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LLB Notes- Family Law -1 (Hindu Law)

General Principles of Law of Torts (Osmania University)

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Class Notes on Family Law/Hindu Law 1 – UNIT I (1st Sem / 3 year LL.B)

Family Law / Hindu Law – UNIT I — Revision Study Notes for LL.B

Introduction of the Hindu Law

Concept of Dharma

Hindu Law is a body of principles or rules called ‘Dharma’. Dharma according to

Hindu texts embraces everything in life. According to the Hindus, ‘Dharma’
includes not only what is known as law in the modern sense of the term but all
rules of good and proper human conduct. Dharma is used to mean justice what
is right in a given circumstance, moral, religious, pious or righteous conduct,
being helpful to living beings and things, duty, law and usage or custom having
in the force of law and also a valid Rajashasana

Origin of Hindu law

The Hindu system as modified through centuries has been in existence for over
five thousand years and has continued to govern the social and moral patterns
of Hindu life with harmonizing the diverse elements of Hindu cultural life.
Magne says, “Hindu law has the oldest pedigree of any known system of
Jurisprudence and even now it shows no signs of decrepitude“.

Nature and scope of Hindu Law

Hindu law, though believed to be of divine origin, is based essentially on

immemorial custom and many of the acts of the people which were purely of a
secular nature. But the secular nature of the acts have been modified to suit
the religious preferences of a Brahmin community. With a desire to promote
the special objects of religion or policy, they have used their intellectual
superiority and religious influence to mold the customs of the people.

Who are Hindus

The term ‘Hindus’ denotes all those persons who profess Hindu religion either
by birth from Hindu parents or by conversion to Hindu faith. In Yagnapurus
dasji v. Muldas [AIR 1966 SC 1119], the Supreme Court accepted the working
formula evolved by Tilak regarding Hindu religion that ‘acceptance of vedas’
with reverence, recognition of the fact that the number of Gods to
be worshiped at large, that indeed is the distinguishing feature of Hindu

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religion.

In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of Hindus
such as Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion
because they follow the same basic concept of Hindu Philosophy. Converts and
Reconverts are also Hindus.

If only one parent is a Hindu, the person can be a Hindu if he/she has been
raised as a Hindu. In Sapna vs State of kerala, Kerala HC, the son of Hindu
father and Christian mother was held to be a Christian

To whom Hindu Law apply

1. Hindus by birth
2. Off shoots of Hinduism
3. Persons who are not Muslims, Christians, Parsis or Jews
4. Converts to Hinduism
5. Reconverts to Hinduism
6. Harijans
7. Aboriginal Tribes

To whom Hindu law does not apply

 to converts from the Hindu to the Mohammedan faith

 to the Hindu converts to Christianity
 to the illegitimate children of a Hindu father by Christian mother and
who are brought up as Christians

Constitution of India and the Enactments under the Hindu Law

Presently, Hindu Law is applied through the Hindu Marriage Act, 1955; the
Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956;
and the Hindu Adoptions and Maintenance Act, 1956

Constitutional enactments are:

 Hindu Women’s Rights to Property Act, 1937

 Hindu Succession Act, 1956

Impact of Hindu Law Enactments in Fundamental Rights

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Several principles of Hindu Law have been held invalid on the ground that they
infringe the Fundamental Rights. For example, the rule of Damdupat is hit by
Article 15(1) of the Constitution and as such would be void under Article 13(1).

Sources of Hindu Law

Ancient Sources

Before the codification of Hindu Law, the ancient literature was the only
source of the law. These sources can be divided into four categories:

01. Shruti (Vedas)

Shruti means “what is heard”. It is believed that the rishis and munis had
reached the height of spirituality where they were revealed the knowledge of
Vedas. Thus, shrutis include the four vedas – rig, yajur, sam, and athrava along
with their brahmanas. The brahmanas are like the apendices to the Vedas.
Vedas primarily contain theories about sacrifices, rituals, and customs.

02. Smritis

Smriti means “what is remembered”. With Smritis, a systematic study and

teaching of Vedas started. Many sages, from time to time, have written down
the concepts given in Vedas. So it can be said that Smritis are a written memoir
of the knowledge of the sages. Immediately after the Vedic period, a need for
the regulation of the society arose.

 Dharmasutras: The Dharmansutras were written during 800 to 200 BC.

They were mostly written in prose form but also contain verses. It is
clear that they were meant to be training manuals of sages for teaching
students.
 Dharmashastras: Dharmashastras were mostly in metrical verses and
were based of Dharmasutras. However, they were a lot more systematic
and clear.
 Manusmriti: This is the earliest and most important of all. It is not only
defined the way of life in India but is also well know in Java, Bali, and
Sumatra. The name of the real author is not known because the author
has written it under the mythical name of Manu, who is considered to
the the first human.
 Yajnavalkya Smriti: Though written after Manusmriti, this is a very
important smriti. Its language is very direct and clear. It is also a lot more

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logical. He also gives a lot of importance to customs but hold the king to
be below the law.
 Narada Smriti: Narada was from Nepal and this smriti is well preserved
and its complete text is available. This is the only smriti that does not
deal with religion and morality at all but concentrates only on civil law.

03. Commenatries and Digests

After 200 AD, most the of work was done only on the existing material given in
Smrutis. The work done to explain a particular smriti is called a commentary.
Commentaries were composed in the period immediately after 200 AD. Digests
were mainly written after that and incorporated and explained material from
all the smruitis. As noted ealier, some of the commentaries were,
manubhashya, manutika, and mitakshara. While the most important digest is
Jimutvahan’s Dayabhag that is applicable in the Bengal and Orissa
area. Mitakshara literally means ‘New Word’ and is paramount source of law in
all of India.

04. Customs

Most of the Hindu law is based on customs and practices followed by the
people all across the country. Even smrutis have given importance to customs.
They have held customs as transcendent law and have advised the Kings to
give decisions based on customs after due religious consideration. Customs are
of four types:

 Local Custom: These are the customs that are followed in a given
geographical area.
 Family Custom: These are the customs that are followed by a family
from a long time. These are applicable to families where ever they live.
 Class or Caste Custom: These are the customs that are followed by a
particular cast or community. It is binding on the members of that
community or caste. By far, this is one of the most important source of
laws.
 Guild Custom: These are the customs that are followed by traders.

Requirements for a valid custom

 Ancient
 Continuous
 Certain
 Reasonable

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 Not against morality

 Not against public policy
 Not against any law

Proof of Custom

The burden of proving a custom is on the person who alleges it. Usually,
customs are proved by instances. In the case of Prakash vs Parmeshwari, it was
held that one instance does not prove a custom. However, in the case of
Ujagar vs Jeo, it was held that if a custom has been brought to notice of the
court repeated, no further proof is required.

Usage and Custom

The term custom and usage is commonly used in commercial law, but
“custom” and “usage” can be distinguished. A usage is a repetition of acts
whereas custom is the law or general rule that arises from such repetition. A
usage may exist without a custom, but a custom cannot arise without a usage
accompanying it or preceding it. Usage derives its authority from the assent of
the parties to a transaction and is applicable only to consensual arrangements.
Custom derives its authority from its adoption into the law and is binding
regardless of any acts of assent by the parties. In modern law, however, the
two principles are often merged into one by the courts.

Modern Sources

Judicial Decisions (Precedents)

The doctrine of stare decisis started in India from the British rule. All cases are
now recorded and new cases are decided based on existing case laws.Today,
the judgment of SC is binding on all courts across India and the judgment of HC
is binding on all courts in that state.

Legislatures / Statutes (Codification of Hindu Law)

In modern society, this is the only way to bring in new laws. The parliament, in
accordance with the needs society, constitutes new laws. For example, a new
way of performing Hindu marriages in Tamil Nadu that got rid of rituals and
priests was rejected by the SC on the basis that new customs cannot be
invented. However, TN later passed an act that recognized these marriages.

Justice, equity and good conscience

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Equity means fairness in dealing. Modern judicial systems greatly rely on being
impartial. True justice can only be delivered through equity and good
conscience. In a situation where no rule is given, a sense of ‘reasonableness’
must prevail. According to Gautama, in such situation, the decision should be
given that is acceptable to at least ten people who are knowledgeable in
shastras. Yagyavalkya has said that where ever there are conflicting rules, the
decision must be based on ‘Nyaya’.

Schools of Hindu Law

Due to the emergence of various commentaries on SMIRITI and SRUTI,

different schools of thoughts arose. The commentary in one part of the
country varied from the commentary in the other parts of the country.

The Mitakshara School

The Mitakshara School exists throughout India except in the State of Bengal
and Assam. The Yagna Valkya Smriti was commented on by Vigneshwara under
the title Mitakshara. The followers of Mitakshara are grouped together under
the Mitakshara School.

Mitakshara school is based on the code of yagnavalkya commented by

vigneshwara, a great thinker and a law maker from Gulbarga, Karnataka. The
Inheritance is based on the principle or propinquity i.e. the nearest in blood
relationship will get the property.

The school is followed throughout India except Bengal state. Sapinda

relationship is of blood. The right to Hindu joint family property is by birth. So,
a son immediately after birth gets a right to the property.

 Dravidian School Of Thought (Madras School)

 Maharashtra School (Bombay School Of Thought)
 Banaras School Of Thought
 Mithila School Of Thought

The Dayabhaga School

It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by
Jimootavagana under the title Dayabhaga. It has no sub-school. it differs from
Mistakshara School in many respects.

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Dayabhaga School is based on the code of yagnavalkya commented by

Jimutuvahana, Inheritance is based on the principle of spiritual benefit. It
arises by pinda offering i.e. rice ball offering to deceased ancestors.

This school is followed in Bengal state only. Sapinda relation is by pinda

offerings.

The right to Hindu joint family property is not by birth but only on the death of
the father.

The system of devolution of property is by inheritance. The legal heirs (sons)

have definite shares after the death of the father.

Class Notes on Family Law I – Unit II (1st Sem / 3 year LL.B)

UNIT – II

Marriage and Kinship

Evolution of the Institution of Marriage and Family

Definition and Forms of Hindu Marriage

o Definitions of Marriage: Marriage is a civil and religious contract

whereby a man is joined and united to a woman for the purpose of
civilized society. In law ‘marriage’ may mean either the acts,
agreements, or ceremony by which two persons enter into wedlock, or
their subsequent relation created thereby. Marriage is the civil status or
personal relation of one man and one woman joined together in a
matrimonial union which was lawfully entered into.
o Characteristics of Marriage: Marriage is universal, It is for the formation
of family, It forges a new social link, It fixes the responsibility of bringing
up children on the parents, It is a result of civil or religious ceremony,
Legitimization of children born out of such union which is a social need,
In marriage, the male and female get the right of mutual relationship in
economic, social and biological spheres.

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o Origin of Marriage: The Institute of Marriage evolved in an evolutionary

manner. In the earliest form of groupings of people, sex was absolutely
unregulated and the children were considered to be the children of the
group. According to Morgan, marriage institution started with group
marriage, then polygamy and lastly monogamy.
o Importance of the Institution of Marriage: The institute of marriage
regulates and socially validates relatively long-term legitimate sexual
relation between males and females, Marriage serves to start
reproductive process, Marriage is also a way to acquire new Kinsmen, It
is only after marriage a family comes into being
o Hindu Marriage:
o Matrimonial Rights and Obligations
o Duties of a Husband are: to protect his wife, to give her a home,
to maintain her by providing her with comforts and necessities of
life within his means, to treat her kindly with affection and
courtesy, to honour the wife, not to assault or commit battery
against his wife’s person
o Rights of a Husband are: he is entitled to the custody and the
conjugal society of his wife, he is entitled to succeed to her if she
predeceases him without issue, and can utilise her Sridhana
property to relieve himself in circumstances of extreme distress
o Duties of a Wife are: to attend to the needs of her husband both
in religious and household activities, to show obedience and
veneration for the husband, to live with him wherever he may
choose to reside unless he is guilty of cruelty or misconduct
o Rights of a Wife are: right for maintenance throughout her life,
right of equality in the house of her husband, right to bring suit for
the restitution of conjugal rights, right to get divorce for the
cruelty, insults, etc

Different Forms of Hindu Marriage

The four obsolete approved forms

 Brahma (to a man learned in vedas)

 Daiva (to a preist)
 Arsha (father’s taking gift from groom: a cow and a bull)
 Prajapatya (similar to Brahma, gift of a daughter by father, but
bridegroom need not be a bachelor)

The four unapproved forms

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 Asura (When groom buys bride through money)

 Gandharva (When voluntary union against parent’s wishes)
 Rakshasa (When forcible abduction / kidnapping)
 Paishacha (when intoxicated)

Salient Features of Hindu Marriage Act, 1955

o Ancient Hindu Law of Marriage

o During Muslim period
o During early british rule
o Enactments in the British Rule
o Enactments in Independent India
o The Special Marriage Act, 1954
o Salient Features of the Hindu Marriage Act, 1955
o Main changes introduced in the Hindu Marriage, 1955 by the Marriage
Laws (Amendment) Act, 1976

Application of Hindu Marriage Act, 1955

Definitions

o Custom and Usages

o Full Blood, Half Blood and Uterine Blood
o Sapinda Relationship
o Degree of Prohibited Relationship

Overriding Effect of the Hindu Marriage Act, 1955

Conditions of Hindu Marriage

Section 5 of the Hindu Marriage Act, 1955 lists out the following conditions to
be fulfilled for the solemnization between any two Hindus:-

o Monogamy: The first essential condition for a valid marriage is that

neither party should have a spouse living at the time of marriage.
Monogamy is the voluntary union for life of one man with one woman to
the exclusion of all others. In the case of Varadrajan v. State, it was held
that a party to be bigamous marriage could be punished only upon the
proof of the prior marriage having been solemnized according to
religious ceremonies and customs.
o Mental Capacity: A marriage is bliss. A sound mind is a key to a happy
married life. Clause (ii) of Section 5 of the Act lays down as one of the

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conditions for a Hindu Marriage that neither party must be suffering

from unsoundness of mind, mental disorder, and insanity.
o Age of Parties: The Hindu Marriage Act, 1955 lays down the condition
that at the time of the marriage, the bridegroom must have completed
the age of 21 and the bride the age of 18 years. In the case of Rabindra
Prasad v. Sita Devi, the court held that a child marriage is not void and
observed that “the marriage solemnized in violation of Section 5 (iii)
remains unaffected.
o Degrees of Prohibited Relationship: Clause 10 of Section 5 of the Hindu
Marriage Act, 1955 lays down that no marriage is valid if it is made
between persons related to each other within the prohibited degrees
unless such marriage is sanctioned by custom or usage governing both
the parties.
o Beyond Sapinda Relationship: According to Mitakshara, Sapinda means
a person connected by the same blood relation. Clause (v) of Section 5 of
the Hindu Marriage Act, 1955 itself provides that the parties to marriage
should not be sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between two.
o The question of virginity of the bride: The Hindu bride is expected to be
a virgin. If the bride had been made pregnant by another, the husband
can have the marriage set-aside by a decree of nullity, provided (a) he
was ignorant of this fact at the time of marriage; (b) he did not have
marital intercourse after discovering the fact; (c) petition is brought
within one year from the date of marriage
o Impotency and other physical infirmities: If the bridegroom is found
impotent after the marriage, the marriage can be set-aside under
section 12 of the Act. Such marriage is voidable.
o Inter-caste Marriage: The Government of India enacted ‘Hindu
Marriages Validating Act, 1949, which validates intercaste marriages and
also marriages between Hindus, Jains and Sikhs. In the case of Bai Gulab
v. Jiwan Lal, the Bombay High Court upheld the validity of Anuloma
marriages.
o Doctrine of Factum Valet: It is a doctrine of Hindu law, which was
originally enunciated by the author of the Dayabhaga, and also
recognized by the followers of the Mitakshara, that ‘a fact cannot be
altered by a hundred texts’. The text referred to are directory texts, as
opposed to mandatory texts. The maxim, therefore, means that if a fact
is accomplished, i.e., if an act is done and finally completed, although it
may contravene a hundred directory texts, the fact will nevertheless
stand, and the act done will be deemed to be legal and binding.This

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doctrine came from Roman maxim ‘factum valet quod fieri non debuit’
which literally means that ‘what ought not to be done become valid
when done’.In the case of Venkatrama v. State, the court has applied
the doctrine of factum valet to child marriage and held that the marriage
itself is valid though penal consequences are attracted. The child
marriages are neither void nor voidable. They continue to be valid even
though punishable.

Ceremonies of Hindu Marriage

o No particular form of marriage

o Necessary religious ceremonies
 Vagdan
 Formalities including the recitation of holy texts before the sacred
fire
 Saptapadi
o State amendments

 Registration of Hindu Marriages

 Types of Marriage: Monogamy, Polygamy, Polyandry

Matrimonial Remedies

Restitution of Conjugal Rights

The meaning of Restitution of Conjugal Rights: Either husband or wife has

without reasonable excuse withdrawn from the society of other, the aggrieved
party, may approach the court for ‘Restitution of Conjugal Rights’ and the court
on being satisfied on the truth of the statement in such petition may grant
decree for ‘Restitution of Conjugal Rights’.

-> In case, husband or wife lives separately, then they can avail Conjugal
Rights.
-> In case, if there was any valid reason to live separately, then they cannot
avail Conjugal Rights

Case Laws:

1. T. Sareetha v. Venkata Subbaiah

o Matrimonial remedies
o Restitution of conjugal rights – Section 9

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o Constitutionality of Section 9
o Remedies available
 Subsistance
 Withdrawal from the society
 Validity of agreement of separation
 Reasonable excuse
 Defence available to restitution petition
 Can a husband compel his wife to resign her job and stay with
him?
o Petition for restitution

Void and Voidable Marriages

Void Marriages

Section 11. Void marriages :- Any marriage solemnized 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), Section 5.”

A marriage is void in three circumstances:

– at the time of marriage, a party is having living spouse
– two persons come under prohibited degrees of relationship
– two persons com under sapinda relationships

 Constitutionality of Section 11 of the Act

 Applicability of Section 11 of the Act
 Delay
 Death of a spouse
 Bigamous marriage
 Injunction
 Third Person
 Effects of void marriage
 Legitimacy of children
 Position of Women

Voidable Marriages

 Grounds for the remedy

 Impotency

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 Unsoundness of Mind
 Consent obtained by force or fraud
 Pregnancy of the bride
 Petition for annulment
 Decree for annulment
 Distinction between void and voidable marriages
 Legitimacy of children of void and voidable marriages

Judicial Separation – Section 10 of the Hindu Marriage Act, 1955

A petition can be filed on any of the grounds specified in sub-section (1) and (2)
of Section 13.

Judicial or legal separation means living apart by the parties to the marriage. If
a decree for judicial separation is passed by a competent Court, it is no longer
obligatory for either party to cohabit with the other. Such a decree does not
sever or dissolve the marriage. Yet it is equally true that certain mutual rights
and obligations arising from the marriage are suspended when such a decree is
passed.

In Hiranand S Managaonkar v. Sunanda, the Supreme Court has observed that

a decree of judicial separation does not dissolve the bond of marriage but
rather provides an opportunity to the spouses for reconciliation and
readjustment.

Grounds

 Adultery: Extra-marital voluntary sexual intercourse. In order to

establish extra-marital, one has to depend on ancillary facts which may
be:- circumstantial evidence, birth of a child to the wife when there is no
evidence of contact with her, contracting of a venereal disease,
admission on the part of the respondent, discovery of letters which
might contain such contents which suggest sexual relationship between
the two
 Cruelty: There is mental as well as physical cruelty. To establish legal
cruelty, it is not necessary that physical violence should be used.
Continuous ill-treatment, cessation of marital intercourse, verbal abuse
and insult, refusal to speak, ill-treatment of children, refusal to have
children, etc
 Desertion: Desertion is the act of forsaking or abandoning or the act of
quitting without leave with an intention not to return. Desertion has

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been defined in the Indian Divorce Act as “implying an abandonment

against the wish of the person changing it”. In the case Shanti Devi v.
Govind Singh, it has been observed that for constituting ‘desertion’ two
essential conditions must be fulfilled namely (i) the factum of
separation; and (ii) the intention to bring cohabitation permanently to
an end
 Conversion: Ceasing to be a Hindu by conversion on the part of the
either party to the marriage, forms a ground for a decree of judicial
separation.
 Unsoundness of Mind: The petitioner has to establish that the
respondent has been incurably of unsound mind or has been suffering
continuously or intermittently from mental disorder of such a kind and
to such an extent that the petitioner cannot be expected to live with the
respondent.
 Leprosy: If either of the party has been suffering from venereal disease
in communicable form, then the other party can present a petition for
decree of judicial separation. The leprosy which is maligned or
venomous can be termed as virulent. Lepromatous leprosy is virulent
and incurable.
 Venereal Disease: It requires to establish for judicial separation that the
respondent has been suffering from venereal disease in a communicable
form.
 Renunciation of the world: The renunciation implies a religious order
which operates as a civil death and, therefore, the other party has been
given right to obtain a decree of judicial separation or divorce.
 Presumption of death: That the other party has not been heard of as
alive for a period of seven years or more by those persons who would
naturally have heard of him, had that party been alive.

Additional Grounds

 Bigamy: Marrying again during lifetime of husband or wife: Whoever,

having a husband or wife living, marries in any case in which such
marriage is void by reason of its taking place during the life of such
husband or wife, shall be punished with imprisonment and fine.
 Rape or sodomy or bestiality: The husband has, since the solemnization
of the marriage, been guilty of rape or sodomy or bestiality.
 In maintenance case: Either in a suit under Section 18 of the Hindu
Adoption and Maintenance Act, 1956, or in a proceeding under Section
125 of the Code of Criminal Procedure, 1973, a decree or order has been
passed against the husband awarding maintenance to wife and that

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since the passing of such decree or order cohabitation between the

parties had not been resumed for one year or upwards.
 In child marriage case: That, her marriage was solemnized before she
attained the age of 15 years, and she has repudiated the marriage after
attaining that age but before attaining the age of 18 years.

Power of Court to rescind the decree of Judicial Separation

Section 10(2) of the Act empowers the Court to rescind the decree of the
judicial separation if it considers it just and reasonable to do so.

1. the decree has been obtained by showing reasonable excuse for his or
her absence
2. the parties cohabited with each other after the decree was passed or
they have resumed living together
3. the opposite party has condoned the offence

Effects of Judicial Separation

1. permits the parties to live separately

2. does not dissolve the marriage
3. husband and wife continue to have the same status
4. not be obligatory for them to cohabit with each other
5. does not prevent the parties from resuming cohabitation and living
together as husband and wife

Divorce – Section 13 of the Hindu Marriage Act, 1955

Divorce in Ancient Hindu Law

Under Hindu Custom, Marriage is considered as sacred and they have this
relation by the blessings of the God. They believed the concept of “marriages
are made in heaven”. Hindus considered the separation of couple as a sin and
hence the question of living separately did not arise in olden days. Once
married, the tie lasts till the end of life.

Divorce means putting an end to the marriage by dissolution of marital

relations. The parties can no longer be husband and wife. Divorce was
unknown to the old textual Hindu law of marriage. Manu declared that a wife
cannot be separated from her husband either by sale or by abandonment
because marital tie could not be severed under any circumstances whatsoever.
Manu did not approve of the dissolution of marriage in any condition.

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Dissolution of Marriage

 Grounds available for both

 Adultery:
 Cruelty:
 Desertion:
 Conversion:
 Unsoundness of mind:
 Venereal disease:
 Renunciation of the world:
 Presumption of death:
 Non-resumption of cohabitation after the decree of judicial
separation:
 Non-compliance with the decree of restitution of conjugal rights:

o Grounds available for wife

 Bigamy:
 Rape, Sodomy and bestiality:
 Maintenance decreed to Wife:
 Repudiation of Marriage by Wife:

Alternate Relief

Section 13A of the Hindu Marriage Act, 1955 states “In any proceeding under
this Act, on a petition for dissolution of marriage by a decree of divorce, except
in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi)
and (vii) of sub-section (1) of Section 13, the court may, if considers it just to do
having regard to the circumstances of the case, pass instead a decree for
judicial separation”.

Divorce by mutual consent

Since Divorce is the last remedy available to put an end to the marital tie, the
parties can decide to separate amicably, divorce petition may be submitted by
any one of the spouses to the District Court on any one of the grounds given in
Section 13 of the Act to take divorce on mutual consent. Divorce by mutual
consent was not incorporated in the original Act of 1955. It has been inserted
in the Section 13-B by the Hindu Marriage (Amendment) Act, 1976.

 parties living separately for a period of one year or more

 not able to live together
 mutual agreement in dissolving the marriage

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 consent of the parties has been obtained

Distinction between judicial separation and divorce

 The relationship of husband and wife stands suppressed, while in

Divorce the relationship of husband and wife ceases to exist
 Temporarily suspends the marital rights and duties of parties to
marriage for some time by Court, while Divorce puts an end to the
marital relationship between the parties
 The object is the hope of adjustment, reconciliation and reunion of the
spouses, while in Divorce, the object is to give the last resort
 The parties to the marriage cannot remarry, while in Divorce, the parties
are entitled to get another marriage of his/her choice
 Original marital relationship can be restored, while in Divorce, the
original marital status cannot be restored
 After obtaining the judicial separation, the wife can file and succeed for
the maintenance, while in Divorce, the divorced woman cannot file for
the maintenance under Hindu Adoption and Maintenance Act
 It is a lesser remedy than divorce, but in Divorce, it is stronger, drastic
and last remedy than judicial separation

Presentment of petition for divorce

Under Section 14 of the Hindu Marriage Act, 1955, no Court shall entertain a
petition for divorce before expiration of a period of one year from the date of
marriage, however this section also provides that the Court may entertain
petition for divorce before one year on the ground of exceptional hardship to
the petitioner or exceptional depravity of the respondent.

In the case of Meghanatha Nayyar v. Smt. Susheela, the Madras High Court
had observed that “Section 14 provides restrictions presumably designed to
prevent party from taking recourse to legal proceedings before the parties
have made real effort to save their marriage from disaster. It is founded on
public policy because marriage is the foundation of civil society and no part of
the laws and constitution of a country can be of more vital importance to the
subject than those which regulated the manner and conditions of forming and
if necessary, of dissolving marriage contract.”

Divorced persons when may marry again

Section 15 of the Hindu Marriage Act, 1955 provides: “When a marriage has
been dissolved by a decree of divorce and either there is no right of appeal

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against the decree or, if there is such a right of appeal, the time for appealing
has expired without an appeal have been presented, or an appeal has been
presented but has been dismissed, it shall be lawful for either party to the
marriage to marry again.”

Punishment of Bigamy and other matrimonial offences

Section 17 of the Hindu Marriage Act, 1955 states: “Any marriage between two
Hindus solemnized after the commencement of this Act is void if on the date of
such marriage either party had a husband or wife living; and the provisions of
Sections 494 and 495 of the Indian Penal Code, 18600, shall apply accordingly.”

In Gopal Lal V. State of Rajasthan, it has been observed that where a spouse
contracts a second marriage while the first marriage is still subsisting, the
spouse would be of guilty of bigamy under Section 17 of the Act and also under
Section 494 IPC if it is proved that the second marriage was a valid one in the
sense that the necessary ceremonies required by law or by custom have been
actually performed.

Maintenance and Alimony

Section 24 – Maintenance Pendente Lite

Difference between Section 24 of Hindu Marriage Act, 1955 and Section 18 of

Hindu Adoptions and Maintenance Act, 1956

Section 25 – Permanent Alimony and Maintenance

Difference between Maintenance pendente lite under Section 24 and the

permanent alimony under Section 25

Section 27 – Disposal of Property

Case Laws:

 Amar Kanta Sen v. Sovana Sen, AIR 1960 Cal. 438 159
 Padmja Sharma v. Ratan Lal Sharma, AIR 2000 SC 1398

Customary Provisions and Legislative Provisions Relating to Dowry

Prohibition

THE DOWRY PROHIBITION ACT, 1961

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Other Laws

 Code Of Criminal Procedure, 1973

 Indian Evidence Act, 1872
 Indian Penal Code, 1860

23 Amount of maintenance

24 Claimant to maintenance should be a Hindu

25 Amount of maintenance may be altered on change of circumstances

26 Debts to have priority

27 Maintenance when to be a charge

28 Effect of transfer of property on right to maintenance

29 Repeals

30 Savings

Case Laws:

 Brijendra v. State of M.P., AIR 2008 SC 1058

Class Notes on Family Law I – Unit III (1st Sem / 3 year LL.B)

UNIT III

Hindu undivided family

Mitakshara Joint Family

Formation and Incidents

Property under both Schools

Kartha: His Position, Powers, Privileges and Obligations

Debts

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Doctrine of Pious Obligation

Partition and Reunion

Religious and Charitable Endowment

Class Notes on Family Law I – Unit IV (1st Sem / 3 year LL.B)

Study Notes on Hindu Law – UNIT IV

Inheritance and Succession

Historical perspective of traditional

Hindu Law relating to Inheritance

A detailed study of Hindu

Succession Act, 1956.

Stridhana- Woman’s Property

Recent State and Central

Amendments to Hindu Succession Act; Gifts and Testamentary

Succession – Wills

Class Notes on Family Law I – Unit V (1st Sem / 3 year LL.B)

Study Notes on Hindu Law – UNIT V

Law relating to Hindu Minority and Guardianship: Kinds of Guardians;

MINORITY AND GUARDIANSHIP

The Hindu Minority and Guardianship Act, 1956

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2 Act to be supplemental to Act 8 of 1890

3 Application of Act

4 Definitions

5 Over-riding effect of Act

6 Natural guardians of a Hindu minor

7 Natural guardianship of adopted son

8 Powers of natural guardian

9 Testamentary guardians and their powers

10 Incapacity of minor to act as guardian of property

11 De facto guardian not to deal with minors property

12 Guardian not to be appointed for minors undivided interest in joint family

property

13 Welfare

Duties & Powers of Guardians; A detailed study of Hindu Adoption and

Maintenance Act, 1956;

Case Laws:

 Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228

Maintenance: Traditional Rights and Rights under Hindu Adoption &

Maintenance Act 1956.

ADOPTION AND MAINTENANCE

The Hindu Adoption and Maintenance Act, 1956

2 Application of Act
3 Definitions
4 Overriding effect of Act
5 Adoption to be regulated by this Chapter

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6 Requisites of a valid adoption. – No adoption shall be valid unless –

 (i) the person adopting has the capacity, and also the right, to take in
adoption;
 (ii) the person giving in adoption has the capacity to do so;
 (iii) the person adopted is capable of being taken in adoption; and
 (iv) the adoption is made in compliance with the other conditions
mentioned in this Chapter.

Kumar Sursen v. State of Bihar – Under section 6 the law does not recognize
an adoption by a Hindu of any person other than a Hindu;
M. Gurudas v. Rasaranjan – To prove valid adoption, it would be necessary to
bring on records that there had been an actual giving and taking ceremony;

Suma Bewa v. Kunja Bihari Nayak – Law is well settled that adoption displaces
the natural line of succession and therefore, a person who seeks to displace
the natural succession to the property alleging an adoption must prove the
factum of adoption and its validity by placing sufficient materials on record.

Devgonda Raygonda Patil v. Shamgonda Raygonda Patil – Section 6 does not

bar a lunatic person from being adopted.

7 Capacity of male Hindu to take in adoption

Any male Hindu who is of sound mind and is not a minor has the capacity to
take a son or a daughter in adoption: Provided that, if he has a wife living, he
shall not adopt except with the consent of his wife unless the wife 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.

Explanation. – If a person has more than one wife living at the time of
adoption, the consent of all the wives is necessary unless the consent of any
one of them is unnecessary for any of the reasons specified in the preceding
proviso.

Ram Sundar v Kali Narain – it was observed that mere weakness of mind is not
sufficient, what is necessary to be proved is that infirmity of mind has been
such as to disable him from understanding what he was doing.

In Ambarish Kumar v Hatu Prasad, it was held that a person who is deaf and
dumb but is in a position to express himself to signs and gestures though not
clearly, cannot be called a person of unsound mind.

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8 Capacity of a female Hindu to take in adoption. – Any female Hindu

(a) who is of sound mind, (b) who is not a minor, and (c) who is not married, or
if married, whose marriage has been dissolved or whose husband is dead or
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,
has the capacity to take a son or daughter in adoption.

If she is not married

 Earlier, an unmarried female as well as a widow had no power to adopt

except under the authority
 Post amendment of the act, an unmarried woman who completes the
age of eighteen can adopt a child.
 Now possible for a unmarried woman to have a legitimiate adopted son

If she be married

 A married woman whose husband is living has no capacity to adopt even

with the consent of her husband
 A woman can take adoption if
o marriage is dissolved
o dead of the husband
 A married woman can adopt –
o husband has ceased to be a Hindu
o completely renounced the world
o husband has been declared by a court as an unsound mind

9 Persons capable of giving in adoption –

1. No person except the father or mother or the guardian of a child shall

have the capacity to give the child in adoption.
2. Subject to the provisions of 1[ sub- section (3) and sub- section (4)], the
father, if alive, shall alone have the right to give in adoption, but such
right shall not be exercised save with the consent of the mother unless
the mother 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.
3. The mother may give the child in adoption if the father is dead or has
completely and finally renounced the world or has ceased to be a Hindu

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or has been declared by a court of competent jurisdiction to be of

unsound mind.
4. Where both the father and mother are dead or have completely and
finally renounced the world or have abandoned the child or have been
declared by a court of competent jurisdiction to be of unsound mind or
where the parentage of the child is not known, the guardian of the child
may give the child in adoption with the previous permission of the court
to any person including the guardian himself.
5. Before granting, permission to a guardian under sub- section (4), the
court shall be satisfied that the adoption will be for the welfare of the
child, due consideration being for this purpose given to the wishes of the
child having regard to the age and understanding of the child and that
the applicant for permission has not received Or agreed to receive and
that no person has made or given or agreed to make or give to the
applicant any payment or reward in consideration of the adoption
except such as the court may sanction.

Explanation. For the purposes of this section-

 (i) the expressions” father” and” mother” do not include an adoptive

father and an adoptive mother;
 (ia) ” guardian” means a person having the care of the person of a child
or of both his person and property and includes-
o (a) a guardian appointed by the will of the child’ s father or
mother, and
o (b) a guardian appointed or declared by a court; and
 (ii) ” court” means the city civil court or a district court within the local
limits of whose jurisdiction the child to be adopted ordinarily resides.

Dhanraj v Suraj Bai, it was held that adoption of a ‘step-son’ given in adoption
by the step-mother who has no capacity to do so is invalid by virtue of Section
5(i) read with Section 6(ii) of the Act.
A mother can give her child by her previous husband in adoption if she
remarries; Mother of an illegitimate child can give the child in adoption
without the consent of her paramour to whom the child was born

10 Persons who may be adopted – conditions

1. He or she is a Hindu
2. He or she has not already been adopted

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3. He or she has not been married unless there is a custom or usage

applicable to the parties which permits persons who are married being
taken in adoption
4. He or she has not completed the age of fifteen years, unless there is a
custom or usage applicable to the parties which permits persons who
have completed the age of fifteen years being taken in adoption

In Rakhi v. 1st Addl. District Judge, it was observed that a person aged about
28 years can never be adopted. Sec. 10 (iv) of the Act prescribed the age at 15
years. Such adoption is to follow the prescribed procedure for the adoption
namely, actual giving and taking in adoption as prescribed in Sec. 11(vi) of the
Act.
In Maya Ram v. Jainarian, it was held that the adoption of a married Jat boy
who was above 15 years of age, as valid on the force of customs prevailing in
that community.
In Khazan Singh v. Union of India, where the adopted child originally belonged
to the higher caste, but on adoption was to one beloging to the Scheduled
Tribe and Scheduled Tribe Certificate was granted to him on the basis of
adoption and it was held that the certificate could not be cancelled without
giving opportunity to the adoptee to prove that adoption was valid in spite of
the bar of age.

11 Other conditions for a valid adoption

12 Effects of adoption

 the child cannot marry any person whom he or she could not have
married if he or she had continued in the family of his or her birth
 any property which vested in the adopted child before the adoption
shall continue to vest in such person subject to the obligations if any
attaching to the ownership of such property, including the obligation to
maintain relatives in the family of his or her birth
 the adopted child shall not divest any person or any estate which vested
in him or her before the adoption

13 Right to adoptive parents to dispose of their properties

14 Determination of adoptive mother in certain cases

15 Valid adoption not to be cancelled

16 Presumption as to registered documents relating to adoption

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17 Prohibition of certain payments

18 Maintenance of wife

19 Maintenance of widowed daughter-in-law

20 Maintenance of children and aged parents

21 Dependants defined

22 Maintenance of dependants

23 Amount of maintenance

24 Claimant to maintenance should be a Hindu

25 Amount of maintenance may be altered on change of circumstances

26 Debts to have priority

27 Maintenance when to be a charge

28 Effect of transfer of property on right to maintenance

29 Repeals

30 Savings

Case Laws:

 Brijendra v. State of M.P., AIR 2008 SC 1058

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