Family Law - I: Unit 1 Lecture 1

FAMILY LAW -I
UNIT 1 LECTURE 1
GUNJAN AGRAHARI
Assistant Professor Law DME, Noida
1 of 26
OBJECTIVES
Objective: The objective of the paper is to apprise the
students with the laws relating to
Marriage,
Dissolution,
Matrimonial remedies,
Adoption,
contemporary trends in family institutions in India, in
particular the Hindus and Muslims.
2 of 26
TEXT BOOKS AND REFERENCES
• Text Books:
• 1. Paras Diwan, Modern Hindu Law, Allahabad Law
Agency, 1993
• 2. Mulla, Principles of Hindu Law, Lexis Nexis, 2007
• References:
• 1. Kusum, Marriage and Divorce Law Manual, Universal
Law Publishing Co. Pvt. Ltd.,2000
• 2. B.M. Gandhi, Family Law, Eastern Book Company, 2012
• 3. Paras Diwan – Family Law, Allahabad Law Agency, 2001
3 of 26
Unit-I: Hindu Marriage and Dissolution
(Lectures -10)
• a. Institution of Marriage under Hindu Law
• i. Evolution and Concept of the Institution of

Marriage
• ii. Forms, Validity and Voidability of Marriage
4 of 26
• b. Matrimonial Remedies
• i. Restitution of Conjugal Rights S. 9, HMA, 1955
• ii. Judicial Separation S. 10, HMA, 1955
• iii. Dissolution of Marriage : Theories, Forms of

Divorce, Grounds S. 13, HMA, 1955
• v. Divorce by Mutual Consent S. 13-B, HMA, 1955
• v. Irretrievable Breakdown as a Ground for

Dissolution S. 13 (1-A) HMA, 1955
5 of 26
INTRODUCTION:
1Evolution and concept of the institution of marriage under hindu
law
2 Sources of Hindu Law
3 Who is a hindu & application of hindu law
4 Concept of Marriage
5 Section 5 in The Hindu Marriage Act, 1955
6 Section 7 in The Hindu Marriage Act, 1955
6 of 26
Evolution and Concept of the Institution of
Marriage Under Hindu Law
HISTORICAL PRESPECTIVE
• Human society was a nomadic society. So the sex
relationship remained unregulated.
• Before civilization, there was possibly a herd-instinct

type of marital relationship.
• But with the time, the nomadic human society starts

evolving into an agricultural society.
7 of 26
• Only the maternity was possible to know but the
paternity left unregulated.
• Now, it was important to know the paternity of the

children.
• Thus, a man’s quest to know the paternity of

children lie the seeds of the institution of marriage.
8 of 26
• Concept of Marriage
• A sort of man-woman relationship as a responsible
one-to-one unit of society-evolved a unique human
family system.
• Its essential components were intercourse, procreation
of children and living together with mutual obligations
and responsibilities to the care of offspring.
• Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121

• The Hon’ble Supreme Court of India has held that the
relationship in marriage is considered to be love,
affection, care and concern between the two spouses.
9 of 26
Sources of Hindu Law
• Shrutis “that which has been heard” and is canonical,
consisting of revelation and unquestionable truth, and is
considered eternal. It refers mainly to the Vedas themselves.
• Smritis “that which has been remembered” supplementary
and may change over time.
• Digests and Commentaries

• Judicial decisions, legislation, justice equity, good
conscience &
• Custom
10 of 26
• Who Is A HINDU & APPLICATION OF HINDU
LAW
Hindu by Religion : In this category there are two
types of persons
1.Those who are originally Hindus, Jains, Sikhs or

Buddhist by religion, to any person who is Hindu
by religion in any of its forms of development,
including a Virashaiva, a Lingayat or a follower of
the Brahmo, Prarthana or Arya Samaj
2.Those who are converts or reconverts to Hindu,

Jain, Sikhs or Buddhist religion
11 of 26
• FOLLOWING PERSONS ARE HINDUS,
SIKHS, JAINS OR BUDDHISTS BY RELIGION
• A child whose both the parents were Hindus, Sikhs,

Jains or Buddhists at the time of his birth, is regarded
as Hindu.
• A person will be Hindu if at the time of his birth one

of the parents was Hindu and the child is brought up
as a member of the tribe, community, group or family
to which Hindu parent belonged at the time of his
birth.
12 of 26
• Residuary: Who are not Muslims, Christians, Parsis or
Jews and
• Who is not governed by any other law, is governed by

Hindu law, unless it is proved that Hindu law is not
applicable to such a person
• Not Applicable: Person who has been declared members

of any Scheduled Tribe within the meaning of clause (25)
of Article 366 of the Constitution are not to be treated
as hindu unless the Central Government, by notification
in the Official Gazette, otherwise directs.
13 of 26
CONCEPT OF MARRIAGE
• Hindu Marriage is a Sacrament- says Rigveda,

Manu and Shashtras
• Marriage among Hindus is one of the sixteen Sanskar
• Manu, the seer, who is regarded to be the expounder

of Hindu Law, explains relationship of marriage as :
‘Let mutual fidelity continue until death’.
14 of 26
• It is not a contractual union but a permanent union
(eternal)
• Consists of sacred rites and ceremonies

• No concept of widow remarriage. Chastity even after
husband’s death
• Some sages like Narada and kautilya has spoken

about marriage dissolution
• Adultery was not accepted

15 of 26
• The concept of Swayamvar (Right To Choose) was
prevalent in some upper castes during ancient times,
where the girl was allowed to choose her own groom
as husband.
• In the lower castes, however, usually the girl had no

choice or role in the selection of her husband and was
bound by the family or parental tradition or custom.
• Wife was an important member of the family and

was considered as Ardhangini of husband.
16 of 26
• Utmost care is taken to ensure maximum cultural
compatibility between the two families of the
marrying spouses.
• In the selection of mates, therefore, a number of

prohibitions and restrictions are followed,
• Firstly the spouses must be of different Gotra
(descendants) and
• Secondly to avoid marrying a Sapinda, (persons

having common ancestors are called Sapindas)OR ‘of
the same body’ or a connection of particles of the
same body.
17 of 26
• Sapinda relationship extended to the seventh degree
from the father side and five degrees from mother
side.
• The former is called Gotra Exogamy and the latter is

called Sapinda Exogamy.
• Exogamy was accepted generally during Vedic

period. The institution of exogamy compels a man to
seek his mate from outside his own clan.
18 of 26
• Endogamy means marriage within the same tribe,
caste or Varna.
• The practice of endogamy was preferred over
exogamy in ancient India as it entailed a preference of
getting married within the same lineage and hence
results in mutual understanding in terms of social
practices and customs pervading in the society.
• In ancient India, a Brahmin could only marry a

Brahmin or a person belonging from a lower class
could not marry a person belonging from an upper
caste etc.
19 of 26
• If custom prevails, marriage between sapindas or within the
prohibited degrees of relationship are also permissible.
• Section 5 in The Hindu Marriage Act, 1955

• Conditions for a Hindu marriage: —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 (If
contravened then marriage is void and punishable u/s 17 HMA r/w S.
494 IPC)
20 of 26
• (ii) At the time of the marriage, neither party
• —(a) is incapable of giving a valid consent to it in

consequence of unsoundness of mind; or (Marriage
is Voidable)
• (b) though capable of giving a valid consent, has been

suffering from mental disorder of such a kind or to
such an extent as to be unfit for marriage and the
procreation of children; (Marriage is Voidable) or
• (c) has been subject to recurrent attacks of insanity

(Marriage is Voidable)
21 of 26
• (iii) the bridegroom has completed the age of 21
years and the bride, the age of 18 years at the time of
the marriage; (Marriage is valid but punishable u/s 18
a HMA)
• (iv) the parties are not within the degrees of

prohibited relationship unless the custom or usage
governing each of them permits of a marriage
between the two (Marriage is valid but punishable u/s
18 b HMA)
22 of 26
• (v) the parties are not sapindas of each other, unless
the custom or usage governing each of them permits
of a marriage between the two (Marriage is valid but
punishable u/s 18 b HMA)
• Vijayakumari v. K. Devabalan, AIR 2003 Ker 363

• Ratio Decidendi: A marriage between a Hindu man
who converted as Christian and a Christian lady in a
Hindu form is not a valid marriage. According to
section 5 of the Act marriage can be solemnised
between two Hindus.
23 of 26
• R. Lakshmi Narayan v. Santhi, AIR 2001 SC 2110.
Held: To draw an inference merely from the fact that
the spouses had no co-habitation for a short period of
about a month, is neither reasonable nor permissible.
• To brand the wife as unfit for marriage and

procreation of children on account of the mental
disorder, it needs to be established that the ailment
suffered by her is of such a kind or such an extent that
it is impossible for her to lead a normal married life;
24 of 26
Section 7 in The Hindu Marriage Act, 1955
• Ceremonies for a Hindu marriage.

• —(1) A Hindu marriage may be solemnized in
accordance with the customary rites and
ceremonies of either party thereto.
• (2) Where such rites and ceremonies include the

saptpadi (that is, the taking of seven steps by the
bridegroom and the bride jointly before the sacred
fire), the marriage becomes complete and binding
when the seventh step is taken.
25 of 26
• THANK YOU
• NEXT LECTURE
• Forms, Validity and Voidability of Marriage
26 of 26

Family Law - I: Unit 1 Lecture 1

Uploaded by

Copyright:

Available Formats

Family Law - I: Unit 1 Lecture 1

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Family Law - I: Unit 1 Lecture 1

Uploaded by

Copyright:

Available Formats

FAMILY LAW -I

• a. Institution of Marriage under Hindu Law

• i. Evolution and Concept of the Institution of

• ii. Forms, Validity and Voidability of Marriage

• i. Restitution of Conjugal Rights S. 9, HMA, 1955

• ii. Judicial Separation S. 10, HMA, 1955

• iii. Dissolution of Marriage : Theories, Forms of

• v. Divorce by Mutual Consent S. 13-B, HMA, 1955

• v. Irretrievable Breakdown as a Ground for

• Before civilization, there was possibly a herd-instinct

• But with the time, the nomadic human society starts

• Now, it was important to know the paternity of the

• Thus, a man’s quest to know the paternity of

• Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121

• Digests and Commentaries

1.Those who are originally Hindus, Jains, Sikhs or

2.Those who are converts or reconverts to Hindu,

• A child whose both the parents were Hindus, Sikhs,

• A person will be Hindu if at the time of his birth one

• Who is not governed by any other law, is governed by

• Not Applicable: Person who has been declared members

• Hindu Marriage is a Sacrament- says Rigveda,

• Marriage among Hindus is one of the sixteen Sanskar

• Manu, the seer, who is regarded to be the expounder

• Consists of sacred rites and ceremonies

• Some sages like Narada and kautilya has spoken

• Adultery was not accepted

• In the lower castes, however, usually the girl had no

• Wife was an important member of the family and

• In the selection of mates, therefore, a number of

• Secondly to avoid marrying a Sapinda, (persons

• The former is called Gotra Exogamy and the latter is

• Exogamy was accepted generally during Vedic

• In ancient India, a Brahmin could only marry a

• Section 5 in The Hindu Marriage Act, 1955

• —(a) is incapable of giving a valid consent to it in

• (b) though capable of giving a valid consent, has been

• (c) has been subject to recurrent attacks of insanity

• (iv) the parties are not within the degrees of

• Vijayakumari v. K. Devabalan, AIR 2003 Ker 363

• To brand the wife as unfit for marriage and

• Ceremonies for a Hindu marriage.

• (2) Where such rites and ceremonies include the

• Forms, Validity and Voidability of Marriage

You might also like

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.