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FAMILY LAW-1

Mid-1

Important Questions:-
Essay questions:

1). Explain the essential conditions for valid Hindu Marriage.

2). Explain the constitutional validity of Sec.9 of the Hindu
Marriage Act.
3). Explain the grounds for divorce.

Short Questions:
i). Custom
ii). Judicial separation decree
iii). Voidable marriage
iv). Bar to matrimonial relief
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Mid-1

Important Questions:-
Essay questions:
**** Explain the essential conditions for valid Hindu Marriage.
Family meaning: “A family is a group of two or more persons related by
blood, marriage, or adoption and residing together; all such persons are
considered as members of one family.”

Clare defines: “Family is a system of relationships existing between parents

and children.”

Marriage: ‘Man is a social animal’. A marriage is essential ceremony to

establish and to continue the family. Whatever the type of marriage, it aims
to lead the family with mutual relations between the persons of that family.

Love and affection: Between the family members, love and affection is
established. It works as a fuel to run the family.

Common habitation: The members of a family reside together at one place.

A common habitation i.e. a house is necessary for every family. Where the
all family members reside in the one roof it is called as a Home.

Introduction:
Hindu Marriage is both sacrament and contract. Section 5 of
Hindu Marriage Act, 1955 lays down the conditions of a valid marriage.
The conditions are as follows :

1. Monogamy
2. Mental capacity and Free consent
3. Age Limit/Age of parties
4. Degrees of Prohibited Relationship
5. Sapinda Relationship
6. Requirement of Marriage Ceremonies
7. Requirement of Registration of Marriage, and
8. Free consent of both the parties to the marriage

1). Monogamy:- Neither party has a spouse living at the time of marriage.
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2). Mental capacity and Free consent:- At the time of marriage, each party
capable of giving consent, sound mind, not disqualified, not suffering from
mental disorder and capable of procreation of children.

3). Age Limit/Age of parties:- The bridegroom must have completed the
age of 21 years and bride must have completed the age of 18years.

4). Degrees of Prohibited Relationship:- The parties to the marriage are

not within the prohibited relationship unless the custom or usage governing
each of them permits a marriage between them.
Example: Father # Daughter; Son # Mother; Aunt # Nephew
The effect of marriage between prohibited degrees is void as per Sec.11
of Hindu Marriage Act, 1955.

5). Sapinda Relationship:- The parties to the marriage should not be

sapindas of each other, unless the custom or usage permits. The rules
relating to Sapinda relationship are enshrined in Sec. 3(f) of the Act.
There are two theories relating to Sapinda relationship –
a). Jimuthavahana’s Theory or Oblation Theory; and
b). Vignaneswara’s Theory or Particles of same body theory.

a). Jimuthavahana’s Theory: Offering ‘PINDA’ to departed ancestors is a

customary practice of Hindus. Pinda can extends Seven Generations i.e. self,
3 ascendants and 3 descendents.

Grant grandparents (GGP)

Grandfather (GF)
Father (F)
Self
Son (S)
Grandson (GS)
Great Grandson (GGS)
When two persons offer PINDAS to the same ancestors, they are called
sapindas.

b). Vignaneswara’s Theory: According the Vignaneswara theory, PINDA is a

particle of same body. The parties to a marriage should not have the same
blood. According to this theory, father’s particles of the body are present in
the son’s body and hence, the father and son are sapinda.

The sapinda relationship is through father and ‘5’ through mother.

Now, it is reduced to 5 and 3 respectively.
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FATHER’S SIDE MOTHER’S SIDE

Grandfather (GF) Mother (M)

Father (F)
Self Self
Son (S) Daughter (D)
Grandson (GS)

Effects:
1. Any marriage solemnized in contravention to the above rule U/s.5(v)
of the Act is void according to Sec. 11 of the Act.
2. Any person, who procures such marriage shall be punishable with
simple imprisonment, which may extend to one month or with fine,
which may extend to Rs.1,000/- or with both.

6). Marriage Ceremonies (Sec.7): Marriage must be as per customary rites

and ceremonies of at least one of the parties to the marriage. The
ceremonies are: (1) Kanyadan (2) Homa (3) Saptapadi (4) Free consent
(5) Mangalsutra

i). Kanyadan: It is a gift of the bride given by her father to the bridegroom.

ii). Homa: The bridegroom offers oblations to the holy-fire in which the
bride participates by grasping the hand of the bridegroom.

iii). Saptapadi: The word ‘Sapta’ means ‘Seven’ and ‘Padi’ means ‘walking
steps’. Saptapadi means ‘walking/taking seven steps by the bridegroom and
the bride jointly around the sacred fire pronouncing certain Mantras and
pledging mutual fidelity with the Agni or sacred fire as witness.

iv). Free consent: Parties to marriage must not only be competent to give
consent and should give consent and should give consent to marry. Such
consent must be freely given.

7). Registration of Marriage (Sec.8): Sec.8 of Hindu Marriage Act, 1955

empowers the State Government to make for registration of marriage
between two Hindus. Registration makes the proof of marriage easy.

Recently, the Supreme Court in Seema vs. Ashwani Kumar directed

the government to make necessary change in existing law and see that the
registration of marriage should be made compulsory.

CASE LAWS:

1). Deivanai Achi vs. Chidambaram Chettiar.

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In this case, the marriage between a widow and widower,

Chidambaram Chettiar, was taken under anti-purohit association by
exchanging garlands and rings, but the customary rites and ceremonies of
either of the spouse were not performed. Later, “A” married another one. The
wife filed a petition against the “A” for bigamy under Section 494 of IPC. The
court held that since the first marriage was not valid, the question of bigamy
does not arise. “A” was not liable for bigamy.

2). Dr.N.A. Mukharjee vs. State of Punjab.

In this case, the complainant got married with the accused person. In
the complaint, it was alleged that she married that accused person thrice.
First before moon, second in KALI Temple by exchange of garlands after
taking seven steps, and third was an imitation of Sikh Marriage before Guru
Granth Sahib.
Later, the accused married another woman. The court held that since
the first marriage was not valid, the question of bigamy does not arise. The
accused was not held liable for bigamy.

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*Explain the constitutional validity of Sec.9 of the Hindu Marriage Act.

Ans: The very purpose of the marriage is to unite legally a man and woman
to live together peacefully throughout the life. The matrimonial remedies are
incorporated in the Hindu Marriage Act, 1955 :

1. Restitution of Conjugal Rights (Sec.9)

2. Judicial Separation (Sec.10)
3. Void and Voidable Marriage (Ss.11 & 12)
4. Divorce (Sec.13); and
5. Divorce by Mutual Consent (Sec.13B)

Meaning:

Marriages imposes an obligation on wedded couple to live peacefully

throughout the life, sharing pleasures and pains. In case if one spouse
happens to leave the other from the matrimonial society without any
reasonable cause, the other spouse deserted can file a petition for
Restitution of Conjugal Rights in family court.
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Essentials of Sec.9:

The relief under Sec.9 is subject to fulfillment of the following

conditions:

a). The marriage between the parties must be a valid marriage.

b). The respondent has withdrawn from the society of the petitioner without
any reasonable cause.

c). The court is satisfied with the truth of the statement made in petition.

d). There is no legal ground why the relief should not be granted.

 To seek relief under Sec.9, primarily the marriage must be a valid

marriage as per Sec.5 of Hindu Marriage Act, 1955.

Case Law: Tirad Kour vs. Kripal Singh

In this case, the wife with the consent of her husband had undergone
tailoring course and joined employment elsewhere. After sometime, she was
asked to resign the job by her husband, but she refused to do so. Then, the
husband filed a petition under Sec.9 of Hindu Marriage Act, 1955 for
Restitution of Conjugal Rights. The court directed the wife to go and live
along with her husband.

Agreement between husband and wife to live separately is void because this
agreement is contrary to public policy. The position is same in
Mohammedan Law.

 Reasonable cause: The expression reasonable cause has been inserted in

1976. The burden of proving reasonable cause is on spouse who has
withdrawn from the society of others.

Case Law: Sunil Kumar vs. Swarna Datta

 Cruelty: Cruelty on the part of one spouse is a reasonable cause to the

other spouse to withdraw from the society of other spouse.

Case Law: Suman Bai vs. Anand Rao

In this case, baseless imputation of unchastity against his wife
amounts to cruelty and it is a reasonable cause to withdraw from the society
of her husband.

 Impotency: Impotency on the part of the husband is a reasonable cause

to live separately by the wife.

 Maintenance: If wife has a reasonable cause to withdraw herself from her

husband society, she is entitled to maintenance and separate residence
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under Sec.18 of Hindu Adoption and Maintenance Act, 1956, Sec.24 & 25 of
Hindu Marriage Act, 1955, and Sec.125 to 128 of Cr.P.C.,1973.

Constitutional validity of Sec.9 of Hindu Marriage Act, 1955:

Sometimes, a decree in favour of husband under Section 9 of Hindu
Marriage Act, 1955 may deprive wife from personable liberty and
employment of her choice. Such situations are very common in the society.

Example: If a wife is employed in a different place, her husband may ask her
to resign and join him. If she refuses to resign, then husband may file a
petition and court may direct her to join with her husband as per Sec.9 of
Hindu Marriage Act, 1955. Then, the question is whether Sec.9 of Hindu
Marriage Act, 1955 is violative of Article 14 & 21 of constitution.

This question arose before A.P. High court

In T.Saritha vs. T.Venkata Subbaiah case
Venkata Subbaiah filed a petition for restitution of conjugal rights
against his wife, Saritha. The Court granted a decree for Restitution of
Conjugal Rights (RCR). Against this, Saritha filed an appeal before AP High
Court. The AP High Court read the Constitutional Law into Hindu Law and
held that Sec.9 of Hindu Marriage Act, 1955 affecting the personable liberty
of the spouse is Sec.9 of the Act, is unconstitutional and violative of Article
21 of Constitution of India.

And another case Smt.Harvinder Kaur vs. Harmander Singh

The conflict was finally settled by the Supreme Court in:

Saroj Rani vs. Sudharshan Kumar case
In this case, due to the harassment, the wife left the husband’s house.
After sometime, she filed a suit for Restitution of Conjugal Rights (RCR) and
for maintenance.
The court gave a decree in favour of the wife. In this case, the
Supreme Court held that Sec.9 of the Act is not violative of Article 21 of the
constitution of India.

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3). Explain the grounds for divorce U/s. 13 of Hindu Marriage Act.
Ans: The very purpose of the marriage is to unite legally a man and
woman to live together peacefully throughout the life.

Divorce meaning:
The word “Divorce” comes from the Latin word “divortium” which
means separation. A divorce is a formal ending of a marriage. It's more
permanent than a separation and involves a legal process. If you get a
divorce, that means the marriage is officially over.

The matrimonial remedies are incorporated in the Hindu Marriage Act,

1955 :

1. Restitution of Conjugal Rights (Sec.9)

2. Judicial Separation (Sec.10)
3. Void and Voidable Marriage (Ss.11 & 12)
4. Divorce (Sec.13); and
5. Divorce by Mutual Consent (Sec.13B)

Dissolution of Marriage or Divorce:-

Sec.13 of Hindu Marriage Act, 1955, deals with divorce. Divorce is a process
by which the marriage is dissolved or comes to an end.

According to Sec.13 of Hindu Marriage Act, 1955, either husband or wife

can file an application in family court praying for dissolution of marriage.
The family court may grant decree of divorce. The waiting period for filing an
application after marriage is one year.

Under the Marriage Laws (Amendment) Act, 1976 have been provided to
be grounds of Divorce Under Section 13(1) & (2) of the Act.

After the Amendment Act of 1976, the grounds available for Divorce and
Judicial Separation are common for both Husband and Wife:
i). Adultery
(ii). Cruelty
(iii). Desertion
(iv). Conversion
(v). Unsoundness of mind/Insanity
(vi). Leprosy
vii). Venereal disease/incurable disease
viii). Renunciation of world (Sanyasi/Ethi)
ix). After decree for Restitution of conjugal rights
x). Judicial separation decree
xi). Presumed death/Unheard for seven years
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1). Adultery, Section 497 of Indian Penal Code, 1860 :

Adultery means whoever has sexual intercourse with a person who is
and whom he knows the wife of another person. The burden of proof is on
the petitioner.
In order to claim matrimonial relief on the ground of adultery, the
marriage must be valid and subsisting at the time of filing petition.

Case Law: Subba Rama Reddiar vs. Sarswathi

In this case, when the husband was returned to his home, he found
that his wife was with a male person in his bedroom. He filed a petition of
divorce on the ground of adultery. The Madras High Court granted a decree
for divorce.

Another case law: Champa Gowri vs. Jamunadas

2). Cruelty, Section 498A of Indian Penal Code, 1860:

Cruelty may be physical or mental. Cruelty means the conduct of
husband or relatives of her husband driving the wife to commit suicide or
danger o the life, limb or health of wife.
The cruelty is a ground for divorce. The Supreme Court in Sobha Rani
vs. Madhukar Reddy held that cruelty is a ground for divorce.

Case law: Sayal vs. Sarla (pakeer medicine)

3. Desertion: Desertion means leaving the spouse by other spouse without

any reasonable cause. To constitute desertion, the following two conditions
must be satisfied: i). Factum of separation (intention to live separately)
ii). Intention to bring cohabitation to an end.
The period of desertion must be not less than two years.

4). Conversion: Conversion means change of religion. Conversion of religion

by one spouse is a good ground to other spouse to take divorce.

5). Leprosy: It is a god ground for divorce. In Swarajya Lakshmi vs. Padma
Rao, husband a medical practitioner discovered that his wife was suffering
from leprosy. The court granted a decree in favour of the husband.

6). Venereal diseases or Incurable disease: If one spouse has been

suffering from venereal disease for three years, then it is ground to other
spouse for obtaining decree of divorce.

7). Renunciation of World: The petitioner can seek divorce if the

respondent renounces the World by entering any religious order. The
renunciation requires relinquishment of all property and worldly affairs.
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8). After Decree for Judicial Separation: If the disputing spouse does not
reconcile or resume matrimonial life within one year from the date of decree
for Judicial Separation, either of the spouse can file a petition for divorce.

9). Unsound mind / Insanity: If one spouse has been suffering from
insanity or mental disorder, then the other spouse may obtain divorce on
the ground of nullity.

10). Unheard for Seven Years/Presumed death: If the particulars of one

spouse are not known for a period of seven years, the other spouse can
presume his or her death and can file a petition for dissolution of marriage.
Case Law: R. vs. Mrs. Tolson (sailing ship – drowned)
In this case, while the husband was sailing in a ship, the ship was
drowned. The accused made an attempt to know the whereabouts of her
husband, but she did not get any information for seven years. After seven
years, the wife got another marriage; then husband came and filed a petition
against his wife for bigamy.
The court held that the accused (wife) was not liable for bigamy
because law presumed the death of her first husband.

11). After decree for Restitution of conjugal rights: If the parties do not rejoin
the matrimonial life within one year after obtaining the decree for
Restitution of conjugal rights, either of the parties can file a petition for
divorce.

Grounds available to wife:

a). Bigamy, Section 494 of IPC, 1860 : Bigamy means having more than
one spouse at a time. If the husband got second marriage, then the first wife
can file a petition for divorce.

b). Sexual Offense, Sec. 377 of IPC, 1860: If the husband commits a
sexual offence like rape, sodomy (homosex), then the wife can file a petition
for divorce.

c). After Decree for maintenance: Wife who has been granted the decree
for maintenance can file a petition for divorce if the cohabitation between
the parties did not take place within one year from the date of the order.

d). Repudiation of marriage: If woman got marriage below 15 years of age,

if she wants, she can cancel her marriage, after attaining 15 years of age,
but before completion of 18 years.
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Example: Woman got marriage when she was below 15 years. After
obtaining 15 years and before completion of 18 years of age, she can
repudiate her marriage, but she filed a petition for divorce on the ground of
repudiation of marriage at 19 years of age, is it valid?

Ans: Yes, repudiation must be declared at the age of before 18 years.

Petition can be filed at any time within limited period.

Case Law: Bathula Iylaiah vs. Bathula Devamma

(at the time of marriage : bride age 9 yrs. & groom age 13 yrs)

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Short Questions:
i). Custom (taken from sujatha series)
Ans:
The importance of the custom: Custom is the parent of personal law
in each country. Even in India, which is a land of diverse customs of
families, castes and regions, custom is the most important source of the
Hindu Law. Custom is based on unrecorded revelation and its observance is
insisted on by the ancient writers. It is a source of law, because the customs
are observed by those which are good and are approved by the public.
Custom in its legal sense means a rule exceptional to the general law.
A rule which in a particular family, class or district has from long usage
obtained the force of law. It must be ancient, certain, reasonable and
continuous and, being in derogation of the general rules of law must be
strictly construed. Custom cannot be extended by analogy, nor one custom
deduced from another.
Still there are several customs and sentiments in the Hindu
Community. The Codified Hindu Laws and other laws also recognize certain
customs, if proved in the Court.
Sec.13 of the Indian Evidence Act, 1872, lays down that “Facts are
relevant when right or custom is in question”.
Sec.48 of the Indian Evidence Act, 1872 lays down that “opinion of
third person as to existence of right or custom, are relevant’.

Kinds of custom: There are three kinds of custom recognized by the courts.
i). Family custom ii). Class custom; and iii). Local custom
Essentials:
1. Reasonableness
2. Conformity with statute law
3. Observance as of right
4. Immemorial antiquity
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5. Peaceable enjoyment
6. Obligatory force
7. Certainty
8. Consistency

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ii). Judicial separation decree
Meaning: A legal or judicial separation permits to parties to a
marriage to life separately. It is one of the matrimonial reliefs given to a
spouse in the Hindu Law.
Section 10 of the Hindu Marriage Act, 1955 provides the Judicial
Separation to the parties to a marriage. The grounds for the judicial
separation are similar with those of the Divorce under Sec.13 enunciated in
that section.

Judicial separation decree:

 Judicial separation suspends the rights and duties of a marriage for some
time by the court.
 The object of judicial separation is the hope of adjustment, reconciliation
and reunion of the spouses.
 Judicial separation is a lesser remedy than Divorce.
 By the decree of judicial separation, parties to the marriage, cannot
remarry another person.
 After obtaining the judicial separation, the wife can file and succeed for
the maintenance.

Case laws:
1). Shakuntala vs. Om Prakash: In this case, it was held that, to
constitute a ground for judicial separation or divorce, desertion must be for
the entire statutory period of two years, preceding the date of presentation of
the petition.

2). Shyam Chand vs. Janki

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iii). Voidable marriage

Voidable marriage (Section 12) : A voidable marriage is “one, which can be

avoided at the option of one of the parties to the marriage.” The voidable
marriage can be set aside only by the parties to the marriage approaching
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the Court of Law. The application to the District Court must be submitted
within the period of limitation prescribed.

Section 12 of the Hindu Marriage Act, 1955 deals with ‘Voidable

marriage’. It runs as follows:
1. Any marriage solemnized, whether before or after the commencement
of this Act, shall be voidable and may be annulled by a decree of
nullity on any of the following grounds, namely;
a). That the marriage has not been consummated owing to the
importance of the respondent; or
b). That the marriage is in contravention of the condition specified
in clause (ii) of Section 5 (i.e. if either party suffers from
unsoundness of mind at the time of the marriage); or
c). That the consent of the petitioner or where the consent of the
guardian in marriage of the petitioner was required, under
Sec.5, as it stood immediately before the commencement of the
Child Marriage Restraint (Amendment) Act, 1978, the consent of
such guardian was obtained by force or by fraud as to the
nature of ceremony or as to any material fact or circumstances
concerning the respondent; or
d). That the respondent was, at the time of the marriage, pregnant
by some person other than the petitioner.

2. Notwithstanding anything contained in sub-section (1), no petition for

annulling marriage:
a). On the ground specified in clause (c) of sub-section(1), shall be
entertained if:
i). The petition is presented more than one year after the force
had ceased to operate or as the case may be, the fraud had been
discovered, or

ii). The petitioner has, with his or her full consent, lived with
the other party to the marriage as husband or wife after the
force had ceased to operate or, as the case may be, the fraud
had been discovered;

b). On the ground specified in clause (d) of Sub-section(1) shall be

entertained unless the court is satisfied:
i). that the petitioner was at the time of the marriage ignorant of
the facts alleged;

ii). That proceedings have been instituted in the case of a

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

year from the date of the marriage; and

iii). That marital intercourse with the consent of the petitioner

has not taken place since the discovery by the petitioner of the
existence of the said ground.

One of the parties to the marriage (i.e. the aggrieved) can avoid/repudiate
the marriage by filing a petition for annulment of marriage under any one of
the following grounds:
a) Impotency;
b) Unsoundness of mind;
c) Use of force or fraud to obtain consent; and
d) Pregnancy by some other at the time of the marriage.

Case law:
In Ratan Moni Devi vs. Nagendra Narain case, the Calcutta High
Court held that the marriage of a female with a male, who was impotent and
who had not been able to consummate he marriage, was a nullity.

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iv). Bar to matrimonial relief