Note: These notes have not been edited for publication, they are merely shared as were written.

Family Law – I (Hindu Law)
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Unit-I:
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Sources of Hindu Law
- What is Hinduism? It is a way of life.
- Dharma is the duty that you need to perform.
- Hinduism has been in existence since 4000 BC. As of 2024, it would be 6024 years.
- Vedas were revealed by god himself.
- Greeks called him Indoi. The persons who lived beyond Indus Valley.
- The sacred book of Paris, Zend Avesta, called this Hapta Hindu.
- Features of Hindus
  - Plurality of thoughts
  - Tolerance
  - Unity
  - Religion is not dogma, it is insight.
- Hinduism has
  - Dharma - Duty
  - Danda - Punishment
  - Equality before Law
  - Rule Law
- Sukra niti
  - Rule of law will prevail. Even if the person is a king, he must be slain.
- Upanishads
- Mahabharata
- Ardhashastra
- Manusmriti
- Local Village Courts
  - Puga
  - Sreni - trade
  - Kula - community court
- If the persons did not get relief from these courts, they would approach the King’s Court.
Scope and application of Hindu Law
- Who is a Hindu?
  
  Hindu law is applicable only to Hindus so we must ascertain the Hindu law. Even when the law was codified, it was very difficult to define who is a Hindu. Hindus are those who are not Muslims, Parsis, Jews or Christians are known as Hindu. Sikhs, Jains and Buddhists are also included as Hindus.
  
  If the end goal is the realization of the self. Enlightenment or Moksha.
  - By Religion
    - Both parents are Hindus, child also is Hindu.
    - Even if they are not following tenets of Hinduism, they are still Hindu. Even if they are atheist or following Christianity or any other belief, they would be considered Hindu.
  - By Birth
    - One of the parents is a Hindu and the child is brought up as a Hindu, in such cases, they would be raised as a Hindu.
  - Converts and Reconverts
    - Converts: Based on declaration, the community which accepts the person as a Hindu. OR undergoes any ceremony e.g. Shuddhi at Arya Samaj. OR the community accepts, the community which he is intending to go into.
    - Reconverts: Person converted to some other religion but wants to reconvert back. He must be accepted by the community which he intends to join such as Buddhists, Sikh etc.
- Negative Definition
  - Christian, Muslims, Parsis or Jews who are domiciled in India.
  - Abandoned children are treated as Hindus unless they can prove otherwise.
- Other Points to Note
  - Legitimate or Illegitimate children are considered Hindu.
  - Khojas, Cutchi Menons, Bohars Mopals, Halai Menons were converted Muslims and until 1937, Hindu Succession Act was applicable. In 1937, Shariat Act was enacted and after 1937, the said Act was applicable.
  - Section 366(25) of the Constitution defines who are Scheduled Tribes. STs are subject to uncodified law.
  - Section 342 of the Constitution says only those tribes which are selected by the President.
  - Tamil Vaniya Christians who are subject to Hindu Family Law.
  - Before 1850, Hindus that converted into other religions used to lose property rights. In 1850, Caste Disabilities Removal Act 1850 was enacted and it allowed people to have property rights.
  - If the husband is converting to any other religion, the wife can claim separate residence and maintenance according to Hindu Adoption & Maintenance Act Sec 18(2).
    - Vilayat v. Sunila
      - Husband converted to Islam, he wanted to take a divorce.
      - The law at the time of marriage, it would be applicable.
- Myna Boyee v. Dotaram (1861 (8) MIA 400)
  - A Britisher cohabited with a Hindu woman whose husband deserted her. She had 1 child with the first husband and 1 child with second man.
  - The child was brought up as a Hindu and hence was considered a Hindu even though the father was British and of Christian faith.
- Rajkumar v. Barbara (1989)
  - Child was born to a Hindu father and the mother was Christian.
  - The way the child was brought up was not ascertained.
  - The court held that the child is a Hindu.
- Shastri Yagnapurshdaji v. Muldas Bhundardas Vaishya
  - It was held that since they were followers of Krishna, they were considered Hindu.
- Perumal v. Ponnuswamy (1971)
  - Perumal Nader (Hindu) married Anna (Christian) and they decided to raise the child Hindu.
  - After some years, they couple parted ways due to strained relations.
  - Ponnuswamy, the child, sued for 50% of the property. Perumal Nader said he was not Hindu as he was not raised Hindu.
  - The Court held that he was Hindu as he was raised Hindu.
- Mohandas v. Devaswam Board
  - Mohandas, a Christian by birth was singing devotional songs in the Hindu temple. The board sued him as he was Christian.
  - Mohandas declared himself as Hindu and the Board no longer objected.
- Rajagopal v. Arumugam
  - He converted to Christianity and he wanted to contest for some election where he needed to prove that he was a Hindu (SC).
  - For reconverts, they need to prove that the community has accepted them. In this case, he could not prove that he was accepted back by the community. Hence, he was considered Christian.
Schools of Hindu Law
- Ancient
  - Shruti - whatever is heard - Divine Revelation - Gods tell the Sages and they communicate it to the others.
    - Rig Veda 1300-1200 BC - 1017 Slokas
    - Yajur Veda - 1000 BC
    - Sama Veda - 1000 BC - 1549 Slokas
    - Atharvana Veda - 800 BC
  - Smriti
    - Pre Smriti During this time, men turned into Charanas and taught other men. The groups were called Samhita Charanas.
      - Dharma Sutras (800-200 BC)
        
        Shrauta
        
        Sacrifices ceremonies
        
        Grihya
        
        Marriage ceremonies
        
        Samaya Charika
        
        Duties of the men were laid down
        
        Sages
        
        Gautama
        
        Haristamba
        
        Appasambha
    - Post Smriti
      - Dharma Shastras
        
        Manu Smriti
        
        It has 18 parts, it contains everything about marriage, debt, gambling, succession etc.
        
        2964 Slokas.
        
        Yagnavalka Smriti
        
        Brihaspati Smriti
        
        Narada Smriti
      - Achara - Custom
      - Vyavahara - Civil Law
      - Prayashitha - Punishment
  - Customs
    - Validity of a Custom
      - Ancient
      - Continuous
      - Certain
      - Reasonable
      - Not be Immoral
      - Not against public policy
      - Not against law (however, if proven, custom prevails over written law)
    - Kinds of Customs
      - Local Custom
      - Family Custom
      - Guild Custom
      - Caste Custom
  - Digests and Commentaries
    - Digests/Commentaries on Manu Smriti
      - Manutika - Govindaraja
      - Manvarthamukthavali - Kulluka Bhatta
    - Digests/Commentaries on Yagna Varka Smriti
      - Mitakshara - Vijnaneshwara
      - Balakrida - Visvarupa
      - Aparakara - Aparaditya
      - Viramitrodaya - Mitra Mishra
    - South Indian Digests and Commentaries
      - Smritichandrika - Devana Bhatta - A regional digest.
      - Parasana Madhaviya - Madhavacharya - A regional digest.
    - Western Indian Digests and Commentaries
      - Vyvahara Mayukha - hilakantha Bhatta
      - Samskara Kaustuba - Ananthadeva
    - Mithilas
      - Viviadachintamani - Vacharspati
      - Vivada Ratnakara - Chandesvara
      - Madana Parilatha - Vicheshvara Bhatta
    - North East Digests and Commentaries
      - Dayabhaga - Jimuthavahana - Written in 12th century
    - Pertaining to Adoption
      - Dattakachandrika
      - Dattaka m
    - Notes
      - During the time of Warren Hastings, 10 pandits have codified Hindu Law. Later, it was translated into Persian and from Persian, it was translated into English by Halhied and it was known as Halhied Gentoo Code.
      - During the time of Lord Corn Wallis, William Jones, a judge in the Supreme Court in Calcutta, took the help of some pandits and wrote Jaganatha Tharka Panchanana. Jones passed away subsequently and Cole Brooke wrote Vivada Bangarnava.
      - Collector of Madhura v. Mooto Sethupathy commonly known as Ramnad’s case. The case was about whether a widow could adopt a child. The court held that if the husband has granted express consent, the widow could adopt the child. This is of importance as if there was no son, the state (then the British) would take away the property.
- Modern
  - Equity, Justice and Good Conscience
    - Concepts of Nyaya (Justice) and Yukti (Wisdom)
    - Implemented by British when they could not interpret the Hindu law. They applied English law when it comes to matters in India. After 1864, they used English law.
  - Precedents
    - There was no concept of “Stare decisis” in ancient India. “Stare decisis”, means that using precedents to decide future cases.
    - Judges looked at past cases and judgements and they no longer needed to check the law again. This is why it is known as a source of law.
    - Only High Courts and Supreme Courts are known as Court of Record. The lower courts do not have reported judgements.
  - Legislation
    1. Caste Disabilities Removal Act, 1850
      - Abolished legal penalties for conversion to another religion and protected inheritance rights of converts.
    2. Hindu Widows’ Remarriage Act, 1856
      - Allowed Hindu widows to remarry and defined inheritance rules post-remarriage.
    3. Hindu Inheritance (Removal of Disabilities) Act, 1928
      - Removed restrictions on inheritance for disabled individuals within the Hindu community.
    4. Hindu Women’s Right to Property Act, 1937
      - Granted Hindu women, particularly widows, the right to inherit property.
    5. Hindu Code Bill (1950s)
      - Codified various Hindu personal laws, resulting in the following acts: - The Hindu Marriage Act, 1955: Standardized Hindu marriages and introduced divorce provisions. - The Hindu Succession Act, 1956: Defined inheritance laws, initially unequal for daughters. - The Hindu Minority and Guardianship Act, 1956: Regulated guardianship for Hindu minors. - The Hindu Adoption and Maintenance Act, 1956: Governed the adoption process and maintenance responsibilities.
- Mitakshara School (1100-1200 AD)
  - Features
    - Written by Vijnaneshwara
    - Digest and Commentaries of all Smritis
    - Orthodox school of Bengal
  - Sub Schools
    - Benaras School
      - North Bihar
      - Central and Western India
      - Punjab Modified authorities
      - Authorities followed are: Viramitrodaya, Nirnaya Sindhu
      - Widows can adopt a child with express consent of husband during his life.
    - Mithila School
      - Province of Mithila, Tirhoot & adjoining districts (Present day Patna HC jurisdiction)
        
        N: Nepal Border
        
        S: Ganges
        
        E: River Kosi
        
        W: River Gandok
      - Authorities Followed: Vivada Chintamani, Vivada Ratnakara
      - Widows cannot adopt any children regardless of consent of the late husband.
    - Maharashtra or Bombay School
      - Western India
      - Gujarat
      - Kanora and parts where Marathi is spoken
      - Authorities followed are: Viramitrodaya, Nirnaya Sindhu
      - Widows can adopt without any express consent of husband.
    - Dravida or Madras School
      - Entire Madras Presidency
      - Authorities Followed: Smriti Chandrika, Prasara Madhaviya, Saraswati Vilasa, Vyavahara Nirnaya
      - Widow can adopt if the consent of husband was available or with consultation with the kindred i.e. relatives.
  - Marriage: People cannot marry
    - 5 generations on the father’s side
    - 3 generations on the mother’s side
    - Particles of same body theory is applicable.
- Dayabhaga School (1090-1130 AD)
  - Written by Jimuthavahana
  - Only of Digests
  - Progressive School
Differences between Mitakshara and Dayabhaga
- Rule of Propinquity
  - Property rights only for males.
  - Only adnates get property.
  - In Dayabhaga, males and females had rights to the property.
- Unity of Possession
  - Survivorship
- Community of Ownership - Property goes to coparcenaries till 3 generations after the person.
- Pious Obligation (Only in Mitakshara)
  - Son: Pays Principal and Interest
  - Grandson: Principal
  - Great Grand Son: To the extent of the value of the property received by him.
  - It is recognized only in Mitakshara law. It was abolished in Dec 20th 2004 in India.
For migrants, which law is applicable?
Local laws will working. lex loci
Concepts
- Joint Family : any number of generations are known as joint family.
  - Membership: by birth, adoption or marriage
  - Character: Patriarchal
  - Maintenance: Karta takes care.
  - Corporate personality: It cannot be called as a composite family. Karta is liable for any activities of the family.
  - All persons have a right to dwell in the house.
- Coparcenary : father and 3 lineal descendants
- Joint Family Property
- Coparcenary Property
  - Heirs
    - Class 1
    - Class 2
    - Adnates
    - Cognates
  - Full Blood
    - Husband and Wife and their children
  - Half Blood
    - One man has 2 wives and both have 1 child each. This is half blood.
  - Uterine Blood
    - One woman has 2 husbands and one child each. This is uterine blood.
Institution of Karta
- His position is unique - sui generis
- Head of the Hindu Undivided family (HUF)
- Powers and Functions of Karta
  - Liabilities
    - Maintenance of the family members
      - Children
      - Unmarried daughter wedding expenses
      - The expenses are to be borne by the joint family property
    - On partition, he must disclose all the accounts.
    - He represents the family
    - He is liable to pay taxes
  - Powers
    - Power of alienation (transfer of property by way of sale, gift etc)
      - Apat Kale - Legal Necessity
      - Kutumbarthe - Benefit of Estate
        
        [[Jagat Narain v. Mathura Das]] - Land was in a remote place and karta could not take care of the land as it was in a remote place. He sold that property and purchased another property nearby. The court held that Karta had the power as it was for the benefit of the estate.
        
        [[Balmukund v. Kamalawathi]] - the plaintiff’s property was 17/20 share and the other coparcerners were 3/20 share. Plaintiff has influenced the Karta to sell the property to the plaintiff. The coparcenars challenged the sale. The court held that the alienation(transfer) is not valid.
      - Dharmarthe - Indispensable Religious duties
        
        [[Ramalinga v. Sivachidambara]] - on the occasion of the funeral of the father, a small portion was donated to the temple. This was challenged by the coparceners but held valid by the court.
        
        [[Guramma v. Mullappa]] - a small portion was given as a gift to the daughter. The coparceners challenged this but it was held valid by the court citing indispensable religious duties.
    - Other Powers
      - Power of management
      - Right to income
      - Right to representation
      - Power of compromise
      - Refer dispute to arbitration
      - Power of acknowledgement
      - Contract debts
      - Power to enter into contracts
      - Power of Karta trading families
      - Loan on promissory note
Son’s Pious Obligation
- It is the religious obligation of the person.
- If a person takes on a debt and does not repay the debt during his time, he is to be born as a servant, woman or quadriped. - Brihaspati
- If he is indebted, the sacrifices are not valid - CHECK
- All the vyavaharica debts are required to be repaid. Avyavaharica is not good.
- [[Darbar v. Khachar]] - Father erected a dam and obstructed the flow of water for the plaintiff. Plaintiff sued for damages. It was held that since it was a tort, the sons are not liable.
- [[Toshan Pal v. Dt Judge of Agra]] - Father was a secretary of a school and misappropriated funds. The court held that the son was not liable as it was an illegal act.
- [[Jakati v. Borker]] - Father was a Managing Director of a Bank and the bank went into liability due to his negligence. Negligence was a vyavaharica act and the son was held liable to pay.
- [[Logannathan v. Ponnuswami]] - The father collected some amount for minors. It was a criminal offence. The court held that the son was not liable.
Partition
- Bringing the joint status to end is known as Partition.
- It is the severance of the status and the actual division by meets and bounds.
- Some properties cannot be partitioned
  - Apparels
  - Carriage / Vehicles
  - Utensils
  - Horses
  - Cooked Food
  - Water
  - Pastures
  - Female Slaves
  - Dwelling House
  - Garden and Implements for Agriculture
  - Wells, Tanks, Courtyards
- Provision for Deductions for debts
  - Unmarried Daughters - Marriage Expenses
  - Unmarried Sons
  - Maintenance of Females/Widows
  - Performance of certain ceremonies
- Persons entitled for share in the property
  - [[Women’s Property Act 1937]] allows widows to receive the property as a limited estate owner. This means that she can only get to use the property during her lifetime but not after her death.
    - Father’s Widow (Step Mother)
    - Mother
    - Grand Mother
  - If a new son is born after partition was done, the son will get the father’s share.
  - Adopted son
Debts and alienation of property
- Neither the Karta or the coparcenaries have any right to alienate the property.
  - Father’s Power
  - Karta’s Power
  - Sole Surviving Coparcenar Power
  - [[Antecedent Debt]]
    - [[Sahu Ram v. Bhup Singh]] - Father took Rs 200 and mortgaged the property. He took it for his personal use. It was done at the same time. The amount with interest became Rs 15,000. The Coparcernars sued challenging the registration and they were not held liable.

Unit-II:
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Marriage
- Early man lived like a barbarian. Invented fire. Sexual relations were within the tribe. Multiple men with one woman, paternity was usually unknown.
- Some relations were prohibited such as father and daughter, brother and sister etc.
- Eventually the relations within the tribe were prohibited and only relations outside the tribe were permitted.
- Eventually, paternity was to be ascertained and men enforced the institution of marriage and forbade adultery. Adultery was punished.
- For a marriage to be sacrement
  - A permanent union
  - An eternal union
  - A holy union
- Marriage today is both a contract and a sacrement
- Manu states that once a marriage is fixed, the bride’s father can cancel the marriage in case of a better suitor being found. Narada Smriti says once a marriage is fixed, it cannot be cancelled.
- Forms of Marriages
  - Approved (Prashastha)
    - Brahma
      - Father of the girl would select a Brahmin groom who had good conduct and decked up the girl and performed the marriage
    - Daiva
      - Father of the girl would deck up the girl and give the girl to the person who did the sacrifices (homams)
    - Arsha
      - A pair of cows/bulls were given the bride’s father/family and the girl would be married to the groom.
    - Prajapatya
      - Father ensures the good groom is selected and the girl is married off and blesses the couple.
  - Unapproved (Aprastha)
    - Asura
      - Wealth is given to the father of the girl and his relatives by the groom and the marriage is performed with the girl.
    - Gandharva
      - The boy and girl with their consent, exchanged garlands and had sexual relationships. Typically in some kind of secluded place.
    - Rakshasa
      - The girl is crying/weeping but the girl would be eloped by the groom and marriage would be performed.
    - Paisacha
      - When the girl is sleeping/intoxicated, the groom comes and kills the relatives of the girl and marries the girl.
- Engagement practice was there even in the ancient times.
- Ceremonies as mentioned in Grihya Smriti
  - Vridhi Sraha - offerings to the ancestors
  - Sampradana - groom’s feet are washed and honored
  - Kanyadana - bride is given in marriage and stated that during ardha, kama, moksha the bride should be part of you.
  - Dakshina - father of bride gives a piece of gold to the groom
  - Vivaha homa -
  - Mahavayahritu - offerings to the earth, sky and heaven
  - Panigrahana - offerings to Varuna and Agni.
  - Agni parinaya - Three rounds around the holy fire
  - Saptapadi - seven steps
    - Food
    - Strength
    - Wealth and Prosperity
    - Comfort
    - Progeny
    - Enjoyment of seasons
    - Friend/Sakhi (be united to me)
  - All the ceremonies are performed by chanting of mantras. The marriage is a sacrament as it has been performed with these ceremonies.
- Definition
  - “Marriage is an institution or set of norms which tetermine the particular relation of harmony to each other and to their children” - Mark and Yung.
  - “Marriage is a contract for the production and maintenance of children” - Malinowski.
  - “Marriage is the appoved social pattern whereby two or more persons establish a family” - Harton and Hunt
  - “Marriage is the public joining together under socially specified regulation of man and woman as husband & wife” - Alfred Mc Cling Lec
  - “Coming together of man and woman is necessary for fulfillment of the threefold ideals of life i.e., Dharma, Artha, and Kama” - Manu.
- Importance of institution of marriage under Hindu Law
- Conditions of Hindu Marriage
- Ceremonies and Registration
Monogamy and Polygamy
Recent Trends in the institution of marriage
Hindu Marriage Act 1955
- Came into force on 18th May 1955
- Sections
  - Sec 1 - 4 | Title | Extent - Applicable to whole of India and Hindus anywhere in the world if they perform marriages in Hindu way| Definitions
  - Sec 5 & 7 | Conditions of Valid marriage
    - Section 5
      - Monogamy - S 5(i) - either of the spouse should not have another spouse living and any such marriage would be bigamous and the second/subsequent marriage would be void.
        
        If the marriage is not yet performed, the 1st wife alone could file an injunction u/s 9 of CPC r/w S 38 of [[Specific Relief Act]].
        
        If the marriage is performed, the 1st wife alone could file a suit u/s 9 of CPC r/w S 34 of [[Specific Relief Act]] to declare the second marriage void.
        
        Wife can also file under S 494 of IPC / S 82(1) of BNS.
        
        If X and Y are married and X marries Z whilst being married to Y, X is punishable under S 495 of IPC or S 82(2) of BNS.
        
        Sarala Mudgal v. Union of India and Lilly Thomas v. Union of India are cases where the Supreme Court has held that in case a spouse has changed religion and wishes the marry in accordance with the personal law of the new religion, it held that the first spouse must be divorced before new marriages can be performed.
        
        This is a mandatory condition.
      - Capacity or Sound Mind S 5(ii) (Mental Disorder, physical capacity, idiot, insanity, epilepsy, impotence etc)
        
        This is a recommendatory condition.
        
        Laxmi v. Babulal - The woman had no vagina and it was inserted after medical intervention and did not amount to impotence.
        
        M v. S - they had medical intervention and it did not amount to impotence.
        
        Ganeshji v. Hastuben - they had medical intervention and it did not amount to impotence
        
        Rajendra v. Shanti - 1.5in of vagina was inserted and it did not result in impotency.
        
        Unable to menstruate and could not have children but was able to have sexual relations and was NOT declared as impotency
        
        Prajapati v. Hastubai
        
        Shewanti v. Bhaura
        
        Alkasharma v. Avinash Chandra - if both physical and mental conditions are present and the other spouse is unable to continue in the marriage, the court can nullify the marriage.
        
        Triveni Singh v. State of UP - The woman had a HIV infection and the court held that the court could not nullify the marriage.
      - Marriageable Age S 5(iii)
        
        This is a recommendatory condition.
        
        In the Act, it says that man should be 21 and woman should be 18.
        
        However, “[[Doctrine of factum Valet]]” applies and once a marriage is performed and the marriage continues to be valid. One must remember that the Child Marriage penalties would be imposed even though marriage continues to be valid.
        
        Punishment maybe imposed on
        
        Bride
        
        Bridegroom
        
        Parents of Bride and Bridegroom
        
        People who have attended the marriage
      - Outside the Prohibited degrees - S 5(iv)
        
        This is a mandatory condition.
        
        Marriages are not allowed unless there is a custom.
      - Outside the Sapinda Relationship - S 5(v)
        
        This is a mandatory condition.
        
        Oblation or Rice Ball Theory - Jimuthavahana
        
        Anyone who will be given the Pindas cannot be married.
        
        Particles of Same body theory - Vijnaneshwara
        
        Mother’s side - cannot marry 5 degrees
        
        Father’s side - cannot marry 7 degrees
        
        Samana Gothra or Binna Gothra
        
        Samana Gothra - Same gothra cannot be married
        
        3 generations from mother’s side - agnates
        
        5 generations from father’s side - cognates
        
        Binna Gothra -
        
        Sa Gotra or Sa Pravara are prohibited.
        
        Hindu Law does not permit Hindus to marry other religions if the other person does not convert to Hinduism in India. Though the lex loci would apply in other countries.
        
        In India, Hindus can marry other religions under Special Marriage Act.
        
        Anuloma or Pratiloma
        
        Anuloma - Superior Caste male marries an inferior caste female.
        
        Valid in Bombay, Assam and Bengal.
        
        Pratiloma - Superior caste female marries an inferior caste male. - This was considered invalid in all the schools of Hinduism.
        
        Britishers passed a law called Hindu Marriage (Removal of Disabilities Act 1946) which permitted inter-varna (caste) marriages.
        
        Exogamy - marriage outside the family
        
        Endogamy - marriage inside the family
    - Section 7
      - Customary Ceremonies and rites
      - Some customs
        
        Jats - Put a red vermillion cloth on the bride
        
        Buddhist - No ceremonies
        
        Kareva - No ceremonies
        
        Nairs - Only tying of the knot is sufficient
        
        If the marriage is performed according to the ceremony, it is considered valid.
      - Customary Ceremonies
        
        No ceremonies - not valid
        
        Mock ceremonies (such as exchange of garlands) - not valid
        
        DNA Mukerji v. State - Case of Bigamy, first wife sued. The first marriage was not performed according to ceremonies.
        
        Devianachhi v. Chidambara Chettiar - This was an anti purohit organisation and they exchanged garlands and announced that they were married. It was held that it was not a valid marriage.
        
        Ramchandra v. Majnu - Not a valid marriage as it was a Gandharava marriage and they could not prove that it was a custom.
        
        Bhauro Shankar Lokhande v. State of Maharashtra - they could not prove that it was a custom that led to a different type of marriage and held that the law prevailed and it was not a valid marriage.
        
        Shri Nitin s/o Omprakash v. Smt Rekha v/o Nitin Agarwal - Man applied Sindoor on the woman’s forehead and claimed they were married and started living together as husband and wife. The court held that it was not a valid marriage.
        
        Surjit Kaur v. Garja Singh - They did not perform any ceremonies and started living as husband and wife for long time. It was held that this was not a valid marriage.
        
        Sumit Suhash Agarwal v. Kamlesh Lalyita Prasad Gupta (2018) - Kept a bunch of agarbattis (incense sticks) and took seven steps (sapta padi) and the court ruled that it was a valid marriage.
        
        S. Nagalingam v. Sivagami - Saptapadi was not performed and they claimed that the customs were followed and their customs and proved it. It was held that the marriage was valid.
        
        Essential ceremonies - Valid
        
        Kanya dana
        
        Panigraha
        
        Vivaha Homa
        
        Sapta Padi
        
        Either of the parties ceremonies are performed (e.g. Hindu marries a Jain and either of the ceremonies are performed) - Valid
      - Shastric Ceremonies
        
        Ganapati Puja
        
        Nandi Devatha Aradhana
        
        Gowri Puja
        
        Snataka ceremony
        
        Kasiyatra
        
        Kanya dana
        
        Pani graha
        
        Sapta padi
  - Section 8 | Registration
    - Central Government lays down the procedure for registration of a marriage.
    - AP Compulsory Marriage Registration Act 2002 mandates the registration of marriages. However, only Rs 25 fine is present regardless of the delay.
    - In case of Special Marriage Act, registration is mandatory. Other rules such as
      - 30 days notice
      - Both parties must be 21 regardless of bride or groom
      - No bigamy is permitted.
      - Need to live in the district for at least 30 days before applying to get married under SMA.
      - Parties must not be between the prohibited degrees.
  - Section 9 | Restitution of Conjugal Rights
    - Conjugal Rights are those which are available to husband and wife after marriage
      - Cohabitation
      - Comfort and company of the partner
      - Sexual relationship
    - RCR
      - Withdrawal of the conjugal society of the spouse without reasonable cause.
        
        Only Desertion is valid reason for withdrawal from the society and RCR can be claimed for this.
        
        Taking care of parents of spouse is not a reason for RCR.
        
        Spouse does not like the spouse and is unwilling for sex. This is not a reason for RCR if they are staying together.
        
        Spouse is forcing to eat meat and she is unwilling. This is a reasonable cause.
      - Case laws
        
        A.E. Thirumal v. Rajaram - Agreements before marriage are invalid. They agreed to live separately after marriage but court held that the agreement was void.
        
        Mirchumal v. Devi Bhai - Man didn’t want wife to work as she was living in Bombay away from the matrimonial home. RCR was denied by the court as the wife was interested in coming whenever she could.
        
        Pravinaben v. Suresh Bhai - Wife worked elsewhere and the court held that RCR was not enforceable as she working elsewhere is not a reasonable cause for RCR.
        
        Kamuvimarthi v. Prameshwara Iyer - Husband wanted wife to leave her job and join her in his business. He filed RCR. It was held that it was not a reasonable cause.
        
        Vuyyuru Pothuraju v. Radha - Pre-marriage agreements to stay separately are void. The husband agreed to stay with the foster father’s house of the wife. Husband could not adjust there and returned. RCR was granted as pre-marriage agreement is void.
        
        Ramchandra v. Adarsh - wife went to her parent’s place and gave birth to a child through caesarian. The husband did not visit the baby or wife though it was near to his place. The husband filed for RCR. The RCR order was not passed as this was considered a reasonable cause.
        
        Ashok v. Shabnam - Wife left the house of in-laws after constant demands of dowry and harassment. RCR was not granted when husband filed for RCR as the wife had a reasonable cause for leaving the home.
        
        Darshan Ram v. Maya
        
        Gurdeep Singh v. Ranjit Kaur
        
        Charan Singh v. Jaya
        
        Rajendra Prasad v. State of UP
        
        All the above cases are similar. Husbands left the wives, wives filed for maintenance, husbands’ filed RCR petitions to counter the maintenance petitions.
        
        Veena Handa v. Avinash - Wife file a petition for maintenance after he deserted her, In order to frustrate the wife, husband distributed the properties among the relatives. RCR was approved. Husband did not comply. Trial court granted divorce, during the appeal, he married a 2nd time. High Court reversed the decision on appeal.
        
        Bitto v. RamDeo - Wife filed for maintenance. Husband claimed that the wife was not chaste and was living an adulterous life to frustrate the wife. Maintenance was granted.
        
        Satyanarayana v. Veeramani - Wife was left by the husband and husband filed for RCR (intending for divorce). Wife contended that husband was the deserter. RCR petition was dismissed as husband himself was the deserter.
    - Constitutional Validity of Sec 9 of HMA
      - Sareetha v. VenkataSubbaiah (AP) 1983 - the court held that Sec 9 of HMA was violating Art 14 and 21.
      - Havinder Kaur v. Harmandar Singh (Delhi) 1984 - the court held that Sec 9 of HMA does not violate Art 21 as the idea is to provide cohabitation and consortium.
      - Saroj Rani v. Sudershan Kumar (SC) 1984 - wife was driven out of her matrimonial home, she filed for RCR and Maintenance. He paid maintenance, the Supreme Court held that Sec 9 of HMA does not violate Art 21 and 14.
  - Sec 10 & 13 | Judicial Separation and Divorce
    - Section 10 - Judicial Separation - Conjugal Rights are suspended
    - Section 13(1) - Divorce - Marriage is now cancelled
    - Grounds
      - Physical and Mental
        
        Adultery (i)
        
        Cruelty(i-a)
        
        Shyamalata v. Suresh - Husband filed for divorce as wife complained against the in-laws and husband. The proceedings were dropped before it reached court. It did not amount to cruelty.
        
        Kalpana v. Surendra - Wife lodged a complaint against the family of husband under IPC 498A. The husband filed for divorce. The court held that it amounted to cruelty.
        
        Sushil v. Usha - Wife terminated the pregnancy without intimating the husband. The court held that it amount to cruelty.
        
        Madanlal v. Sudesh Kumar - Wife gave birth to an illegitimate child 6 months into marriage. The court held that this was cruelty.
        
        Ramesh Chander v. Savitri -
        
        Bhagwat v. Bhagwat - husband strangulated brother in law and youngest son. The court held that it is cruelty.
        
        Kiran v. Surender -
        
        Shyam Sunder v. Shantadevi - Wife was ill-treated and not given food. She was also confined to a room. The other members of the joint family sat idle. It amounted to cruelty.
        
        Gopal v.Mithilesh - Husband was neutral and did not side with either mother or wife. Court held that it was not cruelty.
        
        Deva Kumar v. Thilagavathy - Wife was treated very badly and she was driven to commit suicide. The court held that this was cruelty.
        
        Desertion: Desertion as a ground for divorce in India is defined under Section 13(1)(ib) of the Hindu Marriage Act, 1955. It refers to the intentional abandonment of marital obligations by one spouse towards the other without reasonable cause and without consent. To establish desertion, the following key elements must be proven:
        
        Actual Desertion
        
        Factum of Separation - This refers to the physical separation of the spouses. The petitioner must prove that the parties have ceased to cohabit and live apart. This separation can be physical or mental, but there must be a clear break in the marital relationship.
        
        Animus Deserdendi - iThis is the intention to desert permanently. The deserting spouse must have the deliberate intent to abandon the matrimonial obligations and end the marital relationship. A temporary separation due to anger or other reasons does not constitute desertion.
        
        Without any reasonable cause - The desertion must be without any justifiable reason. If there is a valid cause for leaving, such as abuse or safety concerns, it may not be considered desertion.
        
        Without the consent - The deserted spouse must not have agreed to or consented to the separation. If both parties mutually agree to live apart, it is not desertion.
        
        Statutory period of 2 years should run. - The desertion must continue for a continuous period of at least two years immediately preceding the filing of the divorce petition. This two-year period is crucial, and the desertion must persist throughout this duration.
        
        Cases
        
        Bipinchandra v. Prabhavathi - Married in 1942, lived happily till 1946. In January 1947, Mahendra, a friend of Bipin came to live in their house. Bipin went abroad. Bipin’s father gave Bipin a letter and told him that Mahendra gave her the letter. When Bipin confronted the wife, she denied. She left the house on May 24th 1947. Her cousin’s wedding was there in June. In July Bipin sent a legal notice to Prabhavati asking to send the child back. In Nov, the wife’s parents were willing to send her back. The husband did not want the wife and only wanted the child. The husband filed for divorce citing desertion. The court held that it was not cruelty as she had no intention to desert.
        
        Lachman v. Meena - Married in 1946, happy till 1954. Wife went abroad and husband filed for divorce citing cruelty and desertion.
        
        Rohini v. Narendra Singh - Husband was petitioner. Wife left the matrimonial home after 2 years. Husband married a second time the day before the HMA Act was to come in force. Bigamy was allowed at that time. Court ruled that she was cruel.
        
        Jagannath v. Krishna - Wife became Bramhakumari. Court held cruelty.
        
        Teerath Ram v. Parvathi - Wife wanted to live in a separate house. Court held that it was not desertion.
        
        Angalla Padmalatha v. A. Sudershan Rao - Wife left the house for delivery. She never came back. Court held that it was cruelty.
        
        Sunil Kumar v. Usha - Atmosphere of matrimonial home was not conducive. Court held that it was not cruelty.
        
        Constructive Desertion
        
        Wilful Neglect
        
        Insanity (iii)
        
        Venereal diseases (iv)
      - Time Limit
        
        RCR or JS
        
        Desertion (i-b)
        
        Not heard of in 7 years (vii)
        
        Presumption of death aka civil death.
      - Other Factors
        
        Religious Conversion (ii)
        
        Renunciation (vi)
        
        Sanyasa Ashrama: A person’s funeral rights will be performed and name will be changed.
        
        This is a ground for divorce as it can be considered for desertion.
        
        A person who has renounced worldly pleasures.
        
        Irretrievable Breakdown (S.13A)
        
        They must reunite after 1 year of RCR being passed or else the petitioner of RCR can file for divorce.
        
        In case of judicial separation, they can approach for divorce after 1 year.
        
        Mutual consent (13-B)
        
        Living separately for over 1 year
        
        Not able to live together
        
        Mutually agreed to separate
        
        They will file a petition for mutual consent, both will be petitioners and wait for 6 months. After 6 months, they have 18 months to move the motion to complete.
        
        Cases
        
        Amardeep Singh v. Harveen Kaur - parties were living separately since 2008 but filed the petition in 2017. They asked for the waiving of the cooling off period of 6 months. Court placed conditions
        
        All reconciliation attempts under Family Court Act Sec 9 and S23(2) of HMA have been exhausted
        
        Custody of children, maintenance, Alimony and others have been settled.
        
        Irretrievable breakdown
        
        Court can grant waiver of the 6m waiting period and allow the motion for divorce after 7 days of the original petition.
        
        Vaibhav Pancholi v. Priya (2022) - Marriage was performed in 2020, the couple was living separately for 14 months. Court granted the cooling off period as the husband had to go abroad for his work as a software engineer.
        
        Vandana Goal v. Prashant Goal (MP 2022) - Couple stayed together for only 12 days and reconciliation attempts failed. Permanent alimony of Rs 1 cr was paid and settled. Court waived the 9 days period remaining for the 6 months to complete.
        
        Anil Kumar v. Maya Jain
        
        Poonam v. Sumit Tanwar
        
        The above 2 cases, the court waived the 6m cooling off period.
        
        Nikhil Kumar v. Rupali Kumar - Couple married in 2011, filed for divorce in 2016. Wife had to go to UK, family court rejected waiving of cooling off period. The Supreme Court granted the relief.
      - Only available for wife (S.13(2))
        
        Husband having 2 wives
        
        Polygamy was permitted before 1955 HMA.
        
        This provision is obsolete as nobody has multiple wives now.
        
        Rape, Sodomy, Bestiality
        
        These are unnatural offences. However, the court has decriminalised these unnatural offences. S377 of IPC.
        
        This is still a ground for divorce.
        
        O/U S.144 of BNSS/S.125 of CrPC | O/U S.18 of HA&M Act
        
        If an order of maintenance is out, resumption of cohabitation must happen after 1 year. Wife can file for divorce after 1 year.
        
        Marriage under 15 years of age
        
        Wife must repudiate the marriage between age 15-18. Must file for divorce between age 18-19 as she would be major only at that time. She would not be able to file for divorce after age 19.
  - Sec 11 & 12 | Void and Voidable Marriage | Nullity of Marriage
    - Absolute Impediments (void ab initio) S11
      - S5 (i), (iv),(v) - Bigamy, Prohibited Degrees, Sapinda - The marriage is void.
      - Narinder Pal Kaur Chawla v. Manjeet Singh Chawla
      - Badshah v. Urmila Badshah Godse
      - In both the above cases, the husband was married and failed to inform the second spouse and married them. The court awarded them maintenance.
      - Prabhjot Singh v. Prabhjit Kaur - The marriage was between the sapinda relationship and also by force. Husband contended that Hindu Law does not apply to him but failed to prove so. The court held that the marriage was void ab-initio.
    - Relative Impediments (voidable) S12
      - This is a perfectly valid marriage unless it is voided.
      - These sections were incorporated from English law as it is. The mistakes of the section are prevalent. An example is if a marriage is nullified, the marriage is void from the beginning and children become illegitimate. This is one of the mistakes that were incorporated into the HMA from English law.
      - Grounds for voidable marriage
        
        Impotency
        
        Shawanti v. Bhawrao - Wife could not menstruate. However, she was able to have sexual intercourse. Court held that this was not grounds for nullifying marriage.
        
        Samar Som v. Sadhana Som -
        
        Beena Cherian v. K.S. Varghese
        
        The 2 above cases there was no uterus, it was removed prior to the marriage. The court held that since they were able to have normal sexual relationship, it was not grounds to nullify the marriage.
        
        Jagannath Mudali v. Nirupam Behra - Wife was not able to consummate the marriage. Court held that it was grounds for nullifying the marriage and annulled the marriage.
        
        Jagdish Lal v. Shyama Madan - Husband could not have sexual relations with his wife but he was able to with other women. The court held that it was impotency towards his wife and annulled the marriage.
        
        Smt Suvarna v. G.M. Acharya - husband could not have sexual relations with his wife and the court annulled the marriage.
        
        Manjit Kaur v. Surrender - Wife stayed with husband for 7 days and later for 15 days and the husband could not perform. The court annulled the marriage.
        
        Insanity | Unsoundness of mind | Mental disorder | Epilepsy S12(i)(b)
        
        If it is before marriage, it is grounds for a voidable marriage. Unsoundness after marriage, it is only grounds for divorce.
        
        Muneshwar Dutt v. Smt Indra Kumari - Court held that if the unsoundness has developed, it is only grounds for divorce and not for annulment.
        
        Ram Narain Gupta v. Rameshwari Gupta - Court held that the unsoundness should be at a level which makes the spouse unable to live, that is grounds for annulment.
        
        Kollam Chandra Sekhar v. Kollam Padmalatha - Wife was taking treatment for schizophrenia and the court held that it was valid grounds for annulment.
        
        R. Lakshmi Narayan v. Santhi - The husband, after living for 25 days with the spouse, filed for annulment citing the wife has a mental disorder. Though, he had met the girl many times before the marriage and did not decline. Court dismissed the petition citing that he had ample opportunity to ascertain the same before the marriage and he went into the marriage of his own volition.
        
        Force or Fraud
        
        To be repudiated within 1 year
        
        Repudiation at the relationship since then
        
        Ford v. Stier - He said it was a bethrothal but instead performed a marriage ceremony. The wife filed a petition for annulment.
        
        Bimla v. Shankarlal - Concealment of religion or caste is fraud and grounds for annulment. There was an illegitimate child also but he claimed that the first wife died and the child was illegitimate.
        
        Harbhajan v. Brijbala - Father-in-law assured the groom that the girl was a virgin. However, she was not a virgin and also had a child.
        
        Som Dutt v. Raj Kumar - wife was 7 years older than the husband and this amounted to fraud.
        
        Anurag Anand v. Sunita Anand - They misrepresented the status, income and property and it was fraud.
        
        Bawi v. Ram - The girl overheard her parents saying that the boy was about 30y old. However, the groom was 60. The court annulled the marriage.
        
        Kaur v. Singh - M
        
        Wife is pregnant with another’s child
        
        Ignorant of the fact
        
        Within 1 year from the date of marriage a petition must be filed.
        
        Repudiation of the relationship since then
        
        Case laws
        
        Mahendra v. Shushila - child was born to wife after 171 days while the gestation period is 280 days. Husband and wife did not meet prior to the marriage. Marriage was annulled.
        
        Baldeo Miglani v. Smt Urmila Kumari - Marriage too k place on 8th July 1960 and birth to child on 6th Dec 1960. Child was born on 157th day. Marriage was annulled.
        
        Ravena Siddappa v. Mallikarjun & Other - Illegitimate child will be not provided any ancestral property and is entitled only to the self-acquired property of the father.
        
        Bharatha Matha v. Vijaya Ranganathan - illegitimate child will be eligible only for the father’s separate property.
  - Sec 14-30 | Other provisions
    - Sec 14 - Fair Trial Rule
      - After marriage, they cannot file any petition for divorce or judicial separation for a period of 1 year after the marriage has been performed. Only in the case of exceptional hardship or deprivity can they file in less than 1 year.
      - This 1 year period is given so that they can learn to adjust to live with each other.
      - Vishnu Das H. v. Nil - Marriage was performed on 7/11/2019. The girl stayed at the in-laws place only on the night of the marriage and never returned. Despite several mediation attempts, she never returned. On 11/01/2020, they filed for divorce. The trial court dismissed the case, the high court granted divorce.
      - Akshara v. Rohin S. Raveendran - filed a petition for in less than 1 year, the court held that waiting 1 year won’t serve any purpose.
      - Manish Sirohi v. Smt Meenakshi (2007) - Parties voluntarily wanted to withdraw from the matrimony. The court held that continuation of marital relationship would be mental trauma and granted divorce in less than 1 year.
      - Gijoosh Gopi v. Sruthi - Marriage lasted less than 1 day. The court granted divorce in less than 1 year.
    - Section 15 - When can the divorcees marry again
    - Section 16 -
      - Children of a void marriage are entitled to the parents’ share of the property and not the coparcenary. Only upon the death of the father are they entitled to some coparcenary property.
      - Gowri Ammal v. Thulasi Ammal - First marriage was void. Man married again and second marriage was valid. The daughter and wife asked to be included in the partition. The court did not declare the marriage null and void and hence the daughter and wife were not entitled to any property as this was before the 1976 Amendment.
      - Shantaram v. Dagubhai - Man married C while being married to B. B has 3 daughter. C had 1 son. Court held that the C’s son was entitled to the property share and that the wife (C) was entitled to alimony.
      - If A and B are married but B(woman) has an extramarital relation with X and they have a child. The child would be only entitled to B’s property. The child would not be entitled to the property of A or X. X would be called Putative father.
    - Section 17 - Conditions of a valid marriage
    - Section 18 - Punishment for Child Marriage or Prohibited Degrees or Sapinda relations
    - Section 19 - Jurisdiction of Disputes
      - Husband
        
        Place of marriage being performed
        
        Place where the respondent is staying
        
        Place where they have last resided.
      - Wife
        
        Where the petitioner resides.
        
        Where the respondent is residing.
      - If the other spouse is out of the country, it can be filed anywhere.
      - If the whereabouts of the respondent are not known.
    - Section 20 - Contents of the Petition must be verified
    - Section 21 - Procedure of CPC
    - Section 22 - In-camera Proceedings
    - Section 23 - Bars to Matrimonial Reliefs
      - S.23(1)
        
        Doctrine of Strict Proof
        
        Burden of proof falls on the petitioner
        
        Respondent contests
        
        Taking advantage of one’s own wrong
        
        Accessory, connivance, condonation
        
        Case laws about condonation
        
        Topan Kumar v. Jyotsna - Wife filed several criminal cases and she later withdrew all the cases. They stayed together for 1.5 years. Husband now filed for divorce citing 1.5 years of cohabitation. The court held that the period of 1.5 years of cohabitation is equal of condonation.
        
        Chandra v. Avinash - With complete knowledge of adultery, the couple stayed together. The court held that this is accepted as condonation.
        
        Collusion
        
        Delay
        
        Case laws
        
        Kuppa v. Rama - Husband filed a petition for divorce after 7 years of living separately. He explained the delay by citing that he was attempting to restore the relationship by persuading the wife.
        
        Teja Singh v. Surjeet Singh - Wife left husband and filed for RCR after 7 years. Court held that it was an improper delay.
        
        Any other legal ground
      - S.23(2) - Reconciliation
        
        The court must make attempts to reconcile, this is a mandatory process. The only exception is if the petition is filed on the ground of insanity, venereal diseases, not heard of for 7 years.
    - Section 24 & 25 - Ancillary reliefs
      - Under English law, only wife can claim. In Indian law, both husband and wife can claim.
      - Maintenance Pendete lite (interim maintenance)
        
        Right to claim maintenance is an independent right. Pendete lite means pending proceedings - interim maintenance.
        
        This petition must be disposed off before 60 days after serving the notice.
        
        Maintenance is for people who do not have independent income (not assets).
        
        Maintenance is paid according to the status of the party. For food, shelter, clothing, medical expenses, unmarried daughter’s marriage expenses. For spouse and dependents (until age 18 for children).
        
        Maintenance cannot exceed the income of the other spouse.
        
        The court will consider the income of the claimant and the non-claimant.
        
        Maintenance must paid till
        
        Death of the spouse
        
        Re-marriage of the spouse
        
        Adultery by either of the spouse
        
        Co-habitation of the spouses.
        
        No condition can be placed on the payment of maintenance.
        
        Case Laws
        
        Indra Paul Kaur v. Tejinder Pal Singh - Court held that according to the actual needs of the parties the maintenance should be paid.
        
        Remani Menon v. K.G. Omnal Cuttar - court held that maintenance not only includes food, shelter, clothing, but also basic education also is part of this.
        
        Yashpal Singh Thakur v. Smt Anjana. - Husband was a auto-driver and stopped driving the auto and claimed maintenance from wife. He did not receive any maintenance.
        
        Rani Sethi v. Sethi - Wife paid Rs 20,000 maintenance, Rs 10,000 legal costs, and a Zen car was also given to the husband. Delhi HC.
      - Permanent Alimony S.25(d)
        
        It can be granted by the court, only at the time of passing the decree or after the decree is passed.
        
        It is an allowance paid in a one-time settlement based on the status, assets.
        
        If alimony is paid, you need not pay the maintenance.
      - Maintenance Enhancement
    - Section 26 - Custody of Children
      - At the time of disposing off the maintenance petition, the custody is also decided.
    - Section 27 - Joint Property
      - In case of any property purchased while married, it is joint property.
      - Either one spouse must buy out the other spouse or the property must be sold and the proceeds must be distributed.
      - Case laws
        
        Prathibha Rani v. Suraj Kumar - Court held that the ornaments and dowry was to be returned.
        
        Sunita Shankar Salvi v. Shankar Laxman Salvi - Divorce was by mutual consent. They purchased a marriage after the divorce they sold off the property and court held that the sale consideration should be divided among the spouses.
    - Section 28 - Appeal
      - Appeal can be filed within 90 days. No appeals for only costs.
    - Section 29 - Customs
      - All customs prior to 1955 are saved.
    - Section 28A - Enforcement of Decree
      - It can be enforced according to the CPC.
    - Section 30 - Repealed.

Unit-III:
#

Matrimonial Remedies under the Hindu Marriage Act, 1955
- Restitution of Conjugal Rights
- Nullity of marriage
- Judicial separation
- Divorce
  - Grounds for Divorce for Husband and for wife
  - Customary Divorce S.29(2)
    - Typically in Matriarchal societies such as Kerala
    - Bill of divorcement or Tyaga Patra or Farkatnama
    - This is oral or written.
    - They were developed under the British rule and they continue till date.
    - Premabai v. Channolal - Girl was 14 when she took the divorce. She later filed a petition in the court that she was 14 and did not know what she was doing. She wanted to cancel the divorce. Court held that the divorce stands.
    - Special Enactments under British Rule
      - Madras Aliasantana Act 1924
      - Travencore Ezhava Act 1925
      - Cochin Nayar Act 1931
      - Madras Marumakkathatya Act 1933
      - Cochin Marumakkathatya Act 1938
      - As per these Acts, divorce can be filed by mutual consent with an agreement without having to go to court. They apply only to matrilineal societies. HMA provisions of Maintenance, custody of children, alimony etc don’t apply to these people as these Acts already contain the details.
- Maintenance pendente lite
- Importance of conciliation
  - Some person who is trusted by both parties will be settling disputes.
  - Faster and cheaper than litigation.
  - Promotes welfare of the needy women.
  - They don’t want to discuss everything outside and can resolve it privately.
  - Conciliator must counsel the spouses.
- Role of Family Courts in resolution of matrimonial disputes (Family Courts Act 1984)
  - Family Courts Act 1984 has 23 Sections and 6 Parts
  - These courts were established to ensure speedy trial and quick settlement of disputes. However, the intent is to help the matrimonial home.
  - Durga Bai Deshmukh went to China and noticed it and proposed it to Nehru. This was also recommended by the 54th Law Commission.
  - The first family court was established in Rajasthan.
  - Jurisdiction
    - RCR
    - Property of Married Couples
    - Injunction can be granted
    - Claim of maintenance
    - Custody of the children
    - Access to the Children - Visiting Rights
  - Outside Jurisdiction
    - Declaration of illegitimacy of the child
    - Guardianship of the minor
    - Property of the minor
    - Suits relating to the mother, sisters, brothers
    - Suits for declaration that the father must provide funds for the daughter’s marriage
  - Appointment of Judges (as per Central Government Rules)
    - Qualification
      - 7 years practice as an advocate | 7 years experience as a judicial officer
      - Exam and interview would be there.
  - Family Court works with NGOs (S.9 mandates reconciliation attempts)
  - S.8 District Courts cannot entertain the Family matters if there is a Family Court in that jurisdiction.
  - Execution of decrees is as per CPC. For maintenance, CrPC provisions will be applicable.
  - S.11 Proceedings can be conducted in-camera at the request of the parties.
  - Court may take advice of medical and other experts.
  - The party has no right to engage an advocate at the time of filing the petition. Later, they may appoint as an advocate with the permission of the Court.
  - Judgment maybe concise. It need not be lengthy.
  - Evidence will be typed and the deposition will be signed.
- Recent trends of marriage
  - Live-in relationship: Live-in partners can also claim maintenance under Domestic Violence Act 2005.
  - Late Marriages: People are getting married later. They want to settle down first and later they want to marry.
  - Married couples having fewer children: Due to having higher cost of living, the married couples are having fewer children.
  - Rise in Marriage Counselling: Disputes between husband and wife are rising.
  - Youth influenced by Westernisation and Modernisation: Disputes are arising due to Western ideals.
  - Change in Aim and Purpose of Life: Marriage was a holy union at one point of time. Today, it is being considered by some as a contract.
  - Change in the process of mate selection: Choice is given to girls. In the past, it used to be decided by the families.
  - Change in the field of selection: They used to marry in the same caste. Nowadays, they are going for inter-caste/inter-religion marriages. They are now choosing the best person they feel. Good looking, high income, love etc.
  - Increase in Divorce and Desertions: After 2010, the increase in divorces and desertions and higher petitions for divorces are being filed.
  - NRI Marriages: Women face many issues with the NRI marriages.
    - Wives sent back to India after honeymoon.
    - Wives cruelly beaten
    - Husbands are already married abroad.
    - As per S.44A of CPC, if they are in a reciprocating country, the judgment is valid. For e.g. USA is not a reciprocating country. The divorce take there is not valid.
      - Harmeeta Singh v. Rajat Taneja - Parties filed for divorce in USA. The wife approached High Court and court restrained the US proceedings in this matter.
      - Neeraga Sharaph v. Jayant v. Sharaph - if marriage is performed in India, the divorce can’t be take in any other country and adequate alimony is to be paid to the other spouse.
      - Legal Remedies
        
        Passport can be confiscated
        
        Rajiv Dayal v. Union of India
        
        Ministry of External Affairs can help
  - LGBTQIA - They are recognised as a third gender. Marriage is not recognised.
    - Types
      - Lesbian - Female and Female
      - Gay - Male and Male
      - Bisexual - Sex with male and female
      - Transgender - They are interested in sex change
      - Queer - Complicated
      - Intersex - Neither male nor female
      - Asexual - Not interested in any sex.
    - Narada Smriti and Other Smriti
      - Banned the marriage between homosexuals
      - Types (Types of men who are impotent with women)
        
        Narada Smriti
        
        Mukhebahaga - Men having oral sex with other men.
        
        Sev yaka - Sex with other men
        
        Irshyaka - Voyeur
        
        Kamasutra
        
        Svairini
        
        Kami
        
        Paksha

Unit-IV:
#

Concept of Adoption
- Historical perspectives of adoption in India
  - A son is never “filius nullius” i.e. son of no-body.
  - Types of sons
    - Heirs and kinsmen
      - Aurasa - natural born
      - Kshetreja - wife sent to someone else if husband is impotent or dead
      - Dattaka - adopted
      - Kritma - smart child adopted
      - Gudhotpanna - secretly born child
      - Apavinda - a cast away son
    - Kinsmen
      - Kanina - unmarried girl giving birth to child
      - Sahodhaja - girl is pregnant at the time of the marriage and the husband will be the father of the child
      - Kritaka - bought son
      - Paunnarbhava - remarried woman having a child
      - Svayam datta - abandoned child himself is going and wants to be adopted
      - Shaudra - son of a brahmin who is born to a Shudra wife
      - Putrikaputra - daughter’s son
  - Adoption was treatment as a sacrament
    - They did not adopt a sister’s or daughter’s son
    - They did not adopt a maiden’s child who could not get married
    - If a widow adopted a child, doctrine of relation back was adopted.
      - Suppose a widow adopted a child on 12-1-1941 but husband had passed away on 1-10-1940, the doctrine of relation back stated that the date of adoption should be 1-10-1940 i.e. date of death of husband.
    - An illegitimate son or an orphan was not taken into adoption.
    - Dattaka Homam was mandatory.
    - Son in law which is brought into the bride’s house was equal to son.
- In-country and inter-country adoptions
Law of Maintenance
Law of Guardianship
The Hindu Adoption and Maintenance Act, 1956 (30 Section)
- 21st December 1956
- Chart for Adoption (S.1-17 are for adoption)
  - Section 1-5 - Application Extent Definitions
  - Section 6 - 11 - Conditions
    - Section 6 - Requisites for a valid adoption
      - “Na yekoputra de Yaha” - the only son is not to be given in adoption.
      - “Na Jeshta putra deyaha” - the eldest son is not to be given in adoption.
      - However, [[Doctrine of factum Valet]] would be applicable.
    - Section 7,8 - Capacity to take in adoption
      - Male S.7
      - Female S.8
    - Section 9 - Capacity to give in adoption
    - Section 10 - Persons being capable of giving in adoption
      - Hindu
      - Not already adopted
      - Unmarried
      - Under 15 years of age
    - Section 11 - Ceremonies of Adoption
      - Giving and taking of the child. The biological father places the child in the lap of the adopted father.
  - Section 12 - Effect of Adoption
    - Effective from the date of adoption. Doctrine of relation back is abolished.
    - Becomes the child of adoptive parents
    - Ties with the former family are severed with the exception of the people he cannot marry even after adoption. E.g. biological sister.
    - Property vested prior to adoption will continue to be vested even after adoption. Liabilities also.
    - Does not divest any property vested with others prior to adoption.
    - Case Law: Sawan v. Kalawati 1956 - A died leaving his widow and they had a daughter. Widow had a limited estate ownership. Daughter would also be a limited estate owner. X sued the widow because she transferred the property to another. Daughter had a child, widow adopted the daughter’s son. X was eventually not allowed.
  - Section 13 - Anti Adoption Agreements
  - Section 14 - Relationship
  - Section 15 - Adoption is a matter of status
    - He will be inheriting the property.
    - They must take care of the parents.
  - Section 16 - Presumption of Registration
    - Registration is not mandatory under the HA&MA
  - Section 17 - Prohibition of Certain Payments
    - The natural parents must not receive payments as it would be construed as a sale of child.
- Case Laws
  - Lakshmi Singh v. Smt Rupkanwar - Agreement between parties was there to adopt. The child was sent to B’s house for education purpose. The court held that the process of adoption was not completed as the child was not given and taken.
  - Sarad Chandra v. Shanti Bai
  - Bhoobun Moyee’s Case: Gour Kishore | Bhowani Kishore v. Chandrabulle -> Ram Kishore
The Hindu Minority and Guardianship Act, 1956 (13 Sections)
- Effective Date: 25th August 1956
- Title (S.1)
- Supplemental to Guardians and Wards Act 1890 (S.2)
- Application (S.3)
- Definition (S.4)
- Overriding effect (S.5)
- Kinds of Guardians (S.6-9&11)
  - Case Law:
  - Jijiya Bai v. Pathan - mother was taking care of the child for 20 years. Father never cared for the child and father could not claim the child.
  - Amit Bheri v. Sheetal Bai - Mother and child were in Dubai. She kept the child in a care home. Father and grandfather claimed the child. The court rejected the claim of father and grandfather.
  - Dr Vandana Shiva v. Jayanth Bandhopadyaya - father was respondent, the court held that S.6 was in violation of Art 15 of [[Constitution of India]] and S.19B of Guardians and Wards Act.
  - Geetha Hariharan v. RBI - she had a son named Rishabh Bailey, she wanted to claim relief funds from RBI. The court held that it was a violation of Art 15 and S19B of the Guardians and Wards Act
  - Makemalla Sailoo v. S.P. Nalgonda - A man kidnapped a girl and married her. Police filed a case. Court held that according to S.6, husband was the guardian.
  - Suma Bhasin v. Neeraj Bhasin - Parents were living separately, elder son chose father, younger son chose mother. Visiting rights were given for younger son to father.
  - Adalat v. Baji Rao - Father married another wife and she was not taking good care. Biological mother asked for custody and it was granted.
  - Hanuman Prasad Pandey v. Baboyee Munraj Koonwaree
  - Waghala Malsudin & Mir Sarwarjan v. Farkuddin
- S.9 - Testamentary Guardian
  1. Father can appoint a guardian to the minor through the will.
  2. If the mother is alive, she is the guardian. If she dies intestate, the guardian will be the father appointed guardian. If mother leaves a testament with guardian mentioned, her appointed guardian will be there.
  3. x
  4. y
  5. z
  6. In case of guardians of females, he will remain the guardian until he is the guardian.
- Certified Guardian (Court Appointed Guardian)
  - Guardian is appointed by court.
  - The court can appoint the guardian only for the person and property.
  - High Court can grant the guardianship for joint family property.
  - Case Laws
    - [[Queen v. Nesbet]] - 12y old Brahmin boy converted himself to another religion (Christianity). Father claimed the guardianship. The court granted the guardianship to father.
    - [[Reade v. Krishna]] - 16y old boy converted to Christianity. Guardianship was given to parents.
    - [[Balkrishna Pandey v. Sanjeev Bajpee]] - Father married a second time, the court gave the guardianship to the father.
    - [[V. Meenapushpa v. V.Ananthan Jaya Kumar]] - children were raised by the grandparents. They opted for grandparents. The parents claimed guardianship, the guardianship was given to grandparents as desired by the children.
  - Guardianship by affinity - Guardianship of a minor widow
    - [[Paras Ram v. State]] - The father-in-law took money and wanted to get widow married. Allahabad High Court held that the father-in-law was in charge.
    - [[Raichand v. Sayer]] - If the Father-in-law is acting against the welfare of the child, the parents of the widow can claim guardianship.
- Section 10 - Can a minor be a guardian?
  - A minor cannot be a guardian of another minor. This applies to child marriages also.
- Section 11 - De facto guardian
  - In the Indian joint family system, the family will take care of the child.
  - The de facto guardian cannot enter into contracts for the minor.
  - Even if the contract is entered into, they would be voidable as the minor would have the right to avoid the contract after attaining majority.
  - The minor’s property cannot be gifted.
  - He can give the foundling child in adoption to another.
- Section 12 - Appointment of Guardianship for Joint Family Property
  - Only High court can appoint a guardian pertaining to joint family property.
- Section 13 - Everything must be done in the interest of the welfare of the child.
  - [[Roxana Sharma v. Arun Sharma]] - The child was 2y old, the Bombay High Court granted to the father as the mother could not show sustainability. [[Supreme Court]] eventually granted the guardianship to the mother.

Unit-V:
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Succession
- Intestate succession
- Succession to the property of Hindu Male and Female
- Dwelling House
The Hindu Succession Act, 1956
- Came into force from 17th June 1956
- Hindu Succession Act 1956
  - Definition, Application, Extent (S.1-7)
    - Section 3 - Definitions
      - Agnates - related by blood/adoption through males
      - Cognates - related by blood/adoption not through males i.e. females
      - Aliyasanthana Law - A system which is applicable to the persons governed by the Madras Aliyasanthana Act 1949 for the people who follow matrilineal system i.e. Matriarchal.
      - Full Blood - Mother, father, children of same mother.
      - Half Blood - Same father different mothers
      - Uterine blood - Same mother different fathers
      - Heir - someone entitled to a share in the property
      - intestate - without will
      - Marumakkattayam Law - Marumakkattayam Act 1932, Travencore Act
      - Nambudri Law -
      - Descendents
      - Ascendents
      - Colaterals
      - Nemo est haeres viventis - no one has an heir while he is alive
      - Inheritance is never in abeyance - at the time of the death of the propositus, the heirs will receive the property.
      - rule of propinquity - nearness to blood - heirs apparent / heirs presumptive (they receive the property in case of no near heirs)
      - Section 4 - Overriding effect
        
        Any rule and/or custom prior to the Act will no longer be valid.
        
        Any other law in force will cease to exist if it is inconsistent to the provisions of this Act.
      - Section 5 - Impartiable properties
        
        In case a marriage was performed under [[Special Marriage Act 1954]], the [[Indian Succession Act]] would apply but not [[Hindu Succession Act 1956]]
        
        The properties earmarked by Maharajas as impartiable cannot be partitioned. e.g. Valiamma Thampuran Kovilagam Estate established by Maharaja of Cochin.
      - Section 6/7 - Rules of Succession
  - Rules of Succession of Hindu Male (S.8-13)
    - Section 8 - Rules of Hindu Male who died Intestate
      - Class 1 heirs
        
        Enumerated heirs
        
        Preferential heirs
        
        Simultaneous heirs
        
        Chart
        
        Class 1 Heirs - Propositus
        
        Mother
        
        Widow
        
        Son
        
        Widow of a Predeceased son
        
        Daughter of Predeceased son
        
        SDD
        
        Son of a Predeceased Son
        
        SSS
        
        SSD
        
        SSW
        
        Daughter
        
        DD
        
        DDD
        
        DDS
        
        DS
        
        DSD
      - Class 2 heirs
      - Agnates
      - Cognates
      - Escheated
  - Rules of Succession of Hindu Female (S.14-16)
  - Other Provisions (S.17-30)
- The Hindu Succession (Andhra Pradesh Amendment) Act, 1986
- The Hindu Succession (Amendment) Act, 2005
- Notional Partition
- Classes of heirs
- Enlargement of limited estate of women into their absolute estate
- Daughter’s right to inherit ancestral property and impact of recent changes in law

Family Law – I (Hindu Law) #

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Unit-II: #

Unit-III: #

Unit-IV: #

Unit-V: #

Family Law – I (Hindu Law)
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Unit-I:
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Unit-II:
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Unit-III:
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Unit-IV:
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Unit-V:
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