THE KERALA LAW ACADEMY LAW COLLEGE, THIRUVANANTHAPURAM

ANSWER KEY FOR THE 1ST INTERNAL EXAMINATION 2025

2ND SEMESTER UNITARY BATCH 1ST INTERNAL EXAMINATION

MARCH 2025
PAPER III : FAMILY LAW-1
 PART-A

Answer any Three of the following . Which carry 2 marks each.

1. Definition of Hindu

The concept ‘Hindu’ means any person by religion in any form is a Buddhist, Jain or Sikh and
is born to Hindu parents and is specifically not a Muslim , Parsi , Christian or Jew is not
governed under Hindu law. The person on whom the Hindu law applies are:-

a) Hindu by religion
• Follower of Hinduism – The Hindu law applies to the person who is a follower of
Hindu religion. This includes the followers of Virashaiva, Lingayat, Brahmo,
Prarthana or Arya Samaj. Apart from these it also applies to the persons who are
the followers of Buddhism, Jainism or Sikhism. In addition to that, it includes all
the persons who are not followers of Islam, Christianity, Zoroastrianism or Judaism.
• Converter to Hinduism: This law applies to all those people who convert
themselves to Hindu religion. Regarding the conversion, the apex court put down
necessary conditions. For it in the case of Perumal Nadar (dead) by L.R.S us
Ponnuswami, (AIR 1971 SC 2352). According to this judgment, a person converted
as Hindu is considered as same only if:
▪ He voluntarily puts his intention to live as a Hindu
▪ He starts living as a Hindu
▪ Hindu community accepts him as a part of its own.
• It is applicable on those people who were Hindu once, converted into another
religion and converted again into the Hindu religion. This was held in the case of
G. M. Arumugam vs. S. Rajgopal and others, [AIR 1976 SC 939].

b) Hindu by Birth
• If both parents are Hindu: The Hindu law is applicable on a child (legitimate or
illegitimate), whose both parents are Hindus, Buddhists, Jainas or Sikhs by religion
and he is brought up as a Hindu. If either of the parents is Hindu, In the case of
Myna Boyee vs. Ootaram, [8 M.I.A. 400], it was held that if either of the parents
is Hindu and child is brought up as Hindu then he would be considered as a Hindu.

2. Definition of Christian

Under Section 3 of the Indian Christian Marriage Act, 1872, “Christian” means
a person who professes the Christian religion. Definition of “Indian Christian”:
Section 2(d) of the Indian Succession Act defines an “Indian Christian” as a native of
India who is, or in good faith claims to be, of unmixed Asiatic descent and who professes
 any form of the Christian religion. A “Christian” generally refers to a person who professes
the Christian religion, and “Indian Christian” specifically includes Christian descendants
of natives of India converted to Christianity, as well as such converts.

Majority of Christians in India have to rely on Christian family law.

It handles issues affecting marriage, divorce and succession in connection with Christians.
In India, Christian divorce is governed by the Indian Divorce Act, 1869. In contrast with
Hindu law, it is possible in Christian law to dissolve marriage on specific conditions such
as adultery and cruelty as well as desertion.Peter Philip Saldanha vs Anne Grace Saldanha
(1929). This case established that the Indian Christian Marriage Act of 1872 provided
forms for solemnizing marriages of persons professing the Christian religion.

3. Sources of Hindu law

The sources of law refer to the materials from which a person can
ascertain law applicable to a particular situation. The following are the sources of Hindu
law.
a. Vedas (Sruti)
The Vedas are the primary and paramount source of Hindu law. There are four
Vedas. Rigveda, Yajurveda, Samaveda and Atharvaveda are the four vedas. It is
believed that the vedas contain the very words of God. Vedas are also known as
Sruti.
b. Smritis (Dharma Sutras and Dharma Sastras)
The word ‘Smriti’ means that which is remembered. Smritis constitute the
foundation of Hindu law. Smritis are considered to be of divine origin though they
are recorded in the language of inspired men. Smritis are divisible into two classes.
They are (b.1.) Dharma Sutras and (b.2) Dharma Sastras :

(b.1) Dharma Sutras

Dharmasutras are written in prose. The main Dharma Sutrakars are
Gautama, Baudhayana, Vasishtha and Vishnu. Dharma Sutras deal with
duties of men in their various relations. Sutras are anterior to Sastras.
Dharma Sutras supplied the ground work for the later Dharma Sastras.

(b.2.) Dharma Sastras

Dharma Sastras are written in verse. The most eminent authors of Dharma
Sastras are Manu, Yajnavalkia and Narada.

Manusmriti was compiled in about 200 BC. Manusmriti was always treated
as of “paramount authority”. Manu Smriti dealt with both Civil and
Criminal law. Yajnavalkya Smriti might have been compiled in about the
 first century after Christ. Yajnavalkia Smriti dealt with civil and criminal
law and rules of procedure to be followed in civil disputes. Narada Smriti
was compiled in about A.D.200. Narada Smriti dealt only with Vyavahara.
An outstanding feature of Narada smriti is that it lays down a series of rules
relating to pleadings, evidence and procedure.

(3) Nibandhas (Mitakshara and Dayabhaka)

The rules of law enunciated in the Smritis were not agreed with one another in all respects.
This resulted in conflict and ultimately led to several interpretations upon them. This in
trun gave rise to commentaries and di-gests called Nibandhas. Nibandhas are nothing but
the interpretations put on the smritis by various commentators. The most important
Nibandhas are: (1) Mitakshara and (2) Dayabhaka.

The Mitakshara is a running commentary on the Yajnavalkia Smriti. It has been written in
the Eleventh Century by Vijnaneswara. The Mitakshara is considered as a standard treatise
having the highest authority on all topics under Hindu law. The Mitakshara is followed
throughout India except Bengal.The Dhayabaga is written by Jimutavahana who lived in
the Twelth Century. The Dhayabhaga is not a commentary on any particular Smriti. It is a
digest of all the Smritis, The Dhayabhaga was applicable only in the province of Bengal.
The principles of Mitakshara and Dhayabhaga are still applicable on those areas where
there is no legislative enactment.

(4) Custom and Usage

Custom or usage is a very improtant source of Hindu Law. Custom may be defined as a
habitual course of conduct generally followed in a com-munity. According to Austin,
Custom is a rule of conduct which the people observe spontaneously and not in pursuance
of law settled by a political superior. Custom is a particular usage which has existed from
time imme-morial and has obtained the force of law in a particular locality.

In Collector of Madura v. Mootoo Ramalinga (1868 12 ΜΙΑ 397), the Privy Council
held that clear proof of usage or custom will outweigh the written texts of law.

Section 3 (a) of the Hindu Marriage Act, 1955 defines the expression "custom" and "usage"
as follows.

An analysis of the above stated definition bring to light the following points:

(a) Custom or Usage is a rule which has been continuously and uniformily observed for a
long time among the Hindus in any local area, tribe, community, group or family.
 (b) The rule should be certain.

(c) The rule should not be opposed to public policy.

(d) If the rule is applicable only to a family, it should not be discontinued by the family.

In Baluswamy Reddiar v. Balakrishna (AIR 1957 Mad. 9), the Court held that a custom
which was prevalent among the Reddiar of Thinnaveli District of Madras State permitting
one to marry his daughter’s daughter was unreasonable and opposed to public policy.

(5) Judicial Precedents

Judicial Precedents or previous decisions of superior courts become source of law for future
cases. The decisions of Supreme Court of India is binding on all courts in India including
the High Courts. The decisions of High Courts are binding on the subordinate courts.

(6) Legislations

Legislations is the most important modern source of Hindu Law. Several enactments have
been passed by the Parliament to regulate marriage. Adoption, maintenance and the like
among Hindus. The Hindu marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu
Minority and Guardianship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956
are examples of such legislations.

4. Judicial separation
Section 10 of the Hindu Marriage Act provides for judicial separation. By
virtue of section 10. Either the husband or the wife can file a petition for a decree of judicial
separation. When such a petition is filed, if the court finds that there is sufficient ground
for granting such a decree, the court may direct the petitioner to live separately from his or
her spouse. If a decree for judicial separation is passed by the court, the petitioner is not
bound to co-habit with the respondent. On the application of either party, the decree for
judicial separation may be cancelled by the court if it is satisfied that there is no necessity
for living separately. The following are the grounds available to both husband and wife for
obtaining a decree of Judicial Separation

➢ Adultery
➢ Cruelty
➢ Desertion
➢ Convertion
 ➢ Insanity
➢ Leprosy
➢ Venerial disease
➢ Renunciation of the World
➢ Not being heard for seven years
Here are two notable case laws relating to judicial separation in family law:
Narayan Ganesh Dastane v. Sucheta Narayan Dastane (AIR 1975 SC 1534), the Supreme
Court held that judicial separation can be granted on the ground of cruelty, which can be
physical or mental and Smt. Neelima v. K. Rama Krishna (AIR 1994 AP 334), the Andhra
Pradesh High Court held that judicial separation can be granted on the ground of desertion,
which must be for a period of at least two years.
The following grounds are available for the wife over and above the 9 grounds stated above.

i. Husband is having more than one wife

ii. Husband is guilty of sodomy, bestiality or rape.
iii. If the parties do not cohabit for a period of one year or upwards after a decree for
judicial separation was passed, either party to the marriage can claim dissolution of
the marriage.

PART-B

Answer any Two of the following. Each question will carry 5 marks

1. What are the grounds for judicial separation under the Hindu marriage and divorce act 1956?

Under the Old Hindu Law, divorce was not recognised. Marriage was considered to
be an indissoluble tie between the husband and wife.The Hindu Marriage Act, 1955,
recognised the matrimonial relief of divorce. Sections 13, 13-A, and 13-B of the Act
provide for divorce. Section 13 states the grounds for divorce available to both the
parties. And some grounds available in favour of wives. Section 13-A permits the
granting of alternative relief of judicial separation for most of the grounds for
divorce.Section 13-B deals with divorce by mutual consent. The following grounds can
be available to the parties:

A. Adultery

If either party to the marriage had voluntary sexual intercourse with any person
other than his or her spouse, a petition for divorce can be filed by the aggrieved
person. If after the solemnization of marriage husband had sexual intercourse with
 a woman other than his wife, a petition for divorce can be filed by the wife.
Similarly, a husband can file a petition for divorce on the ground that his wife had
sexual intercourse with a man other than the husband. A single act of adultery, if it
is proved, is sufficient to dissolve the marriage. Every petition for divorce on the
ground of adultery. Or extra marital intercourse shall make the adulterer or
adulteress a co-respondent.Adultery can be proved by circumstantial evidence. In
a divorce case adultery need not be proved beyond any shadow of doubt. In a
divorce case adultery can be proved by preponderance of probabilities. Pattayer
Ammal v. Manickam (AIR 1967 Mad 254). The court held that direct proof of
adultery is not required in a divorce case. Thimmappa v. Thimmavva (AIR 1972 Mys
234)7 The husband proved that his wife was absent herself from his house for a
long time and she was seen in the company of a total stranger to the family without
sufficient explanation. The court held that the adultery can be inferred from the
circumstances.

B. Cruelty

Cruelty is a ground available to obtain a decree of divorce. If the husband or wife treats
the other with cruelty, the aggrieved person can file a petition for divorce. If the pattern
of behavior of one party causes apprehension in the mind of the other party that it would
be harmful or injurious to live with that party, there is cruelty. Cruelty may be
committed by husband or wife. It need not always be causing physical injury. Causing
mental agony is also constituting cruelty. Suseela v. Mohan Das Prabhu (1975 KLT 72)
In this case the Kerala High Court held that inorder to grant divorce on the ground of
cruelty it is necessary to show that the treatment is such as to cause reasonable
apprehension in the mind of the petitioner that it will be harmful or injurious for the
petitioner to live with the other party. It is not necessary to show that such injury would
be to health, life or limb, bodily or mental. Injury or harm may include cases other than
that of injury and harm to one's body, limb or health. Harm to reputation and social
position can also be treated as cruelty. Dastine v. Dastine (AIR 1975 SC 1536). The
husband filed a petition for divorce on the ground of wife's cruelty. She had done some
acts intentionally to insult the husband. One day she went out of the house and cried
out "I want to see the ruination of the whole Dastine family, I will burn your fathers
books and apply the ashes to you forehead". She put chilly powder on the tongue of a
child. The Supreme Court held that the acts of the wife constituted cruelty and the
husband is entitled to a decree of divorce.

C. Desertion
A petition for divorce can be filed by a party to the marriage if the other party has
deserted the petitioner for a continues period of not less than two years immediately
before the presentation of the petition. In order to constitute desertion two elements are
essential. They are

a. Actual separation or withdrawal from cohabitation(factum of separation )

b. The withdrawal from cohabitation should be with intent to put an end to
cohabitation permanently (animus desertendi).

In Narayanan v. Sreedevi (1989 (1) KLT 509), It was held that in order to constitute
'desertion' there should be with-drawal from cohabitation with intention to bring
the cohabitation to an end permanently. In other words there should be actual
separaton with animus desertendi (intention to bring cohabitation to an end
permanently). Savitri Pandey v. Prem Chandra Pandey (AIR 2002 SC 591). The
Supreme Court held, "desertion" for the purpose of seeking di-vorce under the Act
means the intentional permanent forsaking and aban-donment of one spouse by the
other without that other's consent and with-out reasonable cause. In other words it
is a total repudiation of the obligations of marriage. If a spouse abandons the other
in a state of temporary passion, for example, anger or disgust without intending
permanently to cease cohabitation, it will not amount to desertion. In order to
constitute desertion, there must be two essential conditions:

(a) the factum of separation, and

(b) the intention to bring cohabitation permanently to an end (animus
desertendi).

D. Conversion

If one of the spouses converts to another religion, a petition for divorce can be filed by
the spouse who has not converted to another religion. Con-version by a Hindu spouse
to Muslim, Christian, Jewish, or Parsi's faith would be treated as conversion to another
religion and divorce can be granted.A Hindu by religion, if accepts the faith of
Budhism, Jainism, or Sikh would not be treated as conversion to another religion.

In Sarala Mudgal v. Union of India (1995 (2) KLT 45), the Supreme Court held that
a marriage solemnised under the Hindu Marriage Act cannot be dissolved except on the
grounds available under section 13 of the Act. Parties who have solemnised the
marriage under the Act remain married even when the husband embraces Islam and
marries a Muslim wife. The second marriage of the convert will be void.
 E. Unsoundness of Mind

A petition for divorce can be filed by a party to the marriage, if the other party is
incurably of unsound mind. In Lissy v. Jaison (2000 (1) KLT 589 FB) the Kerala High
Court held that a spouse is "incurably of unsound mind" if he or she is of such mental
incapacity as to make normal married life impossible and there is no prospect of any
improvement in mental health, which would make this possible in future.

F. Incurable and virulent leprosy

A petition for divorce can be filed by a party to the marriage on the ground that the
other party has been suffering from a virulent and incurable leprosy. Swarajya Laxmi v
G.G. Patma Rao (AIR 1974 SC 165). The husband was a medical practitioner. He filed
a petition for divorce against his wife on the ground that she was suffering from
Lepromatous form of leprosy. The Supreme Court held that the husband is entitled to
decree of divorce on the ground that Lepromatous leprosy is virulent and incurable.

G. Venerial disease

A petition for divorce can be filed by a party to the marriage on the ground that the
other party has been suffering from venerial disease in a communicable form. If the
respondent is suffering from venerial disease which is communicated to him or her by
the petitioner, the decree of divorce will not be granted. (Person who approaches the
court for a relief should come with clean hands. The maxim is: “ex turpi causa non
oritor actio”)

H. Adoption of Religious Order

There are four-orders or stages of life prescribed by Sastras. They are (1) Brahmachari,
(2) Grihastha, (3) Vanaprastha, and (4) Sanyasi. When a person enters into Vanaprastha
or Sanyasi, he renounces all the worldly affairs. It amounts civil death under the Hindu
Law. If a party to the marriage has renounced the world, by entering into vanaprastha
or sanyasi, the other party can file a petition for divorce.

I. Presumption of Death

If the whereabouts of a party to the marriage is not heard for seven years or more, the
presumption is that he or she has been dead. The other party can, then, file a petition
for divorce on this ground.
 J. Non-resumption of Co-habitation

If there is non-resumption of co-habitation between the parties to a marriage for a

period of one year or upwards after passing a decree of judicial separation or restitution
of conjugal rights, either party to the marriage can file a petition for decree of divorce.

2. Types of Guardian under Hindu Guardianship and Wards Act 1890

The provision of section 4(a) of the Act defines minor as a person who has not
completed the age of 18 years.

The law of guardianship is based on the incapacity which the law attributes to
minors and to persons who are deficient in mental capacity. The guardian occupies
a fiduciary position and is bound, for instance, to manage the property of the minor
with the same here and prudence with which he would manage own property. Under
Hindu Law, a guardian means, a person having the care of the person of another or
his property or both, this was so because under Hindu law the husband was the
natural guardian of his wife as also of his minor child. There are four kinds of
Guardians prescribed under the Hindu Minority and Guardianship Act 1956.

The provision of Section 4 (b) of ”The Hindu Minority and Guardianship Act
defines “Guardian” (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 relating to
any court of wards.

Concept and types of Adoption, Guardianship and Maintenance

(i) Natural Guardian:--A natural guardian is one who Becomes so by reason of

natural relationship with the minor. In other words, a natural guardian is a
person having the care of the person of a minor or of his property or both,
by virtue of his natural relationship with the minor. The natural guardian of
a minor boy or minor unmarried girl is the father. On the death of the father,
the mother becomes the natural guardian.
It Is to be noted that Section 4(c) of the Hindu Minority and Guardianship Act 1956
defines “Natural guardian’, Section 6 of the Hindu Adoption and Maintenance Act
deals with the Natural guardian and Section 8 Lays down the powers of the natural
guardian.

(ii) Testamentary Guardian or Guardian Appointed by will

:--Testamentary Guardian is a person appointed by who will to be the ‘guardian of

a child’ under 18. Under the old law only the Father by which will could appoint a
testamentary guardian. Under the Hindu minority and guardianship Act 1956, even
the mother can do so. The powers of the testamentary guardian are not higher than
those of a natural guardian. They are subject to the limitations imposed by the will.
This was so under the old Law also. But under the new law, the testamentary
guardian’s power’s are statutorily curtailed just like the power of natural guardians.
That is, the prior permission of the court is required for alienations as in the case of
a natural guardian.

(iii) Guardian Appointed or declared by Court:--Where the court is satisfied that

it is for the Welfare of minor that an order should be made appointing a
Guardian of his person or property or both, the court may make an order
under the Guardians and Wards Act, 1890 appointing a guardian. In
Appointing or declaring a person as the Guardian of a minor Welfare of the
minor shall be the Paramount consideration.

(iv) A person empowered to act as such by or under any enactment relating to

any Court of Wards:--Under order 32 of the Civil Procedure Code, a
guardian ad litem may be appointed or removed or where the management
of an estate ‘s vested, for the time being in a court of wards, Guardian of the
minor whose estate is so wasted may be appointed under the provisions of
the Court of Wards Act.

(v) De Facto Guardian:--A de facto Guardian of a minor is neither a legal

Guardian nor a testamentary Guardian nor a Guardian appointed by the
court, but he is a person who himself, takes over the management of the
affairs of the minor as if he was a natural guardian. The old law recognized
a de facto Guardian. In regard to alienations of property, his powers wear
those of natural guardian. Under the new law of the concept of de facto
Guardian has been abolished. Section 11 of the Hindu Minority and
Guardianship Act, 1956 deals with De Facto Guardian. Section 11 of the
said act prohibits a de facto Guardian to deal with minor’s property.
 According to Section 11 of the Act, no person shall be entitled to dispose
of, or deal with, the property of Hindu minor merely on the ground of his or
her being the de facto guardian of the minor.

(vi) Ad Hoc Guardian:--One who acts as a Guardian of the minor for the
temporary period or for a single transaction, he is called ‘Guardian ad hoc’.

(vii) A Guardian ad litem:--A person who is appointed to defend an action or

other proceedings on behalf of minor or person under a disability is called
‘a Guardian ad litem’ a Guardian ad litem is not De facto or De jure
guardian.

3. Analysis the Constitution validity of Sec.9 of Hindu marriage and divorce act 1956.

Section 9 of the Hindu Marriage Act 1955 provides for restitution of conjugal rights. The
fundamental purpose of a marriage is that the spouses must live together. One spouse is
entitled to the society and comfort (consortium) of the other.

If one spouse leaves the other spouse without any just cause or excuse, the latter can
approach the court praying for a decree for restitution of conjugal rights. Thus if the
husband or the wife deserts his or her spouse, the aggrieved person can file a petition under
section 9 of the Hindu Marriage Act for a decree of restitution of conjugal rights. The
person who has deserted the spouse can defend the petition, if there is sufficient cause for
his or her Withdrawal.
Article 13 of the Constitution explicitly invalidates 'all laws in force’ that violate any of the
Fundamental Rights but the question whether it applies to the RPLs remains unsettled. The
Constitutional validity of Section 9 has often been questioned in academic scholarship, in
media and even in courts on the grounds of it violating women's fundamental rights to life,
liberty and privacy granted under Articles 14, 19 and 21. There are contradictory
judgements on the question of constitutional validity of the provision of RCR.

In 1983, the Andhra Pradesh High Court in T Sareetha vs. T Venkata Subbaiah held the
provision of RCR as unconstitutional, on grounds that it violates both privacy and equality.
The judge called the remedy of restitution of conjugal rights as ‘barbarous', ‘uncivilised’
and ‘an engine of oppression’. In his words, a decree for RCR was an order ‘to coerce
through: judicial process, the unwilling party to have sex against that person's consent and
free will with the decree-holder’. However, in 1984, the Delhi High Court judge in
Harvinder Kaur vs Harmander Singh Choudhry termed the above judgement as erroneous
and held that it was wrong to presume that RCR means coercive sex. He wrote that ‘The
remedy of restitution aims at cohabitation and consortium and not merely at sexual
intercourse'. Finally, in 1984, a single-judge Supreme Court Bench settled the issue and
upheld the constitutional validity of Section 9 of the Hindu Marriage Act noting that the
provision of RCR ‘serves a social purpose as an aid to the prevention of break-up of
marriage’. It held that: Section 9 of the Act is not violative of Article 14 or Article 21 of
the Constitution if the purpose of the decree for restitution of conjugal rights in the said
Act is understood in its proper perspective and if the method of execution in cases of
disobedience is kept in view in the case of Saroj Rani v Sudarshan Kumar Chadha.

PART – C
Answer any Two of the following. Which carries 6 marks each.

A. The guardian of a minor appointed under the Hindu Minority and Guardianship Act
incurs expenses related to the supply of necessaries to the minor. He binds the
minor’s estates for incurring these expenses. The minor’s friend challenges this in
court. Decide.

Fact of the Case

The guardian of a minor, appointed under the Hindu Minority and Guardianship
Act, incurs expenses for supplying necessaries to the minor. The guardian binds the
minor’s estate for these expenses, which is challenged by the minor’s friend in
court.

Issues
1. Whether the guardian has the authority to bind the minor’s estate for expenses
incurred in supplying necessaries?
2. Whether the minor’s friend has the locus standi to challenge the guardian’s
actions?

Provision of Law
Section 27 of the Hindu Minority and Guardianship Act, 1956 states that a guardian
appointed under this Act has the power to do all acts that are reasonable and
necessary for the benefit of the minor.

Similar Case Laws

- In the case of “Ganesh Chandra v. Raja Kali Prasad” (AIR 1935 Cal 395), it
was held that a guardian has the power to bind the minor’s estate for expenses
incurred in supplying necessaries.
- In the case of “Ram Chandra v. Dharmodas” (AIR 1964 Cal 222), the Calcutta
High Court held that a guardian’s authority to bind the minor’s estate includes the
power to incur expenses for the minor’s maintenance and education.
 Legal Analysis
The Hindu Minority and Guardianship Act, 1956, empowers a guardian to do all
acts that are reasonable and necessary for the benefit of the minor according to sec
27 and the above mentioned precedents also supporting the substantiating the above
principles. Thus supplying necessaries to the minor is a necessary act, and the
guardian has the authority to bind the minor’s estate for these expenses.
1. Whether the guardian have the authority to bind the minor’s estate for expenses
incurred in supplying necessaries?

Yes, the guardian has the authority to bind the minor’s estate for
expenses incurred in supplying necessaries, as it is a necessary act for the benefit
of the minor.

2. Whether the minor’s friend has the locus standi to challenge the guardian’s actions?
No, the minor’s friend does not have the locus standi to challenge
the guardian’s actions, as the guardian is appointed under the Act to act in the best
interests of the minor.

Decision
The court holds that the guardian has the authority to bind the minor’s estate for
expenses incurred in supplying necessaries. The minor’s friend does not have the
locus standi to challenge the guardian’s actions. The petition is dismissed.

B. Joyal is a Christian man who married a minor girl belonging to the same community by
committing fraud by changing her date of birth and registering the marriage. Decide the
validity of Marriage under the Christian Marriage Act.

Fact of the Case

Joyal, a Christian man, married a minor girl from the same community by committing
fraud. He changed her date of birth and registered the marriage under the Christian
Marriage Act.

Issues
1. Whether the marriage is valid under the Christian Marriage Act despite the fraud
committed by Joyal?
2. Whether the minor girl’s consent to the marriage is valid considering her age and the
fraud committed?

Provision of Law
 Section 4 of the Christian Marriage Act, 1872, states that a marriage between Christians is
void if either party is under the age of 18 years for the bride and 21 years for the groom.

Similar Case Laws

- In the case of “Raghunath Prasad v. Sarju Devi” (AIR 1968 All 348), it was held that
a marriage solemnized in contravention of the provisions of the Christian Marriage Act is
void.
- In the case of “Rebecca v. George” (AIR 1984 Ker 34), the Kerala High Court held that
a marriage with a minor is void ab initio, and the court has the power to annul such a
marriage.

Legal Analysis
The Christian Marriage Act, 1872, explicitly prohibits marriage between Christians if
either party is underage. Joyal’s act of changing the minor girl’s date of birth and registering
the marriage constitutes fraud.

a. Whether the marriage valid under the Christian Marriage Act despite the fraud
committed by Joyal?
No, the marriage is not valid under the Christian Marriage Act despite
the fraud committed by Joyal, as the Act explicitly prohibits marriage with
a minor.

b. Whether the minor girl’s consent to the marriage is valid considering her age and
the fraud committed ?
No, the minor girl’s consent to the marriage is not valid considering her age
and the fraud committed, as she was not of legal age to give consent and
was deceived by Joyal.

The minor girl’s consent to the marriage is not valid due to her age and the fraud committed.
Therefore, the marriage is void under the Christian Marriage Act.

Decision
The court holds that the marriage between Joyal and the minor girl is void under the
Christian Marriage Act, 1872. The marriage is annulled, and Joyal is liable for committing
fraud.

C. Jayalekshmi is an actress, who left her husband Ajith without giving adequate information
about her decision. The husband filed a suit for Restitution of conjugal Rights under
Section 9 of the Hindu Marriages and Divorce Act 1956. Advice
Fact of the Case
Jayalekshmi, an actress, left her husband Ajith without providing adequate information
about her decision. Ajith filed a suit for Restitution of Conjugal Rights under Section 9 of
the Hindu Marriage Act, 1955.

Issues
1. Whether Jayalekshmi’s departure from her husband without adequate information
constitutes a valid ground for Ajith to file a suit for Restitution of Conjugal Rights?
2. Whether the court can grant a decree for Restitution of Conjugal Rights in favor of Ajith?

Provision of Law
Section 9 of the Hindu Marriage Act, 1955, states that when either the husband or the wife
has without reasonable excuse withdrawn from the society of the other, the aggrieved party
may apply to the court for restitution of conjugal rights.

Similar Case Laws

- In the case of “Saroj Rani v. Sudarshan Kumar” (AIR 1984 SC 1562), the Supreme
Court held that a spouse who withdraws from the society of the other without reasonable
excuse is liable to be directed to restore conjugal rights.
- In the case of “Chandralekha v. Prabhakaran” (AIR 1992 Ker 161), the Kerala High
Court held that a wife who leaves her husband without reasonable excuse and refuses to
return to the matrimonial home is liable to be directed to restore conjugal rights.

Legal Analysis
Jayalekshmi’s departure from her husband without adequate information may be
considered a withdrawal from the society of her husband without reasonable excuse. Ajith,
as the aggrieved party, has the right to file a suit for Restitution of Conjugal Rights.

1. Whether Jayalekshmi’s departure from her husband without adequate information

constitutes a valid ground for Ajith to file a suit for Restitution of Conjugal Rights?
Yes, Jayalekshmi’s departure from her husband without adequate
information constitutes a valid ground for Ajith to file a suit for Restitution
of Conjugal Rights.
2. Whether the court can grant a decree for Restitution of Conjugal Rights in favor of Ajith?
Yes, the court can grant a decree for Restitution of Conjugal Rights in favor of Ajith,
directing Jayalekshmi to restore conjugal rights.

Decision
1. The court grants a decree for Restitution of Conjugal Rights in favor of Ajith, directing
Jayalekshmi to restore conjugal rights. Jayalekshmi is directed to return to her matrimonial
 home and resume cohabitation with Ajith. The court orders Jayalekshmi to pay costs of the
suit to Ajith.The court reserves the right to modify or vacate the decree if circumstances
change or if either party fails to comply with the terms of the decree. The court directs both
parties to attempt reconciliation and counseling to resolve their marital issues.

PART-D
Answer any ONE of the following . Which carries 12 marks

1.Define a Christian Marriage. Elaborate the essential of a Valid Christian Marriage .

1.1. Introduction

A Christian is one who professes the Christian religion. Indian Chris-tian includes native converts
to Christianity and their descendents. Under Christian Law, a marriage is considered to be
permanent union of one man and one woman to the exclusion of all others for life. Roman Catholic
Church regarded marriage as one of the sacraments The Anglican and other protestant churches
consider marriage as an institu-tion approved and sanctioned by God.

In India, Marriages between Christians are governed by the provisions of Indian

Christian Marriage Act, 1872. It extends to the whole of India except the territories which,
immediately before the 1 st November, 1956, were comprised in the States of Travancore Cochin,
Manipur and Jammu & Kashmir. Thus in Malabar area the Indian Christian Marriage Act, 1872 is
applicable. In the territories which were comprised in the former Travancore Cochin State, the
Indian Christian Marriage Act, 1872 is not applicable.

1.2. Essentials of a Valid Marriage under the Indian Christian Marriage Act, 1872.

A marriage to be valid under the Christian Marriage Act, 1872, the following conditions should be
satisfied.

a. When one of the parties or when both the parties are Christians, the marriage shall be
solemnized by any one of the following five persons authorised to solemnize marriages.

a) A Minister of Religion
b) Marriage Registrar appointed under the Act.
c) A person licenced to grant certificates of marriage between
Indian Christians.
d) A person who has received episcopal ordination
e) Clergy man of church of Scotland.

b. A marriage should be solemnized between six in the morning and seven in the evening.
c. The parties to the marriage should not come with in the degrees of prohibited relationship.
The Act does not contain any table prescribing prohibited degrees of relationship. But the common
prayer book contains a table of relations and a marriage between persons in the table is void.

d. In the case of marriage between Indian Christians, one of the parties should not have a
living spouse. The bride groom should have completed the age of 21 years and the bride
18 years.

e. Either of the parties to the marriage should issue a notice to the Minister of religion of the
intended marriage. The notice should contain name, address and age of the parties. The
notice so issued shall be affixed on the notice board.

f. After the issue of notice, the parties should appear before the Minister and make a solemn
affirmation that the marriage is not barred by any im-pediment like prohibited degrees etc.

g. When the affirmation is made, the Minister can issue a certificate that the notice has been
issued and that the declaration has been made.

h. Thereafter, the Minister can solemnize the marriage in any form in the presence of two
witnesses. The marriage should be solemnized within two months from the date of the
certificate.

2. What are the essential of a valid Hindu marriage under the Hindu Marriage and
divorce act 1956

2.1 Introduction

The law relating to marriage among Hindus has been codified and en-acted in 1955. The
Parliament enacted the Hindu Marriage Act, 1955 which contains the law relating to
marriage among Hindus, restitution of conjugal rights, judicial separation, divorce,
annulment of marriage, permanent alimony, and maintenance pendente lit.

Before the Hindu Marriage Act, 1955 was enacted, the law relating to marriage was
contained in the dharma sastra works, commentaries and digests, custom, statutes, and
decisions of courts of law. The Hindu Marriage Act, 1955 superseded the previous laws
relating to Hindu marriage. However, the Hindu Marriage Act itself has recognised certain
customary principles to regulate the marriage.

2.2. Nature of Hindu Marriage

 Hindus consider marriage as a samskara of the high sacrament. There are 64 samskars
prescribed by the Sastras beginning from ‘garbhadhana’, ending with “anthyeshty”.

Vivaha or Marriage is one of the samskaras. Hindu religion consid-ered marriage as a duty
for the purpose of purifying the body from inherited taint. According to the Vedas, a
marriage is a union of flesh with flesh and bone with bone

Under the old Hindu law, marriage was considered to be an indissoluble union and thus
divorce was not recognized. It was considered to be a permanent and eternal union. It was
also considered to be a holy union.

After the passing of the Hindu Marriage Act, 1955, there can be a diVorce of Hindu
marriage and thus a Hindu marriage, at present, is not a permanent and indissoluble union.
In 1856, the Hindu Widows Remarriage Act was passed and that destroyed the
characteristic of eternal union of the Hindu Marriage. It recognized widow re-marriage.
Even now a Hindu Marriage is considered to be a holy union. A Hindu Marriage will be
valid only if it is solemnized in accordance with the customary ceremony. Thus it is a holy
union. At present, Hindu Marriage is not only a sacrament but also a civil contract.

2.3. Objects of Marriage

According to Hindus, there are three objects of marriage. They are

a. Dharma Sampathi

b. Praja Sampathi

c. Rathi Sukham

a. Dharma Sampathi

Vedas considered performance of “Yajnas” or sacrifices as one of the highest act of

‘dharma’. A Hindu could not perform a Yajna without the concurrence of his wife. An
unmarried Hindu could not perform any sacrifice. Hence marriage became absolutely
essential.

b. Praja Sampathi

According to Hindu concept a person who dies without a son has no salvation and he would
be suffering in the hell called ‘puf’. The son saves the father from going to the hell called
 ‘put’. The son is called putra which from the bell called ‘out. Thus marriage has an
important means the savier from the hell called 'put'. Thus marriage has an impone object
of having a son.

c. Rathi Sukham

The ordinary pleasure of sexual intercourse is considered to be the last object of marriage.

There were eight forms of marriage under the old Hindu law. They are the following:

1) Brahma

2) Daiva

3) Arsha

4) Praja patrya

5) Asura

6) Gandharva

7) Rakshasa

8) Paisachika

2.4. Essentials of a Valid Marriage under the old Hindu Law

Under the old Hindu law, for a marriage to be valid, the following three conditions were
required to be fulfilled.

(i) The parties to the marriage should belong to the same caste. By virtue of the Hindu
Marriage Validity Act, 1949 and Hindu Marriage Act 1955, no marriage will be
invalid only for the reason that the parties belonged to different castes.

(ii) Under the old Hindu law, performance of marriage ceremony was most essential.
Vivaha homa and saptapati were the most essential ceremonies of a valid Hindu
marriage. By virtue of Section 7 of Hindu Marriage Act, 1955, the marriage is to
be solemnized in accordance with customary ceremony for its validity.

(iii)The parties to the marriage should not come within the degrees of prohibited
relationship. Under the Old Hindu law and Hindu Marriage Act, 1955, the parties
 to the marriage should not be sapindas or they should not come within the degrees
of prohibited relationship.

2.5. Essentials of a Valid Marriage under the Hindu Marriage Act, 1955

Sections 5 and 7 of the Hindu Marriage Act, 1955 deal with the essentials of a valid Hindu
Marriage. The following are the essential conditions for the validity of a marriage.

(i) Both the Parties to the Marriage should be Hindus

By virtue of section 5 of the Hindu Marriage Act, a marriage will be valid only if
both the parties to the marriage are Hindus. If one of the parties to the marriage is
a Christian or Muslim, the marriage will not be a valid Hindu marriage, under the
Hindu Marriage Act. In other words, if both the parties to the marriage are not
Hindus, a valid marriage cannot be solem-nized under the Hindu Marriage Act,
1955.In Yamunabai Anantrao Adhav v. Anantrao Shivaram Adhav (AIR 1988 SC
644), the Apex Court pointed out that under section 5 of the Hindu Marriage Act a
marriage can be solemnized only between two Hindus. In Sangeeta v. Preston
Gomes (2011 (1) KHC 120) it was held that the mere fact that the parties had
solemnised marriage as per the Hindu rites and ceremonies will not enable them to
apply for divorce under the Hindu Marriage Act. The mandate of law is that
marriage has to take place between two Hindus.

(ii) The Marriage should be Monogamous by section 5(i) of the Act; a party to the marriage
should not have a living spouse at the time of Marriage.

By section 17 of the Act, any marriage between two Hindus is void if at the date of
such marriage either party had a husband or wife living. Further the person who
solemnizes a second marriage during the subsistance of first marriage is liable to be
prosecuted and punished as per the provisions of sections 494 and 495 of the Indian
Penal Code, 1860. If at the time of marriage either party has a living spouse, the mar-
riage is void. Thus a bigamous marriage is null and void. After the dissolution of the
first marriage by death or divorce, one can validly marry second time. Under the
Hindu Law a person can validly marry if he or she is either unmarried or divorced or
a widow or a widower.

(iii) The parties to the marriage should not suffer from unsoundness of mind, mental disorder
or insanity
 By virtue of section 5(ii) (a), a party to the marriage should be of capable of giving
valid consent to the marriage. If a party is incapable of giving valid consent to the
marriage in consequence of unsoundness of mind. the marriage is voidable at the
option of the other party.

By virtue of section 5 (ii) (b), if a party, though capable of giving valid consent, has
been suffering from mental disorder of such a kind as to be unfit for marriage and
procreation of children, the marriage is voidable at the option of the other party.

By virtue of section 5 (ii) (c) if a party has been subject to recurrent attacks of insanity,
the marriage is voidable at the option of the other party.

It is to be noted that section 5(ii) (c) of the Hindu Marriage Act, 1955 has been
amended by the Marriage Laws (Amendment) Act, 1999 and the word 'epilepsy' is
omit-ted. The result is that at present even if a party to the marriage is subject to
recurrent attacks of epilepsy, the marriage is valid and the other party cannot seek for
nullity of marriage.

In Alka Sharma v Chandra Sharma (AIR 1991 MP 205), On the very first night of
marriage the wife was so cold, frigid and nervous. She could not cooperate in
performing the sexual act. She was unable to properly handle domestic appliances in
the kitchen. She was unresponsive to the needs of family members and could not
explain her conduct of urinating in the verandah in the presence of all the family
members. The husband filed a petition for a decree of nullity of Marriage. The court
passed a decree nullifying the marriage.

(iv) The Parties to the marriage should have attained the prescribed age

By virtue of section 5(iii) of the Act, at the time of marriage, the bride-groom must
have completed the age of 21 years and the bride 18 years. A marriage solemnized in
violation of this condition is neither void nor voidable. However, by virtue of section
18 of the Act, every person who procures such a marriage is liable to be punished with
rigorous imprisonment which may extend to two years or with fine which may extend
up to one lakh rupees or with both. P. Venkata Ramana v State (AIR 1977 AP 43), The
court held that a marriage solemnized in violation of the requirement as to age is
neither void nor voidable. But the contravention of the condition is punishable under
section 18 of the Act. If a girl is given in marriage before attaining the age of 15 years,
she has a right of repudiation of such marriage. She should exercise her right before
attaining the age of eighteen years. Thereafter, she can file a petition for divorce under
Section 13 (1A) (iv) of the Act.
(v) The parties should not come within the degrees of prohibited relationship

By virtue of section 5(iv) of the Act, the parties to the marriage should not come within the
degrees of prohibited relationship. Two persons are said to be within the degrees of
prohibited relationship-

a. If one is a lineal ascendant of the other.

b. If one was the wife or husband of a lineal ascendants or descendant of the

other.

c. If one was the wife of the brother or of the father's or mother's. brother or
of the grand father's or grand mother's brother of the other.

d. If the two are brother and sister, uncle and niece, aunt and nephew, or
children of brother and sister or of two brothers or of sisters.

A Marriage between two persons who come within the degrees of prohibited relationship
shall be void. However, if there is a valid custom or usage governing both the parties allows
they can marry even though they come within the degrees of prohibited relationship. All
over India, there are such customs which validate marriage between persons who come
within the degrees of prohibited relationship.

Examples

a. Marriage between children of brother and sister is common among the

Marumakathayem of Kerala.

b. In some parts of Tamil Nadu Marriage between a person and his eldest sister's daughter
is common. Here the parties though come within the degrees of prohibited relation-
ship, they can validly marry by virtue of custom or usage. It is essential that the custom
or usage should be certain, reasonable and not opposed to public policy.

In Balu Swami Reddiar v Balakrishna (AIR 1957 Mad 9), the court held that a custom
which was prevalent among the Reddiar of Thinnalveli district of Madras State
permitting one to marry his daughter's daughter was unreasonable and opposed to
public policy. A marriage solemnized between the parties who come within the degrees
of prohibited relationship is null and void and, by virtue of section 18, the parties of
 such marriage are liable to be punished with simple imprison-ment for a period of one
month or fine of Rs. 1000/ or with both.

(vi) The parties to the marriage should not be related to each other as Sapindas

By virtue of section 5(v) of the Act, a marriage shall be void if it is solemnized between
parties who are related to each other as 'Sapindas'. The term 'pinda' has two meanings. The
popular meaning is the 'ball of rice' offered to the deceased ancestor in a sradha. The other
meaning of pinda is 'parcticle of body'. A man is prohibited from marrying a girl who has
got the same particle in her body. In other words the husband and wife should not have the
same blood in them.

Though a marriage between sapindas is void, if there is a valid custom or usage allowing
such marriage, there can be a valid marriage.

A marriage between persons who are sapindas shall be null and void unless custom allows
such marriage and, by virtue of section 18, the parties to the marriage are liable to be
punished with simple imprisonment for a term of one month or with fine of Rs. 1000/- or
with both.

(vii) The Marriage should be solemnized in accordance with the customary rites and
ceremonies

By virtue of section 7 of the Act, in order to be a valid Hindu marriage, it should be

solemnized in accordance with the customary rites and ceremonies of either party to the
marriage. If such rites and ceremonies include saptapadi, the marriage becomes complete
and binding when the seventh step is taken.

In Bibba v Ramkali (AIR 1982 All 248)

The Court held that merely going through certain ceremonies with the intention that the
parties to be taken as married will not make them ceremonies prescribed by law.
Ceremonies vary according to custom. The presentation of a pair of clothes by the
bridegroom to the bride (pudava koda) is an important customary rite among the Nair caste
in Kerala. Tying of a sacred thread around the neck of the bride (Mangalya Sutra or tali) is
another rite.

Garja Singh v Surjith Kaur (AIR 1991P&H 177)

 The Court held that a marriage will be valid only if the ceremony through which it is
solemnized is sanctioned by the religion of either party as a customary ceremony.

Merely going through some ceremonies like distribution of sweets to the persons
assembled and making a declaration that they have married each other will not be a valid
Hindu marriage.

2.6. Doctrine of Factum Valet

The maxim "quod fieri non debuit means what ought not have been done is valid when
done. This maxim has been applied under Hindu Law.

The doctrine of factum valet enable to cure the violation of a directory provision. It does
not cure the violation of fundamental or mandatory provision. It is only applicable in
relative prohibitions and not applicable to absolute prohibition.

A Hindu marriage can be solemnised only by following the ceremonial rites. There are
many ceremonies connected with the marriage. Some of them are obligatory and some are
non-obligatory, If a non-obligatory cer-emony is not followed in a marriage, the defect will
be cured by applying the doctrine of factum valet.

The doctrine of factum valet is applicable in the case of marriage and adoption.

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