MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

B.A.LL.B.(Hons.) Five-Year Integrated Degree Course

Year-II, Semester-III: Academic Year: 2022-2023
End-Semester Examination, November-2022

(Students are strictly prohibited from writing their names, UIDs or any other indicator(s) of
identity in the Answer File)

Course Code and Name: BAL 3.3 FAMILY LAW - I

Answer to Question No. (1)

Facts of the case:

In the given case, Ms Neelu, a female Hindu was legally wedded to Mr Rishit, a male Hindu
on 12th August 2010 and they were residing together. Even after 5 years of Marriage they did
not have a child out of their marriage. On 2nd November Ms Neelu expressed to her husband
that she wishes to adopt a girl child, but Rishit declined this saying he would not be able to
love an adopted child and if she still wants to adopt then she can leave the matrimonial home.
After repeated convincing and trying by Ms Neelu, Rishit still did not agree and then she left
to her parents house and on January 16, 2016 she adopted a girl child Kiya, aged 5 years. An
adoption deed was entered between the orphanage and Ms. Neelu in which it was mentioned
that Ms. Neelu is a widow. Mr Rishit had no idea of such adoption. On March 16 2016 they
both filed a joint petition before the family court for divorce by mutual consent. On May 26,
Mr Rishit died of cardiac arrest. Then Ms Neelu married Mr Ram who had a son Nakul aged
12 years from his previous marriage. The marriage took place on 12 th February 2017. After
that Amrita, the Aunt of Mr Rishit filed a petition for the custody of Kiya, after knowing she
was adopted while Rishit was alive.

Issues of the Case:

 Whether the adoption of Kiya was a valid or an invalid one?
 Whether the petition filed from both sides for custody is maintainable or not?

Relevant Provisions:

Section 5 of The Hindu Adoptions and Maintenance Act, 1956

Adoptions to be regulated by this Chapter. —

a) No adoption shall be made after the commencement of this Act by or to a Hindu

except in accordance with the provisions contained in this Chapter, and any adoption
made in contravention of the said provisions shall be void.
b) An adoption which is void shall neither create any rights in the adoptive family in
favour of any person which he or she could not have acquired except by reason of the
adoption, nor destroy the rights of any person in the family of his or her birth.

Section 8 of the Hindu Adoption and Maintenance Act 1956: “Capacity of a female Hindu
to take in adoption.―Any female Hindu who is of sound mind and is not a minor has the
capacity to take a son or daughter in adoption” Provided that, if she has a husband living, she
shall not adopt a son or daughter except with the consent of her husband unless the
husband has completely and finally renounced the world or has ceased to be a Hindu or has
been declared by a court of competent jurisdiction to be of unsound mind.

Reasoning:

Considering the facts of the case it is clearly visible that Mr Rishit told Ms Neelu that if she
wants to adopt then she can leave the matrimonial house. He did not want to adopt and rather
wanted to have a child of his own which is his right. His stand on the opinion of adoption was
a clear one. But still Ms Neelu went to adopt a girl child Kiya on her sole consent, while her
husband was living and they had a valid persisting marriage and she was neither a widow nor
a divorced women.
In Lalitha V. Union of India (AIR 1991 Karnataka 186) case, the court held that section 8 of
the Hindu Adoption and Maintenance Act 1956, conferring right to adopt covers women who
are single in status. A married woman stands outside that class. In our case Ms Nellu was
neither a single woman, nor a widow and also she was not a divorced woman and hence she
did not have any right to adopt without the consent of her husband.

In the case of Ghisalal v. Dhapubai (2011) 2 SCC 298 (para 25) Hon'ble Supreme Court
considered the provisions of section 7 and 16 of the Hindu Adoption and Maintenance Act,
1956 with regard to mandatory consent of wife for adoption and article 14 and 15 of the
constitution and held that mandate of wife's consent for adoption and conferring
independent right upon a female Hindu to adopt a child, Parliament sought to achieve one of
the facets of the goal of equality enshrined in the Preamble and reflected in Article 14 read
with Article 15 of the Constitution. In the lines of this judgement, and Section 8 of the
Adoption Act,1956 we can say that the consent of the husband is as important as the consent
of the wife while adoption and the mutual consent (consent of both the husband and wife) is
the basic element in the adoption in a married couple.

The court in Sri Chandra Nath Sadhu & ors v. The State of West Bengal & ors (2003) 3
CALLT 1 HC, stated that in cases of void adoption, no rights or obligations will be created
on the adoptive family, i.e. the family who has adopted the child. As per mentioned in
Section 5 (2) any adoption which is void shall neither create any rights in the adoptive family
in favour of any person which he or she could not have acquired except by reason of the
adoption, nor destroy the rights of any person in the family of his or her birth.

Conclusion:

This makes the Adoption of Kiya invalid as the consent of the husband was not taken,
which comes under the ambit of Section 8 of the Hindu Adoption and Maintenance Act,
1956. This renders the status of Kiya as daughter of Ms Neelu illegitimate. And as per
Section 5 of the same the adoption is void.

Considering the rights and custody of Kiya, as the adoption is invalid her custody is
invalid too and the petition for custody of Kiya stands null from both the side of Ms
Amrita and Ms Neelu.
Also Ms Neelu did wrong for Kiya who was unlawfully adopted, as Ms Neelu wrongfully
claimed to be a widow in the adoption deed given by the orphanage, at a time when she
was in a legally subsisting marriage. This makes the claim of custody from the part of
Ms Neelu invalid as she has wrongfully adopted the child.

Answer to Question No. (4)

Facts of the Case:

Ms Shefali, a female Hindu converted to Islam to marry Mr Azhar. She converted on 10 th

November 2016 and changed her name to Ms Shagufta and on 6 th may she Married Azhar in
the presence of qazi and Azhar’s friends and family. She had a daughter on 18 th of August
2018, amidst the falling marriage of the two and hoped for things to get better. But after
repeated disputes, Ms Shagufta re-converted to Hinduism and regained earlier identity as Ms
Shefali. After failed efforts to get back, she filed a petition in civil court for dissolution of
marriage and claimed dower, maintenance for herself and her daughter. Azhar denied the
maintenance claim and filed for restitution of conjugal rights.

Issues:

 Whether the marriage is dissolved after Ms Shefali re-converted to Hinduism or not?

 Whether Ms Shefali is right in claiming the maintenance for herself and her daughter?

Relevant Provisions:
Section 4 of the Dissolution of Muslim Marriages Act, 1939: Effect of conversion to
another faith.

The renunciation of Islam by a married Muslim woman or her conversion to a faith other than
Islam shall not be itself operate to dissolve her marriage:

a) Provided that after such renunciation, or conversion, the woman shall be entitled to
obtain a decree for the dissolution of her marriage on any of the grounds mentioned in
Section 2
b) Provided further that the provisions of this section shall not apply to a woman
converted to Islam from some other faith who re-embraces her former faith.

Reasoning:

Considering the petitions filed by both of the parties, we need to first understand that whether
the marriage still subsists or not after the wife converted to her previous religion. Now, prior
to the enactment of the Dissolution of Muslim Marriages Act, 1939 (DMMA), conversion
of either spouse had the effect of automatic dissolution of the marriage under the Muslim
personal Law. The present law however, is different and it makes a difference between a
Muslim wife who was before her marriage a non-Muslim and a wife who was a Muslim
before marriage. In the former case, the conversion of the wife would result in instant
dissolution of the marriage. In other words, if a woman converts to Islam from some other
faith and then re-embraces her former faith, then it will have the effect of immediate
dissolution of her marriage.

In the case of Munavvar-Ul-Islam vs Rishu Arora (AIR 2014 Del 130) a Hindu wife
converted to Islam at the time of marriage. On her re-conversion back to her original faith viz
Hinduism. her marriage stood dissolved. This case is so much similar to the case in question.
The court held:

“her marriage is accordingly regulated not by the rule enunciated in Section 4 of the Act, but
rather the pre-existing Muslim personal law which dissolves marriage upon apostasy ipso
facto. Section 4 does not apply to a woman who converts to Islam from other faith and take
back her former faith. Thus, if a Hindu woman converts into Islam and marries under Muslim
law, the marriage would be ipso facto dissolved, on her renouncing Islam and re-embracing
Hinduism. However, if she does not re-embrace Hinduism, but embraces Christianity, the
marriage would not dissolve as it is not the previous religion.”

After referring to the abovementioned reasoning it is clear that the marriage stands dissolved
and hence Ms Shefali has the right to claim maintenance for herself as well as her daughter.

Had it not been a dissolution through ipso facto dissolved, she could have filed for divorce
under cruelty as her husband used to abuse her under the influence of alcohol.

Also there is no basis for any prosecution against the woman under s. 494 of the IPC,
regardless of how the parties' uncertain status during the iddat is seen or how invalid and
unlawful under Mohammedan law the second marriage of the woman during the iddat may
be. Her second marriage is valid despite taking place during the lifetime of her first husband
due to a particular tenet of Mohammedan law called iddat, which has nothing to do with the
Indian Penal Code.

But considering the current situation as per the relevant facts, provisions and judicial
pronouncements, the marriage stands dissolved and she and her daughter is already entitled to
maintenance.

Answer to Question No. (4)

Facts of the case:

 Mr. Ritaj, a 33-year-old male Hindu from Gwalior, married Ms. Lopa, a 30-year-old
female Hindu from New Delhi, on March 28, 2017 in New Delhi, according to Hindu
customary rites and rituals. Ms. Lopa only married Mr. Ritaj because her parents insisted
and had no intention of staying in this marriage for long since she wanted to continue her
profession as an actress in the film business, but her parents protested. Ms. Lopa was
continuously finding new methods to start disputes with Mr. Ritaj and was always
complaining about his parents and other relatives.
 Ms. Lopa left her marital house in Gwalior on August 3, 2018, without informing Mr.
Ritaj, for her parents' home in New Delhi, where she informed her parents that she could
 no longer continue her marriage with Mr. Ritaj because of his arrogant behaviour. Mr.
Ritaj arrived on August 16, 2018 to meet Ms. Lopa and accompany her back to Gwalior;
however, she refused to meet him. Ms. Lopa's parents also advised her to enter the marital
household, but she declined, claiming that Mr. Ritaj could not make her happy.
 After all of Mr. Ritaj's attempts failed, he filed a petition for recovery of conjugal rights
in Gwalior's city civil court on October 5, 2018. Ms. Lopa was unable to establish Mr.
Ritaj's guilt, therefore the decree for restitution of conjugal rights was issued in favour of
Mr. Ritaj on May 10, 2019, and Ms. Lopa was ordered by the court to join Mr. Ritaj in
their marital house in Gwalior. Ms. Lopa was ordered by the court to give their marriage
another chance; nevertheless, she never fulfilled any matrimonial duties and regularly
visited her parents in New Delhi without explanation. Ms. Lopa filed a divorce case in
family court in New Delhi on June 14, 2020, saying that she and Mr. Ritaj had not
resumed cohabitation. Mr. Ritaj, on the other side, said that he wished to save the
marriage, which he claimed would be impossible without Ms. Lopa's help.

Issues:

Whether the divorce petition filed by Ms. Lopa is valid or not?

Relevant Judicial Provisions and Pronouncements:

Section 5 and Section 7 of the Hindu Marriage Act:

 To establish the validity of a marriage, two essential sections of Hindu Marriage Act,
1955 are read together; Section 5 and Section 7.
 Section 5 of Chapter II of the Hindu Marriage Act of 1955 specifies the requirements for
a Hindu marriage. The requirements said are met in the case without doubt.
 Section 7 of the Hindu Marriage Act, 1955, deals with ceremonies for a Hindu Marriage.
A Hindu Marriage may be considered to be solemnized if proper customary rites and
ceremonies take place of either party thereto.
 In our case, it is clearly stated that proper customary rites and ceremonies took place.
Section 5 and Section 7 apply well here which clearly establishes that the marriage
between Ms. Niharika and Mr. Arvind was valid in the first place.

Section 13(1-A)(ii) of the Hindu Marriage Act:

Section 13(1-A)(ii) states that - Either party to a marriage, whether solemnized before or after
the commencement of this Act, may also present a petition for the dissolution of the marriage
by a decree of divorce on the ground—

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage
for a period of 8 [one year] or upwards after the passing of a decree for restitution of conjugal
rights in a proceeding to which they were parties.]

This clause allows either party to a petition in which a decree for restitution of conjugal rights
was issued to apply to the court for a divorce decree by demonstrating that there has been no
restitution of conjugal rights as between the parties to the marriage for a period of one year or
more after the decree was issued. The legislature appears to have adopted the opinion that in
cases where there has been no return of conjugal rights even after the order, not only the party
who obtained the decree, but either partner, should have the right to seek dissolution of
marriage. In the absence of any impediment imposed by Section 23 that prevents the
petitioner from obtaining this remedy, the court shall order dissolution of marriage.

 The effect of this clause appears to be that if a period of one year or more has passed
following the passing of the decree for restitution of conjugal rights and there has been
no restitution of conjugal rights, the court must examine whether one or both spouses
are responsible for non-compliance with the decree for restitution. The provision,
however, does not grant a party an absolute or unfettered power to obtain a divorce
order in any such instance. The petitioner-behavior spouse's may be of such significant
and substantial kind that the petitioner spouse is not entitled to any redress under this
provision. Whether the petitioner-conduct spouse's in a case falling under this clause
would bring the case within the mischief of Section 23(1)(a) must depend on the facts
and circumstances of each particular case, and no general or exhaustive statement of
what may or may not constitute "wrong" within the scope of the rule there laid down is
 possible. However, it is argued that the conduct must be grave and serious in any
circumstance.

 In Ram Kali v Gopal Das ((1971) 1 ILR Del 6 ) and Bimla Devi v Singh Raj, the court
held that no such circumstance has been alleged in the instant case from which it could be
said that the petitioner was trying to take advantage of his/her own wrong within the
meaning of Section 23(1)(a) which states that - “(1) In any proceeding under this Act,
whether defended or not, if the court is satisfied that any of the grounds for granting relief
exists and the petitioner is not in any way taking advantage of his or her own wrong or
disability for the purpose of such relief”, and that the husband could seek remedy under
this article. The court acknowledged the notion of marriage breakdown and also stated
that Section 23(1)(a) should be understood in such a way that it acts in line with the
present clause. It is contended that any relief granted under this clause must be construed
and shaped in accordance with Section 23(1).

 In Dharmendra Kumar v. Usha Kumar(1977 AIR P&H 167), the court held that in order
to constitute “wrong”within the meaning of Section 23(1)(a), the conduct alleged has to
be something more than a mere disinclination to agree to an offer of reunion, it must be
misconduct serious enough to justify denial of the relief to which the husband or the wife
is otherwise entitled.

 In, Hirachand Srinivas Managaonkar v. Sunanda (AIR 1977 SC 2218) the Supreme
court held “the spouse against whom the decree for restitution has gone should not be
deprived of relief under this provision on the ground of non-compliance with the same
unless such spouse is guilty of a ‘wrong’ amounting to a serious misconduct within the
meaning of section 23 (1) A, therefore she should not lose the right to get relief from the
court on the ground that has been given in sub section (1) (ii).

Conclusion:
Ms Lopa has the right to get relief under Sub section 13 (1A) (ii) because her act of non-
compliance to the decree passed by the court doesn’t amount to wrong leading to serious
misconduct that has been defined under Section 23 (i) (a) of Hindu Marriage Act 1955.

The decree for restitution of conjugal rights was granted on May 10, 2019 and the petition of
divorce was filed on June 14, 2020. This shows that the petition of divorce was filed after a
year had passed and there was no co-habitation between Ms. Lopa and Mr. Ritaj.

Considering Section 23(1), mere incompliance to cohabitate doesn’t constitute a “wrong” and
hence, considering all the facts, sections and relevant judicial pronouncements provided
above, it can be concluded that Ms. Lopa’s petition of divorce is valid.

Answer to Question No. (7)

Facts of the Case:

 Mr. Harman and Ms. Kasturi got married got married as per the Hindu customary rites
and ceremonies, Ms. Kasturi was a pilot and earned Rs. 2.5 lac monthly and Mr. Harman
was a sales man and he earned Rs. 30,000 per month.
 They had two children Neeraj and Divyanka 4 and 2 years old respectively. Mr. Harman
lost his job on June 5, 2018, due to frustration of being fired he started consuming alcohol
daily, and started showing behavioural issues and on consulting doctor he was informed
that he had antisocial personality disorder (APD).
 He did not show any improvement even after using the medicines and used to be
constantly angry, on his wife and children on November 27, 2019, he physically abused
his wife, and due to his indifferent behaviour, his wife left the matrimonial home. on
December 4, 2019 with the children.
 On March 3, 2022, he filed a petition in family court alleging that he has been deserted
and prayed for custody of his children, he also claimed interim maintenance for himself
and his children 20,000 each. In response Ms. Kasturi replied that she had not deserted
 Mr. Harman, she also denied to pay maintenance and alleged that the custody should
remain with her only.

Issues of the Case:

 Whether Mr. Kasturi deserted Mr. Harman?

 Who shall have the custody of the children?
 Whether Ms. Kasturi is liable to pay maintenance to Mr. Harman and the
children?

Relevant Provisions, Judicial Pronouncements and Arguments

Section 13(1)(ib) of the Hindu Marriage Act, 1955 : has deserted the petitioner for a
continuous period of not less than two years immediately preceding the presentation of the
petition.

 Section 13 (1) (ib) lays desertion as a ground of divorce. This section says, any spouse
can obtain a decree of divorce if the other spouse has deserted them for a continuous
period for not less than two years of time period, preceding the time when the petition is
presented in the court.
 Desertion as a ground for divorce has been explained in Bipin Chander Jaisinghbhai
Shah vs Prabhawati1, this case lays down the essential for proving desertion which are,
(i) factum of separation,
(ii) intention to desert the other spouse permanently,
(iii) absence of consent for desertion from the other spouse,
(iv) absence of reasonable cause
(v) the separation must be for a period of two years.
The Bipin Chandra case states that “The essential conditions for the offence of desertion,
so far as the deserting spouse is concerned, are
1
1957 AIR 176
 (i) the factum of separation
(ii) the intention to bring cohabitation permanently to an end (animus deserendi);

And as regards the deserted spouse the elements are:

(i) the absence of consent and
(ii) (absence of conduct giving reasonable cause to the spouse leaving the matrimonial
home to form the necessary intention aforesaid.”
 In the case of Lachman Utamchand Kiriplani vs Meena Alias Mota 2, it has been stated
that “it is not necessary that desertion would commence when the fact of separation
and animus deserendi coexist. It is not necessary that they should commence at the
same time. As per the explanation in Section13 (1) of HMA Act of 1955 the
expression “desertion” means desertion by the other party to the marriage without
reasonable cause and without the consent or against the wish of such part”.
 Which means that it is not necessary that the actual separation and the consent for
separation should co-exist, even if the consent comes later the desertion would not
be counted as a ground. In the same case in par 46 and 48 it talks about
constructive desertion be stating “The expression "includes the wilful neglect" in
the explanation to S. 10 of the Hindu Marriage Act, 1955, does not enlarge the scope of
the word desertion so as to take in by definition the conscious neglect on the part of
that offending spouse without the requisite animus deserendi; it does not introduce a
new concept in Indian law, but is only an affirmation of the doctrine of constructive
desertion in English law.

Conclusion:
In light of above given sections and judicial pronouncements we can see that in the present
case the of separation of Mr. Harman and Ms. Kasturi all the other elements of
desertion are satisfied, because the factual separation took place and the separation
was with an intention to cause permanent separation and the separation was existing
for a period of more than two year. But, the conditions that has been mentioned in the
above mentioned case that, there should not be a reasonable cause and neither should
there be consent of the other spouse are not being satisfied as the separation shows the
presence of reasonable cause and the husband had never tried to make any attempts to
reconcile the differences, which shows the presence of consent which was not evident at the
2
1964 AIR 40
time factual separation but later absence of efforts show the presence of consent. And, it has
already been mentioned in the case of Lachman Utamchand that even if the deserted spouse
shows consent later on it wouldn’t form a ground. Therefore, the ‘wilful neglect’ is very
much evident on the side of Mr. Harman and we can also see that Ms. Kasturi had a
‘reasonable cause’ to leave the matrimonial home as she was subjected to ‘physical cruelty’
by Mr. Harman. And cruelty has been defined in Hindu Marriage Act, 1955 as “defined
as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health,
bodily or mental, or as to give rise to a reasonable apprehension of such a danger.” In the
present case also the physical harm done by Mr. Harman was wilful and unjustifiable,
therefore his actions will amount to cruelty and it will form a reasonable cause to leave the
matrimonial home. Hence, the husband would not be able to file the petition of desertion
because it would defy the Clean Hands Doctrine that states “a court will not lend its aid if a
claimant's cause of action is based on an unlawful act”.

The petition filed by Mr. Harman wouldn’t be valid as the desertion was constructive
desertion, therefore he would not be entitled to the interim maintainance from his wife neither
will he be entitled to the custody of his children.

Answer to Question No. (6)

Facts of the Case:

On June 19, 2011, Mr. Suraj and Ms. Pushpa were married according to Hindu rituals and
ceremonies. Mr. Suraj worked for an intelligence organisation; no one in his family, not even
his wife, was aware of his employment and its purpose. Further Mr. Suraj informed his wife
on March 1, 2013, that he would be travelling on a secret mission and that no information
regarding the mission may be revealed to her. He also told her that he would contact her
again in a year. Mr. Suraj went for the trip on May 16, 2013, and on June 11, 2014, one of
Mr. Suraj's workplace colleagues informed his wife that he had died during the assignment
and that his remains could not be discovered in time. Ms. Pushpa was devastated by the news
and attempted to obtain a death certificate, but Mr. Suraj's office refused her request. Ms.
Pushpa then married Mr. Rahul on August 7, 2019, according to Hindu customary rites and
rituals, and she also had a daughter out of wedlock on September 15, 2020. Mr. Suraj
returned from the expedition on October 5, 2020, and contacted Ms. Pushpa. When he
discovered that he had previously married Mr. Rahul, he demanded that she return to the
matrimonial home, but she refused. Mr. Suraj filed a petition in Mumbai family court on
December 4, 2020, seeking dissolution of Ms. Pushpa and Mr. Rahul's marriage, to which
Ms. Pushpa responded by filing a written statement in Mumbai family court, claiming that
her marriage to Mr. Rahul was valid because her marriage to Mr. Suraj had been dissolved.

Issues of the Case:

 The main issues arising out of the presented facts is:

 Whether the marriage of Ms Pushpa and Mr Rahul valid?
 Whether the petition filed by Mr. Suraj valid?

Relevant Provisions:

 Section 5(1), Hindu Marriage Act, 1955: A marriage may be solemnized between any
two Hindus, if the following conditions are fulfilled, namely: (i) neither party has a
spouse living at the time of the marriage;
 Section 11, Hindu Marriage Act, 1955: Void marriages—Any marriage solemnised
after the commencement of this Act shall be null and void and may, on a petition
presented by either party thereto against the other party, be so declared by a decree of
nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of
section 5.
 Section 108, The Indian Evidence Act, 1872 Provided that when] the question is
whether a man is alive or dead, and it is proved that he has not been heard of for seven
years by those who would naturally have heard of him if he had been alive, the burden of
proving that he is alive is shifted to the person who affirms it.
 Section 13(1)(vii), Hindu Marriage Act, 1955: Any marriage solemnized, whether
before or after the commencement of this Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of divorce on the ground that the other
party has not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of it, had that party been alive;”, as the factual
matrix of the given question revolves around the concepts of ‘Validity of Marriage’,
‘Void Marriages’ and ‘civil death’, therefore the relevant provisions that would be
applicable are

Reasoning and Relevant Judicial Pronouncements:

 So, in the given case, Miss Pushpa assumed that her husband was already dead based on
word of mouth from one of his colleagues, and only on the basis of logic, reason, or
sense, she assumed that if her husband had not returned for a long period of time, he
might be dead, and on the basis of the same presumption, she took her subsequent actions
and married Mr. Rahul. A judicial decision was delivered in the matter of L.I.C. of India
vs. Anuradha on equivalent facts and circumstances.
 In this case the court had held that no person can be presumed to be dead just on the basis
of logic, reason or sense neither the Section 108 of the Evidence Act can be the basis to
presume someone to be dead on the date on which she disappeared or soon after he was
seen by anybody who would have seen or heard of him. The court has stated that “The
only inference permissible to be drawn and based on the presumption is that the man was
dead at the time when the question arose subject to a period of seven years' absence and
being unheard of having elapsed before that time. The presumption stands unrebutted for
failure of the contesting party to prove that such man was alive either on the date on
which the dispute arose or at any time before that so as to break the period of seven years
counted backwards from the date on which the question arose for determination”. Briefly,
the court was of the opinion that a person being dead or alive was not a matter to be
presumed but it was a matter to be proved by factual circumstantial evidence and the
burden of proof would lie upon the person who is claiming that the person who has
 disappeared is dead, the only exception to this case age that the person has not been heard
of four a period of seven years or more and before that if any person wants to claim that
the person is dead he must prove it on the date on which he makes the claim.
 And also in the case of Parkash Chander vs Parmeshwari3, the main issue was whether
a woman was entitled to marry another man after a period of 2/3 years was completed
because it was mentioned in one of their customs that a woman could presume that his
husband was dead if she was not having any information about his husband and she had
never heard of him. In this case the party contested that she married another man after a
period of 2/3 years was completed according to their customers the court in this matter
held that “this argument is fallacious for two reasons. Firstly, the presumption under S.
108 of the Evidence. Act arises only when the question is raised in Court as to whether a
man is alive or dead and such question is in issue.
 There is no presumption in this regard unless such a proceeding comes in the Court and
an issue in this regard is raised. S. 108 ibid is only a rule of evidence and presumption is
drawn for purposes of reaching at a conclusion on the concerned issue. Secondly, the
period of seven years laid down in S. 108 with regard to the duration when the
whereabouts of a person are not known cannot be whittled down and reduced to 2/3 years
under any custom. The Evidence Act overrides the earlier rules of evidence which were
not contained in any statute, Act or regulations. The rules of evidence under the Hindu or
Mohammedan law or which had origin in custom or were based on principles of equity,
justice and good conscience have no validity when they are in derogation to or are in clear
departure from the provisions of the Evidence Act.”
 The above mentioned case shows that according to judicial pronouncements no person
could be presumed to be dead until the period of seven years that has been prescribed and
section 108 of the evidence act had lapsed and in any case there exists any custom or any
other believe in certain community that a person should be presumed dead before that
period would be fallacious because the Indian evidence act over rights any earlier rules of
evidence act given that those rules were not mentioned in any statute, act or regulation. In
the given case of Mr Suraj and Ms Pushpa also the period of seven years had not lapsed
and neither did the wife had any evidence that her husband was dead and yet she
consummated marriage with Mr Rahul, in this case also section 108 of evidence act

3
AIR 1987 P H 37
 would override any belief or presumption, there for the marriage of Mr Rahul and Ms
Pushpa would be held as invalid and the marriage of Ms Pushpa and Mr Suraj would still
be valid which makes the petition filed by Mr Suraj valid.

Conclusion

The marriage of Mr Rahul and Ms Pushpa is invalid, as it doesn’t fulfil the basic requirement
mentioned in Section 5(1) of the Hindu Marriage Act, which says that no person getting
married should have a spouse living at the time of the marriage. Which makes the marriage
void under Section 11 of the Hindu Marriage Act which says, any marriage consummated in
violation of clause (i) of Section 5 of HMA would be void ab initio. This can be inferred from
the above facts and judgements cited above.

The marriage of Mr Suraj and Ms Pushpa is valid because the wife never received any decree
from the court for dissolution of the marriage and neither did she had any proof to show that
his husband was dead.

The petition filed by Mr Suraj is valid since the marriage of Mr. Rahul and Ms. Pushpa is
invalid as mentioned above.