Family Law YAL

FAMILY LAW
INDEX
Chapter Particulars Page no.

No.
Part I
1. Introduction 2-5
2. Matrimonial Causes 6-22
3. Divorce under Muslim Law/ Islamic Law 23-31
4. Court System 32
5. Jurisdiction 33-35
6. Child Custody 36-42
7. Domicile 43-48
8. Alimony/Maintenance 49-54
Part II
9. Procedure 55
10. Types of Divorce 56
11. Contents and Verification 67-62
12. Documents to be annexed to the Petition 63
13. Affidavits 64-66
14. Stages involved in Divorce by Mutual Consent 67
15. Stages involved in Contested Divorce 68-69
16. Disclaimer 70
Research by: Adv. Ambrin N. Khan, Senior Associate

Mentor : Adv. Yusuf Iqbal Yusuf, Founder & Managing Partner
FAMILY LAW – MARRIAGE, DIVORCE AND GUARDIANSHIP IN INDIA:
OVERVIEW.
PART- I
1. INTRODUCTION
With the 42nd Amendment of the Constitution of India enacted in
1976, the Preamble to the Constitution asserted that India is a secular
nation. Thus, wide number of religions is freely practised in India. Unlike
Western notions of secularism, India's secularism does not separate
religion and state. Major religions practised in India include Hinduism,
Islam and Christianity who have their own separate family laws. Other
religions like Parsi and Jews, whose number, in the context of the
population of India, is insignificant, too have their own separate family
laws. India does partially separate religion and state. For example, it does
not have an official state religion and state-owned educational institutions
cannot impart religious instructions. In matters of law in modern India,
however, the applicable code of law is unequal, and India's personal laws
– on matters such as marriage, divorce, inheritance, alimony – varies with
an individual's religion. Therefore, the matrimonial laws in India,
including laws on marriage, divorce and other connected issues, are

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© M/s Y & A LEGAL, ADVOCATES
essentially governed by the personal laws of the parties depending on
their religion:
 Hindu: Hindu Marriage Act 1955.
 Muslim: Muslim marriage is a contract under Muslim law.
 Christian: Indian Christian Marriage Act 1872 and the Divorce

Act 1869.
 Parsi: Parsi Marriage and Divorce Act 1936.
Under the Constitution of India all aspects of personal law are in the
concurrent list (entry 5). Both Parliament and the state legislatures have
power to legislate in respect of them. Apart from legislation relating to
Muslim wakfs and Hindu endowments, state legislatures have not
exercised this power to any appreciable extent. The entire codified Hindu
law has been enacted by the Union Parliament, though some state
legislature have made some modifications; for instance, the Uttar Pradesh
enactment, the Hindu Marriage (the Uttar Pradesh Sanshodhan)
Adhinyam, 1962 has made, inter alia, cruelty a ground of divorce. This
may be deemed to be superseded by the Marriage Laws (Amendment)
Act 1976, which made cruelty a ground of divorce. The Shariat Act, 1937
and the Dissolution of Muslim Marriage Act, 1939; were passed by

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central legislature. So were the Parsi Marriage and Divorce Act, 1936;
the Christian Marriage Act, 1872 and the Indian Divorce Act, 1869 and
several Hindu personal law reform enactments before independence.
Indian communities which have their separate family law are generally
religious communities; however, their law is not necessarily religious
law. Most importantly the members or individual member need not be an
ardent believer or follower of that faith. In most cases, being a member of
the community by birth or conversion, will suffice, though in actual
persuasion he may be atheistic or non-religious or even anti-religious;
and though he may even decry the religion so long as he does not leave it
(mere renunciation of faith may not be sufficient) he will continue to be
governed by that law. Community cannot expel the said person since ex-
communication or outcasting is unconstitutional.
In addition to the personal laws, in India we have another aspect of
family law viz. The Special Marriage Act 1954. The Parliament of
India enacted the said Act to provide a special form of marriage for the
people of India and all Indian nationals in foreign countries, irrespective
of the religion or faith followed by either party. Individuals opting to
marry under the said Act would then cease to be governed by any

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personal laws and would squarely be governed by the Special Marriage
Act 1954.
All these laws apply throughout India (except for in Jammu and Kashmir,
and Goa).

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2. Matrimonial Causes
i. Initially, the old Hindu law did not provide for settlement of matrimonial
causes and divorce was not recognised by the Muslim law from very
early days, but then it has always been the private affair of the parties,
and in the sense in which we use the term in modern law, it could hardly
come within the ambit of matrimonial causes.
ii. In a limited sense judicial divorce was first introduced in India under the
Converts' Marriage Dissolution Act, 1866. This was followed by the
Indian Divorce Act, 1869, which introduced all the four matrimonial
causes known to English law viz.
Matrimonial Causes
Divorce Judicial Separation Restitution of conjugal Nullity of

rights. marriage
iii. Initially, the said Act was made applicable only to Christians.
Subsequently, it was made applicable to persons who performed their
marriage under the Special Marriage Act, 1872.

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iv. The Special Marriage Act, 1954 introduced civil marriages and
matrimonial causes. The Hindu Marriage Act, 1955 made matrimonial
causes available to Hindus. The Parsi Marriage and Divorce Act made
them available to Parsis.
v. The Indian Divorce Act, the Parsi Marriage and Divorce Act, the Special
Marriage Act and the Hindu Marriage Act recognize all the four
matrimonial causes, viz., Divorce, Judicial separation, and Restitution of
conjugal rights and Nullity of marriage.
2.1. Nullity of Marriage:
Section 11 of the Hindu Marriage Act, 1955, deals with Nullity of
Marriage and divorce. A marriage may be annulled on the
grounds:
 that it has not been consummated owing to the impotence of
the respondent;
 that the respondent was incapable of giving valid consent to
it in consequence of unsoundness of mind, or though

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capable of giving valid consent was suffering from mental
disorder of such a kind or to such an extent as to be unfit for
marriage and procreation of children, or was subject to
recurrent attacks of insanity;
 that the respondent was at the time of the marriage pregnant
by some person other than the petitioner . (In this case, it is
necessary that the marital intercourse with the consent of
the petitioner did not take place since the discovery of the
ground by the petitioner and the petition was presented
within one year of the marriage),
 that the consent of the petitioner or of the guardian, as the
case may be, was obtained by fraud or force, provided that
the petitioner did not live with his or her full consent with
the respondent after the discovery of fraud or cessation of
force and the petition was presented within one year of the
discovery of fraud or cessation of force.
2.2. Restitution of conjugal rights

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 The provision relating to restitution of conjugal rights has
been enacted in section 9 of the Hindu Marriage Act. The
said Section lays down that a petition for restitution may be
made on the ground that the respondent has without
reasonable excuse withdrawn from his or her society and
the court may pronounce the decree for restitution 'on being
satisfied of the truth of the statements made in such petition
and that there is no legal ground why the application should
not be granted'.
 The provision of restitution of conjugal rights in section 22
of the Special Marriage Act, 1954, is substantially the same
as found in Section 9 of the Hindu Marriage Act, 1955.
Likewise, is the provision for Restitution of conjugal rights
viz. section 36 of the Parsi Marriage and Divorce Act, 1936
though it has been worded slightly differently.
2.3. Judicial Separation
 The statutory law of Hindus, Parsis and Christians
recognizes the matrimonial relief of judicial separation. It is

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also recognized by the Special Marriage Act, 1954 as well.
Muslim law does not recognize anything like it. Probably in
the case of non-Hindus and non-Muslims, the High Courts
have inherent jurisdiction to provide the relief.
 The grounds on which judicial separation may be granted
differ widely from statute to statute.
 Under the Indian Divorce Act either party may obtain a
decree of judicial separation on the ground of 'adultery or
cruelty or desertion without reasonable excuse for two years
or upwards.
 The grounds of judicial separation under the Hindu
Marriage Act are more elaborate and comprehensive.
Section 10 of the Hindu Marriage Act lays down six
grounds:

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JUDICIAL SEPARATION
Continous Desertion for 2 Cruelty

years
Venereal Disease in an
Viralent Leprosy of atleast 1 communicable form of atleast
years duration 3 years duration
Having sexual intercourse with

any person other than his/her
Continous Insanity for 2 years spouse
2.4. 1. Divorce (Section 13 of Hindu Marriage Act, 1955):
 Divorce means putting an end to the marriage by dissolution of
marital relations. The parties can no longer be husband and
wife.
2.4.1.1. Section 13 of the Hindu Marriage Act, 1955 recognises 9
nine grounds of divorce. On petition presented by either the
husband or the wife, the marriage be dissolved by a decree of
Divorce on the grounds that the other party:
i. is living in adultery;
ii. has ceased to be a Hindu by conversion to another
religion;
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iii. has been incurably of unsound mind for a continuous
period of not less than three years immediately
preceding the presentation of the petition;
iv. has, for a period of not less than three years immediately
preceding the presentation of the petition, been suffering
from a virulent and incurable form of leprosy;
v. had, for a period of not less than three years immediately
preceding the presentation of the petition, been suffering
from venereal disease in a communicable form;
vi. has renounced the world by entering any religious order;
vii. 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 them, had that party been alive;
viii. has not resumed cohabitation for a period of two years or
more after the passing of a decree for judicial separation
against that party; or
ix. has failed to comply with a decree for restitution of
conjugal rights for a period of two years or more after
the passing of the decree.

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2.4.1.2. Adultery - Besides being available as a ground for
divorce, adultery was once punishable as a criminal offence
(section 497, Indian Penal Code. However, it was only the
male illicit lover who was punishable for the offence of
adultery. The woman, who is pari delicto (at equal fault)
with the adulterous male, was not liable to any punishment,
even as an "abettor". However, the said position was
changed vide judgment passed by A five-Judge bench of the
Hon‟ble Apex Court in the matter of Joseph Shine v UOI
(2019) 3 SCC 39, vide which Section 497 of the IPC was
struck off being of the view that the same violates Articles
14, 15 and 21 of the Constitution.
2.4.1.3. Section 2 of the Dissolution of Muslim Marriages Act
1939 provides that, a woman married under Muslim law
shall be entitled to obtain a decree for the dissolution of her
marriage on any one or more of the following ground
namely:

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i. that the whereabouts of the husband have not been
known for a period of four years;
ii. that the husband has neglected or has failed to provide
for her maintenance for a period of two years. However,
a decree passed on this groundshall not take effect for a
period of six months from the date of such decree, and if
the husband appears either in person or through an
authorised agent within that period and satisfies the
Court that he is prepared to perform his conjugal duties,
the Court shall set aside the said decree;
iii. that the husband has been sentenced to imprisonment for
a period of seven years or upwards. However, no decree
shall be passed on ground until the sentence has become
final;
iv. that the husband has failed to perform, without
reasonable cause, his marital obligations for a period of
three years;
v. that the husband was impotent at the time of the
marriage and continues to be so. However, before
passing a decree on this ground the Court shall, on

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application by the husband, pass an order requiring the
husband to satisfy the Court within a period of one year
from the date of such order that he has ceased to be
impotent, and if the husband so satisfies the Court within
such period, no decree shall be passed on the said
ground;
vi. that the husband has been insane for a period of two
years or is suffering from leprosy or a virulent venereal
disease;
vii. that she, having been given in marriage by her father or
other guardian before she attained the age of fifteen
years, repudiated the marriage before attaining the age of
eighteen years: Provided that the marriage has not been
consummated;
viii. that the husband treats her with cruelty, that is to say,
a. habitually assaults her or makes her life miserable
by cruelty of conduct even if such conduct does not
amount to physical ill-treatment, or

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b. associates with women of evil repute or leads an
infamous life, or
c. attempts to force her to lead an immoral life, or
d. disposes of her property or prevents her exercising
her legal rights over it, or
e. obstructs her in the observance of her religious
profession or practice, or
f. if he has more wives than one, does not treat her
equitably in accordance with the injunctions of the
Qoran;
g. on any other ground which is recognised as valid
for the dissolution of marriages under Muslim law:
2.4.1.4. For Christians, sub section 10 of the Indian Divorce Act
1869 contains grounds of divorce.
i. Adultery;
ii. Party ceases to be Christian;
iii. If a party has been suffering from leprosy or a
venereal disease for two years;

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iv. In case of a party wilfully refusing to consummate the
marriage;
v. When a party has deserted the spouse for two years or
more;
vi. In case of a party treating the spouse with cruelty.
2.4.1.5. Section 32 of the Parsi Marriage and Divorce Act 1936
states that Any married person may sue for divorce on any
one or more of the following grounds, namely:-
i. that the marriage has not been consummated within one
year after its solemnization owing to the wilful refusal of
the defendant to consummate it;
ii. that the defendant at the time of the marriage was of
unsound mind and has been habitually so up to the date
of the suit:
Provided that divorce shall not be granted on this
ground, unless the plaintiff was ignorant of the fact at the
time of the marriage, and has filed the suit within three
years form the date of the marriage;

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iii. that the defendant was at the time of marriage pregnant
by some person other than the plaintiff:
ground, unless the plaintiff was at the time of the
marriage ignorant of the fact alleged, the suit has been
filed within two years of the date of marriage, and
marital intercourse has not taken place after the plaintiff
came to know of the fact;
iv. that the defendant has since the marriage committed
adultery or fornication or bigamy or rape or an unnatural
offence:
ground, if the suit has been filed more than two years
after the plaintiff came to know of the fact;
v. that the defendant has since the solemnization of the
marriage treated the plaintiff with cruelty or has behaved
in such a way as to render it in the judgment of the Court

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improper to compel the plaintiff to live with the
defendant:
Provided that in every suit for divorce on this ground it
shall be the discretion of the Court whether it should
grant a decree for divorce or for judicial separation only;
vi. that the defendant has since the marriage voluntarily
caused grievous hurt to the plaintiff or has infected the
plaintiff with venereal disease or, where the defendant is
the husband, has compelled the wife to submit herself to
prostitution;
ground, if the suit has been filed more than two years
after the infliction of the grievous hurt, or after the
plaintiff came to know of the infection, or after the last
act of compulsory prostitution.
vii. that the defendant is undergoing a sentence of
imprisonment for seven years or more for an offence as
defined in the Indian Penal Code:

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ground, unless the defendant has prior to the filing of the
suit undergone at least one year‟s imprisonment out of
the said period;
viii. that the defendant has deserted the plaintiff for at least
2[two years;
ix. that an order has been passed against the defendant by a
Magistrate awarding separate maintenance to the
plaintiff, and the parties have not had Marital intercourse
for one year or more since such decree or order;
x. that the defendant has ceased to be a Parsi;
Provided that divorce shall not be granted on this ground
if the suit has been filed more than two years after the
plaintiff came to know of the fact.
2.4.1.6. Section 27(1) of the Special Marriage Act 1954 contains
eight fault grounds of divorce on which either spouse can
seek divorce. Section 27(1A) contains two fault grounds on
which the wife alone can seek of marriage.

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i. Adultery
ii. Two years desertion
iii. Respondent undergoing a sentence of imprisonment for
seven years or more for n offence under IPC, 1860
iv. Cruelty, unsound mind or has been suffering from
continuously or intermittently from mental disorder of
such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the
respondent;
v. Venereal diseases in a communicable form
vi. Leprosy
vii. Incurable insanity or continuous or intermittent mental
disorder, and
viii. Presumption of death
Section 27 (1) (A) - A wife may also present a petition for

divorce to the district court on the ground:
ix. husband is guilty of rape, sodomy or bestiality;
x. Cohabitation has not been resumed for one year or more
after an order of maintenance has been passed under
section 125 of the Criminal Procedure Code.

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A marriage may be dissolved on the petition of either party viz.
husband/wife seeking Divorce when one of the parties arrives at
a conclusion that their marriage has hit the rock bottom and
there are no chances of reconciliation whatsoever.
2.4.2. Divorce By Mutual Consent (Section 13(B) of the Hindu

Marriage Act, 1955:
i. This Section was inserted under the Amendment Act of
1976. Divorce by Mutual Consent means both the parties
(husband and wife) agree to dissolve their marriage mutually.
In simple words, both wife and husband are willing to get
separated by divorce.
ii. The only requirement for divorce by mutual consent is that the
parties should be living separately for a period of one year or
more.
iii. The decree of divorce may be passed on the motion of both the
parties made no earlier than six months and not later than
eighteen months after the date of the presentation of the
petition, provided the court is satisfied particularly as to the
fact that consent has not been obtained by force, fraud or
undue influence.
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3. DIVORCE UNDER MUSLIM LAW/ISLAMIC LAW
Under Islamic law, divorce is classified into three categories:
i. Talaq. This is divorce at the instance of the husband.

ii. Khula. This is divorce at the instance of the wife.
iii. Mubaraat. This is divorce by mutual consent.
 Under Islamic law, only the husband can pronounce talak on
his wife, not vice versa. However, the husband can delegate
this power to the wife or any third person by an agreement.
This is known as divorce by delegation (talak-e-tafweez).
3.1. Divorce by the husband: There are three types of Talaq:
3.1.1. Talaq-e-ahsan. This is a single pronouncement
of talaq by the husband, followed by a period of
abstinence (iddat) for 90 days or three menstrual cycles
(where the wife is menstruating). Alternatively, the
period of iddat is of three lunar months (in case, the
wife is not menstruating). If the couple resumes
cohabitation or intimacy, within the period of iddat, the
pronouncement of divorce is treated as having been
revoked. Therefore, talaq-e-ahsan is revocable. Among

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Muslims, talaq-e-ahsan is regarded as the most
"proper" form of divorce.
3.1.2. Talaq-e-hasan. This is pronounced in the same
manner as talaq-e-ahsan (see above). However,
instead of a single pronouncement there are three
successive pronouncements. After the first
pronouncement of divorce, if there is resumption of
cohabitation within a period of one month, the
pronouncement of divorce is treated as having been
revoked. The same procedure must be followed after
the expiry of the first month (during which marital
ties have not been resumed). Talaq is then
pronounced again: after the second pronouncement
of talaq, if there is resumption of cohabitation within
a period of one month, the pronouncement of divorce
is treated as having been revoked. Pertinently, the
first and the second pronouncements can only be
revoked by the husband. However, if a third talaq is
pronounced, it becomes irrevocable and the marriage

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stands dissolved, after which the wife must observe
the required iddat (the period after divorce, during
which a woman cannot remarry: its purpose is to
ensure that the male parent of any offspring can be
clearly identified). After the third iddat, the husband
and wife cannot remarry, unless the wife first marries
someone else, and only after her marriage with
another person has been dissolved (either through
divorce or death), can the couple remarry.
The distinction between talaq-e-ashan and talaq-e-
hasan is that, in the former, there is a single
pronouncement of talaq followed by abstinence
during the period of iddat, whereas, in the latter there
are three pronouncements of talaq, interspersed with
abstinence.
3.1.3. Talaq-e-biddat. The third type of talaq is talaq-e-
biddat. This is effected by one definitive
pronouncement of talaq (such as, "I talaq you
irrevocably" or three simultaneous pronouncements,

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like "talaq, talaq, talaq", uttered at the same time,
simultaneously. In talaq-e-biddat, divorce is then
effective from this point onwards. Unlike the other
two categories of talaq, the instant talaq is
irrevocable the very moment it is pronounced.
The Supreme Court in a recent landmark decision by
five judges in the case of Shayara Bano vs Union of
India (2017) 9SCC 1 (with a majority of 3:2) held
that the act of divorce by a Muslim man by way of
uttering the words talak three times is
unconstitutional and illegal. It was held that triple
talaq "is not integral to religious practice and violates
constitutional morality".
3.2.Divorce by the wife- In 1937, the Muslim Personal Law (Sharait)
Application Act 1937 was passed. Section 5 of the Shariat Act
provided that a Muslim woman could seek dissolution of her
marriage on grounds recognised under the Muslim "personal law".
Section 5 of the Shariat Act was subsequently deleted, and
replaced by the Dissolution of Muslim Marriages Act 1939.

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The Supreme Court in the case of Shayara Bano vs. Union of
India (supra) considered the provisions of the Muslim Personal
Law, the practice of Talaq-e-Biddat or triple talaq and held that the
practice of triple talaq, that is, instant, irrevocable, unilateral
divorce by a husband as a formula for pronouncing divorce three
times as unconstitutional and cannot be permitted. In the majority
judgment, in para-104, the Hon'ble Supreme Court has crystallized
the law after detailed deliberations in the following manner:-
“Given the fact that Triple Talaq is instant and
irrevocable, it is obvious that any attempt at
reconciliation between the husband and wife by two
arbiters from their families, which is essential to save the
marital tie, cannot ever take place. Also, as understood
by the Privy Council in Rashid Ahmad (supra), such
Triple Talaq is valid even if it is not for any reasonable
cause, which view of the law no longer holds good after
Shamim Ara (supra). This being the case, it is clear that
this form of Talaq is manifestly arbitrary in the sense that
the marital tie can be broken capriciously and

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whimsically by a Muslim man without any attempt at
reconciliation so as to save it. This form of Talaq must,
therefore, be held to be violative of the fundamental right
contained under Article 14 of the Constitution of India. In
our opinion, therefore, the 1937 Act, insofar as it seeks to
recognize and enforce Triple Talaq, is within the
meaning of the expression “laws in force” in Article
13(1) and must be struck down as being void to the extent
that it recognizes and enforces Triple Talaq. Since we
have declared Section 2 of the 1937 Act to be void to the
extent indicated above on the narrower ground of it being
manifestly arbitrary, we do not find the need to go into
the ground of discrimination in these cases, as was
argued by the learned Attorney General and those
supporting him.”
3.3.The Dissolution of Muslim Marriages Act 1939 sets out the
grounds on which a Muslim woman can seek dissolution of
marriage. Section 2 of the Act provides for grounds for decree for
dissolution of marriage, namely that the:

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i. Whereabouts of the husband has not been known for a period
of four years. However, any decree passed based on this
ground cannot take effect until six months have passed since
making the decree, and if the husband appears (either in person
or through an authorised agent) within this period, and satisfies
the court that he is prepared to perform his conjugal duties, the
court will aside the decree.
ii. Husband has neglected or has failed to provide for her
maintenance for a period of two years.
iii. Husband has been sentenced to imprisonment for a period of
seven years or upwards. However, no decree can be passed
until the sentence has become final.
iv. Husband has failed to perform, without reasonable cause, his
marital obligations for a period of three years.
v. Husband was impotent at the time of the marriage and
continues to be so. However, before passing a decree on this
ground, the court will, on application by the husband, make an
order requiring the husband to satisfy the court within a period
of one year from the date of such order that he has ceased to be

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impotent, and if the husband so satisfies the court within such
period, no decree will be passed based on this ground.
vi. Husband has been insane for a period of two years or is
suffering from leprosy or virulent venereal disease.
vii. Wife, having been given in marriage by her father or other
guardian before she attained the age of 15 years, repudiated the
marriage before attaining the age of 18 years.
viii. Marriage has not been consummated.
ix. Husband treats the wife with cruelty, for example, the
husband:
a. habitually assaults her or makes her life miserable by
cruelty of conduct even if such conduct does not
amount to physical ill-treatment;
b. associates with women of evil repute or leads an
infamous life;
c. attempts to force her to lead an immoral life;
d. disposes of her property or prevents her exercising her
legal rights over it;

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e. obstructs her in the observance of her religious
profession or practice;
f. if he has more wives than one, does not treat her
equitably in accordance with the injunctions of the
Quran; or
g. carries out any other ground recognised as valid for the
dissolution of marriages under Muslim law:

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4. COURT SYSTEM
The Family Court Act 1984 provides for the establishment of Family
Courts with a view to promote conciliation, and secure speedy settlement
of disputes relating to marriage and family affairs, and for matters
connected with them. The Family Courts hear matters relating to
marriage, marital breakdown and the welfare of children. These courts
are trial courts and are presided over by Additional District Judges which
undertake trials and review evidence. The Family Courts follow the Civil
Procedure Code.

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5. JURISDICTION
5.1.All Indian matrimonial statutes contain jurisdictional rules. Two
matters are relevant regarding jurisdiction:
i. The place in which the petition or suit in a matrimonial
cause is filed.
ii. The court in which the petition or suit in a matrimonial
cause should be filed.
5.2.Whether a court has jurisdiction depends on the following:
i. Parties' domicile.
ii. Place of solemnisation of marriage.
iii. Marital residence and the residence of the respondent or,
if the respondent resides outside India, where the
petitioner resides.
5.3.Jurisdictional requirements are the same under the Hindu Marriage
Act 1955 and the Special Marriage Act 1954. A divorce petition
can be presented to the district court within the local limits of
whose original civil jurisdiction the:

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i. Marriage was solemnised;
ii. Respondent, at the time of the presentation of the petition,
resides;
iii. Wife resides on the date of presentation of the petition (if
she is the petitioner);
iv. Petitioner resides at the time of the presentation of the
petition, in a case where the respondent, at that time,
either resides outside the territories to which the acts
extend; or 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 him/her if he/she were
alive.
5.4.Under the Indian Divorce Act 1869, a petition in a matrimonial
cause can be presented in the court of the district judge within the
local limits of whose ordinary jurisdiction either the:
i. Husband and wife reside.
ii. Husband and wife last resided together.

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5.5.Where a number of courts have jurisdiction, a party can choose
one of them. Where a court's jurisdiction is questioned, preference
is generally given to factors that support its jurisdiction.

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6. CHILD CUSTODY:
After a marriage breaks down or ends up in separation of spouses, the
person who gets affected the most is the child who is born out of the
marriage. Thus, while keeping in mind the right of parent‟s to the
custody of a child, the Indian Law, holds the child‟s welfare as the most
crucial factor of consideration while deciding upon who gets the custody
of a minor child. When it comes to child custody, the interests and
welfare of the child is of paramount importance. The Apex Court in
Sheoli Hati v. Somnath Das, (2019) 7 SCC 490 has categorically
observed that:
“Every child has right to proper health and education and it is the
primary duty of the parents to ensure that child gets proper education.
The Courts in exercise of parens patriae jurisdiction have to decide
such delicate question. It has to consider the welfare of the child as of
paramount importance taking into consideration other aspects of the
matter including the rights of parents also.”
Other factors which constitute the welfare of the child are:
i. Ethical upbringing of the child;
ii. Safe-keeping of the child;
iii. Good education to be imparted;

Page 36 of 70
iv. Economic well-being of the guardian.
6.1.Kinds of custody arrangement in India
A court of competent jurisdiction in India primarily orders the
custody of children in the following three forms:
6.1.1. Physical Custody - Physical custody when
awarded to a parent implies that the minor will be
under the guardianship of that parent with periodical
interaction and visitation with the other parent. The
target behind such a custody award is to give a better
life to the child in a safe and fulfilling environment and
also makes sure that the child is not deprived of the
affection of the other parent during his or her formative
years.
6.1.2. Legal Custody - Legal custody of a child does not
necessarily entails having the child with the parents or
vice-versa. It basically means that the parents are
granted the legal custody and they can take every
decision for the child likewise education, medical
treatment, etc. until the minor has reached the age of 18
years. In most of the cases, legal custody is granted to

Page 37 of 70
both the parents together but in certain cases where the
divorce is messy and parents do not agree with each
other, then in such cases the court grants legal custody
to any of the one parent.
6.1.3. Joint Custody - Joint Custody of a child does not
implies that both the parents have to live together
because of the child despite the fact that Indian courts
believe that it is the best for the welfare of a minor.
Joint custody actually means that both the parents will
take care of the child turn by turn keeping the child in
their custody. The rotation of the child among the
parents may vary from certain days or a week or even
for a month. These benefits the child as on one hand
the child gets the attention of both the parents and on
the other hand parents get to be a part of their child‟s
life.
6.2.Legislations Governing Child Custody Under Different Laws In
India:

Page 38 of 70
6.2.1. The Guardians and Wards Act, 1890
According to GWA, 1890, a minor/child is any
person who is generally under the age of 18
physically and intellectually imperfect and immature
and hence needing someone's protection. “Guardian”
means a person having the care of the person of minor
or his property or both; “ward” means a minor for
whose property or both there is a guardian. The court
must work in the interest of the minor taking into
consideration age, sex, religion, the character of the
guardian, death of a parent(s), and the relation of the
child to the guardian, etc. The minor's preference may
be taken into consideration. The welfare of the child
is taken as paramount consideration and here welfare
must not be measured by money or physical comfort
but the word welfare must be taken in its widest sense
that the affection cannot be disregarded.
The Law Commission in its 263rd report held that
desire to protect children must be based on a true
interpretation of their best interest.

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6.2.2. Custody under Hindu Law:
Section 26 of Hindu Marriage Act, 1955 deals with

Custody of Children - In any proceeding under this
Act, the court may, from time-to-time, pass such
interim orders and make such provisions in the decree
as it may deem just and proper with respect to the
custody, maintenance and education of minor children,
consistently with their wishes, wherever possible and
may, after the decree, upon application by petition for
the purposes make from time-to-time, all such orders
and provisions with respect to the custody,
maintenance and education of such children as might
have been made by such decree or interim orders in
case the proceeding for obtaining such decree were still
pending and the court may also from time-to-time
revoke, suspend or vary any such orders and provisions
previously made:
Provided that the application with respect to the
maintenance and education of the minor children,
pending the proceeding for obtaining such decree, shall
as far as possible, be disposed of within sixty days
from the date of service of notice on the respondent.
6.2.3. Custody under Muslim Law:

i. In Muslim law, the welfare of the children is given
the utmost importance.
Page 40 of 70
ii. Under Muslim personal law, there is a concept called
“Hizanat“. In this, the right to a child‟s custody is
given solely to a mother unless she is seen as an unfit
guardian. And this right can be enforced against any
person including the father.
iii. But again justifying the welfare of the child, here the
mother‟s right of child custody is not absolute and
exists only if such right is beneficial and in the
interest of her children.
6.2.4. Custody under Special Marriage Act,1954:
Section 38 of the Special Marriage Act, 1954 deals

with Custody of Children - In any proceeding under
Chapter V or Chapter VI the District Court may, from
time-to-time, pass such interim orders and make such
provisions in the decree as it may seem to it to be just
and proper with respect to the custody, maintenance
and education of minor children, consistently with their
wishes wherever possible, and may, after the decree,
upon application by petition for the purpose, make,
revoke, suspend or vary, from time-to-time, all such
orders and provisions with respect to the custody,
maintenance education of such children as might have
been made by such decree or interim orders in case the
proceedings for obtaining such decree were still

Page 41 of 70
pending.
Provided that the application with respect to the

maintenance and education of the minor children,
during the proceeding, under Chapter V or Chapter VI,
shall as far as possible, be disposed of within sixty
days from the date of service of the notice on the
respondent.
6.2.5. Custody under Christian law:
As the Christian law has no specific mention of the
child custody rights, the Indian Divorce Act, 1869,
becomes applicable for all matters pertaining to
Christian children and their guardianship. As per
Section 41 of this said Act, the courts have the right to
pass orders as to the custody, education, and
maintenance of Christian children.
6.2.6. Custody under Parsi Law:
The Parsis also do not have any specific laws
pertaining to child custody. Hence all such issues are
addressed by the Guardians and Wards Act, 1890.

Page 42 of 70
Under the Parsi Marriage and Divorce Act, 1936, the
wife can claim for maintenance to support their minor
children. Under this Act, the court has to pass an order
within 60 days related to custody of Parsi children and
their guardianship.

Page 43 of 70
7. DOMICILE:
7.1.Types of Domicile
There are two types of domicile:
i. Domicile by Origin: An individual automatically acquires
the domicile of the country in which he/she is born.
Unless and until new domicile is acquired by the said
person, the domicile remains the same.
ii. Domicile by Choice: Domicile by choice is the one
whereby the individual willingly acquired new domiciles
thereby replacing his/her domicile by origin.
The Apex Court has acknowledged the concept of
domicile as established under English law, Central
Bank of India Ltd. v. Ram Narain (AIR 1955 36. it was
held that that the two constituent elements that are
necessary under English law for existence of domicile
are:

Page 44 of 70
 Residence of particular kind. The residence may
not be continuous but it must be indefinite and
not purely fleeting.
 An intention of a particular kind. there must be
a present intention to reside in the country
where residence has been taken up.
i. The Hindu Marriage Act extends to whole of India
except the state of Jammu and Kashmir.
ii. Section 1(2) of the Hindu Marriage Act states that:
“It extends to the whole of India except the State of
Jammu and Kashmir 1 , and applies also to Hindus
domiciled in the territories to which this Act
extends who are outside the said territories.”
iii. The Act applies to all the individuals who do not
reside in India but continue to be domiciled in India.
7.2. Divorce:
The Apex Court in the landmark judgment Y. Narasimha Rao
and others v. Venkata Lakshmi and Ors. (1991)3SCC 45,
held that the marriages that takes place in India can only be

Page 45 of 70
dissolved under either the customary or Statutory law in force
in India. therefore, the only law that applies to matrimonial
disputes, is the one under which the parties are married
“From the aforesaid discussion the following rule can
be deduced for recognising foreign matrimonial
judgment in this country. The jurisdiction assumed by
the foreign court as well as the grounds on which the
relief is granted must be in accordance with the
matrimonial law under which the parties are married.
The exceptions to this rule may be as follows: (i)
where the matrimonial action is filed in the forum
where the respondent is domiciled or habitually and
permanently resides and the relief is granted on a
ground available in the matrimonial law under which
the parties are married; (ii) where the respondent
voluntarily and effectively submits to the jurisdiction
of the forum as discussed above and contests the
claim which is based on a ground available under the
matrimonial law under which the parties are married;
(iii) where the respondent consents to the grant of the

Page 46 of 70
relief although the jurisdiction of the forum is not in
accordance with the provisions of the matrimonial
law of the parties.”
However, the confusion occurs where the parties are
domiciled in some other country but were married in India
under Indian Matrimonial laws. it is still unclear as to in case
of matrimonial dispute, will a divorce petition be
maintainable in India? the Supreme Court has not adjudicated
on this issue. however, the Hon‟ble Bombay High Court in
Ms. Kashmira Kale v. Kishore Kumar Kale, was of the view
that it is necessary for one of the parties to be domiciled in
India in order to invoke the jurisdiction of the Indian
Matrimonial courts.
“The order of the learned Judge of the Family
Court, Pune, concluding that the parties last
resided together in Pune and even though their
residence is for a single day it would give the
Court jurisdiction based upon the judgments cited
in the impugned order suffers from a material
irregularity and is required to be interfered with,

Page 47 of 70
since it assumes territorial jurisdiction not vested
in it and since the Act itself does not apply to the
parties consequent upon their domicile in the US
and also because the rights between the parties
have been settled by a judgment conclusive
between them. The husband may be entitled to
challenge the judgment in the Court in which it is
pronounced following the due legal process
required in that jurisdiction consequent upon his
absence, if need be. However, the husband cannot
confer jurisdiction on the Court in Pune in which
the parties never resided together for any length of
time in their own matrimonial home, they having
had their matrimonial home in the US.”

Page 48 of 70
8. ALIMONY/ MAINTENACE:
The English concept of alimony has been adopted in the Indian Divorce
Act, 1869.
Alimony, in simple terms, is the allowance paid by one spouse to another
for their sustenance. Alimony and maintenance are the same, and are
used as different names in different places. In some countries and places,
„alimony‟ is used while in some other regions, „maintenance‟ is in
vogue. In India, we use the terms interchangeably after divorce, whereas
before divorce, the term maintenance is used.
Section 36 of the Hindu Marriage Act, 1955 lays down that the amount
of alimony pendente lite in no case can exceed one-fifth of the husband's
average net income for three years next preceding the date of the order.
8.1.Alimony and maintenance can be divided under two basic heads
viz.:
Alimony/Maintenance
Interim maintenance Permanent maintenance

Page 49 of 70
 Can be made in all four matrimonial Can be made only in two causes
causes matrimonial causes viz. Judicial
Separation and Divorce.
 Is granted by the court during the When a decree of dissolution

pendency of the proceedings i.e. from of marriage or judicial separation
the date of filing of the proceedings is obtained by the wife, the court
till date of the final order. husband shall pay the wife any
may order that the
particular amount fixed by the
court, either periodically, or in
lump-sum.
8.2.Our country comprises different communities, and each
community has its own personal laws derived from religious
scriptures, customs and traditions. Thus, the grounds on which a
Hindu woman can seek divorce and alimony may not be the same
for every other community. Acts governing the claim for
maintenance based on their religion is explained as follows:
Religion Governing Act
Hindu Hindu Adoption and

Maintenance Act, 1956,
Muslim Muslim Women (Protection

of Rights on Divorce) Act,
1986
Divorced Christian Indian Divorce Act, 1869
Parsi Parsi Marriage and Divorce

Act, 1936.
Inter-caste Marriages Special Marriage Act, 1954

Page 50 of 70
All communities/religion Section 125 of Code of
Criminal Procedure, 1973.
i. Although there are different personal laws for each community,
the line of difference has started to blur between all the personal
laws. For example under the Muslim law, the wife was allowed
maintenance only till the iddat period (three months after
divorce); however the Supreme Court in Daniel Latif Vs. Union
of India held that the duty of the husband to pay a fair and
reasonable amount to the wife is not limited to the iddat period,
bringing it in consistence with other personal laws, where the
time to receive maintenance is not limited to a certain period.
(Danial Latifi & Anr vs Union Of India).
8.3.Factors taken into consideration while awarding permanent
maintenance to the wife:
When a couple gets divorced by mutual consent, the decision on
whether any alimony/maintenance is to be paid by either party
is a matter of agreement between them. However, in matters

Page 51 of 70
where it is contested, the court decides depending upon the
merit of each case.
Following factors are taken into consideration by the court
while deciding permanent maintenance for the wife.
8.3.1. Income, property and ability of both husband and
wife;
i. One of the considerations of granting permanent
maintenance is assessing income and property of the
parties. When a wife makes an application for
maintenance, the husband is required to give full
details and make complete disclosure of his income
and properties. The wife can make queries about any
alleged omission. A similar disclosure, though, is also
required to be made by the wife. The court then
exercises its discretion to come to a conclusion on a
fixed amount, taking all the information into account.
ii. Generally, courts award 1/4th of the husband‟s income
to the wife as maintenance. In a case last year, the
Supreme Court also set the benchmark at 25% of
husband‟s net salary as the amount for maintenance as

Page 52 of 70
“just and proper”. The court said that the amount of
maintenance or permanent alimony must be sufficient
to ensure that a woman lived with dignity after
separating from her husband.
8.3.2. Lifestyle and reasonable want of the parties:
Lifestyle, along with the financial status of the parties,
is one of the most important factors while arriving at a
conclusion by the court. Reasonable wants does not
only include providing the wife food and just keeping
her alive. Emphasis is paid on their lifestyle, status,
health, age, liabilities and responsibilities. The courts
have said that ordinarily the wife is entitled to an
amount of maintenance that will enable her to maintain
almost the same standard of living to which she was
entitled before the marriage broke down. In case of a
minor child, his/her necessities are also taken into
consideration.
8.3.3. When does alimony need not be paid?

Page 53 of 70
i. The husband is not required to pay maintenance in case
the wife remarries. He can also contest and refuse to
pay maintenance on the ground that the wife is
gainfully employed. The court can though still award
maintenance to 1be paid for the children.
ii. However, only the fact that the wife is employed
cannot be a ground for not paying maintenance, as the
employment of the wife should be in line with the
lifestyle of both the spouses. For example, if the wife
takes tuitions and earns a sum which is just enough for
her survival, but the lifestyle of the couple was much
higher than the amount the wife earns can give her, the
court could still ask the husband to pay a sum to
maintain that living standard. However, in cases where
the wife earns more than the husband, it is difficult for
the wife to get any maintenance.

Page 54 of 70
PART – II
9. PROCEDURE
9.1.Matrimonial Petitions:
Section 21 of Hindu Marriage Act provides that all proceedings
under this Act shall be regulated as far as may be, by Code of Civil
Procedure. In case High Court of the concerned State has framed
rules pertaining to any matter under the Act, those rules shall come
into application for regulating the procedure for disposal of
petitions or applications under the Act.

Page 55 of 70
10. Hindu Marriage Act has laid down two types of Divorce viz.
Contested divorce (S.13) Mutual Consent Divorce (S. 13 (B)
Contested Divorce Versus Mutual Consent divorce
Section 13 of Hindu Sections Section 13 (B) of Hindu

Marriage Act, 1955 Marriage Act, 1955
Filed by either spouse, since Filed by Filed jointly by the husband

the other does not consent to and the wife.
the same.
Cruelty, adultery, desertion, Grounds No grounds required
conversion, mental disorder,
leprosy, venereal disease,
renunciation, no resumption
of cohabitation and not heard
to be alive.
Decided by the judge after Terms of Mutually decided by both the
considering all the facts and Divorce parties
evidence lead by both the
parties.
6-18 months Time 3-5 years
taken for
disposal
Expensive since involves Cost Cost effective and time
two separate lawyers efficient since both the parties
can be represented by one and
the same lawyer.

Page 56 of 70
11. Contents and Verification:
 High Courts have laid down various rules and guidelines regarding
pleadings in petitions under Hindu Marriage Act. Therefore, while
drafting petitions it is to be kept in mind that the petition is in
consonance with these rules.
 Every petition presented under Hindu Marriage Act must state as
distinctly as the nature of the case permits the facts on which the
claim to relief is sought and that there is no collusion between the
petitioner and the other party to the marriage.
 In addition to the particulars required to be given under Order VII,
rule 1, CPC and section 20(1) of the Hindu Marriage Act, all
petitions under sections 9 to 13 should contain the following:
a. The place and date of marriage;
b. Whether the couple was Hindu by religion at the
time of marriage;
c. Whether the couple continues to be Hindu by
religion upto the date of filing of the petition;

Page 57 of 70
d. The name, status and domicile of the wife and the
husband before the marriage and at the time of filing the
petition;
e. The address where the parties to the marriage
reside at the time of the presentation of petition and
where they last resided together;
f. The names of children, if any, from the marriage, their
sex and their dates of birth or ages;
g. Full particulars. of any litigation, if any, between
the parties, prior to the date of filing of petition;
h. Jurisdiction clause;
i. Payment of court fee.
 In case of a petition for restitution of conjugal rights, in a situation
where the respondent has withdrawn from the society of the spouse,
the date and the circumstances under which the respondent
withdrew are required to be mentioned in the petition by the
petitioner.
 In case of a petition under section 12(1)(c) and (d) of the Hindu
Marriage Act i.e., for decree of nullity 'of marriage, particulars of
force or fraud and the circumstances in which force or fraud was

Page 58 of 70
practiced, with time when the facts relied upon were discovered,
and whether or not marital intercourse with the consent of the
petitioner took place after the discovery of the said facts, are to be
specifically mentioned;
 In every petition under section 10 or section 13 i.e. for judicial
separation or decree of divorce, by the husband or wife on the
ground that the other party indulged in adultery following details
are to be specified:
a. specific acts of sexual intercourse;
b. the occasion and place where the same were committed;
c. name, occupation and place of residence of such person
with whom the opposite party had voluntary sexual
intercourse, after- the marriage.
 In case of desertion, date and circumstances in which the desertion
began are to be specified in the petition;

Page 59 of 70
 In case of cruelty, the specific acts of cruelty and the occasion when
and the place where such acts were committed are to be specified in
the petition;
 In case of unsoundness of mind or mental disorder, the time when
such unsoundness of mind or mental disorder began to manifest
itself and the nature and the period of the curative steps taken;
 If the petition is on the ground that the opposite party has
renounced the world by entering any religious order, the date of
renunciation and the particulars of the religious order which the
respondent has entered into;
 If the petition is on the ground that the opposite party has not been
heard of as being alive for a period of seven years or more, the date
and place where the opposite party was last seen or heard or alive
and the steps, if any, taken to ascertain his or her whereabouts;
 Where the petition is founded on the ground of rape or sodomy, the
occasion when, the place where and the names and addresses of

Page 60 of 70
persons with whom such acts were committed. In case of
conviction for committing rape or sodomy the particulars thereof;
 Where the petition is founded on the ground of bestiality, the
occasion when, the place where and the particulars of the beast with
whom the husband had been guilty of bestiality;
 Where petition for divorce is by the wife on the ground of non-
compliance with a decree of maintenance passed under section 18
of Hindu Adoptions and Maintenance Act, 1956 or in proceedings
under section 125 Cr.P.C, it is to be alleged and also testified in an
affidavit that since the passing of such decree or order, cohabitation
between the parties has not been resumed for one year or more;
 Where the petition for divorce is by the wife on the ground 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, wife is to allege the date and
the place of birth of the wife together with the date and the place of
repudiation and its mode;

Page 61 of 70
 Parties are to specifically allege about property presented, at or
about the time of marriage, which belonged jointly to the husband
and wife.

Page 62 of 70
12. Documents to be annexed alongwith the Petition:
 Original Marriage photograph;
 Original Wedding invitation/ marriage certificate;
 Birth certificate of issues if any;
 Passport size photographs of both the parties;
 Other documents as required to prove the ground based on which
the case is filed.

Page 63 of 70
13. Affidavits Required to be filed with the Petition:
 It is significant to note that the petition must be accompanied with
the affidavit in support of the petition affirming on oath the facts
mentioned in the petition. The statements contained in every
petition under this Act are required to be verified by the petitioner
or some other competent person in the manner required by law for
verification of plaints.
13.1.It stands so provided in the rules framed by various High Courts
and are available in High Court Rules and Orders. These
affidavits may be on the, following aspects:
Sr. Petition for Affidavit

No.
1. Petition for divorce by Parties have not resumed
the wife on the ground of cohabiting for one year or
non-compliance with a more since the passing of
decree of maintenance the decree or order.
passed under section 18
of the Hindu Adoptions
and Maintenance Act,
1956 or in proceedings
under section 125 Cr.P.C.
2. Every petition (except Petition it is not being
petition for nullity of presented or prosecuted in

Page 64 of 70
marriage) collusion with the
respondent.
3. Judicial separation or Petitioner has not, in any

divorce on the ground manner, condoned or been
that the party has, after accessory to or connived at
solemnization of the the act or acts complained
marriage, had voluntary of.
sexual intercourse with
any person other than his
or her spouse
4. Ground of the petition is The petitioner has not
cruelty condoned the act or acts
complained- of or has not in
any manner condoned the
cruelty
5. Ground being no Affidavit in support of this

resumption of averment is to be annexed to
cohabitation as between the petition.
the parties to the
marriage for a period of
one year or upwards after
the passing of a decree
for judicial separation in
a proceeding to which
they were parties.
Every pleading is required to be verified at the foot by the
party or by a person acquainted with the facts of the case, as

Page 65 of 70
per satisfaction of the Court. An affidavit in support of the
pleadings is also to be furnished.
In the verification clause, it is to be specifically verified by
the party as to which fact is being verified on the basis of his
own knowledge, and which fact is being verified on the basis
of information received or believed to be true. (Order VI rule
15).

Page 66 of 70
14. STAGES INVOLVED IN DIVROCE BY MUTUAL CONSENT IN INDIA:
Filing of Petition under Section

13 (B) of the Hindu Marriage
Act, 1955
Both the parties will be sent for

counselling.
The Court after examination of the

Petition and the documents annexed
thereto will pass an Order for
recording of statement on oath
6 months cooling period- Petition is

kept beyond 6 months for parties to
reconsider and reconcile.
Post 6 months, if there is no

reconciliation; both the parties need
to appear for the final hearing when
they have to attend one more
counselling. (Parties have to appear
for the second motion within 18
months from the date of filing the
divorce petition.)
In the final hearing, the court passes

the divorce decree dissolving the
marriage
Page 67 of 70
15. STAGES INVOLVED IN CONTESTED DIVROCE IN INDIA:
 Petition for contested divorce can be filed by either spouse
based on the grounds mentioned above. Following are the
stages:
This petition categorically stating the

grounds and reliefs is filed before a
family court having jurisdiction along
with affidavits, vakalatnama, and
documents relevant to the case.
After scrutinizing the petition, the court

admits the petition and passes an order
of issuance of summons the other party
calling upon him/her to appear on a
decided date and file its reply.
The parties to the divorce proceedings are

directed to appear before the court for
mediation. in most of the cases efforts are
made by the court to resolve the dispute
and arrive at a reconciliation. in case of
failure, the matter is posted for further
hearing.
The Respondent is required to file its

Written Statement within 30 days of
receipt of the Summons. failing which
ex-parte order will be passed

Page 68 of 70
Filing of Counsellors report – if the
Counselling fails then the court will
proceed with the trial of the case.
Based on the pleadings and the defence of

both the parties the court will proceed to
frame the issues in the matter
On the date fixed, the Petitioner will file its

Affidavit of Evidence alongwith the List of
Documents
Respondent will cross examine the Petitioner

and the witness if any.
Petitioner will file Pursis closing its Evidence

d the Respondent will file its Examination in
Chief along with the List of Documents
Petitioner will Cross examine the Respondent

and the witness if any.
Both the advocates will present their final

arguments
At last, the court on a fixed date will deliver the

verdict and pass judgment based on the pleadings
and evidence put forth by the parties.. The
aggrieved party can appeal to the High Court
within 3 months from the passing of such order.

Page 69 of 70
DISCLAIMER:
This information has been sourced from the following:
1. Family law in India: overview by Pinky Anand available at:

https://uk.practicallaw.thomsonreuters.com/6-581-
5985?transitionType=Default&contextData=(sc.Default)&firstPage=true&b
hcp=1.
2. Family Law by Paras Diwan, Revised by Dr. S.S. Jaiswal, available at:
http://14.139.60.114:8080/jspui/bitstream/123456789/738/23/Family%20La
w.pdf.
3. Family laws in India, Law Articles, available at :

http://www.legalservicesindia.com/law/article/938/15/Family-Laws-in-India
4. The Concept of Divorce under Muslim Law, by Setu Gupta, available at:
http://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-
Law.html
5. Divorce in Islam under Muslim Laws in India, available at:

https://www.myadvo.in/blog/divorce-in-islam/
6. Parsi Law Regarding Marriage And Divorce. An overview, available at

http://www.legalserviceindia.com/legal/article-1883-parsi-law-regarding-
marriage-and-divorce-an-overview.html.
7. Christian Law Regarding Marriage And Divorce In India: Indian Christian

Marriage Act, 1872, available at:
http://www.legalserviceindia.com/legal/article-1764-christian-law-
regarding-marriage-and-divorce-in-india-indian-christian-marriage-act-
1872.html
8. Know About Family Law In India, available at :

https://legodesk.com/legopedia/family-law-india/
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FAMILY LAW

Chapter Particulars Page no.

Research by: Adv. Ambrin N. Khan, Senior Associate

With the 42nd Amendment of the Constitution of India enacted in

1976, the Preamble to the Constitution asserted that India is a secular

nation. Thus, wide number of religions is freely practised in India. Unlike

Western notions of secularism, India's secularism does not separate

religion and state. Major religions practised in India include Hinduism,

population of India, is insignificant, too have their own separate family

not have an official state religion and state-owned educational institutions

cannot impart religious instructions. In matters of law in modern India,

– on matters such as marriage, divorce, inheritance, alimony – varies with

an individual's religion. Therefore, the matrimonial laws in India,

including laws on marriage, divorce and other connected issues, are

Research by: Adv. Ambrin N. Khan, Senior Associate

 Hindu: Hindu Marriage Act 1955.

 Muslim: Muslim marriage is a contract under Muslim law.

 Christian: Indian Christian Marriage Act 1872 and the Divorce

 Parsi: Parsi Marriage and Divorce Act 1936.

power to legislate in respect of them. Apart from legislation relating to

Muslim wakfs and Hindu endowments, state legislatures have not

enactment, the Hindu Marriage (the Uttar Pradesh Sanshodhan)

may be deemed to be superseded by the Marriage Laws (Amendment)

and the Dissolution of Muslim Marriage Act, 1939; were passed by

Research by: Adv. Ambrin N. Khan, Senior Associate

several Hindu personal law reform enactments before independence.

religious communities; however, their law is not necessarily religious

law. Most importantly the members or individual member need not be an

ardent believer or follower of that faith. In most cases, being a member of

the community by birth or conversion, will suffice, though in actual

persuasion he may be atheistic or non-religious or even anti-religious;

(mere renunciation of faith may not be sufficient) he will continue to be

communication or outcasting is unconstitutional.

In addition to the personal laws, in India we have another aspect of

people of India and all Indian nationals in foreign countries, irrespective

of the religion or faith followed by either party. Individuals opting to

Research by: Adv. Ambrin N. Khan, Senior Associate

Research by: Adv. Ambrin N. Khan, Senior Associate

come within the ambit of matrimonial causes.

Converts' Marriage Dissolution Act, 1866. This was followed by the

causes known to English law viz.

Divorce Judicial Separation Restitution of conjugal Nullity of

Subsequently, it was made applicable to persons who performed their

marriage under the Special Marriage Act, 1872.

Research by: Adv. Ambrin N. Khan, Senior Associate

matrimonial causes. The Hindu Marriage Act, 1955 made matrimonial

them available to Parsis.

matrimonial causes, viz., Divorce, Judicial separation, and Restitution of

conjugal rights and Nullity of marriage.

2.1. Nullity of Marriage:

Section 11 of the Hindu Marriage Act, 1955, deals with Nullity of

Marriage and divorce. A marriage may be annulled on the

 that it has not been consummated owing to the impotence of

 that the respondent was incapable of giving valid consent to

it in consequence of unsoundness of mind, or though

disorder of such a kind or to such an extent as to be unfit for

marriage and procreation of children, or was subject to

recurrent attacks of insanity;

 that the respondent was at the time of the marriage pregnant

by some person other than the petitioner . (In this case, it is