In
Mohammedan Law, marriage is regarded as ‘Civil Contract’. ‘Nikah’ is an Arabic term,
which literally means “the union of two sexes”.

In Baillie’s Digest, marriage has been defined to be ‘a contract for the purpose of
legalizing sexual intercourse, and procreation of children.’

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Ashabah says :- ‘Marriage is a contract underlying a permanent relationship based on
mutual consent on the part of man and woman’.

Abdur Rahim says:- ‘The Mohemmadan jurist regard the institution of marriage as
partaking both of the nature of ibbadat or devotional acts and muamalat or dealings
among men.

According to Ameer Ali:- ‘Marriage is an institution ordained for the protection of the
society, and in order that human beings may guard themselves from foulness and
unchastity.

Mulla defined Nikah as “a contract which has for its object, the procreation and
legalizing of children.” As per Section 2 of Law of Marriage (Compendium of Islamic
Laws compiled by All India Muslim Personal Law Board), ‘Marriage is an agreement
between a man and a woman, based on the Shariat principles as a result of which mutual
sexual relation becomes legitimate, paternity of obligation becomes enforceable.’

Section 4 of the Law of Marriage (Compendium of Islamic Laws compiled by All India
Muslim Personal Law Board), says, ‘Marriage is compliance with injunctions of God’s
Book and His Prophet’s Sunnat. In the eyes of Shariat, therefore, marriage is not just a
civil contract; it is also a worship.’

Justice Mahmood in Abdul Khadir v. Salima defines a Muslim Marriage as “a civil

contract” , upon the completion of which by proposal and acceptance, all the rights and
obligations, which it creates arise immediately and simultaneously.

Justice Mitter in Saburannissa v. Sabdu Sheikh(AIR 1934) observed, “ The Marriage

under Muslim Law is a civil contract and is like a contract of sale. In the contract of
marriage the wife is the property and dower is the price.

A glossary on Tarmizi sets out five objectives of marriage : i) The restraint of sexual
passion ii) The ordering of domestic life iii) The increase of the family iv) The discipline
of the same in the care and responsibility of wife and children, and v) The upbringing of

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virtuous children. The Prophet said – ‘Men marry women for their piety, or their
property or their beauty, but man should marry for piety. The purpose of marriage are
perpetuation of human race and attainment of chastity,continence, mutual love, affection
and peace.

There has been a conflict of opinion as to the nature of Muslim Marriage. Some opine
that, Muslim Marriage is a mere civil contract and not a sacrament, while some other
opine that it is a religious sacrament in nature. Muslim Marriage, by some text writers
and jurists, is treated as a mere civil contract and not a sacrament. This observation seems
to be based on the fact that marriage, under Muslim Law, has similar characteristics as a
contract.

For instance: 1. As marriage requires proposal (Ijab) from one party and acceptance
(Qubul/ Qabool) from the other so is the contract. Moreover, there can be no marriage
without free consent and such consent should not be obtained by means of coercion, fraud
or undue influence.
2. Just as in case of contract, entered into by a guardian, on attaining majority, so can a
marriage contract in Muslim Law, be set aside by a minor on attaining the age of puberty.

3. The parties to a Muslim Marriage may enter into any post-nuptial agreement which is
enforceable by law provided it is reasonable and not opposed to policy of Islam. Same is
the case with contract.

4. The term of marriage contract may also be altered within legal limits to suit individuals
cases. The analogy of marriage contract with contract of sale as pointed out by Justice
Mahmood in the leading case of Abdul Khadir v. Salima, and Justice Mitter in
Saburannissa v. Sabdu Sheikh(AIR 1934) also emphasizes the contractual aspect of
Muslim Marriage. Another view is that marriage is not purely a civil contract but a
religious sacrament too. Anis Begum v/s. Mohammad Istafa (1993) is a leading case on
the point where C.J. Sir Shah Sulaiman has tried to put a more balanced view of this

While reviewing the Abdul Kadir’s case, Justice Sulaiman in Anis Begum’s case
observed : ‘ It may not be out of place to mention that Maulvi Samiullah collected some

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authorities showing that marriage is not regarded as a mere civil contract but as a
religious sacrament. Though the learned C.J. does not himself say that marriage is a
sacrament, but from the context in which he said, it is clear that he supported the view of
Maulvi Samiullah.

Justice Mahmood’s observation i.e., marriage is a civil contract cannot be appreciated

only because upto some extent marriage resembles with civil contract. After observing
minutely it will be found that besides some similarities there are so many basic
differences between the two. For instance. Muslim marriage is not merely a civil
contract, because:
i) Unlike civil contract, it cannot be made contingent on future event, and
ii) Unlike civil contract, it cannot be for a limited time (muta marriage is an exception).
One may conclude the nature of Muslim Marriage by the observation of M.C. Jung –
‘Marriage is an institution of Ibadat clothed in the legal form of contract regulating sexual
intercourse, but its continuance is dependent upon the maintenance of conjugal affection.’
In the ultimate analysis it can be said that the marriage in Islam is neither purely a civil
contract nor as a sacrament. It is devoid of none but the blending of the two.

Muslim or Mohammedan Law, marriage have been categorized under th following

heads:- i) Sahih or Valid Marriage – According to Law of Marriage (compendium of
Islamic Law compiled by All India Muslim Personal Law Board), ‘A valid marriage is
one in which all essential conditions of marriages are found.’(Section 20)

Essentials of a Valid (Sahih) Marriage – A Muslim marriage (Nikah) to be

valid, the following conditions are to be satisfied:

A) Civil Contract : A Muslim marriage is purely a civil contract. As in the case of a

contract, there are two parties. One party makes a proposal(Ijab) and the same is accepted
by the other at one meeting:

a) Proposal (Ijab) and Acceptance (Qabool) – The proposal is made by the bridegroom.
The proposal is called ‘Ijab’. The proposal consists the amount of dower. The bride sits
behind the curtain (pardah) with the relatives accumulated for this purpose.

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b) At one meeting: The Ijab and Qabool must be done at one meeting. The Ijab at one
time, and Qabool at another time, make the marriage void.

c) Consent : The consent of both the parties must be with free will, not under undue
influence, misrepresentation or coercion. Marriage under compulsion is not valid under
Sunni and Shia Schools. But it is valid under Hanafi Sub School. According to the Shias,
witnesses are not necessary. But, according to the Sunnis, two male witnesses, who are
sane and adults should be present. Absence of witness renders the marriage irregular, but
not void.

B) Capacity of Parties : The parties to the marriage must be competent to marry. In

Muslim Law, a person, who is sane (sound mind) and has attained puberty is competent
to marry. The person, who has not attained puberty is a minor. The age of puberty for
both a boy and girl is 15years.Under Shia Law, in the case of males, puberty is presumed
to be attained at the age of 15 years but in case of females it is 9years. Those persons,
who are not of sound mind, i.e., are lunatics or who have not attained puberty i.e., are
minors, can be contracted in marriage by their respective guardians. But after the children
become Baligh or the insane become sane, they can endorse or abrogate the marriage.
Minority is of two kinds – (i) age of discretion (Saghir) and (ii) Puberty (Bulugh).

Doctrine of Puberty or Option of Puberty (Khyar-ul-bulugh) : In Muslim Law, a

person, who is sane and has attained the age of puberty is competent to marry. The age of
puberty is the age at which a person becomes capable of performing sexual intercourse
and procreation of children. In Muslim Law, a person, who has not attained the age of
puberty is a minor. The age of puberty for both a boy and girl is 15years. If a boy or girl,
without attaining puberty is given in marriage, the boy or girl can repudiate the marriage
after attaining the age of puberty/majority. This right is know as “the Option of Puberty”
or “Khayr-ul-bulugh”. This right shall be exercised within a reasonable time. In case of a
boy(i.e., minor husband) it should be exercised before the ratification of the marriage by
payment of the Dower or Mahr. (Mahr is an amount of cash or property paid by the
bridegroom (husband) to the parents of the bride (wife) at the time of marriage or later, in
consideration for the marriage) or by cohabitation. When a minor has been contracted in

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marriage by the father or paternal grandfather, such marriage cannot be repudiated unless
such father or grandfather acted fraudulently or negligently. All the restrictions with
regard to the option of puberty have been abolished by the Dissolution of Muslim
Marriage Act, 1939. According to Sec. 2 of the Act, a Muslim wife is entitled to the
dissolution of her marriage if she proves that the marriage has not been consummated or
the marriage took place before she attained the age of 15years or she has repudiated the
marriage before attaining the age of 18years. Mere repudiation does not render
dissolution of the marriage. The dissolution must be confirmed by a competent court.

C) Free Consent : The marriage to be valid, the parties must be freely consented to. If
the consent is obtained by force or fraud, it is no consent and the marriage is not valid. It
is a general law among all sects that in case of an adult woman consent must come from
her. Without her consent, consent of her father, grandfather etc., only is not sufficient,
though in some cases permission to marry may be obtained from father or grandfather,
wherever it was possible. In order to validate the marriage of a boy or girl who has not
attained the age of puberty, the consent of the legal guardian is necessary. The marriage
of a minor girl without the consent of her guardian is void. Under Hanafi law if the
consent is obtained by fraud or compulsion, the marriage would be valid but only
irregular and not void. Suppression of certain facts by any of the contracting parties have
been held to amount to fraud.

Under Shia and Shafi law, such marriages where consent was obtained through fraud or
compulsion are void. A Shia adult (attained majority) woman should obtain permission of
her father or grandfather to marry, although she may be looking after her own affairs.

D) Prohibited Degrees of Relationship: The parties to the marriage should not be

within prohibited degrees of relationship. The prohibition may be: 1. Absolute
Prohibition; and 2. Relative Prohibition. The absolute prohibition renders the marriage
void. While the relative prohibition renders the marriage irregular.

1. Absolute Prohibition: It is sub-divided into:

(A) Prohibited Degrees of Relationship:

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(i) Consanguinity; (ii) Affinity; (iii) Fosterage

(A) (i) Consanguinity : It means ‘blood relationship” . A marriage between the following
relations is prohibited and void – a) Mother and Son b) Grandmother (how high so ever) ;
and c) Brother and Sister; (d) Uncle and Niece (e) Nephew and Aunt

(ii) Affinity : It means “relationship by marriage”. A man should not marry his (a) Wife’s
mother or grandmother how high so ever; (b) Wife’s daughter or grand daughter how low
so ever; (c) Wife of father or paternal ancestor; (d) Wife of son or son’s son or daughter’s
son how low so ever.

(iii) Fosterage : It means foster relationship. If a woman suckles the child of another,
foster relationship is created. Thus, a marriage between two persons having foster
relationship is prohibited.

(B) Polyandry
Polyandry: If a woman has two husbands, it is called “bigamy”. If she has several(more
than one) husbands, it is called “Polyandry”.
A Muslim man can have four wives at a time. But a Muslim woman cannot have more
than one husband. If so, the marriage is void. 2. Relative Prohibition : Relative
Prohibition viz. absence of witnesses, polygamy(having several wives) i.e., more than
four wives, marriage during “Iddat Period” etc. renders the marriage irregular and not
void.

Batil or Void Marriage : - Section 50 of the Law of Marriage (compiled by All India
Muslim Personal Law Board), ‘A void marriage is one which according to the Shariat
does not come into existence at all.’ Mulla defines Void Marriage as – ‘A void marriage
is one which is unlawful in itself the prohibition against the marriage being perpetual and
absolute. A marriage which has no legal results is termed batil or void. It is the
semblance of marriage without the reality. A marriage contracted by parties suffering
from absolute capacity i.e., prohibited on the grounds of consanguinity, affinity,
fosterage, etc. is void.

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Fasid or Irregular Marriage:- In Islamic law, Sunni school considers three kinds of
marriages namely valid, void and irregular marriage. According to Shia school there is no
irregular or invalid marriage and there are only two marriages : Valid and Void
Marriages. The irregular marriages stand in between the void and valid marriages. Fyzee
has classified irregular marriages into five classes, namely : i) A marriage without
witness, ii) A marriage with a woman undergoing iddat, iii) A marriage prohibited by
reason of difference of religion, iv) A marriage with two sisters, or contrary to the rules of
unlawful conjunction, and v) A marriage with a fifth wife.

Under Hanafi Law a marriage contract entered into:

a) without the presence of witness, or
b) between persons prohibited from inter-marrying by unlawful conjunction in iddat or
divorce or religion or supervening illegality is irregular and not void.

According to Section 51 of the Law of Marriage (compiled by All India Muslim Personal
Law Board) “An irregular marriage is one which is neither valid nor void. Before
consummation such marriage is governed by the rules of marriage, and after
consummation it gives rise to the effect and rules of marriage. In both these situations
separation is necessary either by mutual renunciation or by the order of the qazi”.
According to Mulla, ‘An irregular marriage is one which is not unlawful in itself, but
unlawful ‘for something else’, as where the prohibition is temporary or relative, or when
the irregularity arises from an accident circumstances such as absence of witnesses.’

The Shia law recognizes two kinds of marriage, namely, permanent and muta or
temporary.

Muta Marriage:
Muta is a kind of temporary marriage recognized only in the Shia School of Muslim Law.
A Shia male may contract a muta marriage with a woman professing the Mohammedan,
Christian or Jewish religion or even with a woman who is a fire-worshipper (e.g.. –
Zoroastrian) , but not with a woman following any other religion and is into Idol worship.
The term ‘muta’ implies ‘enjoyment’ or ‘use’. Muta Marriage is a marriage for
temporary but a fixed period after specifying dower(amount to be paid). Muta Marriage

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is a kind of temporary marriage for a fixed period i.e., for a day, few days, few weeks,
few months or years. A Shia woman cannot contract Muta Marriage. The period of
marriage is fixed by entering into an agreement between the parties on payment of some
consideration.

Essentials of Muta Marriage: A muta marriage to be valid, the following conditions are
to be satisfied: i) The period of cohabitation should be fixed. ii) The amount of dower
should be fixed. Half of the amount would be paid if the marriage is not consummated.
The Muta marriage comes to an end on the expiry of the stipulated period. There is no
divorce in respect of a muta marriage. Even before the expiry of the term the Husband
may put an end to the marriage by making a gift of remaining term to her and paying the
full amount of dower. Children born during muta marriage are legitimate and are entitled
to inherit property from both the parents.

Iddat period:
When a Muslim marriage is dissolved by death or divorce, the woman is required to
remain in seclusion for a specified period. During this period, she is prohibited to
remarry. This period is called “Idda” or “Iddat”. Iddat is the period during which it is
incumbent upon a woman whose marriage has been dissolved by divorce or death, to
remain in seclusion and to abstain from marrying another man. In the words of Justice
Mahmood, ‘Iddat is the term by the completion of which a new marriage is rendered
lawful.’ Iddat is a period during which a woman is prohibited from marrying again after
the dissolution of her first marriage i.e., the period of waiting or the period during which
the previous existing marriage is considered to be undissolved for certain purpose
notwithstanding that the husband had died or if alive had pronounced a divorce. Muslim
Law lays down that one should not marry a woman, who is undergoing

During the period of Idda, her husband also cannot remarry. After the completion of
idda, the women can lawfully remarry. This prohibition is imposed with a view to
ascertain the pregnancy of the woman so as to avoid confusion of paternity. Ameer Ali
defines, “Idda” is an interval, which the woman is bound to observe between the
termination, by death or divorce of one matrimonial alliance and commencement of
another.” Duration or Period of Idda :- Different periods of ‘idda’ are provided

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depending upon the manner in which the marriage is dissolved as detailed below: i) Iddat
of widowhood : When a person dies living a widow, she is prohibited from marrying
before the expiration of 4 months and 10 days. ii) Iddat of pregnant woman: If the widow
is pregnant at the death of her husband, the Iddat will not terminate until delivery of
miscarriage. If delivery or its

Iddat of Talaq : The period of Iddat in case of Talaq is three courses, if the woman is
subject to menstruation, otherwise three lunar months. If the woman is pregnant at the
time of divorce, the Iddat will not terminate till delivery. iv) Iddat when marriage is
irregular : If the marriage is irregular and parties have separated before actual
consummation, there is no Iddat. If the consummation has taken place the wife is bound
to observe Iddat. v) If the marriage is not consummated, iddat has to be observed in the
case of death, but not in the case of divorce. vi) The period of iddat begins from the date
of the divorce or death of the husband and not from the date on which the woman gets the
information of the divorce or of the death of the husband.

The iddat due to the death of husband commences from the date of death. If the
information of death does not reach the wife until after the expiration of the period of
iddat she is not bound to observe iddat. When a husband divorces his wife, the iddat
period starts from the date of divorce. When the husband dies in the period of iddat for a
revocable divorce, the wife must observe fresh iddat for death. Effects of Iddat Period :
i) During the period of iddat, Muslim woman is not entitled to marry any other person. ii)
During the Iddat period, the wife is entitled to maintenance. iii) The wife is entitled to
Deferred Dower iv) During the Iddat period, if any one of the parties to the marriage,
dies, the other is entitled to inherit from him or her in his or her capacity of wife or
husband respectively as the case may be. v) If the husband has four wives including the
divorced one, he cannot marry a fifth one, until the completion of iddat of the divorced
wife. vi) Where the Husband pronounces talaq three times during death – illness and dies
before the completion of wife’s iddat, the wife is entitled to inherit from him even if the
divorce has become irrevocable prior to his death. A marriage performed during the
period of Idda is not void, but irregular. But, under the Shia Law, it is void. During Idda,
the woman is entitled to maintenance.

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Dower:
Dower is of four kinds. It may be (i) “specified’ or (ii) “proper”, according to the mode of
determination of its amount. It may also be (iii) “prompt’ or (iv) “deferred’, according to
the time when it is payable.

1. Specified Dower:
Specified dower is fixed by agreement between the parties, either before or at the time of
marriage or even after marriage.
Under Sunni law, specified dower must not be less than the value of 10 dirhams, the
money value of 1 dirham (today) being equivalent to about twelve or thirteen rupees. The
wife is entitled to this minimum amount even if the specified dower is less. (Under the
Shia law, there is no fixed minimum for dower.)
But there is no upper limit, and a dower is never invalid on the ground of its being
excessive. It is not uncommon to fix a figure which is beyond the means of the husband,
e.g., a dower of Rs. 51,000 in the case of a poor man. The Court must decree the whole
amount of the specified dower, though the husband had no means of paying it when it
was stipulated or though its payment would leave nothing to the heirs of the husband.
Thus, in an old Peshawar case, it was held that if a husband transfers a field to his wife as
dower, she is entitled, as against him, to a decree for possession. The Court further held
that if there are other sharers in the field, they need not be made parties to the wife’s suit,
and the Court’s decree does not affect their rights.
If, however, there is any specific legislative enactment on the point, the Court need not
decree the entire amount of the specified dower. Thus, the Oudh Laws Act, 1876,
contained a provision that the Court could not award the amount of dower stipulated in
the agreement, but only such sum as was reasonable, regard being had to the means of the
husband and the status of the wife.

2. Proper Dower (Mahr-I-Misl or Mahr-Ul-Misl):

If nothing is said about dower at the time of marriage, the wife may claim to have a
reasonable amount of dower settled for her, even if the marriage was contracted on the
express condition that she should not claim any dower. In fixing the proper dower, the
Court is guided by the amount of dower settled upon the other female members of the
family of the wife’s father, as for instance, the father’s sisters.

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In such cases, the social position of the husband and his means are not of much
importance. As the Hedaya lays down, the wife’s “age, beauty, fortune, understanding
and virtue” must be kept in mind when fixing proper dower. Thus, the Prophet once
allowed the marriage of a poor Muslim for a silver ring, and on another occasion, merely
on condition that the husband would teach the Koran to his wife!
Under Shia law, the proper dower should not exceed 500 dirhams. (Baille, II, 71)
In one case, a Muslim married a Christian woman in England. The Court observed that
the marriage was governed by Muslim law, and therefore, the husband could divorce his
wife by talak. The Court also held that the wife, in turn could also claim dower, although
no dower was initially fixed at the time of the marriage. In such cases, proper dower
could be claimed, i.e. dower which would be payable to a woman of similar status and
circumstances. (Marina Jatoi v. Nuruddin Jatoi, P.L.D. 1967 S.C. 580)

3. Prompt Dower (Marjjal):

The amount of dower is usually split into two parts prompt and deferred. Prompt dower is
that which is payable on demand and deferred dower is one payable on dissolution of
marriage by death or divorce.
Prompt dower is dower which is payable immediately on the marriage taking place, and it
must be paid on demand, unless delay is stipulated for and agreed. Prompt dower may be
realised at any time before or after consummation. Proof of intercourse between the
parties is not necessary for its payment.

It is only on payment of the prompt dower that the husband becomes entitled to enforce
his conjugal rights, unless the marriage is already consummated. The right of restitution,
so far from being a condition precedent to the payment of prompt dower, arises only after
the dower has been paid.

In Rabia Khatoon v. Mukhtar Ahmed (1966 A.A. 548), it was observed that the wife may
refuse to live with her husband and to admit him to sexual intercourse, so long as the
prompt dower is not paid. If the husband sues her for restitution of conjugal rights before
sexual intercourse takes place, non-payment of dower is a complete defence to the suit,
and the suit will be dismissed.

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If the suit is brought after sexual intercourse has taken place with her free consent, the
proper decree to pass is not a decree of dismissal, but a decree for restitution, conditional
on payment of prompt dower.
[This principle was first laid down in Abdul Kadir v. Salima, (1886) 8 All. 148.]

4. Deferred Dower (Muwajjal):

Deferred dower is payable on the dissolution of the marriage either (i) by the death of
either of the parties, or (ii) by divorce.

In a case in which no specific proportion of prompt and deferred dower has been fixed by
agreement at the time of the marriage, or by custom —
(i) The whole is regarded as prompt according to Shia law;
(ii) Part is regarded as prompt, and part as deferred according to Sunni law; the proportion
is regulated by the status of the parties and the amount of the dower settled. The Court
has, however, the power to award the whole as prompt. (Huseinkhan v. Gulab Khatun,
(1911) I.L.R. 35 Bom. 386)

On the Dissolution of the Marriage:

(a) If the marriage was consummated, the wife is entitled to the immediate payment of the
whole of the unpaid dower, both prompt and deferred;
(b) If the marriage was not consummated, she is entitled to only half the specified dower.

Wife’s Interest in Deferred Dower:

The interest of the wife in the deferred dower is a vested interest, and not a contingent
one. It is not liable to be displaced by the happening of any event, not even her own
death, because her heirs can claim the dower, if she dies.

Wife’s Rights and Remedies if Dower is not Paid:

Prompt Dower:
So long as the prompt dower remains unpaid, the wife may refuse (i) to live with the
husband, and (ii) to admit him to sexual intercourse. Non-payment of prompt dower is a
complete defence in a suit for restitution of conjugal rights filed before consummation; if

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the suit is filed after consummation, the decree will be for restitution, conditional on
payment of the prompt dower.
There is another remedy also to recover the unpaid prompt dower. The wife, (and after
her death, her heirs) may sue for such dower within three years from the date when — (i)
it is demanded and refused; or (ii) the marriage is dissolved by death or divorce.
Deferred Dower:
Deferred dower becomes payable only on dissolution of marriage either by death or
divorce. If it is not so paid, the wife (and after her death, her heirs) may sue for it within
three years from the dissolution of the marriage.

Muslim Law on Divorce:

Firm union of the husband and wife is a necessary condition for a happy family life. Islam
therefore, insists upon the subsistence of a marriage and prescribes that breach of
marriage contract should be avoided. Initially no marriage is contracted to be dissolved
but in unfortunate circumstances the matrimonial contract is broken. One of the ways of
such dissolution is by way of divorce . Under Muslim law the divorce may take place by
the act of the parties themselves or by a decree of the court of law. However in whatever
manner the divorce is effected it has not been regarded as a rule of life. In Islam, divorce
is considered as an exception to the status of marriage.

The Prophet declared that among the things which have been permitted by law, divorce is
the worst. Divorce being an evil, it must be avoided as far as possible. But in some
occasions this evil becomes a necessity, because when it is impossible for the parties to
the marriage to carry on their union with mutual affection and love then it is better to
allow them to get separated than compel them to live together in an atmosphere of hatred
and disaffection. The basis of divorce in Islamic law is the inability of the spouses to live
together rather than any specific cause (or guilt of a party) on account of which the parties
cannot live together. A divorce may be either by the act of the husband or by the act of
the wife. There are several modes of divorce under the Muslim law, which will be
discussed hereafter.

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Modes of Divorce:
A husband may divorce his wife by repudiating the marriage without giving any reason.
Pronouncement of such words which signify his intention to disown the wife is sufficient.
Generally this done by talaaq. But he may also divorce by Ila, and Zihar which differ
from talaaq only in form, not in substance. A wife cannot divorce her husband of her own
accord. She can divorce the husband only when the husband has delegated such a right to
her or under an agreement. Under an agreement the wife may divorce her husband either
by Khula or Mubarat. Before 1939, a Muslim wife had no right to seek divorce except on
the ground of false charges of adultery, insanity or impotency of the husband. But the
Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the basis
of which a Muslim wife may get her divorce decree passed by the order of the court.

There are two categories of divorce under the Muslim law:

1) Extra judicial divorce, and
2) Judicial divorce

The category of extra judicial divorce can be further subdivided into three types,
namely:

# By husband- talaaq, ila, and zihar.

# By wife- talaaq-i-tafweez, lian.
# By mutual agreement- khula and mubarat.

The second category is the right of the wife to give divorce under the Dissolution of
Muslim Marriages Act 1939.

Talaaq: Talaaq in its primitive sense means dismission. In its literal meaning, it means
"setting free", "letting loose", or taking off any "ties or restraint". In Muslim Law it means
freedom from the bondage of marriage and not from any other bondage. In legal sense it
means dissolution of marriage by husband using appropriate words. In other words talaaq
is repudiation of marriage by the husband in accordance with the procedure laid down by
the law.

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The following verse is in support of the husband's authority to pronounce unilateral
divorce is often cited:

Men are maintainers of women, because Allah has made some of them to excel others and
because they spend out of their property (on their maintenance and dower) . When the
husband exercises his right to pronounce divorce, technically this is known as talaaq. The
most remarkable feature of Muslim law of talaaq is that all the schools of the Sunnis and
the Shias recognize it differing only in some details. In Muslim world, so widespread has
been the talaaq that even the Imams practiced it. The absolute power of a Muslim
husband of divorcing his wife unilaterally, without assigning any reason, literally at his
whim, even in a jest or in a state of intoxication, and without recourse to the court, and
even in the absence of the wife, is recognized in modern India. All that is necessary is that
the husband should pronounce talaaq; how he does it, when he does it, or in what he does
it is not very essential.

In Hannefa v. Pathummal, Khalid, J., termed this as "monstrosity" . Among the Sunnis,
talaaq may be express, implied, contingent constructive or even delegated. The Shias
recognize only the express and the delegated forms of talaaq.

Conditions for a valid talaaq:

1) Capacity: Every Muslim husband of sound mind, who has attained the age of puberty,
is competent to pronounce talaaq. It is not necessary for him to give any reason for his
pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaaq
by a minor or of a person of unsound mind is void and ineffective. However, if a husband
is lunatic then talaaq pronounced by him during "lucid interval" is valid. The guardian
cannot pronounce talaaq on behalf of a minor husband. When insane husband has no
guardian, the Qazi or a judge has the right to dissolve the marriage in the interest of such
a husband.

2) Free Consent: Except under Hanafi law, the consent of the husband in pronouncing
talaaq must be a free consent. Under Hanafi law, a talaaq, pronounced under compulsion,
coercion, undue influence, fraud and voluntary intoxication etc., is valid and dissolves the

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marriage.

Involuntary intoxication: Talaaq pronounced under forced or involuntary intoxication is

void even under the Hanafi law.

Shia law:
Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced under
compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and
ineffective.

3) Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may be

simply uttered by the husband or he may write a Talaaqnama. No specific formula or use
of any particular word is required to constitute a valid talaaq. Any expression which
clearly indicates the husband's desire to break the marriage is sufficient. It need not be
made in the presence of the witnesses.

According to Shias, talaaq, must be pronounced orally, except where the husband is
unable to speak. If the husband can speak but gives it in writing, the talaaq, is void under
Shia law. Here talaaq must be pronounced in the presence of two witnesses.

4) Express words: The words of talaaq must clearly indicate the husband's intention to
dissolve the marriage. If the pronouncement is not express and is ambiguous then it is
absolutely necessary to prove that the husband clearly intends to dissolve the marriage.

Express Talaaq (by husband):

When clear and unequivocal words, such as "I have divorced thee" are uttered, the
divorce is express. The express talaaq, falls into two categories:
# Talaaq-i-sunnat,
# Talaaq-i-biddat.

Talaaq-i-sunnat has two forms:

# Talaaq-i-ahasan (Most approved)
# Talaaq-i-hasan (Less approved).

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Talaaq-i-sunnat is considered to be in accordance with the dictats of Prophet Mohammad.

The Ahasan talaaq:

This consists of a single pronouncement of divorce made in the period of tuhr (purity,
between two menstruations), or at any time, if the wife is free from menstruation,
followed by abstinence from sexual intercourse during the period if iddat. The
requirement that the pronouncement be made during a period of tuhr applies only to oral
divorce and does not apply to talaaq in writing. Similarly, this requirement is not
applicable when the wife has passed the age of menstruation or the parties have been
away from each other for a long time, or when the marriage has not been consummated.
The advantage of this form is that divorce can revoked at any time before the completion
of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation
may effected expressly or impliedly.

Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or
says I have retained thee" the divorce is revoked. Resumption of sexual intercourse before
the completion of period of iddat also results in the revocation of divorce.

The Raad-ul-Muhtar puts it thus: "It is proper and right to observe this form, for
human nature is apt to be mislead and to lead astray the mind far to perceive faults
which may not exist and to commit mistakes of which one is certain to feel ashamed
afterwards”.

The Hasan talaaq:

In this the husband is required to pronounce the formula of talaaq three time during three
successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it
may be made after the interval of a month or thirty days between the successive
pronouncements. When the last pronouncement is made, the talaaq, becomes final and
irrevocable. It is necessary that each of the three pronouncements should be made at a
time when no intercourse has taken place during the period of tuhr. Example: W, a wife,
is having her period of purity and no sexual intercourse has taken place. At this time, her

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husband, H, pronounces talaaq, on her. This is the first pronouncement by express words.
Then again, when she enters the next period of purity, and before he indulges in sexual
intercourse, he makes the second pronouncement. He again revokes it. Again when the
wife enters her third period of purity and before any intercourse takes place H pronounces
the third pronouncement. The moment H makes this third pronouncement, the marriage
stands dissolved irrevocably, irrespective of iddat.

Talaaq-i-Biddat:
It came into vogue during the second century of Islam. It has two forms: (i) the triple
declaration of talaaq made in a period of purity, either in one sentence or in three, (ii) the
other form constitutes a single irrevocable pronouncement of divorce made in a period of
tuhr or even otherwise. This type of talaaq is not recognized by the Shias. This form of
divorce is condemned. It is considered heretical, because of its irrevocability.

TRIPLE TALAQ IS CRIMINALISED.

Recently, the Parliament has passed the Muslim Women (Protection of Rights on
Marriage) Bill, 2019, thereby criminalizing the practice of instant Triple Talaq.

The Supreme Court in Shayara Bano case (2017) had declared the practise of Triple
Talaq (talaq-e-biddat) as unconstitutional.

However, the penal provision of the Act i.e. a Muslim husband declaring instant Triple
Talaq can be imprisoned for up to three years is alleged to be disproportionate for a civil
offence.

What is Talaq-e-biddat?
 If a man belonging to the religion of Islam pronounces talaq thrice either orally
or in written form to his wife, then the divorce is considered immediate and
irrevocable.
 The only way to reconcile the marriage is through the practice of nikah halala,
which requires the woman to get remarried, consummate the second marriage, get
divorced, observe the three-month iddat period and return to her husband.

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Some key features of the Muslim Women (Protection of Rights on Marriage) Act, 2019:
 It is applicable in whole of India but it is not extended to the State of Jammu &
Kashmir.
 Any pronouncement of “talaq” by a Muslim husband to his wife in any manner,
spoken or written, will be void and illegal.
 Any Muslim husband who communicates the “talaq” orally or in writing may face
punishment up to three years in jail. The punishment may be also extended.
 If a Muslim man pronounces “talaq” to his wife, then the woman and her children
are entitled to receive an allowance for subsistence. Such an amount can be
determined by a Judicial Magistrate of the First Class.
 A Muslim woman is entitled to the custody of her minor children even if her
husband has pronounced “talaq” to her.
 The offence is also compoundable (i.e. the parties may arrive at a compromise),
if the Muslim woman insists for the same and the Magistrates allows certain terms
and conditions which he may determine.
 A person accused of this offence cannot be granted bail unless an application is
filed by the accused after a hearing in the presence of the Muslim woman (on
whom talaq is pronounced) is conducted and the Magistrate is satisfied with the
reasonable grounds for granting bail.

What are the issues ?

 Divorce is a civil matter and making Triple Talaq a criminal offence is
disproportionate to criminal jurisprudence.
 The Supreme Court declared Triple Talaq as invalid and did not ask the
government to make it a penal offence.
o The Supreme Court by holding that Triple Talaq is unconstitutional
implied that mere utterance of Talaq thrice does not result in the
dissolution of marriage, rather it remains intact.
o However, by criminalising Triple Talaq the law presumes marriage
has ended and for that Muslim man shall be punished.
o Thereby criminalizing the Triple Talaq goes against the spirit of the
Supreme Court judgement.

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  Further, if the husband is imprisoned, how he can pay maintenance allowance to
wives and children.
 Also similar to misuse of Indian Penal Code section 498A (Dowry Harassment)
which led to harassment of the affected men, the penal provision in Triple Talaq
can be subject to such harassment.

Why the government criminalized the Triple Talaq?

 The Triple Talaq was held to be violative of Article 14 (the right to equality),
which is held by the Supreme Court from Shah Bano case 1986 to Shayara Bano
case in 2017.
 The Government held that 473 cases of Triple Talaq have taken place even after
two years of judgement pronounced by the Supreme Court.
 The law has been placed as a deterrent to eradicate social evils. For example:
o Untouchability was abolished by the Constitution, but the continued
practise of untouchability forced Parliament to enact the Untouchability
(Offences) Act in 1955 and later renaming it as Protection of Civil Rights
Act in 1976.
o To eliminate atrocities faced by women in domestic space, parliament
enacted:
 The Dowry Prohibition Act in 1961
 Prevention of domestic violence Act 2005
 Triple Talaq is banned in more than 20 Islamic countries including Pakistan.

Terming Triple Talaq as unconstitutional as a step towards establishing uniform civil

code (Enshrined in Article 44 of directive principle of state policy), but criminalising
it goes against the ethos of Fundamental rights i.e. article 25 and 26 the freedom of
religion.

Triple Talaq has led to the subjugation of Muslim women even after 72 years of
independence but its solution must come through coexistence rather than coercion.

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Ila:
Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that
are, Ila and Zihar. They are called constructive divorce. In Ila, the husband takes an oath
not to have sexual intercourse with his wife. Followed by this oath, there is no
consummation for a period of four months. After the expiry of the fourth month, the
marriage dissolves irrevocably. But if the husband resumes cohabitation within four
months, Ila is cancelled and the marriage does not dissolve. Under Ithna Asharia (Shia)
School, Ila, does not operate as divorce without order of the court of law. After the expiry
of the fourth month, the wife is simply entitled for a judicial divorce. If there is no
cohabitation, even after expiry of four months, the wife may file a suit for restitution of
conjugal rights against the husband.

Zihar:
In this mode the husband compares his wife with a woman within his prohibited
relationship e.g., mother or sister etc. The husband would say that from today the wife is
like his mother or sister. After such a comparison the husband does not cohabit with his
wife for a period of four months. Upon the expiry of the said period, Zihar is complete.

After the expiry of fourth month the wife has following rights:
(i) She may go to the court to get a decree of judicial divorce
(ii) She may ask the court to grant the decree of restitution of conjugal rights.
Where the husband wants to revoke Zihar by resuming cohabitation within the said
period, the wife cannot seek judicial divorce. It can be revoked if:
(i) The husband observes fast for a period of two months, or,
(ii) He provides food at least sixty people, or,
(iii) He frees a slave.

According to Shia law Zihar must be performed in the presence of two witnesses.

Divorce by mutual agreement:

Khula and Mubarat: They are two forms of divorce by mutual consent but in either of
them, the wife has to part with her dower or a part of some other property. A verse in the

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Holy Quran runs as: "And it not lawful for you that ye take from women out of that which
ye have given them: except (in the case) when both fear that they may not be able to keep
within the limits (imposed by Allah), in that case it is no sin for either of them if the
woman ransom herself." The word khula, in its original sense means "to draw" or "dig
up" or "to take off" such as taking off one's clothes or garments. It is said that the spouses
are like clothes to each other and when they take khula each takes off his or her clothes,
i.e., they get rid of each other.

In law it is said is said to signify an agreement between the spouses for dissolving a
connubial union in lieu of compensation paid by the wife to her husband out of her
property. Although consideration for Khula is essential, the actual release of the dower or
delivery of property constituting the consideration is not a condition precedent for the
validity of the khula. Once the husband gives his consent, it results in an irrevocable
divorce. The husband has no power of cancelling the 'khul' on the ground that the
consideration has not been paid. The consideration can be anything, usually it is mahr, the
whole or part of it. But it may be any property though not illusory. In mubarat, the
outstanding feature is that both the parties desire divorce. Thus, the proposal may
emanate from either side. In mubarat both, the husband and the wife, are happy to get rid
of each other . Among the Sunnis when the parties to marriage enter into a mubarat all
mutual rights and obligations come to an end.

The Shia law is stringent though. It requires that both the parties must bona fide find the
marital relationship to be irksome and cumbersome. Among the Sunnis no specific form
is laid down, but the Shias insist on a proper form. The Shias insist that the word mubarat
should be followed by the word talaaq, otherwise no divorce would result. They also
insist that the pronouncement must be in Arabic unless the parties are incapable of
pronouncing the Arabic words. Intention to dissolve the marriage should be clearly
expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are
the same as in khula and the wife must undergo the period of iddat and in both the divorce
is essentially an act of the parties, and no intervention by the court is required.

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Divorce by wife:
The divorce by wife can be categorized under three categories:
(i) Talaaq-i-tafweez
(ii) Lian
(iii) By Dissolution of Muslim Marriages Act 1939.

Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the
Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his
wife or any other person. He may delegate the power absolutely or conditionally,
temporarily or permanently . A permanent delegation of power is revocable but a
temporary delegation of power is not. This delegation must be made distinctly in favour
of the person to whom the power is delegated, and the purpose of delegation must be
clearly stated. The power of talaaq may be delegated to his wife and as Faizee observes,
"this form of delegated divorce is perhaps the most potent weapon in the hands of a
Muslim wife to obtain freedom without the intervention of any court and is now
beginning to be fairly common in India".

This form of delegated divorce is usually stipulated in prenuptial agreements. In Md.

Khan v. Shahmai, under a prenuptial agreement, a husband, who was a Khana Damad,
undertook to pay certain amount of marriage expenses incurred by the father-in-law in the
event of his leaving the house and conferred a power to pronounce divorce on his wife.
The husband left his father-in-law's house without paying the amount. The wife exercised
the right and divorced herself. It was held that it was a valid divorce in the exercise of the
power delegated to her. Delegation of power may be made even in the post marriage
agreements. Thus where under an agreement it is stipulated that in the event of the
husband failing to pay her maintenance or taking a second wife, the will have a right of
pronouncing divorce on herself, such an agreement is valid, and such conditions are
reasonable and not against public policy . It should be noted that even in the event of
contingency, whether or not the power is to be exercised, depend upon the wife she may
choose to exercise it or she may not. The happening of the event of contingency does not
result in automatic divorce.

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Lian:
If the husband levels false charges of unchastity or adultery against his wife then this
amounts to character assassination and the wife has got the right to ask for divorce on
these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and
aggressive charge of adultery made by the husband which, if false, would entitle the wife
to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the
feelings of her husband with her behaviour and the husband hits back an allegation of
infidelity against her, then what the husband says in response to the bad behaviour of the
wife, cannot be used by the wife as a false charge of adultery and no divorce is to be
granted under Lian. This was held in the case of Nurjahan v. Kazim Ali by the Calcutta
High Court.

Dissolution of Muslim Marriages Act 1939:

Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the
issue on 17th April 1936. It however became law on 17th March 1939 and thus stood the
Dissolution of Muslim Marriages Act 1939.

Section 2 of the Act runs there under:

A woman married under Muslim law shall be entitled to obtain a decree for divorce for
the dissolution of her marriage on any one or more of the following grounds, namely:-
# That the whereabouts of the husband have not been known for a period of four
years: if the husband is missing for a period of four years the wife may file a petition for
the dissolution of her marriage. The husband is deemed to be missing if the wife or any
such person, who is expected to have knowledge of the husband, is unable to locate the
husband. Section 3 provides that where a wife files petition for divorce under this ground,
she is required to give the names and addresses of all such persons who would have been
the legal heirs of the husband upon his death. The court issues notices to all such persons
appear before it and to state if they have any knowledge about the missing husband. If
nobody knows then the court passes a decree to this effect which becomes effective only
after the expiry of six months. If before the expiry, the husband reappears, the court shall
set aside the decree and the marriage is not dissolved.

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# That the husband has neglected or has failed to provide for her maintenance for a
period of two years: it is a legal obligation of every husband to maintain his wife, and if
he fails to do so, the wife may seek divorce on this ground. A husband may not maintain
his wife either because he neglects her or because he has no means to provide her
maintenance. In both the cases the result would be the same. The husband's obligation to
maintain his wife is subject to wife's own performance of matrimonial obligations.
Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to
get a judicial divorce on the ground of husband's failure to maintain her because her own
conduct disentitles her from maintenance under Muslim law.

# That the husband has been sentenced to imprisonment for a period of seven years
or upwards: the wife's right of judicial divorce on this ground begins from the date on
which the sentence becomes final. Therefore, the decree can be passed in her favour only
after the expiry of the date for appeal by the husband or after the appeal by the husband
has been dismissed by the final court.

# That the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three years: the Act does define 'marital obligations of the
husband'. There are several marital obligations of the husband under Muslim law. But for
the purpose of this clause husband's failure to perform only those conjugal obligations
may be taken into account which are not included in any of the clauses of Section 2 of
this Act.

# That the husband was impotent at the time of the marriage and continues to be so:
for getting a decree of divorce on this ground, the wife has to prove that the husband was
impotent at the time of the marriage and continues to be impotent till the filing of the suit.
Before passing a decree of divorce of divorce on this ground, the court is bound to give to
the husband one year to improve his potency provided he makes an application for it. If
the husband does not give such application, the court shall pass the decree without delay.
In Gul Mohd. Khan v. Hasina the wife filed a suit for dissolution of marriage on the
ground of impotency. The husband made an application before the court seeking an order
for proving his potency. The court allowed him to prove his potency.

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# If the husband has been insane for a period of two years or is suffering from
leprosy or a virulent veneral disease: the husband's insanity must be for two or more
years immediately preceding the presentation of the suit. But this act does not specify that
the unsoundness of mind must be curable or incurable. Leprosy may be white or black or
cause the skin to wither away. It may be curable or incurable. Veneral disease is a disease
of the sex organs. The Act provides that this disease must be of incurable nature. It may
be of any duration. Moreover even if this disease has been infected to the husband by the
wife herself, she is entitled to get divorce on this ground.

# That she, having been given in marriage by her father or other guardian before
she attained the age of fifteen years, repudiated the marriage before attaining the
age of eighteen years, provided that the marriage has not been consummated;

# That the husband treats her with cruelty, that is to say-

(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such
conduct does not amount to physical ill treatment, or
(b) Associates with women of ill-repute or leads an infamous life, or
(c) Attempts to force her to lead an immoral life, or
(d) Disposes of her property or prevents her exercising her legal rights over it, or
(e) Obstructs her in the observance of her religious profession or practice, or
(f) If he has more than one wives, does not treat her equitably in accordance with the
injunctions of the Holy Quran.

In Syed Ziauddin v. Parvez Sultana, Parvez Sultana was a science graduate and she
wanted to take admission in a college for medical studies. She needed money for her
studies. Syed Ziaudddin promised to give her money provided she married him. She did.
Later she filed for divorce for non-fulfillment of promise on the part of the husband. The
court granted her divorce on the ground of cruelty. Thus we see the court's attitude of
attributing a wider meaning to the expression cruelty. In Zubaida Begum v. Sardar
Shah, a case from Lahore High Court, the husband sold the ornaments of the wife with
her consent. It was submitted that the husband's conduct does not amount to cruelty.

In Aboobacker v. Mamu koya, the husband used to compel his wife to put on a sari and

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see pictures in cinema. The wife refused to do so because according to her beliefs this
was against the Islamic way of life. She sought divorce on the ground of mental cruelty.
The Kerela High Court held that the conduct of the husband cannot be regarded as cruelty
because mere departure from the standards of suffocating orthodoxy does not constitute
un-Islamic behaviour.

In Itwari v. Asghari, the Allahabad High Court observed that Indian Law does not
recognize various types of cruelty such as 'Muslim cruelty', 'Hindu cruelty' and so on, and
that the test of cruelty is based on universal and humanitarian standards; that is to say,
conduct of the husband which would cause such bodily or mental pain as to endanger the
wife's safety or health.

Irretrievable Breakdown:
Divorce on the basis of irretrievable breakdown of marriage has come into existence in
Muslim Law through the judicial interpretation of certain provisions of Muslim law. In
1945 in Umar Bibi v. Md. Din , it was argued that the wife hated her husband so much
that she could not possibly live with him and there was total incompatibility of
temperaments. On these grounds the court refused to grant a decree of divorce. But
twenty five years later in Neorbibi v. Pir Bux, again an attempt was made to grant
divorce on the ground of irretrievable breakdown of marriage. This time the court granted
the divorce. Thus in Muslim law of modern India, there are two breakdown grounds for
divorce: (a) non-payment of maintenance by the husband even if the failure has resulted
due to the conduct of the wife, (b) where there is total irreconcilability between the
spouses.

Conclusion:
In contrast to the Western world where divorce was relatively uncommon until modern
times, and in contrast to the low rates of divorce in the modern Middle East, divorce was
a common occurrence in the pre-modern Muslim world. In the medieval Islamic world
and the Ottoman Empire, the rate of divorce was higher than it is today in the modern
Middle East. In 15th century Egypt, Al-Sakhawi recorded the marital history of 500
women, the largest sample on marriage in the Middle Ages, and found that at least a third
of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with

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many marrying three or more times. According to Al-Sakhawi, as many as three out of
ten marriages in 15th century Cairo ended in divorce. In the early 20th century, some
villages in western Java and the Malay peninsula had divorce rates as high as 70%.In
practice in most of the Muslim world today divorce can be quite involved as there may be
separate secular procedures to follow as well.

Usually, assuming her husband demands a divorce, the divorced wife keeps her mahr,
both the original gift and any supplementary property specified in the marriage contract.
She is also given child support until the age of weaning, at which point the child's custody
will be settled by the couple or by the courts. Women's right to divorce is often extremely
limited compared with that of men in the Middle East. While men can divorce their
spouses easily, women face a lot of legal and financial obstacles. For example, in Yemen,
women usually can ask for divorce only when husband's inability to support her life is
admitted while men can divorce at will. However, this contentious area of religious
practice and tradition is being increasingly challenged by those promoting more liberal
interpretations of Islam.

*****
CHRISTIAN LAW OF MARRIAGE AND DIVORCE.
The Christian Marriage Act, 1872 deals with Christian marriage and the Divorce Act,
1869 deals with matrimonial remedies for parties to the marriage.

CHRISTIAN LAW OF MARRIAGE.

A Christian is one who professes the religion of Jesus Christ. Indian Christian
includes native converts to Christianity and their Christian descendants.

Persons competent to solemnise Marriage.

Under section 5 of the Indian Christian Act, 1872, the following persons are entitled to
solemnize the Christian marriage.
1. Any person who has received Episcopal ordination, provided that the marriage be
solemnized according to the rules, rites, ceremonies and customs of the Church of which
he is a Minister

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2. Any Clergyman of the Church of Scotland provided that such marriage be solemnized
according to the rules, rites, ceremonies and customs of the Church of Scotland;
(3) Any Minister of Religion licensed under this Act to solemnize marriages;
(4) A Marriage Registrar appointed under this Act;
(5) Any person licensed under this Act to grant certificates of marriage between Indian
Christians.

Conditions for Christian marriage.

1. Both or one of the parties to the marriage may be Christian.
2. Both the parties should be a major.
3. Bothe the parties should be sound mind.
4. Both the parties should not be within the degree of prohibited relationship.
5. Neither party has a spouse living at the time of marriage.
6. If the party is minor, the consent of father or guardian or mother is necessary.

Time and Place at which Marriages may be solemnized.

Under section 10 of this Act,
Every marriage under this Act shall be solemnized between the hours of six in the
morning and seven in the evening.
The Christian marriage may be solemnized at particular church or any other
dwelling place which is prepared by the parties to the intended marriage.

1. MARRIAGES SOLEMNIZED BY MINISTERS OF RELIGION LICENSED

UNDER THIS ACT.
Notice of intended marriage.—
Whenever a marriage is intended to the solemnized by a Minister of Religion
licensed to solemnize marriages under this Act—
One of the persons of intending marriage shall give notice in writing to the
Minister of Religion whom he or she desires to solemnize the marriage, and shall state
therein—
(a) the name and surname, and the profession or condition, of each of the persons
intending marriage
(b) the dwelling-place of each of them

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 (c) the time during which each has dwelt there
(d) the church or private dwelling in which the marriage is to be solemnized
Provided that, if either of such persons has dwelt in the place mentioned in the notice
during more than one month, it may be stated therein that he or she has dwelt there one
month and upwards.

Publication of such notice.

If the persons intending marriage desire it to be solemnized in a particular church,
and if the Minister of Religion to whom such notice has been delivered be entitled to
officiate therein, he shall cause the notice to be affixed in some conspicuous part of such
church.
Return or transfer of notice.
But if he is not entitled to officiate as a Minister in such church, he shall, at his
option, either return the notice to the person who delivered it to him, or deliver it to some
other Minister entitled to officiate therein, who shall thereupon cause the notice to be
affixed as aforesaid.

Notice of intended marriage in private dwelling.

If it be intended that the marriage shall be solemnized in a private dwelling, the
Minister of Religion, on receiving the notice prescribed in section 12, shall forward it to
the Marriage Registrar of the district, who shall affix the same to some conspicuous place
in his own office.

Sending copy of notice to Marriage Registrar when one party is a minor.—

When one of the persons intending marriage is a minor, every Minister receiving
such notice shall send a copy of such notice to the Marriage Registrar of the district, or, if
there be more than one Registrar of such district, to the Senior Marriage Registrar.
The Marriage Registrar or Senior Marriage Registrar, as the case may be, on receiving
any such notice, shall affix it to some conspicuous place in his own office.

Issue of certificate of notice given and declaration made.

One of the persons intending marriage has appeared personally before the Minister
and made a solemn declaration—

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(a) that he or she believes that there is not any impediment of kindred or affinity, or other
lawful hindrance, to the said marriage and
(b) when either or both of the parties is or are a minor or minors that the consent or
consents required by law has or have been obtained thereto

After declaration, the Minister of Religion issue under his hand a certificate of such
notice for intended marriage.

Provided that no such certificates shall be issued until the expiration of four days after the
date of the receipt of the notice by such Minister.

In the case of minor marriage, no such certificates shall be issued until the expiration of
four days after the date of the receipt of the notice by such Minister.

Solemnization of marriage
After the issue of the certificate by the Minister, marriage may be solemnized
between the persons according to such form or ceremony as the Minister thinks fit to
adopt.
Provided that the marriage be solemnized in the presence of at least two
witnesses besides the Minister.

If the marriage is not solemnised within two months from the date of the
issue of the certificate, it becomes void and fresh notice is to be served.

2. MARRIAGES SOLEMNIZED BY MARRIAGE REGISTRAR

Notice of intended marriage to Marriage Registrar:
When a marriage is intended to be solemnized by a Marriage Registrar, one of
the parties to such marriage shall give notice in writing to any Marriage Registrar of the
district within which the parties have dwelt, or is the parties dwell in different districts,
shall give the like notice to a Marriage Registrar of each district.

The notice shall state the name and surname, and the profession or condition
of each of the parties intending marriage, the dwelling-place of each of them, the time

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during which each has dwelt therein, and the place at which the marriage is to be
solemnized.
Provided that, if either party has dwelt in the place stated in the notice for more
than one month, it may be stated therein that he or she has dwelt there one month and
upwards.

Publication of notice.—
Every Marriage Registrar shall affix a copy of the notice in some
conspicuous place in his office.
When one of the parties intending marriage is a minor, every Marriage
registrar shall, within twenty-four hours after the receipt by him of the notice of such
marriage, send a copy of such notice to each of the other Marriage Registrars(if any) in
the same district, who shall likewise affix the copy in some conspicuous place in his own
office.

Notice to be filed and copy entered in Marriage Notice Book.—

The Marriage Registrar shall enter true copy of all such notices in a book, which
is called the" Marriage-Notice Book.
The Marriage Registrar shall issue under his hand a certificate of such notice
having been given.
Provided that the certificate has been issued four days after the receipt of the
notice have expired.
Provided that one of the parties intending marriage is a minor, the certificate
have been issued fourteen days after the receipt of the notice have expired.

Oath before issue of certificate.— The certificate shall not be issued by any Marriage
Registrar, until one of the parties intending marriage appears personally before such
Marriage Registrar, and makes oath—
(a) that he or she believes that there is no any impediment of kindred or affinity, or
other lawful hindrance, to the said marriage,
and
(b) that the party making such oath has usual place of abode within the
district of such Marriage Registrar,

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 and,
(c) where either or each of the parties is a minor, that the consent or consents
to such marriage required by law has or have been obtained thereto.

Solemnization of marriage after issue of certificate.—

After the issue of the certificate of the Marriage Registrar, marriage may be
solemnized between them, according to such form and ceremony as they think fit to
adopt. But every such marriage shall be solemnized in the presence of Marriage Registrar
and of two or more credible witnesses and each of the parties shall say to the other as
follows or to the like effect:-

“ I call upon these persons here present to witness that I, A.B., do take thee, C.D., to
be may lawful wedded wife (or husband)".

When marriage not had within two months after notice, new notice required:
Whenever a marriage is not solemnized within two months after the copy of
the notice has been entered by the Marriage Registrar, the notice and the certificate shall
be void and fresh notice is to be served.

Registration of marriages
After the solemnization of any marriage, the Marriage Registrar shall register the
marriage in duplicate; that is to say, in a marriage register-book, according to the form of
the Fourth Schedule and also in a certificate attached to the marriage-register-book as a
counterfoil.

The entry of such marriage in both the certificate and the marriage-register-book
shall be signed by the person by or before whom the marriage has been solemnized, if
there be any such person, and by the Marriage Registrar present at such marriage, whether
or not it is solemnized by him, and also by the parties married and attested by two
credible witnesses other than the Marriage Registrar and person solemnizing the
marriage..

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MARRIAGE OF INDIAN CHRISTIANS.
Conditions for marriages of Indian Christians —
Every marriage between Indian Christians applying for a certificate, shall, without the
preliminary notice required, be certified, if the following conditions be fulfilled, and to
otherwise: —
(1) the age of the man intending to be married shall not be under twenty-one years, and
the age of the woman intending to be married shall not be under eighteen years;
(2) neither of the persons intending to be married shall have a wife or husband still
living;
(3) in the presence of a person licensed under this Act, and of at least two credible
witnesses other than such person, each of the parties shall say to the other—
I call upon these persons here present to witness that, I, A.B., in the presence of
Almighty God, and in the name of our Lord Jesus Christ, do take thee, C.D., to be any
lawful wedded wife or husband" or words to the like effect:
The Marriage Officer, before whom the declaration has been made, shall grant a
certificate of marriage and entries shall be made in the Register-Book maintained for this
purpose.

MATRIMONIAL REMEDIES UNDER “DIVORCE ACT, 1869”

A. Grounds for dissolution of marriage.
Any marriage solemnized, whether before or after the commencement* of the
Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District
Court either by the husband or the wife, be dissolved on the ground that since the
solemnization of the marriage, the respondent
(i) has committed adultery; or
(ii) has ceased to be Christian by conversion to another religion; or
(iii)has been incurably of unsound mind for a continuous period of not less than two years
immediately preceding the presentation of the petition; or
(iv) has, for a period of not less than two years immediately preceding the presentation of
the petition, been suffering from a virulent and incurable form of leprosy; or
(V) has, for a period of not less than two years immediately preceding the presentation of
the petition, been suffering from venereal disease in a communicable form; or

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(vi) has not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of the respondent if the respondent had been
alive; or
(vii) has willfully refused to consummate the marriage and the marriage has not therefore
been consummated; or
has failed to comply with a decree for restitution of conjugal rights for a period of two
years or upwards after the passing of the decree against the respondent; or
(ix) has deserted the petitioner for at least two years immediately preceding the
presentation of the petition; or
(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in
the mind of the petitioner that it would be harmful or injurious for the petitioner to live
with the respondent.

Special grounds for wife:

A wife may also present a petition for the dissolution of her marriage on the ground
that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy
or bestiality.]

Dissolution of marriage by mutual consent

— Subject to the provisions of this Act, a petition for dissolution of marriage may be
presented to the District Court by both the parties to a marriage together, whether such
marriage was solemnized before or after the commencement* of the Indian Divorce
(Amendment) Act, 2001, on the ground that they have been living separately for a period
of two years or more, that they have not been able to live together and they have mutually
agreed that the marriage should be dissolved.
On the motion of both the parties made not earlier than six months after the date
of presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn by both the parties in the
meantime, the Court shall, on being satisfied, after hearing the parties and making such
inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the
petition are true, pass a decree declaring the marriage to be dissolved with effect from the
date of decree.]

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Decrees for dissolution to be nisi:
—Every decree for dissolution of marriage made by a High Court shall in the first
instance, be a decree nisi, not to be made absolute till after the expiration of such time,
not less than six months from the pronouncing thereof, as the High Court, by general or
special order from time to time, directs.

Petition for decree of nullity:

—Any husband or wife may present a petition to the District Court praying that his or
her marriage may be declared null and void.

Grounds of decree:
—Such decree may be made on any of the following grounds:
—(1) that the respondent was impotent at the time of the marriage and at the time of the
institution of the suit;
(2) that the parties are within the prohibited degree of consanguinity (whether natural or
legal) or affinity;
(3) that either party was a lunatic or idiot at the time of the marriage;
(4) that the former husband or wife of either party was living at the time of the marriage,
and the marriage with such former husband or wife was then in force. Nothing in this
section shall affect the 27 [jurisdiction of the District Court] to make decrees of nullity of
marriage on the ground that the consent of either party was obtained by force or fraud.

*****

THE SPECIAL MARRIAGE ACT, 1954.

Any two persons, who domiciled in India, can permit to marry under the
provisions of the Special Marriage Act, 1954. So therefore, this Act permits inter caste
marriage and inter religious marriage.

CONDITIONS AND FORMALITIES FOR VALID MARRIAGE:

1. Conditions for marriage
2. Notice for intended marriage
3. Objection to marriage
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 4. Declaration by Parties and Witnesses
5. Place and form of Marriage
6. Certificate of Marriage
7. New notice after lapse of three months

1. Conditions for Valid Marriage.

A marriage between the two persons may be solemnised under the Special
Marriage Act, 1954, if all the conditions specified in section 4 of this Act are fulfilled at
the time of marriage.
1. Neither party has a spouse living at the time of marriage. (monogamy)
2. Neither party is incapable of giving a valid consent to the marriage in
consequence of unsound mind (or) though capable of giving valid consent, has been
suffering from mental disorder of such kind or to such an extend as to be unfit for
marriage and the procreation of children (or) has been subject to recurrent attacks of
insanity
3. The male has completed the age of twenty one and the female has completed the
age of eighteen years at the time of marriage.
4. The parties are not within the degree of prohibited relationship unless the custom of
any one of the parties permits of a marriage between the two.

2. Notice for intended Marriage.

If a marriage is intended to be solemnised under this Act, the parties to the
marriage shall give notice of such marriage in writing in the form specified in second
scheduled of this Act to the Marriage Officer of the district in which atleast one of the
parties to the marriage has resided for a period of not less than thirty days immediately
preceding the date on which such notice is given. (Section 5)

As per section 6 of this Act:

Then the Marriage Officer shall keep such Notice with the records of his
office and shall also forth enter a true copy of such notice in a book prescribed for that
purpose, called “The Marriage Notice Book”. Such book shall be open for inspection at
all reasonable times, without fee by any person desires of inspecting the same.

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 Then the Marriage Officer shall affix a copy of such notice to some
conspicuous place in his office.
If any one of the parties to the intended marriage is not permanently residing
within the local limits of the district of the Marriage Officer to whom the notice has been
given under section 5, the Marriage Officer shall send a copy such notice to the Marriage
Officer of the district with in whose limits such party is permanently residing and that
Marriage Officer there upon affix such copy of notice to some conspicuous place in his
office.

3. Objection to Marriage (section 7)

Before the expiration of thirty days from the date of publication of such notice, any
person may object to the marriage on the ground that it would contravene one or more of
the conditions, which are necessary for valid marriage.

If there is no objection within 30 days from the date of publication of the notice, the
parties to the marriage may be allowed for marriage.
If there is any objection within 30 days from the date of publication of notice, it shall
record in writing by the Marriage Officer in the Marriage Note book and shall be signed
by the person who raised the objection.

If an objection is made to an intended marriage, the Marriage Officer shall not solemnise
the marriage until he has enquired into the matter of the objection and is satisfied that it
ought not to prevent the solemnisation of the marriage or the objection is withdrawn by
the person making.

Within 30 days from the date of objection, the Marriage Officer shall have take enquiry
into the objection and arriving at a conclusion or decision.

If the Marriage Officer uphold the objection and refused to solemnise the marriage, the
party to the intended marriage may prefer an appeal to the District Court within whose
jurisdiction the Marriage Officer has his office within 3o days from the of refusal of
marriage. Then the decision of District Court on such appeal shall be final and then the
Marriage Officer shall act in conformity with the decision of the Court.

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4. Declaration by Parties and Witnesses
Before the marriage is solemnised, the parties and three witnesses shall, in the presence of
a Marriage Officer, sign a declaration in the form specified in 3rd scheduled to this Act,
and the declaration shall be countersigned by the Marriage Officer.
Ex : (Marriage for Raghavan and Rohini)
Declaration to be made by the Bride groom:
I, Raghavan, hereby declared as follows:
1. I am at present unmarried.
2. I have completed 25 years.
3. I am not related to Rohini (bride) within the degree of prohibited relationship.
4. I am aware that if any statement in this declaration is false, I am liable to
imprisonment and also fine.
Signature of the Bridegroom
xxxxxx
Declaration to be made by the Bride :
I, Rohini, here by declared as follows:
1. I am at present unmarried.
2. I have completed 22 years.
3. I am not related to Raghavan (bride)within the degree of prohibited relationship.
4. I am aware that if any statement in this declaration is false, I am liable to
imprisonment and also fine.
Signature of the witnesses Signature of the Bride
1 Xxxxxxx xxxxxxx
2 Xxxxxxx
3 xxxxxxx
Signature of the Marriage Officer with seal

5. Place and form of Marriage

The marriage may be solemnised at the office of the Marriage Officer or
at such other place as the parties may desire.
The marriage may be solemnised in any form which the parties may
choose to adopt.

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 But marriage shall not be complete and binding on the parties unless each party says
to other in the presence of the Marriage Officer and three witnesses: ---
I take ----( Roghini) to be my lawful wife.
I take ----(Raghavan) to be my lawful husband.

6. Certificate of marriage.—
(1) When the marriage has been solemnized, the Marriage Officer shall enter a
certificate thereof in the form specified in the Fourth Schedule in a book to be kept by
him for that purpose and to be called the Marriage Certificate Book and such certificate
shall be signed by the parties to the marriage and the three witnesses.
(2) On a certificate being entered in the Marriage Certificate Book by the Marriage
Officer, the Certificate shall be deemed to be conclusive evidence of the fact that a
marriage under this Act has been solemnized and that all formalities respecting the
signatures of witnesses have been complied with.

7. New notice after lapse of three months

Whenever a marriage is not solemnised within three months from the date of
notice of marriage, or
Whenever a marriage is not solemnised within three months from the date of
the decision of the district court in the case of an appeal filled under section 8 (2), the
notice and all other proceedings arising from the Marriage Notice shall be deemed to have
lapsed and no Marriage Officer shall solemnised the marriage until a new notice has been
given in the manner laid down in the Act.

MATRIMONIAL REMEDIES.
The main function of matrimonial remedies is to give protection to innocent
party. This Act provides five kinds of Matrimonial remedies. These are:
1. Restitution of conjugal Rights.
2. Judicial Separation
3. Divorce
4. Divorce by Mutual consent
5. Annulment of marriage by decree of nullity.

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1. Restitution of conjugal Rights.
If any one of the party to the marriage has withdrawn the conjugal society
without any reasonable causes, the other party to the marriage is entitled to file petition to
the District Court for conjugal society.
If the court is satisfied that the statements in the petition is true and there is no
legal ground for not granting the decree for conjugal right, the court granted decree for
conjugal rights for petitioner.

2. Judicial Separation.
A petition for judicial separation may be presented to the district court either by
the husband or the wife,—
(a) on any of the grounds for divorce might have been presented; or
(b) on the ground of failure to comply with a decree for restitution of conjugal rights.
The court, on being satisfied of the truth of the statements made in such petition
and that there is no legal ground why the application should not be granted, may decree
judicial separation accordingly.
Where the court grants a decree for judicial separation, it shall be no longer
obligatory for the petitioner to cohabit with the respondent, but the court may, on the
application by petition of either party and on being satisfied of the truth of the statements
made in such petition, rescind the decree if it considers it just and reasonable to do so.

3. Divorce.
A petition for divorce may be presented to the district court either by the
husband or the wife on the ground that the respondent—
(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with
any person other than his or her spouse;
or
(b) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition;

(c) is undergoing a sentence of imprisonment for seven years or more for an offence as
defined in the Indian Penal Code

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 (d) has since the solemnization of the marriage treated the petitioner with cruelty;
or
(e) has been incurably of unsound mind, or has been suffering continuously or
intermittently from mental disorder of such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the respondent.
or
(f) has been suffering from venereal disease in a communicable form];
or
(g) has been suffering from leprosy, the disease not having been contacted from the
petitioner;
or
(h)has not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of the respondent if the respondent had been
alive;

Special grounds for wife.

A wife may also present a petition for divorce to the district court on the ground,—
(i) that her husband has, since the solemnization of the marriage, been guilty of
rape, sodomy or bestiality;
(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act,
1956, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 , a
decree or order, as the case may be, has been passed against the husband awarding
maintenance to the wife and that since the passing of such decree or order, cohabitation
between the parties has not been resumed for one year or upwards.

Further grounds for divorce:

Either party to a marriage, whether solemnized before or after the
commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may
present a petition for divorce to the district court on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the
marriage for a period of one year or upwards after the passing of a decree for judicial
separation in a proceeding to which they were parties; or

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 (ii) that there has been no restitution of conjugal rights as between the parties to the
marriage for a period of one year or upwards after the passing of a decree for restitution
of conjugal rights in a proceeding to which they were parties.

4. Divorce by Mutual consent

Subject to the provisions of this Act and to the rules made there under, a
petition for divorce may be presented to the district court by both the parties together on
the ground that they have been living separately for a period of one year or more, that
they have not been able to live together and that they have mutually agreed that the
marriage should be dissolved.
On the motion of both the parties made not earlier than six months after the
date of the presentation of the petition and not later than eighteen months] after the said
date, if the petition is not withdrawn in the meantime, the district court shall, on being
satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a
marriage has been solemnized under this Act, and that the averments in the petition are
true, pass a decree declaring the marriage to be dissolved with effect from the date of the
decree.

5. Annulment of marriage by decree of nullity.

This relief is available only to void and voidable marriage.
Void marriages.—
Any marriage solemnized under this Act shall be null and void and may, be so
declared by a decree of nullity if—
(i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been
fulfilled;
or
(ii) the respondent was impotent at the time of the marriage and at the time of
the institution of the suit.

Voidable Marriage
Any marriage solemnized under this Act shall be voidable and may be annulled by a
decree of nullity if,—

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 (i) the marriage has not been consummated owing to the willful refusal of the
respondent to consummate the marriage;
or
(ii) the respondent was at the time of the marriage pregnant by some person other than
the petitioner Provided that, the court shall not grant a decree unless it is satisfied,—
(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(b) that proceedings were instituted within a year from the date of the marriage;
(c) that marital intercourse with the consent of the petitioner has not taken place
since the discovery by the petitioner of the existence of the grounds for a decree
(iii). the consent of either party to the marriage was obtained by coercion or fraud, as
defined in the Indian Contract Act, 1872. Provided further that the court shall not grant a
decree if,—
(a) proceedings have not been instituted within one year after the coercion had
(b) ceased or, as the case may be, the fraud had been discovered; or
(b)the petitioner has with his or her free consent lived with the other party to the
marriage as husband and wife after the coercion had ceased or, as the case may be, the
fraud had been discovered.

*****

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 UNIT – 3
LAW OF ADOPTION.
Introduction to Law of Adoption:
Adoption is not recognized by the Mohammedan law and Parsi law. But it is recognized
by Hindu law unless it is prohibited by custom or usage of particular caste or family.

Hindu law of adoption have been study in two different categories, these are,
1. Hindu law of adoption prior to the passing of “The adoption and
Maintenance Act, 1956”
2. Hindu law of adoption after the passing of “The adoption and
Maintenance Act, 1956

1. HINDU LAW OF ADOPTION PRIOR TO THE PASSING OF “THE

ADOPTION AND MAINTENANCE ACT, 1956
Different form of Adoption: The ancient Hindu law recognized five kinds of adoption.
1. Dattaka

2. Kritrima

3. Dwyamushyayana

4. Illatom adoption

5. Customary form of adoption

1.Dattaka Adoption
This type of adoption was prevalent in all over the India. In this kind of
adoption, the son was given in adoption by parents to a sonless person by the
performance of religious ceremonies (Datta homam).

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 2.Kritrima Adoption:
This type of adoption was prevalent in Mithila and the adjourning districts and it is
recognized by law. In this type of adoption, the son was given to male or female
without performance of any ceremonies. The main elements of this adoption are:

1. The consent of the adopted son was necessary for validity. But if the son was
minor, he could be given in adoption with the consent of parent.

2. The adopted son must belong to the same caste as the adoptive father.

3. Neither ceremonies nor documents were necessary for its validity.

4. A female could adopt a kritrima son for herself. The wife could adopt a son without
consent of her husband. The widow could adopt a son without the consent of husband’s
Sapinda. But the wife or widow could not adopt a kritrima son for her husband, even
though she has been expressly authorized to do so.

5. A kritrima son did not lose his rights of inheritance in his natural family. In the
adoptive family, he could inherit from his adoptive father only, but not from others.

3. Dwyamushyayana: (Dwyamushyayana means son of two persons)

If a person gives his son to another under an agreement that the son so given
should be considered to be the son of both the natural and adoptive father, the son so
given in adoption is called “Dwyamushyayana”

Incidents of Dwyamushyayana:
i.There must be an agreement.
ii.There must be ceremonies for giving and taking a son in adoption.
iii.The adopted son inherited property from both the natural and adoptive family.
iv.If the adopted son dies, his property is taken jointly and equally by the natural
v.and adoptive mother

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 4. Illatom adoption.
It is a customary form of adoption of a son in law. The motivation of this adoption
was purely secular to assist in agricultural operation and cultivation. This kind of
adoption was prevailed in state of Tamil Nadu and Andhra Pradesh.
Two essential conditions of this adoption are.
1. The adoptee must marry the daughter of the adopter.
2. There must be an agreement to give the adoptive a share in the property.

Incidents of Illatom adoption.

i.1.The adoption had no religious significance.
ii.The rights of the adopted son are purely depended up on the custom of the family.
iii.The adopted son could not prevent the adopter from disposing of his property at his
pleasure.
iv.At a partition of property, the adopted son acquired the same share as a son of the
adopter.
v.He did not loss his connection with his natural family.
vi.He did not loss his rights with his natural family.
vii.He and brother or sister was members of the natural family.

5. Customary Adoption.
This type of adoption was prevalent in Punjab. It is nothing but a mere
appointment of heir. It creates a personal relationship between the adoptive father and
adopted son only. It does not create any relationship between adopted son and the
collaterals of the adoptive father. Now this type of adoption is abolished by “The
Hindu Adoption And Maintenance Act, 1956”

Objects of Adoption.
The objects of adoption are two fold:
1. Religious object:
It secures the spiritual benefit of the adopter and his family by having a son for
the purpose of offering funereal cakes and libations of water to the names of the adopter
and his family.

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 2. Secular object:
It secures the heirship of the adopter and perpetuates the adopter’s name. The
religious object is primary important, where as the secular object is secondary
important.
When a son is given in adoption, it is called “Pudaradanam”, where as a daughter
is given in marriage, it is called “Kanyadanam”

Requirements of a valid adoption.

An adoption was said to be valid, if it fulfill the following four conditions,
1. The person adopting was lawfully capable of taking a son in adoption.
2. The person giving in adoption was lawfully capable of giving a son in
adoption.
3. The person adopted was lawfully capable of being taken in adoption.
4. The adoption was completed by an actual giving and taking through the performance
of “Datta Homam”

Person who may be lawfully take a son in adoption (who can adopt?)
1. If a male Hindu had no son, son’s son or son’s son’s son, he could alone adopt
a son.
2. A wife also could adopt a son only to her husband with his permission.
3. Any other female could not adopt a son for any other male relation.
4. Widow, in certain circumstances, could adopt a son for her deceased husband.
An unmarried Hindu woman could not adopt a son or daughter for herself.

A. Conditions for male Hindu to adopt:

1. He must be a sound mind.
2. He must have attained the age of discretion. Therefore, he attained the age of
15 years, even though he was minor.
3. He must have no son or son’s son or son’s son’s son living at the time of
adoption
4.Even though his wife didn’t give consent or the wife was pregnant at the time of
adoption, it didn’t prevent him to take a son in adoption.

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 B. Conditions for Hindu wife to adopt
A Hindu wife could adopt a son during the life time of her husband with the
consent of her husband only for her husband. She could not adopt a son for herself,
even though her husband had given authority to adopt a son for herself.

C. Conditions for Hindu widow to adopt

The law as to adoption by a widow was different in different States.
1. In Mithila, a widow could not adopt a son for her self or for her husband,
though she got permission from her husband.
2. In Bengal, Benaras and Madras, a widow could adopt a son for her husband if she
got an authority from her husband.
3. In Bombay, a widow can adopt a son for her husband without any authority
from her husband.

The adoption made by widow may be:

1. Adoption by widow by express authority from her husband
2. Adoption by widow by without authority from her husband

1. Adoption by widow by express authority from her husband

1. If the husband is sound mind and attained the age discretion, he can give
authority to his wife only to adopt a son after his death.
2. If such authority is given to wife jointly with others, it is void one.
3. If the husband direct the wife to adopt a son only with the consent of
specified person, she cannot adopt without his consent.

Authority to co-widows:
1. If there are more widows, the authority to adopt a son is given to any one of them or
some of them jointly or severely or all of them jointly or severely.
2. If such authority is given to one widow, she may adopt a son for her husband
without the consent of other widows.
3. If such authority is given to all the widows jointly, all of them take a son jointly. If
any one of the widows died before the adoption, the others cannot adopt a son.

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 4. If such authority is given to the widows severely, the senior widow has the prior
right to exercise the power of adoption. The junior widow has no authority to adopt unless
the senior widow refuses to do so.

Form of authority:
1. The authority may be given either orally or in writing.
2. If the authority is in writing, it must be registered unless it is made by will.
3. The authority may be with or without condition. If there is any conditional
authority, it must be legal and it must be strictly followed.
4. The authority so given may be revoked.

2. Adoption by widow without authority from her husband

In Madras and Bombay, the widow can adopt a son without authority from her husband.

1. Adoption by widow in Madras:

In Madras, the widow can adopt a son without authority from her husband subject to the
following conditions.
1. If there is any prohibition from her husband, she cannot adopt a son.
2. If the husband was separated at the time of his death, she must obtain the consent from
her father in law. If father in law is dead, she must obtain the consent from her husband’s
Sapinda.
3. If the husband was joining at the time of from his death, she must obtain the consent
her father in law. If father in law is dead, she must obtain the consent from her husband’s
brother or other co-parceners.
4. No fraud or force or misrepresentation is involved for that consent
5. The consent must be given without any consideration.
6. If there are two or more widows, the senior widow may adopt without the consent of
other widows.

Adoption by widow in Bombay:

1.If there is any prohibition from her husband, she cannot adopt a son.

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 2.If the husband was separated at the time of his death and the widow is entitled his
estate, she may adopt a son without the consent of her husband’s Sapinda.
3.If the husband was joint at the time of his death, she must obtain the consent her
husband’s undivided co-parceners.
4.If there are two or more widows, the senior widow may adopt without the consent of
other widows.

II). Persons lawfully capable of giving a son adoption:

The father and mother alone authorized to give his or her son in adoption provided that
they are sound and attain the age of discretion that is fifteen years. The parents are not
allowed to delegate their authority to any one.
A woman cannot give her illegitimate son in adoption.

Right of the Father:

The primary right to give in adoption was that of the father.

Right of the Mother:

The mother could not give her son adoption, while father was alive and capable of
consenting without his permission.
But if the husband was unsound or entered into religious order, she could give her son
in adoption provided that there was no prohibition by her husband.
Renunciation:
If a Hindu converted into another religion, it doesn’t loss his power of giving his
son in adoption.

III. Who may be taken in Adoption:

Any Hindu could be taken in adoption, provided that there are certain rules,
1. The person to be adopted must be male.
2. He must be belongs to the same caste.
3. He must be belongs to different Gotra.
4. He must be a sound person
5. A deaf and dumb could not but adopted.

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 6. He must not be boy a boy whose mother could not have legally married by adoptive
father.
7. In respect of Age, there was different view,
a) In Bengal, Benaras, Bihar and Orisa, the adoption must be made before
upanayana.
b) In Madras, the adoption is made after upanayana but before marriage.
.
Adoption of Daughter:
In Bombay and Calcutta, the adoption of daughter by a dancing girl is invalid,
even though the custom of such family allowed. Such custom is regarded as immoral.
In Madras, it is valid provided that the adoption is not for the purpose of prostitution.

IV. Act of Adoption and performance of Datta Homam

The ceremonies relating to an adoption are giving and taking.
1. The father gives his son to another with intention of giving in adoption.
2. The other person taking a son in adoption with intention of taking in adoption.
The performance of Datta Homam, that is oblation of butter to sacred fire, was not
necessary, if both the parties are same Gotra.

Cancellation of Adoption: It could not be cancelled.

Results of Adoption:
1. Adoption has the effect of transferring the adopted son from natural family to
adoptive family.
2. The adoptee gets the same right in the adopted family as like that of legitimate son of
the family.
3. Even though adopted son loss all rights in the natural family, it doesn’t severe the tie
of blood connection between him and the member of his natural family.
4. If a son is born after adoption, the adopted son is not entitled to get equal
share like that of natural son.
a). In Bengal, he gets 1/3 of adoptive father’s estate.
b). In Benaras, he gets 1/4 of adoptive father’s estate.
c). In Madras and Bombay, he gets 1/5 of adoptive father’s estate.

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 d). If the estate is impartiable estate, the aurasa son alone succeed to it.
e). But in sudras in Madras and Bengal, adopted son and after born son shared
equally.

LAW OF ADOPTION AFTER THE PASSING OF “THE HINDU ADOPTION

AND MAINTENANCE ACT, 1956”
This Act has made radical changes in the entire structure of the law of adoption. These
are,
1. This Act provides comprehensive and uniform law on the subject of adoption
applicable to Hindu throughout the country.
2. The adoption is mainly secular, but if a person wanted to adopt on religious way, he
will be allowed to do so.
3. This Act provide to adopt a son or a daughter.
4. Like that of male, under this Act, a female may adopt a child for herself.
5. Under this Act, a married male adopt a child only with the consent of his wife unless
exemption provided under this Act.
6. under this Act, apart from parents, but the guardian may be permitted to give a child
in adoption with previous permission of the court.
7. Under this Act, it is not necessary that the adopter and the adoptee should belongs to
same caste.
8. Unlike that of the old law, but under this Act, if a male Hindu adopts a daughter, he
must be atleast 21 years older than the adoptive daughter. If a female Hindu adopts a
son, she must be atleast 21 years older than the adoptive son.
9. Unlike that of the old law, but under this Act, the “Doctrine of Relation back” is
unknown.
10. Unlike that of the old law, but under this Act, whatever the form of adoption, it was
marked by formalities prescribed by this Act.

Requisites for Valid Adoption (section 6)

As per section 6 of this Act, there are four requisites for valid adoption, these are,
1. The person taking a child in adoption is lawfully capable of take a child in adoption.
2. The person giving a child in adoption is lawfully capable of give a child in adoption.
3. The person adopted is lawfully capable of being taken in adoption.

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 4. The adoption is made in compliance with other conditions specified in this Act which
includes actual giving and taking a child in adoption.

Condition No:1- Who can adopt a child?

Under this Act, both male and female adopt a son or daughter for himself or herself.

Adoption by male Hindu:

Under section 7 of this Act, a male Hindu adopt a child if he is lawfully capable of
take a son or daughter in adoption provided that some conditions are fulfilled.
1. He must be sound person.
2. He is not minor.
3. If he has a wife living, he shall not adopt except with the consent of his wife unless
the wife has completely and finally renounced the world or has ceased to be a Hindu or
has been declared by a court of competent jurisdiction to be of unsound mind.
Note: If he has more than one wife the consent of all the wives is necessary unless they
comes in the above exemptions.
4. If he desires to adopt a son, he must have no son or son’s son or son’s son’s son at the
time of adoption. (Section-11)
5. If he desires to adopt a daughter, he must have no daughter or son’s daughter at the
time of adoption. (Section-11)
6. If he desire to adopt a daughter, he must be atleast twenty one years older than
adoptive daughter at the time of adoption.(section11)

Adoption by female Hindu

As section 8 of this Act, a female Hindu adopt a child if he is lawfully capable of take a
son or daughter in adoption provided that some conditions are fulfilled.
1. She is sound person.
2. She is not minor.
3. She is not married or if married whose marriage has been dissolved or whose
husband is dead or has completely and finally renounced the world or has ceased to be a
Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
4. If she desires to adopt a son, she must have no son or son’s son or son’s son’s son at
the time of adoption. (Section-11)

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 5. If she desires to adopt a daughter, she must have no daughter or son’s daughter at the
time of adoption. (Section-11)
6. If he desire to adopt a son, she must be atleast twenty one years older than adoptive
son at the time of adoption.(section11)

Condition No:2- Who can give adoption? (Section 9)

As per section 9 of this Act, the following persons are entitled to give a child in
adoption.
1. Father
2. Mother
3. Guardian

Father’s right to give a child in adoption

The parents are alive, the right of the father is dominant, but it is not absolute,
but qualified.
As per section 9, the father can give his son or daughter in adoption provided that
some conditions are fulfilled.
1. He is sound person.
2. He is not minor.
3. He must get the consent of the mother if she is living at the time of adoption unless
the mother has completely and finally renounced the world or has ceased to be a Hindu
or has been declared by a court of competent jurisdiction to be of unsound mind.

Mother’s right to give a child in adoptions

So long as father is alive and capable of consenting, the mother has no right to
give her child in adoption, though her husband give her a consent to give a child in
adoption.
As per section 9 of this Act, the mother can give her son or daughter in adoption
provided that some conditions are fulfilled.
1. She is not unsound mind
2. She is not minor

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 3. The father of the child is dead or has completely and finally renounced the world or
has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be
of unsound mind.
4. The step mother and adoptive mother cannot give a child in adoption.

Guardian’s right to give a child in adoptions

As per section 9 of the Act, the guardian has right to give the child in adoption
provided that some conditions must be fulfilled. These are,
Both the father and mother are dead or both the parents has completely and finally
renounced the world or both the has ceased to be a Hind or both the parents has been
declared by a court of competent jurisdiction to be of unsound mind or Where the
parentage of the child is unknown.
The term guardian includes testamentary guardian or the guardian appointed or
declared by a court. If the adoption is welfare of the child, the court grants permission
to give the child in adoption.

Condition No 3- Who may be taken in adoption ( Section 10)

The person adopted is lawfully capable of taken in adoption. As per section 10, no
person shall be capable being taken in adoption unless the following four conditions are
fulfilled.
1. He or she is a Hindu.
2. He or she has not been already adopted.
3. He or she has not been married unless the custom or usage of the parties permits
such adoption.
4. He or she has not completed the age of fifteen unless the custom or usage of the
parties permits such adoption.
Condition No: 4- other conditions including actual giving and taking
As per section 11 of this Act,
1. The same child may not be adopted simultaneously by two or more persons.
2. The child to be adopted must be actually given and taken in adoption by the parents
or guardian with intent to transfer the child from the family of its birth to family of its
adoption.

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 3. The performance of datta homam shall not be essential to the validity of an
adoption.

Effects of adoption:
As per section 12 of the Act,
1. From the date of adoption, the adopted child shall be deemed to the child of the
adoptive father and mother for all purposes.
2. From the date of the adoption, all the ties of the adopted child in the family of his or
her birth shall be deemed to be severed and replaced by those created by the adoption in
the adoptive family.
3. The 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.
4. Any property which vested in the adopted child before the adoption shall continue to
vest in such person.
5. The adopted child shall not divest any person of any estate which vested in him or
her before the adoption.

Rights of adopted father or mother to dispose of their property (sec.13)

In the absence of any agreement to the contrary, after adoption, the adopted child has no
right to deprive the adoptive father or mother to dispose of his or her property by
transfer inter vivos or by will.

Determination of adoptive mother in certain cases: (section 14)

1. If a male has a wife living at the time of adoption, she shall be deemed to be the
adoptive mother.
2. If a male Hindu has number of wives and adoptive a child with the consent of all the
wives, the senior most in marriage among them shall be deemed to be the adoptive
mother and others to be step-mother.
3. If a widower or bachelor adopts a child and married subsequently, such wife shall be
deemed to be the step-mother of the adopted child.
4. If a widow or unmarried girl adopts a child and married subsequently, such husband
shall be deemed to be the step-father of the adopted child.

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Valid Adoption not to be cancelled (section 15)
No adoption can be cancelled by adoptive father or mother or other person nor the
adopted child can renounce his or her status as such and return to the family of his or
her birth.
*****
MUSLIM LAW OF LEGITIMACY.
Legitimacy is a status which directly results from the fact of paternity of a child. When
the paternity of a child is established, its legitimacy is also established. Basis of
legitimacy is paternity which depends upon the existence of a marriage. Therefore, under
Muslim law the legitimacy of a child is established by a direct or indirect proof of
marriage between the father and mother of the child. In cases where no direct proof of
marriage is available, the existence of a lawful marriage may be presumed by:
(i) A prolonged cohabitation of a man and a woman (not prostitute), or
(ii) By the fact that a man acknowledges a woman as his wife, or
(iii) By the fact that man acknowledges himself as father of a child.

Thus, we find that the basis of legitimacy under Muslim law is the existence of marriage
and the marriage itself may be presumed when a man acknowledges paternity to a child
bom to a woman (wife). It may be said that the marriage between a man and woman and
the legitimacy of their off-springs are corelated.

The object of a Muslim marriage is to legalise intercourse and to legitimatise the issues.
In Habibur Rahman v. Altaf Ali, the Privy Council while explaining the Muslim law of
legitimacy observed:

“A son to be legitimate must be the off-spring of a man and his wife….; any other off-
spring is the off-spring of Zina that is illicit connection, and cannot be legitimate. The
term ‘wife’ necessarily connotes marriage; but as marriage may be constituted without
any ceremonial, the existence of a marriage in any particular case may be an open
question. Direct proof may be available but if there be no such (direct proof), indirect
proof may suffice. Now, one of the ways of indirect proof is by an acknowledgement of
legitimacy in favour of a son.”

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It is to be noted that acknowledgement here means a declaration ascertaining the paternity
where, although the marriage exists but the child’s paternity is doubtful because there is
no direct proof of the marriage under Muslim law. An acknowledgement cannot
legitimatise a child who is proved to be illegitimate.

‘Acknowledgement of Paternity’ under Muslim Law:

Where the paternity of a child, i.e., its legitimate descent from its father, cannot be proved
by establishing a marriage between its parents at the time of its conception or birth, such
marriage and legitimate descent may be established by “acknowledgement”.
An acknowledgement of paternity need not be express. Such an acknowledgement may
be presumed from the fact that one person has habitually and openly treated another as his
legitimate child. As observed by the Privy Council, “It has been decided in several cases
that there need not be proof of an express acknowledgement, but that an
acknowledgement of children by a Muhammadan as his sons may be inferred from his
having openly treated them as such.” (Muhammad Azmat v. Lalli Begum 1881 9 I.A. 8)

Paternity of a child is established if the child is born during continuance of a valid

marriage or within 280 days of its dissolution, the mother remaining unmarried.
Maternity of a child is established in the woman who gives birth to the child; it is
immaterial whether the child is an offspring of a valid or irregular marriage, or even of a
fornication or adultery.

Principle of the Doctrine of Legitimacy by Acknowledgement:

This is a special mode prescribed by Muhammadan law for establishing the legitimacy of
a child and the marriage of its mother. Since a marriage among Muslims may be
constituted without any ceremony, the existence of a marriage in a particular case may be
an open question. If no direct proof of such marriage is available, indirect proof may be
relied upon. Acknowledgment of legitimacy of a child is one of the kinds of indirect
proof.

Thus, under certain conditions, if a Muslim acknowledges a child to be his legitimate

child, the paternity of that child is established in him. But the doctrine applies only to
cases where the fact of an alleged marriage is an uncertainty.
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It cannot be availed of to legitimise a child who is known to be illegitimate. The doctrine
of legitimacy by acknowledgement proceeds entirely upon an assumption of legitimacy
and establishment of legitimacy by the force of such acknowledgement.

Conditions of a Valid Acknowledgement of Legitimacy:

Muhammadan law prescribes a special mode of establishing the legitimacy of a child.
When a man either expressly acknowledges, or treats in a manner tantamount to
acknowledgement of, another as his lawful child, the paternity of that child will be
established in the man, provided that the following seven conditions are fulfilled:
1. The acknowledger must possess the legal capacity for entering into a valid contract.
2. The acknowledgement must not be merely of sonship, but of legitimate sonship.
3. The ages of the acknowledger and the acknowledged must be such as to admit of the
relation of parentage, i.e., the acknowledger must be at least twelve-and-a-half years older
than the person acknowledged.
4. The person to be acknowledged must not be the offspring of intercourse which would
be punishable under Muhammadan law, e.g., adultery, incest or fornication.
5. The parentage of the person to be acknowledged must not be unknown, i.e., the child to
be acknowledged must be known to be the child of some other person.
6. The acknowledged person must believe himself (or herself) to be the acknowledger’s
child, and the child must verify (or at least must not repudiate) the acknowledgement.
7. The acknowledger should be one who could have lawfully been the husband of the
mother of the child, when it was begotten. Thus, where there is direct proof that there was
no marriage between the man and the mother of the child, or that if there was such a
marriage between them, it would have been void, and then the presumption of legitimacy
cannot be raised by acknowledgement, however strong such presumption may be. (Rashid
Ahmed v. Anisa Khatun, (1932) 34 Bom L.R. 475 PC. 59 I.A. 21)
In Rashid Ahmed’s case, A, a Muslim, divorced his wife B, by three pronouncements of
talak, but afterwards, continued to cohabit with her, and to treat her as his wife for fifteen
years. During this period, five children were born to them, all of whom he treated as his
legitimate children.
However, the Privy Council held that the children were illegitimate. In this case of
divorce by three pronouncements, before A and В could remarry, В should have been
married to another man in the interval and divorced by that man.

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As there was no proof of such marriage with another man and a divorce by him, a
presumption of remarriage between A and В could not be raised, and hence, the children
were held to be illegitimate, and could not inherit from their father.
The observations of the Allahabad High Court on acknowledgement of paternity in
Muhammad Allahabad v. Muhammad Ismail (1888-10- All. 289) are relevant. In that
case, the Court observed:
“The Muhammadan law of acknowledgement of parentage, with its legitimating effect,
has no reference whatsoever to cases in which the illegitimacy of the child is proved and
established, either by reason of a lawful union between the parents of the child being
impossible (as in the case of an incestuous intercourse or an adulterous connection), or by
reason of a marriage, necessary to render the child legitimate, being disproved.
The doctrine relates only to cases where either the fact of the marriage itself or the exact
time of its occurrence with reference to the legitimacy of the acknowledged child is not
proved in the sense of law, as distinguished from disproved. In other words, the doctrine
applies only to cases of uncertainty as to legitimacy, and in such cases, acknowledgement
has its effect, but that effect always proceeds upon the assumption of a lawful union
between the parents of the acknowledged child.”

*****

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 UNIT-4
THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956.
The law relating to minority and guardianship among Hindu have been studies in
two different categories, these are,
A. Minority and Guardianship prior to the Hindu Minority and Guardianship Act,
1956
B. Minority and Guardianship according to the Hindu Minority and Guardianship
Act, 1956

A. MINORITY AND GUARDIANSHIP PRIOR TO THE PASSING OF THE

HINDU MINORITY AND GUARDIANSHIP ACT, 1956
Before the passing of the Indian Majority Act, 1875, there is a difference of
opinion among the Hindu writers as to the age of majority under Hindu law. In Bengal,
minor means a person who has not attain the age of fifteen years and so the minority
terminates on the completion of fifteen years. In other states, minor means a person who
has not attain the age of sixteen years and so the minority terminates on the completion of
sixteen years.

After the passing of the Indian Majority Act, 1875, there is no difference of opinion
as to the age of majority. According to this Act, minor means a person who has not
attain the age of eighteen years. But if a court appoint a guardian for the person of the
minor or property of the minor or both custody and property, minor means a person
who has not attain the age of twenty one years. This definition is applicable to all
persons domiciled in India and to all maters except marriage, Mahr and divorce in
Muslim and adoption in Hindu.

KINDS OF GUARDIANS.
There are four types guardian in ancient time. These are,
a). Natural Guardian
b). Testamentary Guardian
c). Court Guardian
d). Defacto Guardian

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 a) Natural Guardian:
A natural guardian is one who doesn't require the support of any authority or
order of the court to function as a natural guardian. Under Hindu law, the father and
mother are natural guardian of minor person for custody and separate property of the
minor person.
As between the father and mother, the father had priority. During the life time of
the father, the mother could not act as a guardian. After the death of the father, the
mother could act as a natural guardian unless the father appointed another person as a
guardian for his minor child under will. Even if the father refused to act as a guardian or
had disabled himself for his conduct to act as a guardian, the mother may not be entitled
to regarded as a natural guardian for that reasons unless the court appoint the mother as
a guardian during the life time of the father.
After the death of the father, the mother acts as a natural guardian for her minor
children. Her remarriage did not prevent the mother to act as a natural guardian. Even
though, the natural guardian converted to another religion, he or she continued to act as
natural guardian.
The mother was natural guardian of her illegitimate children except the father of
the children was ascertained. In regard to an adopted son, the adoptive father and
mother was natural guardian. The husband was natural guardian for his minor wife.

Guardianship in regards to joint family property:

If the minor was a member of Hindu joint family and he had any interest in the
joint family property, the Karta of the joint family was the guardian of that interest. If
the father was the Karta, he was the guardian for minor’s interest in joint family
property. If the father died, the eldest son acted as a guardian. If all the sons were
minor, the court appoint guardian till any one of the sons attained the age of majority.
The Karta or father was not entitled to appoint testamentary guardian for his minor son.
The mother was not entitled to act as guardian in respect of minor’s interest in joint
family property.

b) Testamentary guardian:
The father could appoint any person as a guardian for person or property or both of
his minor children by his will. The appointment made by father superseding the mother.

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 The mother had no power to appoint testamentary guardian. The husband also was not
competent to appoint a testamentary guardian for his minor wife.

c) Court guardian:
A court guardian is one who is appointed by the court under the Guardian and
Wards Act, 1890. In the absence of natural guardian and testamentary guardian, the
court appoint guardian for the person of the minor or his property or both.

d) Defacto guardian:
A Defacto guardian is one who, not being a natural guardian or testamentary
guardian or court guardian, voluntarily takes himself the care of the person of the minor
or his property or both as a guardian. An isolated act of a person in regards to person of
the minor or his property would not make him as a Defacto guardian. So there must be a
continuous course of conduct on his part to act as a guardian.

Powers of Natural guardian:

1. A natural guardian can perform all the acts which are reasonable and legal necessity
or the benefit of the minor or minor’s estate.
2. A natural guardian can sell or mortgage the minor’s estate for legal necessity or the
benefit of the minor or minor’s estate.
3. A natural guardian can enter into a compromise on the behalf of minor for legal
necessity or the benefit of the minor or minor’s estate.
4. A natural guardian can refer arbitration on the behalf of minor for legal necessity or
the benefit of the minor or minor’s estate.
5. A natural guardian can enter into a contract on the behalf of minor for legal
necessity or the benefit of the minor or minor’s estate.
6. A natural guardian can enter into any agreement on the behalf of minor for sale or
purchase of immovable property for legal necessity or the benefit of the minor or
minor’s estate.
The transactions made by guardian may be avoided by minor on attaining the age of
majority.

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 Powers of Testamentary guardian:
A testamentary guardian would have the same powers as a natural guardian unless
he would have such powers as are conferred upon him by the will from which he was
appointed as a testamentary guardian.

Powers of Court guardian:

A court guardian has no power tom alienate the minor’s property without previous
permission of the court. Alienation without such previous permission is voidable at the
instance of minor on attaint the age of majority.

Powers of Defacto guardian:

A Defacto guardian could alienate the minor’s property in case of need or legal
necessity or the benefit of the minor minor’s estate. An unauthorized alienation made
by a Defacto guardian was voidable at the instance of minor on attaint the age of
majority.

B. MINORITY AND GUARDIANSHIP AFTER THE PASSING OF THE HINDU

MINORITY AND GUARDIANSHIP ACT, 1956
Main changes made by the Hindu minority and guardianship Act, 1956:
After 1956, this Act has made several changes in the law of minority and
guardianship. Even though this Act has made several changes in the law of minority and
guardianship, the present law similar with earlier law in number of respects. These are:
1. Like that of earlier law, under the new law also, father and mother is natural
guardian.
2. Like that of earlier law, under the new law also, the husband acts as a natural
guardian for his minor wife.
3. Like that of earlier law, under the new law also, as between father and mother, the
father has priority to act as a natural guardian.
4. Like that of earlier law, under the new law also, the mother acts as a natural guardian
of her illegitimate children. But under the old law, if the father was ascertained, the
father acts as a guardian for his minor illegitimate children.
5. Like that of earlier law, under the new law also, the head of the joint family act as a
natural guardian of the minor’s interest in the joint family property.

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 However, this Act has made a number of material changes in the law of minority
and guardianship. These are,
1. Under the old law, from the date of birth of the child, the father was a natural
guardian for his minor child for custody and property. But under this Act, from the date
of birth, the father acts as a natural guardian in respect of minor’s property only. But in
respect of custody, the mother is entitled for custody of her minor child who has not
attained the age of five. If the child attains the age of five, the custody of the child
belongs to father.
2. Before the passing of the Act, if the father or mother converted from Hindu to another
religion or entered into sanyasam, it was not a bar to act as a guardian. But under this
Act, if the father or mother converted from Hindu to another religion or entered into
sanyasam, it is a bar to act as a guardian.
3. Unlike that of the earlier law, under the new Act, the natural guardian has not power
to alienate the property of the minor for legal necessity or for the benefit of the minor
4. Deviating from the earlier law, under the new Act, like that of father, the mother is
entitled to appoint a testamentary guardian for her minor children. Likewise, the new
Act enables the mother to appoint a testamentary guardian for her minor illegitimate
children.
5. Unlike that of the earlier law, under the new Act, no minor including husband can be
a guardian.
6. Unlike that of the earlier law, under the new Act does not recognize Defacto guardian
and their competency to deal with the minor’s property for legal necessity.

Definitions :
In this Act, –
(a) “Minor” means a person who has not completed the age of eighteen
years;
(b) “Major” means a person having the care of the person of a minor or of
his property or of both his person and property, and includes –
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor’s father or mother,
(iii) a guardian appointed or declared by a court, and
(iv) a person empowered to act as such by or under any enactment

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 relating to any court of wards;
(c) “natural guardian” means any of the guardians mentioned in section 6.

KINDS OF GUARDIAN UNER THE ACT:

There are three types of guardian under this Act. These are.
1. Natural Guardian
2. Testamentary Guardian
3. Court Guardian

1. Natural guardians of a Hindu minor (Section 6):

The natural guardians of a Hindu, minor, in respect of the minor’s person as well
as in respect of the minor’s property (excluding his or her undivided interest in joint
family property), are –
(a) in the case of a boy or an unmarried girl—the father, and after him, the mother:
provided that the custody of a minor who has not completed the age of five years shall
ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and
after her, the father;
(c) in the case of a married girl – the husband;
Provided that no person shall be entitled to act as the natural guardian of a minor under
the provisions of this section—
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi)
Explanation.—In this section, the expressions ‘father’ and ‘mother’ do not include a
step-father and a step-mother.

Mother as a natural guardian

In the phrase “the father and after him, the mother” the word ‘after’ need not
necessarily mean after the lifetime of father. In the context in which it appears in
section 6(a) it means “in the absence of”, the word ‘absence’ therein referring to the
father’s absence from the care of minor’s property or person for any reason whatsoever.
If the father is wholly indifferent to the matters of the minor or if by virtue of mutual

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 understanding between the parents, the mother is put exclusively in charge of the minor
or if the father is physically unable to take care of minor for any reason whatsoever, the
father can be considered to be absent and mother being a recognized natural guardian
can act validly on behalf of the minor as the guardian. Such an interpretation will keep
the statute within the constitutional limits otherwise the word ‘after’ if read to mean a
disqualification of a mother to act as guardian during lifetime of father the same would
violate one of basic principles of our constitution i.e. gender equality : Githa
Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.

Natural guardianship of adopted son (Section 7):

The natural guardianship of an adopted son who is a minor passes, on adoption,
to the adoptive father and after him to the adoptive mother.

Powers of natural guardian (Section 8):

(1) The natural guardian of a Hindu minor has power, subject to the provisions of this
section, to do all acts which are necessary or reasonable and proper for the benefit of the
minor or for the realization, protection or benefit of the minor’s estate; but the guardian
can in no case 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 or
(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.

(3) Any disposal of immovable property by a natural guardian, in contravention of sub-

section (1) or sub-section (2), is voidable at the instance of the minor or any person
claiming under him.

(4) No court shall grant permission to the natural guardian to do any of the acts
mentioned in sub-section (2) except in case of necessity or for an evident advantage to
the minor.

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 Alienation of minor’s property
Alienation of minor’s property by natural guardian (Mother) of the minor,
without obtaining permission of court for such alienation, is void abinitio; Subhashappa
P. Meti v. Maroti L. Sawarkar, AIR 2006 (NOC) 608 (Bom).
Limitation on power of natural guardian
(I) Alienation made by the mother of the minor in contravention of section 8(2) are
voidable at the option of minor and such alienation were required to set aside if minor
wanted to avoid the transfers and regain the properties from the purchasers. If in plaint
the prayer for setting aside the sale deeds was not there and such a prayer has been
introduced after period of limitation which is three years from the date when minor
attains majority, has elapsed, the claim for recovery of possession of property is not
maintainable: Vishwambhar v. Laxminarayana, AIR 2001 SC 2607.
(ii) Sale transaction by a natural guardian even if beneficial for the minor is voidable
and not void abinitio, if it is done without the previous permission of the court. Held
that the minor can challenge only after attaining majority and not during his minority:
Naryan Laxman Gilankar v. Uday Kumar Kashinath Kaushik, AIR 1994 Bom
152.

2. Testamentary guardians and their powers (Section 9)

(1) A Hindu father entitled to act as the natural guardian of his minor legitimate
children may, by will appoint a guardian for any of them in respect of the minor’s
person or in respect of the minor’s property (other than the undivided interest referred
to in section 12) or in respect of both.
(2) An appointment made under sub-section (1) shall have not effect if the father
predeceases the mother, but shall revive if the mother dies without appointing, by will,
any person as guardian.
(3) A Hindu widow entitled to act as the natural guardian of her minor legitimate
children, and a Hindu mother entitled to act as the natural guardian of her minor
legitimate children by reason of the fact that the father has become disentitled to act as
such, may, by will, appoint a guardian for any of them in respect of the minor’s person
or in respect of the minor’s property (other than the undivided interest referred to in
section 12) or in respect of both.

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 (4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate
children may; by will appoint a guardian for any of them in respect of the minor’s
person or in respect of the minor’s property or in respect of both.
(5) The right of the guardian so appointed by will shall, where the minor is a girl, cease
on her marriage.

Powers of Testamentary Guardian:

The guardian so appointed by will has the right to act as the minor’s guardian after
the death of the minor’s father or mother, as the case may be, and to exercise all the
rights of a natural guardian under this Act to such extent and subject to such
restrictions, if any, as are specified in this Act and in the will.

Incapacity of minor to act as guardian of property (Section 10)

A minor shall be incompetent to act as guardian of the property of any minor.

3. Court Guardian:
There is no provision under the Act for appointment of guardian by the court. But
a court can appoint or declare any person as guardian for the person of the minor or
property of the minor (other than undivided interest in the joint family property) or both
under the Guardians and Wards Act, 1890.

Powers of Court Guardian:

A court guardian has no power tom alienate the minor’s property without previous
permission of the court. Alienation without such previous permission is voidable at the
instance of minor on attaint the age of majority.

De facto guardian not to deal with minors property (Section 11)

After the commencement of this Act, no person shall be entitled to dispose of, or
deal with, the property of a Hindu minor merely on the ground of his or her being the de
facto guardian of the minor.

Right of De facto guardian

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 Alienation done by a de facto guardian is void and the alienee is in the position
of a trespasser who has no right in the property. Held that the aunty of the plaintiff had
no authority to sell the property and the alienation done was invalid and not binding on
the minors, i.e., the plaintiffs: Essakkyal Nadar v.
Sreedharan Babu, AIR 1992 Ker 200.

Guardian not to be appointed for minor’s undivided interest in joint family

property (Section 12):
Where a minor has an undivided interest in joint family property and the
property is under the management of an adult member of the family, no guardian shall
be appointed for the minor in respect of such undivided interest:
Provided that nothing in this section shall be deemed to affect the jurisdiction of
a High Court the welfare of the minor shall be the paramount consideration.

Welfare of minor to be paramount consideration (section13)

(1) In the appointment of declaration of any person as guardian of a Hindu minor by a
court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act
or of any law relating to guardianship in marriage among Hindus, if the court is of
opinion that his or her guardianship will not be for the welfare of the minor.
Legal Aspects:
Custody of father
(i) The welfare of the child is determined neither by the economic affluence nor a deep
mental or emotional concern for the well being of the child. The answer depends on the
balancing of all these factors and determining what is best for the child’s total well
being. Held that the father being a Sergeant in the Indian Army who had a record of
disciplined life with a regular income, was willing to get posted to Kozhikode for the
education of the minor and the parents of the father were affluent enough to look after
the minor unlike the parents of the mother (who was dead) were old, had no proper
source of income and also had a mentally retarded son to look after, was in a better
position to look after the welfare of the minor; Munnodiyil Peravakutty v. Kuniyedath
Chalil Velayudhan, AIR 1992 Ker 290.

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 (ii) Recognition of father’s absolute right to the custody of the child would render the
child an inanimate property or chattel, which could be possessed and used as the owner
pleases. Held that though the father was not found unfit as a guardian of his minor
children keeping them in the custody of maternal grandmother subject to certain
conditions; Baby Sarojam v. S. Vijaykrishnan Nair, AIR 1992 Ker 277.

Mother attending night clubs

Money alone is not sufficient to record finding regarding the welfare of the child.
In case mother of minor is in the habit of attending night clubs and coming late at home
during which period the minor has to be left in some care house, there is likelihood of
his coming into contact with undesirable elements due to the negligence of mother.
Therefore in the interest of child it will be proper that he is not left with his mother;
Amit Beri v. Sheetal Beri, wife of Amit Beri, AIR 2003 All 18.

Minor left with relatives

The minor child had been left in the custody of his mother’s sister and maternal
grandparents due to the mother’s illness. It was held that as the father is the natural
guardian and was employed as a Lecturer a noble profession, the welfare of the minor is
with his father and mother and not other relatives; Ankur Tripathi v. Radhey Shyam
Pandey, AIR 1994 All 250.
Welfare: Paramount consideration
Though the natural guardians are enumerated in section 6 the right is not absolute
and the court has to give paramount considertion to the welfare of the minor; Mohini v.
Virendra, AIR 1977 SC 1359: 1977(3) SCC 513.

MINORITY AND GUARDIANSHIP UNDER MUSLIM LAW:

The source of law of guardianship and custody are certain verses in the Koran and a few
ahadis. The Koran, the alladis and other authorities on Muslim law emphatically speak of
the guardianship of the property of the minor, the guardianship of the person is a mere
inference. We would discuss the law of guardianship of custody as under:
(a) Guardianship,
(b) Custody, and
(c) De facto guardian.

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Classification of Guardianship
In Muslim law guardians fall under the following three categories :
(i) Natural guardians,
(ii) Testamentary guardians, and
(iii) Guardians appointed by the court.

Natural Guardians
In all schools of both the Sunnis and the Shias, the father is recognized as guardian which
term in the context is equivalent to natural guardian and the mother in all schools of
Muslim law is not recognized as a guardian, natural or otherwise, even after the death of
the father. The father's right of guardianship exists even when the mother, or any other
female, is entitled to the custody of the minor. The father has the right to control the
education and religion of minor children, and their upbringing and their movement. So
long as the father is alive, he is the sole and supreme guardian of his minor children.

The father's right of guardianship extends only over his minor legitimate children. He is
not entitled to guardianship or to custody of his minor illegitimate children.
In Muslim law, the mother is not a natural guardian even of her minor illegitimate
children, but she is entitled to their custody.

Among the Sunnis, the father is the only natural guardian of the minor children. After the
death of the father, the guardianship passes on to the executor. Among the Shias, after the
father, the guardianship belongs to the grandfather, even if the father has appointed an
executor, the executor of the father becomes the guardian only in the absence of the
grandfather. No other person can be natural guardian, not even the brother. In the absence
of the grandfather, the guardianship belongs to the grandfather's executor, if any.'

Testamentary Guardian
Among the Sunnis, the father has full power of making a testamentary appointment of
guardian. In the absence of the father and his executor, the grandfather has the power of
appointing a testamentary guardian. Among the Shias, the father's appointment of
testamentary guardian is valid only if the grandfather is not alive. The grandfather, too,

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has the power of appointing a -testamentary guardian. No other person has any such
power. Among both the Shias and the Sunnis, the mother has no power of appointing a
testamentary guardian of her children. It is only in two cases in which the mother can
appoint a testamentary guardian of her property of her minor children :.first, when she has
been appointed a general executrix by the will of the child's father, she can appoint an
executor by her will; and secondly, she can appoint an executor in respect of her own
property. which will devolve after her death on her children.

The mother can be appointed a testamentary., guardian or executrix by the father, or by

the grandfather, whenever he can exercise this power. Among the Sunnis, the
appointment of a non-Muslim mother as testamentary guardian is valid, but among the
Shias such an appointment is not valid, as they hold the view that a non-Muslim cannot
be a guardian of the person as well as of. the property of a minor. It seems that the
appointment of non'-Muslim fellow-subject (iiinmi) is valid, though it may be set aside by
the kazi. According to the Malikis and the Shafii law, a zimmi can be a validly appointed
testamentary guardian of the property of the minor, but not of the person of -the minor.
The Shias also take the same view. It appears that when two persons are appointed as
guardians, and one of them is disqualified, the other can act as guardian. A profligate, i.e.,
a person who bears in public walk of life a notoriously bad,character, cannot be appointed
as guardian:

Acceptance of the appointment of testamentary guardianship is necessary, though

acceptance may be express or implied. But once the guardianship . is accepted, it cannot
be renounced save with the permission of the court.

Muslim law does not lay down any specific formalities for the appointment of
testamentary guardians. Appointment may be made in writing or orally. In every case the
intention to appoint a testamentary guardian must be clear and unequivocal. A
testamentary deposition made by a testator may be invalid, but appointment of the
executor may be general or particular. The testator must have the capacity to make the
will at the time when it was executed. This means that the feslat8r ghould be major and of
sound -mind, i.e., at the time of execution of the will, he should be in full possession of
his senses.

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 The executor of the testamentary guardian is designated variously by Muslim lawgivers,
indicating his position and powers. He is commonly called, wali or guardian. He is also
called amin, i.e., a trustee. He is also termed as kaim-mukam, i.e., personal
representative of the testator.

Guardian appointed by the Court.-On the failure of the natural . guardians and
testamentary guardians, the kazi was entrusted with the power of appointment of
guardian of a Muslim minor. Now the matter is governed by the Guardians and Wards
Act, 1890. This Act applies to the appointment of guardians of all minors belonging to
any community. The High Courts also have inherent powers of appointment of
guardians, though the power is exercised very sparingly.

Under the Guardians and Wards Act, 1890, the power of appointing, or declaring any
person as guardian is conferred on the District Court. The District Court may appoint or
declare any person as guardian of a minor child's person as well as property whenever it
considers it necessary- for the welfare of the minor, taking into consideration the age,
sex, wishes of the child as well 'as the wishes of the parents and the personal law of the
minor.

*****

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 UNIT-5
LAW OF MAINTENANCE.
HINDU LAW OF MAINTENANCE.
The Hindu law of maintenance has been studies in two different categories, these are:
1. Hindu law of maintenance prior to passing of the Hindu Adoption and
Maintenance Act, 1956.
2. Hindu law of maintenance after the passing of the Hindu Adoption and
Maintenance Act, 1956.

1. HINDU LAW OF MAINTENANCE PRIOR TO PASSING OF THE HINDU

ADOPTION AND MAINTENANCE ACT, 1956.
The law of maintenance is the outcome of the theory of undivided Hindu joint
family. It is not based on any contract. Originally, the member of Hindu joint family
has no separate right in the joint family property. But they have only the right of
maintenance out of Hindu joint family property.

During the course of time, the idea of separate property and partition of joint
family property and the law of maintenance for some persons comes into existence.

What is maintenance?
Maintenance includes not only food, clothes and residence but includes all the
things necessary for the comfort and status of the parties in which the party is entitled to
live reasonably.

In Hindu law, there is an obligation to one person to maintenance others. This

obligation arises in four ways:
1. By reason of relationship between the parties
2. By reason of possession of inherited property
3. By reason of possession of Mitakshara co-parcenary property
4. By way of custom

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 1. By reason of relationship between the parties
Every Hindu, whether he possessed any property or not, was bound personally to
maintain his old parents, his wife, his minor sons and unmarried daughters. This
obligation to maintain these persons is personal in character.

2. By reason of possession of inherited property

If a male Hindu had any inherited property, he was legally bound to maintain,
out of inherited property, to all those person to whom the deceased was legally or
morally bound to maintain.
The reason is that the property is inherited subject to the obligation to provide
for maintenance.
1. Sister:-
If a male hind inherits any property from his father, he was legally bound to
maintain his sister, because the father was bound to maintain his daughter.

2. Step-Mother:-
If a step son had any property inherited from his father, he was legally bound to
maintain his step-mother out of his father’s estate.

3. Mother in law:-
If widow inherits any property from her husband after death, she is legally bound
to maintain her mother in law out of her husband’s estate.

4. Daughter in law:-
A male Hindu has moral obligation to maintain his daughter in law. If he refuses to
maintain his daughter in law, she cannot take any action against her father in law.

3. By reason of possession of Mitakshara co-parcenary property

In ordinary Mitakshara joint family, the head of the family is bound to maintain
all the members of that family out of joint family property. Hence the manager of a
Mitakshara joint family is bound to maintain all its members both male and female and
also the wives and children of the male members.

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 If any male member died leaving his widow and children, the manager of the
family is bound to maintain his widows and children. This type of obligation is always
commensurate with the possession of joint family property.
Even though a grandfather has no obligation to maintain his grandchildren, but if
he is manager of the joint family, he is liable to maintain his grandchildren out of joint
family property. If any one of the co-parcener lives separate from Hindu joint family
with reasonable cause, the manager is bound to give separate maintenance if the income
of the family permits such allowance.

Disqualified persons and their family:

If a person is impotent or has enters into another religion or an idiot or lunatic or
blind or suffering from incurable diseases, he is not entitled to share in the joint family
property. But the manager of the joint family is bound to maintain such persons and
their families out of the joint family property.
But in general, according to Hindu text, the liability of one person to maintain the
others arises two ways, these are,
1. Personal liability
2. Legal liability, that is depend upon the possession of the property.

1. Personal liability:
This liability of a Hindu to maintain others arises from the relationship between parties.
Therefore a male Hindu is under legal obligation to maintain his wife, his minor son, his
unmarried daughter and aged parents.

2. Legal liability, that is depend upon the possession of the property.

a) If a male Hindu had any inherited property, he was legally bound to maintain, out of
inherited property, to all those person to whom the deceased was legally or morally
bound to maintain.
b) In ordinary Mitakshara joint family, the head of the family is bound to maintain all
the members of that family out of joint family property. Hence the manager of a
Mitakshara joint family is bound to maintain all its members both male and female and
also the wives and children of the male members.

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 PERSONS ENTITLED TO MAINTENANCE:
1) Aged Parents
2) Legitimate Son
3) Adopted Son
4) Illegitimate Son
5) Legitimate Daughter
6) Illegitimate Daughter
7) Wife
8) Widow

1) Aged Parents:
A son was personally liable to maintain his aged parents whether or not he had any
inherited property or separate property or joint family property. But a Hindu was not
liable to maintain his grandparents unless he had any ancestral property in his
possession.

2) Legitimate Son:
A father was under a personal obligation to maintain his minor sons. There fore,
he is bound to maintain his minor sons out of his separate property. But the father is not
bound to maintain his adult sons out of his own separate property. If the father and sons
are members of Hindu joint family and the joint family property is in hands of the
father, he is bound to maintain his minor and adult son out of the joint family property.
Since the son takes a vested interest in the joint family property by birth, till partition of
family property, the adult son is entitled to maintenance out of joint family property.
In Dayabhaga law, since the son does not acquire any interest in the joint family
property by birth, the father has no obligation to maintain his adult son either out of his
separate property or out of ancestral property.

3) Adopted Son:
The law of maintenance for adopted son is the same as legitimate son.

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 4) Illegitimate son:
Hindu law recognized four types of illegitimate son, who could claim maintenance
from a Hindu putative father.
(i) Illegitimate sons of a Hindu belonging to one of the higher classes
(ii) by a dasi
(iii)Illegitimate sons of a Sudra Hindu by a dasi
(iv) Illegitimate sons of a Hindu by a Hindu women who is not dasi
(v) Illegitimate sons of a Hindu by a non Hindu woman

(i) Illegitimate sons of a Hindu belonging to one of the higher classes by a dasi
The Illegitimate sons of a Hindu belonging to one of the higher classes
(Brahmin or Kshatriya or Vaisya) by a dasi is entitled only maintenance out of the
putative father’s property. But he is not entitled any share of the inheritance.
In first instance, the right of maintenance attaches to the separate property of
the father. If the father has no separate property, the right of maintenance attaches to the
property of the joint family of which he was a member. But if the father was the holder
of an impartiable estate, the illegitimate son has no right of maintenance out of that
estate unless the custom of the party allowed such maintenance.
In Mitakshara law, the illegitimate son is entitled to get maintenance as long as he
lives. He does not claim maintenance merely as a compassionate allowance.

(ii) Illegitimate sons of a Sudra Hindu by a dasi

The Illegitimate sons of a Sudra Hindu by a dasi are entitled to a share in the
separate property of his father after father’s death. If the father has no separate property
but he has an interest in the joint family property, the illegitimate sons of a Sudra Hindu
by a dasi is not entitled to demand partition of joint family property. But he has a right
of maintenance out of joint family property. Such maintenance is payable to illegitimate
sons of a Sudra Hindu by a dasi for life.

(iii) Illegitimate sons of Hindu by Hindu women who is not dasi

Such illegitimate son is entitled to get maintenance against father. During the life
time of his father, such illegitimate son is entitled to maintenance against father. After

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 father’s death, he is entitled to get maintenance out of father’s separate property, if any.
Bur he has no right a share in the separate property of the father. But if the father has no
separate property, he is entitled maintenance out of estate of the joint family of which
the father was a member.
Even though the father has personal obligation to maintenance his illegitimate
sons, but he has no personal obligation to maintenance the children of such illegitimate
sons.
In Dayabhaga law, the father is under an obligation to maintain his illegitimate
sons during the minority. If illegitimate sons attains majority, such obligation comes to
an end. But in Mitakshara law, the father is under an obligation to maintain his
illegitimate sons for life.

(iv) Illegitimate sons of a Hindu by a non Hindu woman

Even though illegitimate sons of a Hindu by a non Hindu woman are not entitled to
maintenance against his putative father under Hindu law, but he is entitled to
maintenance under section 488 of the Criminal Procedure Code, 1898. Under this
section, the illegitimate son can enforce his right against his father during the life time
of the father. But he can not enforce his right against father’s property after his death.

5) Legitimate Daughter
A father was under a personal obligation to maintain his unmarried daughter,
whether or not he had any property. After father’s death, she could claim maintenance
out of father’s estate if any. If son inherited any property from his father after father’s
death, he was liable to maintenance his unmarried sister. If son did not inherit property
from his father after father’s death, he was not liable to maintenance his unmarried
sister.
After marriage, she was entitled to get maintenance from her husband. After
husband’s death, she was entitled to get maintenance from her husband’s estate. If her
husband had no property, she was entitled to get maintenance from her father in law
morally. If her father in law refuses to maintain the daughter in law or she is unable to
obtain maintain from her husband’s estate, her father was liable to maintain his
widowed daughter.

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 6) Illegitimate Daughter
In Hindu law, there was no provision for the maintenance of illegitimate
daughters. But she could be entitled to get maintenance from her putative father under
section 488 of Criminal Procedure Code, 1898.

7) Wife
The husband had a personal obligation to maintain his wife from the date of
marriage. If the wife lived with her husband and perform her conjugal duties, she could
claim maintenance from her husband. If the wife lived away from her husband without
reasonable causes, she could not claim maintenance from her husband. But under
section 2 of “The Hindu Married Women’s Right to Separate Maintenance and
Residence Act, 1946, the Hindu married woman shall be entitled to separate
maintenance and residence from her husband on one or more of the following grounds,
i. If the husband is suffering from any loathsome diseases,
ii. If the husband is guilty of cruelty,
iii. If the husband has been deserted the wife without her consent or against her will,
iv. If the husband marries again,
v. If the husband has been converted into any other religion,
vi. If the husband keeps concubine in the same house,
vii. Any other justifiable causes,
If the wife was unchaste or ceased to be Hindu or refused to conjugal society, she
could not claim separate maintenance and residence from her husband. If the wife
becomes chaste or reconverted to Hindu, she could claim only starvation maintenance
from her husband.
If the husband forsakes his wife without any reasonable cause, she was entitled to
get 1/3 of the husband’s property for her maintenance during her life time.

8) Widow
Before the passing of “The Hindu Women’s Right to Property Act, 1937,” the
widow was entitled to maintain out of her husband’s property. If her husband was a co-
parcener, she was entitled to maintain out of the estate of joint family in which her
husband was a member. If her husband had no property either separate or ancestral
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 property, she was not entitled to maintenance. But the only person to maintain the
widow in these circumstances was her son.
The widow had no obligation to live with her husband’s family. The widow had
discretionary power. If she lives with her husband’s family, the head of the joint family
is bound to maintain the widow. If she lives separately from her husband’s family, the
widow will be entitled to separate residence and maintenance out of her husband’s
estate or from husband’s joint family property. If the widow lived immoral life or
converted to another religion or married another person, she could not claim any
maintenance.

Amount of maintenance payable to widow:

If the widow lived separately from her husband’s family, the head of the family is
liable to give her a separate maintenance. In order to determining the amount of
maintenance, the court should consider the following matters.
1. The value of the family estate
2. The status of the husband
3. The status of the wife
4. The reasonable wants of the wife
5. The past relations between husband and wife
6. In calculating the amount of maintenance, the widow’s Stridhana property must be
taken into consideration, if it yields any income.
The voluntary payment to widow may not be taken into account. If the widow
has received a sufficient allotment for her maintenance, but she has wasted it, she is not
entitled to further maintenance.

*****
2. HINDU LAW OF MAINTENANCE AFTER THE PASSING OF THE HINDU
ADOPTION AND MAINTENANCE ACT, 1956.
The law of maintenance applicable to Hindu is now statutory. Prior to this Act,
there are three kinds of obligation for maintenance, these are,
1. Legal obligation
2. Personal obligation
3. Moral obligation

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 But after the passing of the Act of 1956, the obligation is legal or statutory
obligation. This Act has passed to amend and codify the law relating to maintenance
among Hindu. This Act is not exhaustive. It deals with certain kinds of maintenance. This
Act does not cover all the law relating maintenance. But it covers only specific topics.

This Act does not deal with interim maintenance and permanent alimony and
maintenance in matrimonial proceedings. Section 24 and 25 of “The Marriage Act,
1955” deals with type of maintenance.

Under section 125 of Criminal Procedure Code, 1973, certain kinds of persons
are empowered to get maintenance. This section lays down general rule of law, which is
applicable to all persons in India including Hindu.

Main changes in law of maintenance made by the Act, 1956:

1. Before the Act, only the male Hindu had under an obligation to maintain some
other Hindu person. Female Hindu had no obligation to maintain others. But under this
Act, both male and female is under an obligation to maintain others. There fore, the
female Hindu has obligation to her aged parents and her children.
2. Under the earlier law, the obligations to maintain others were either personal or
legal or moral obligation. But, now under this Act, the obligation to maintain others is
always statutory obligation.
3. Under the earlier law, some person could enforce the right of maintenance against
a person only. Some person could enforce the right of maintenance against property
only. Some person could enforce the right of maintenance against both person and
property. But under this Act, the right of maintenance does not depend upon the
possession of the property, but the right is affected by the extent of the property.
4. Under the old law, there was a difference of legitimate and illegitimate. But under
this Act, there is no such difference.
5. Under the old law, the illegitimate daughter had no right of maintenance. But
under this Act, she gets maintenance from her putative father.
6. Under the earlier law, the concubine had a right of maintenance in certain
circumstances. But under this Act, the concubine has no right of maintenance.

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 Application of Act-
(1) This Act applies- (a) to any person, who is a Hindu by religion in any of its forms
or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo,
Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless
it is proved that any such person would not have been governed by the Hindu law or by
any custom or usage as part of that law in respect of any of the matters dealt with herein
if this Act had not been passed.
Explanation- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion,
as the case may be:-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists,
Jainas or Sikhs by religion;
(b) any child, legitimate for illegitimate, one of whose parents is a Hindu, Buddhist,
Jaina or Sikh by religion and who is brought up as a member of the tribe, community,
group or family to which such parent belongs or belonged,
(bb) any child, legitimate or illegitimate, who has been abandoned both by his father
and mother or whose parentage is not known and who is either case is brought up as a
Hindu, Buddhist, Jaina or Sikh, and
(c) any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh,
religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act
shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of
Article 366 of the Constitution unless the Central Government, by notification in the
Official Gazette, otherwise directs.

The Hindu Adoption and Maintenance Act, 1956 and Section 125 of Criminal
Procedure Code 1973:
Section 125 of CrPC of 1973 is not inconsistent with this Act. Both the Acts can
stand together. Section 4 of the Adoption and Maintenance Act, 1956 does not repeal
the provision of section 125 of CrPC.

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 These two provisions are differing from each other in their application. Section
125 of CrPC is summary procedure and it is not based on personal law. Whereas the
Act of 1956 is regular procedure and it is based on personal law.

Definitions-
"maintenance" includes-
(i).in all cases, provision for food, clothing, residence, education and medical
attendance and treatment;
(ii). in the case of an unmarried daughter also the reasonable expenses of and incident to
her marriage;
"minor" means a person who has not completed his or her age of eighteen years.
Person claiming maintenance under this Act of 1956
1. Wife (section18)
2. Widowed daughter in law (section19)
3. Children and aged parents(section20)
4. Dependants (section 21 and 22)

1. Maintenance of wife (section 18):

(1) 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. But the husband’s
personal obligation comes to an end in two circumstances, these are,
a) Death of the wife
b) wife live separately without any reasonable causes
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting
her claim to maintenance,-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable
cause and without her consent or against her wish, or of willfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her
mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually
resides with a concubine elsewhere;

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 (f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separately.
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her
husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Maintenance of widowed daughter-in-law-

a. A Hindu wife, whether married before or after the commencement of this Act, shall
be entitled to be maintained after the death of her husband by her father-in-law.
b. Provided and to the extent that she is unable to maintain herself out of her own
earnings or other property or, where she has no property of her own, is unable to
obtain maintenance-
(i) from the estate of her husband or her father or mother, or
(ii) from her son or daughter, if any, or his or her estate.
c. This obligation shall not be enforceable if the father-in-law has not the means to do
so from any coparcenary property in his possession out of which the daughter-in-law
has not obtained any share, and any such obligation shall cease on the remarriage of the
daughter-in-law.

Maintenance of children and aged parents (section 20)-

(1) As per section 20, a Hindu is bound, during his or her lifetime, to maintain his
or her legitimate or illegitimate children and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from his or her father
or mother so long as the child is a minor.
(3) The obligation of a person to maintain his or her aged or infirm parent or
daughter who is unmarried extends in so far as the parent or the unmarried
daughter, as the case may be, is unable to maintain himself or herself out of his or
her own earnings or other property Explanation- In this section "parent" includes a
childless stepmother.

Maintenance of dependents (section 21 and 22)-

(1) As per section 22 of this Act, 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.

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 (2) Where a dependent has not obtained, by testamentary or intestate succession, any
share in the estate of a Hindu dying after the commencement of this Act, the dependent
shall be entitled, subject to the provisions of this Act, to maintenance from those who
take the estate.
(3) The liability of each of the persons who take the estate shall be in proportion to the
value of the share or part of the estate taken by him or her.
(4) Notwithstanding anything contained, no person who is himself or herself a
dependent shall be liable to contribute to the maintenance of others, if he or she has
obtained a share or part, the value of which is, or would, if the liability to contribute
were enforced, become less than what would be awarded to him or her by way of
maintenance under this Act.
21. Dependents defined-
"dependents" mean the following relatives of the deceased-
(i) his or her father;
(ii) his or her mother;
(iii)his widow, so long as she does not remarry;
(iv) his or her son
(v) the son of his predeceased son
(vi) the son of a predeceased son of his predeceased son,
(vii) his or her unmarried daughter
(viii) the unmarried daughter of his predeceased son
(ix)the unmarried daughter of a predeceased son of his predeceased
(x) his widowed daughter;
(xi) any widow of his son or of a son of his predeceased son so long as she remains
unmarried;
(xii) his or her minor illegitimate son, so long as he remains a minor;
(xiii) his or her illegitimate daughter, so long as she remains unmarried.

Amount of maintenance (section 23)-

(1) It shall be in the discretion of the court to determine the amount of maintenance.
(2) In determining the amount of maintenance, if any, to be awarded to a wife,
children or aged or infirm parents under this Act, regard shall be had to-
(a) the position and status of the parties;

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 (b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified in doing so;
(d) the value of the claimant's property and any income derived from such property,
or from the claimant's own earning or from any other source;
(e) the number of persons entitled to maintenance under this Act.
(3) In determining the amount of maintenance, if any, to be awarded to a dependent
under this Act, regard shall be had to-
(a) the net value of the estate of the deceased after providing for the payment of his
debts;
(b) the provision, if any, made under a will of the deceased in respect, of the dependent;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependent;
(e) the past relations between the dependent and the deceased;
(f) the value of the property of the dependent and any income derived from such
property, or from his or her earnings or from any other course;
Claimant to maintenance should be a Hindu (section 24)-
No person shall be entitled to claim maintenance under this Chapter if he or she
has ceased to be a Hindu by conversion to another religion.
Amount of maintenance may be altered (section 25)-
The amount of maintenance, whether fixed by a decree of court or by
agreement either before or after the commencement of this Act, may be altered
subsequently if there is a material change in the circumstances justifying such
alteration.
Maintenance pendente lite and expenses of proceeding Section- 24
Section 24 of the Act makes provision for the maintenance of a spouse during the
proceedings of the case, who has no sufficient means for his or her support and also for
the expenses of the proceedings. When there is any application in above matter, the
court may make an enquiry into the needs of the petitioner and fix an amount having
regard to the petitioner’s income and the income of the respondent.

Permanent alimony and maintenance (Section-25)

1. At the time of passing decree or at any time subsequent there to, when there is
any application made by husband or wife for maintenance, the court may order that

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 respondent shall pay to the applicant for his or her maintenance and support such gross
sum or such monthly or periodical sum for a term not exceeding the life of the applicant
as having regards to the respondent’s income and other property, the income and other
property of the applicant, the conduct of the parties and other circumstances.
2. If the court is satisfied that there is a change in the circumstances of either party
at any time after the order, the court may, at the instance of either party, vary, modify or
rescind any such order in such manner as the court may deem fit.
3. If the court is satisfied that the party in whose favour an order has been made
has remarried or if such party is wife, that she has not remain chaste, or if such party is
husband, that he has had sexual intercourse with any woman outside wedlock, the court
may, at the instance of other party, vary, modify or rescind any such order in such
manner as the court may deem fit.

Custody of children- (Section 26)

Section 26 vests the court with a power to make an order about the custody,
maintenance and education of minor children both during the pendency of proceeding
and even after the passing of a decree.

Guiding principles for making order as to the custody, maintenance and education
of minor children, broadly stated, are-
1. Paramount consideration is interest of children and not punishment of the guilty
spouse
2. The children should be brought up in the religion of the father and their future and
world care should be considered.
3. Usually innocent party is entitled to custody, though he or she cannot maintain the
children.
4. Custody of children may be given to third party, if the interest of the children
demands it and both parents are unfit or the innocent party is abroad.
5. Father is always liable for maintenance of the children even if the custody is with
mother
6. The court’s discretion in the matter is unlimited and it cannot be and it cannot be
fettered by any agreement between the parents as the quantum of maintenance or
custody.

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 7. With effect from 2001, the application with respect to the maintenance and education
of the minor children shall be disposed of within sixty days from the date of service of
notice on the respondent.

*****
MUSLIM LAW OF MAINTENANCE.
Introduction.
The concept of Maintenance was introduced to provide support to those people who are
not capable to maintain themselves. It is basically provided to the spouse who is not
independent and is dependent on the other spouse. The principle of maintenance includes
financial support, means of livelihood and educational facilities.

In marriage, it is the obligation of the husband to maintain the wife and to provide her all
necessities. The whole concept of maintenance is to protect the rights of the wife and to
provide her a dignified life and even after the dissolution of marriage, the husband is in
the liability to provide maintenance to his wife if she is not able to maintain herself. The
concept of maintenance has broader aspect. It is not only provided to the wife but also to
children, parents, grandparents, grandchildren and other relations by blood. The amount
of maintenance depends on the financial position of the person who is bound to provide
maintenance.

Various laws and rules have been made on the principle of maintenance. The concept of
maintenance has also been added to personal laws. The Muslim Law also provides for
maintenance. Though Muslim Law does not properly define maintenance, its meaning has
been inferred from Hindu Law which provides that:
“in all cases, provisions for food, clothing, residence, education and medical attendance
and treatment; in the cases of an unmarried daughter, also the reasonable expenses of
and incident to her marriage.”

Under Muslim Law, women are considered weak as compared to men. It is believed that
they are not able to maintain herself on her own so it is the liability of the husband to
provide maintenance to her wife in all conditions even if she is capable of maintaining
herself. Maintenance is known as “Nafqah” which means what a man spends on his
family. Nafqah basically includes food, clothing, and lodging.
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The Muslim Law of maintenance may be discussed from the point of view of the persons
entitled to maintenance. Such persons are:
i. The Wife
ii. The Children
iii. The Parents and Grandparents
iv. The other relations.
But under Muslim Law, maintenance is provided to wife even if she is capable of
maintaining herself which differs it from other laws. But in case of Maintenance to
Children, Parents and other relations, it is given only when they are not able to maintain
themselves. Here, we are going to discuss the maintenance of wife and children under
Muslim Law.

Maintenance of wife
Under Muslim Law, as discussed above men are considered superior to women and
women in all cases is considered to be dependent on men. It is the liability of husband
under Muslim Law to maintain his wife even after divorce.

Obligation of Husband to provide Maintenance

It is the obligation of the husband to provide proper maintenance to his wife in all
circumstances whether he is in good financial condition or not. His obligation to provide
maintenance is even after the dissolution of marriage. However, the obligation of husband
extends only when the wife remains faithful towards him and obeys all his reasonable
orders.
In Baillie’s Digest of Mohammedan Law, it has been stated that:
“If and when called upon to remove his house, she refuses to do so of right, that is to
obtain payment of her dower, she is entitled to maintenance; but if she refuses to do so
without rights, as when her dower is paid, or deferred, or has been given to her husband
she has no claim to maintenance.
If a woman is ‘nashizah’ or rebellious, she has no right to maintenance until she returns to
her husband’s house. By this expression, it is to be understood that a woman who goes
out from her husband’s house and denies herself to him, in contradiction to one who
merely refuses to abide in her husband’s apartment, which is not necessary for the
purpose of restraint. If, however, the house her own property, and she forbids him from

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entering it, she is not entitled to maintenance unless she had asked him to remove her to
his own house or to hire a house for her. When she ceased to be a nashizah or rebellious,
she is again entitled to maintenance.”

Quantum of Maintenance
The quantum of maintenance is not prescribed under any matrimonial statute. It is
decided as per the discretion of court depending upon the condition of husband and wife.
Under the Shia Law, the quantum of maintenance is decided by taking into consideration
the requirements of the wife. Under Shafei Law, the quantum of maintenance is
determined by the post of the husband.

Maintenance under anti- nuptial agreements

Muslim marriage is a contract, an agreement is made between the parties to the marriage
which prescribes the rights and duties if husband and wife. The condition of agreement
should be valid otherwise the marriage should be considered as illegal. In this agreement,
the wife can stipulate some conditions for husband and in case of breach of such
conditions, she has a right to live separately and is entitled to maintenance. Such
conditions are as follows:

• If the husband ill-treats her;

• Takes a second wife or concubine;

An agreement which stipulates that wife is entitled to maintenance after divorce is also
valid. But she is entitled to maintenance only during the period of iddat and not beyond
that. The husband’s liability is only till the iddat period.

Ali Akbar Vs. Mst. Fatima (1929) ILR II Lah.85

An allowance of Rs. 25.00 per month was fixed for Kharach-i-Pandan in addition to the
amount of maintenance which she is entitled to get from her husband. It was held that the
wife is entitled to it irrespective of the fact that she refuses to stay with her
husband. (Kharach-i-Pandan is a personal allowance and it cannot be transferred.)

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Divorced wife’s right to maintenance under Muslim law and section 125 of
Cr.P.C.and dower:
Under Muslim Law the rights of the wife to get maintenance during the marriage is
absolute but after the dissolution of marriage, her rights are limited. She is entitled to
maintenance from husband after divorce is only till iddat period ( Iddat is a period of
three menstrual courses or three lunar months). Muslim law does not provide
maintenance to wife after the iddat period is over. In Hanafi school of law, a divorced
Muslim wife is entitled to maintenance during iddat period whereas in Shefai law, a
divorced Muslim wife is not even entitled to maintenance.
In case of dower, which is the right of Muslim wife, which she is entitled at the time of
marriage, the husband is under the obligation to pay her whatever the amount of dower
has been agreed upon between the parties at the time of marriage or if no amount is
decided then a reasonable amount should be paid by the husband to wife for her
maintenance.
But this creates hardship for Muslim wife as under Muslim Law it is very easy for men to
give divorce to his wife as the Law allows him to marry thrice. Muslim wife does not
have any proper means for herself in Muslim Law. If after the expiry of iddat period, she
has no means to maintain herself then in that case husband has no liability for her and she
is left with nothing.

Under section 125 of Cr.P.C., provides for maintenance to divorced wife of all religion.
It stated that after divorce if the wife is not able to maintain herself, she is entitled to
maintenance from her husband until she gets married. The act applies this provision to
Muslim women also who are not entitled to the maintenance after the period of Iddat.
This act creates liability over husband to provide maintenance to wife even after the
period of Iddat.
But the provisions of this act are in conflict with the provisions of Muslim Law and a
debate was going on as which law should be applied. This matter was seen by the
Supreme court in a landmark judgment

Shah Bano Begum Vs Mohammad Ahmed Khan, AIR 1985 SC 945

In this case, Shah Bano Begum, a 62 years old lady filed a petition under section 125 of
Crpc before Judicial Magistrate of Madhya Pradesh. The petition stated that her husband

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has pronounced Talaq to her and she has not even remarried and thus she was entitled to
maintenance. For which her husband has stated that he had no liability to provide
maintenance to her as under Muslim Law, a divorced wife has no right of maintenance
after Iddat period.

The magistrate, in this case, passed an order stating that the husband is entitled to provide
her maintenance of Rs.25 per month as per Section 125 of Crpc.
Shah Banu filed a revision petition against this order in the High court of Indore for
enhancement of the amount of maintenance. For which Indore High court has enhanced
the amount of maintenance to 179.20 Rs per month.

Against this order, Mohd. Ahmed Khan appealed to the Supreme court. Supreme court
rejected the appeal and stated that Muslim wife is entitled to maintenance even after the
period of Iddat if she is not able to maintain herself.

The Supreme court has observed that with this judgment the distinction between the
Muslim personal law and Criminal Procedure code will come to an end. But the judgment
has even increased the controversy as a result of which the legislatures have to make a
new law to govern Muslim divorce i.e. Muslim Women (Protection of Rights on
Divorce) Act 1986.

This act has enacted some provisions in support of Muslim Personal Law and has
restricted the application of Section 125 of Crpc regarding the maintenance of Muslim
wife. The Act has stated that the husband is entitled to provide maintenance only during
the period of Iddat and not beyond that. If the wife is not able to maintain herself after
iddat period then, in that case, she can seek maintenance through Wakf Board or relatives
of her or her husband. This act has not mentioned anything clearly and has created
various confusions in the judicial system and was considered as vague. The confusion of
this act has been solved by the Supreme Court of India under:

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Daniel Latifi Vs. Union Of India, AIR 2001 SC 958
A writ petition was filed challenging the validity of the act. For which the court has stated
as under:
• As per Section 3 of the act, Muslim husband is entitled to provide fair and reasonable
maintenance to his wife and has to make proper arrangement for her maintenance after
the divorce.

• Muslim husband’s liability under this act is not limited to iddat period. He has to make
arrangement within the period of iddat for her wife’s maintenance.

• A divorced Muslim woman is entitled to maintenance under section 4 of this act from
her relatives who are entitled to her property after her death.

• If her relatives are not able to maintain her then, in that case, a Wakf board has been
created by this act who will take care of the maintenance of such women.

• The magistrate can direct this board to pay maintenance to them.

The Supreme Court on the basis of the above points has held the act constitutionally
valid.

Maintenance of the Children.

Children are the responsibility of their parents and they should be taken care of. They are
entitled to proper and adequate maintenance from their parents and especially the father.
As under Muslim Law, men are considered as superior and are in the obligation to
maintain his family, maintenance of the child is his primary responsibility.

Father’s obligation to maintain his child.

Father is under an obligation to maintain his legitimate child until he earns puberty.
Under Muslim Law, the father has to maintain his son only until he attains majority and
has to maintain his daughter until she gets married. Under certain circumstances, father is
bound to maintain his widowed or divorced daughter.

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Father is not bound to maintain his son or unmarried daughter if they refuse to live with
him without any reasonable cause. Under Muslim Law, father is under no obligation to
maintain his illegitimate child but an agreement between the parties to maintain his
illegitimate child is not valid.
Under section 125 of Crpc, if the father has sufficient means, he is under obligation to
maintain his child whether legitimate or illegitimate.

Pavitri vs. Katheesumma, AIR 1959 KER 319

In this case, it was stated that it is not at the discretion of the court to allow maintenance
to an illegitimate child. The court can allow only if asked for it.

3.2 Mother’s obligation to maintain his child

Mother’s obligation to maintain her child arises when the child is illegitimate and
husband has refused to maintain the child. But under Hanafi Law, if the father is poor and
the mother is rich then, in that case, it is the obligation of the mother to maintain the
child. However, she can recover the money when her husband gets into the condition to
repay it.

Under Shafi Law, even if the father is poor and mother is rich, then the mother is not
obliged on maintaining her child. In that case, it is the obligation of grandfather to
maintain the child.

3.3 Father’s obligation to maintain his major child

Under Muslim Law, father is obligated for the maintenance of his legitimate child only
until he attains puberty. But if the child is lunatic, mentally or physically disabled and not
in the condition to maintain himself, then, in that case, it is the obligation of the father to
maintain him.

Conclusion.
Thus, from the above article, it can be stated that the maintenance provisions of Muslim
Law are different from other personal laws. The provisions for maintenance of child are
not a matter of concern as they are provided adequate maintenance under the law but the
position of the wife is poor as compared to other laws. Though the legislature has enacted

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an act, it has not created much difference in the condition of the wives. The proper efforts
and contribution of legislature and judiciary is required to improve the position of wife
under Muslim Law.

*****
CHRISTIAN LAW OF MAINTENANCE.
Maintenance Under Christian Law.
A Christian woman can claim maintenance from her spouse through criminal proceeding
or/and civil proceeding. Interested parties may pursue both criminal and civil
proceedings, simultaneously, as there is no legal bar to it. In criminal proceedings, the
religion of the parties does not matter at all, unlike in civil proceedings.

If a divorced Christian wife cannot support her in the post divorce period she need not
worry as a remedy is in store for her in law. Under S.37 of the Indian Divorce Act, 1869,
she can apply for alimony/ maintenance in a civil court or High Court and, husband will
be liable to pay her alimony such sum, as the court may order, till her lifetime. The Indian
Divorce Act, 1869 which is only applicable to those persons who practice the Christianity
religion inter alia governs maintenance rights of a Christian wife. The provisions are the
same as those under the Parsi law and the same considerations are applied in granting
maintenance, both alimony pendente lite and permanent maintenance. The provisions of
THE INDIAN DIVORCE ACT, 1869 are produced herein covered under part IX -s.36-
s.38

Maintenance
Provisions for maintenance under the Christian law are contained in The Indian Divorce
Act. 1869 as amended in 2001. The relevant sections are:
S. 36. Alimony pendente lite.-
In any suit under this Act, whether it be instituted bya husband or a wife, and whether or
not she has obtained an order of protection, ( The wife may present a petition for
expenses of the proceedings and alimony pending the suit.)

Such petition shall be served on the husband, and the court, on being satisfied of the truth
of the statements therein contained, may make such order on the husband ( for payment to

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the wife of expenses of the proceedings and alimony pending the suit) as it may deem
just.

(Provided that the petition for the expenses of the proceedings and alimony pending the
suit shall, as far as possible, be disposed of within sixty days of service of such petition
on the husband.)

S. 37. Power to order permanent alimony.-

(Where a decree of dissolution of the marriage or a decree of judicial separation is
obtained by the wife, the District Court may order that the Husband shall), to the
satisfaction of the court, secure to the wife
such gross sum of money, or such annual sum of money for any term not exceeding her
own life, as having regard to her fortune (if any), to the ability of the husband, and to the
conduct of the parties, it thinks reasonable, and for that purpose may cause a proper
instrument to be executed by all necessary parties.

Power to order monthly or weekly payments.-

In every such case the court may make an order on the husband for payment to the wife of
such monthly or weekly sums for her maintenance and support as the court may think
reasonable.

Provided that if the husband afterwards from any cause becomes unable to make such
payments, it shall be lawful for the court to discharge or modify the order, or temporarily
to suspend the same as to the whole or any part of the money so ordered to be paid, and
again to revive the same order wholly or in part, as to the court seems fit.

S.38. Court may direct payment of alimony to wife or to her trustees.-

In all cases in which the court makes any decree or order for alimony it may direct the
same to be paid either to the wife herself or to any trustee on her behalf to be approved by
the court and may impose any terms or restrictions which to the court seem expedient and
may from time to time appoint a new trustee if it appears to the court expedient so to do.

In the context of Christian parties, K. Kumar v. Leena is a significant judgment. The

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issue involved in the case was whether a Christian wife and children can invoke the
provisions of s. 9 of the Civil Procedure Code, 1908 (CPC) to claim maintenance even
though the Christian Marriage Act, l872 makes no such provision. The court held that
even though the Christian Marriage Act, makes no provision for maintenance, such right
is available under the common law, wife and children are dependents and a suit by a
Christian wife and children is not barred under the provisions of the CPC. Section 9 of the
CPC says:
The court shall ( subject to the provisions herein contained) have jurisdiction to try all
suits of civil nature excepting suits of which the cognizance is either expressly or
impliedly barred.

The following observations of the apex court in M.V Elisabeth v/s Harwan Investment
and Trading Pvt. Ltd, were relied upon in support of the case:
..where a statute is silent and judicial intervention is required, courts strive to redress
grievance according to what is perceived to be principles of justice, equity and good
conscience.

*****

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