Family Law Unit 3 ND 4
Family Law Unit 3 ND 4
Family Law Unit 3 ND 4
Text of Section 9: > "When either the husband or the wife has, without reasonable excuse,
withdrawn from the society of the other, the other party may apply to the district court for
restitution of conjugal rights."
Explanation:
• This section allows a spouse to seek a court order compelling the other spouse to return to
the marital home and resume cohabitation.
Text of Section 10: > "Either party to a marriage may present a petition to the district court for a
decree of judicial separation on any of the grounds specified in Section 13(1), sub-section (ii),
clause (a), sub-clause (ii) or clause (b), sub-clause (ii)."
Explanation:
• Judicial separation allows spouses to live apart without dissolving the marriage. It provides
a legal framework for separation while still being married.
Text of Section 11: > "Any marriage solemnized between two Hindus, whether they are of the
same or different castes or sub-castes, shall be void and may be so declared by a decree of nullity if
it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5."
Explanation:
• This section lists conditions under which a marriage is considered void from the beginning,
such as bigamy, prohibited degrees of relationship, and unsoundness of mind.
Text of Section 12: > "Any marriage solemnized between two Hindus shall be voidable and may be
annulled by a decree of nullity if it contravenes any one of the conditions specified in clauses (ii),
(iii) and (iv) of Section 5."
Explanation:
• This section lists conditions under which a marriage is voidable, meaning it can be annulled
if challenged in court, such as lack of consent, unsoundness of mind, and impotency.
Text of Section 13: > "Either party to a marriage may present a petition for divorce to the district
court on any of the following grounds: (i) adultery; (ii) cruelty; (iii) desertion for a continuous
period of not less than two years; (iv) conversion to another religion; (v) mental disorder of such a
kind and extent that the petitioner cannot reasonably be expected to live with the respondent; (vi)
virulent and incurable form of leprosy; (vii) venereal disease in a communicable form; (viii)
renunciation of the world by entering into another form of life; (ix) no resumption of cohabitation
for a period of not less than one year after passing a decree of judicial separation; (x) failure to
comply with the restitution of conjugal rights for a period of not less than one year after the
passing of a decree for restitution of conjugal rights."
Explanation:
• This section outlines the grounds on which a spouse can seek a divorce, including adultery,
cruelty, desertion, and other specific conditions.
1. Adultery:
o If one spouse has voluntarily engaged in sexual intercourse with someone other
than their spouse.
o Section 13(1)(i).
2. Cruelty:
o If one spouse treats the other with cruelty, making it intolerable to continue living
together.
o Section 13(1)(ia).
3. Desertion:
o If one spouse deserts the other for a continuous period of not less than two years
before the filing of the petition.
o Section 13(1)(ib).
4. Conversion:
o Section 13(1)(ii).
5. Mental Disorder:
o If one spouse is suffering from a mental disorder making it unreasonable for the
other spouse to live with them.
o Section 13(1)(iii).
6. Leprosy:
o Section 13(1)(iv).
7. Venereal Disease:
o Section 13(1)(v).
o If one spouse has renounced the world by entering any religious order.
o Section 13(1)(vi).
o If one spouse has not been heard of as being alive for a period of seven years or
more.
o Section 13(1)(vii).
o If the husband had married again before the commencement of the Hindu
Marriage Act, 1955.
o Section 13(2)(i).
o Section 13(2)(ii).
3. Repudiation of Marriage:
o If the wife was married before attaining the age of 15 and repudiates the marriage
before turning 18.
o Section 13(2)(iv).
o If the husband has failed to comply with a decree for maintenance under Section
18 of the Hindu Adoptions and Maintenance Act, 1956, or under Section 125 of the
Code of Criminal Procedure, 1973.
o Section 13(2)(iii).
A marriage is void if it contravenes any one of the conditions specified in clauses (i), (iv), and (v) of
Section 5:
1. Bigamy: Either party has a spouse living at the time of the marriage.
2. Prohibited Relationship: The parties are within the degrees of prohibited relationship
unless the custom permits.
3. Sapinda Relationship: The parties are sapindas of each other unless the custom permits.
1. Impotency: The marriage has not been consummated due to the impotence of the
respondent.
2. Unsound Mind: Either party was of unsound mind at the time of the marriage, rendering
them unfit for marriage and procreation.
3. Consent Obtained by Force or Fraud: The consent of the petitioner was obtained by force
or fraud.
4. Pregnancy by Another Man: The respondent was pregnant by some person other than the
petitioner at the time of the marriage.
Text: > "This Act may be called the Hindu Adoptions and Maintenance Act, 1956. It extends to the
whole of India except the State of Jammu and Kashmir and applies also to Hindus domiciled in the
territories to which this Act extends who are outside the said territories."
Explanation:
• The Act is applicable across India, including to Hindus domiciled outside India, ensuring
widespread applicability.
Text: > "(1) This Act applies— > (a) to any person who is a Hindu by religion in any of its forms or
developments, including a Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana or Arya
Samaj, > (b) to any person who is a Buddhist, Jaina or Sikh by religion, and > (c) to any other person
who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person
would not have been governed by the Hindu law or by any custom or usage as part of that law in
respect of any of the matters dealt with herein if this Act had not been passed. > (2) Notwithstanding
anything contained in sub-section (1), nothing contained in this Act shall apply to the members of
any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the
Central Government, by notification in the Official Gazette, otherwise directs."
Explanation:
• The Act covers Hindus, Buddhists, Jains, and Sikhs, ensuring they are governed by this
legislation. It excludes Muslims, Christians, Parsis, and Jews unless otherwise specified.
• Ensures this Act overrides any other texts or customs in matters it covers.
Text: > "Save as otherwise expressly provided in this Act— > (a) any text, rule or interpretation of
Hindu law or any custom or usage as part of that law in force immediately before the
commencement of this Act shall cease to have effect with respect to any matter for which provision
is made in this Act; > (b) any other law in force immediately before the commencement of this Act
shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this
Act."
Explanation:
• This section ensures that the provisions of the Hindu Adoptions and Maintenance Act take
precedence over any existing texts, rules, or customs related to adoption and maintenance.
Text: > "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."
Explanation:
• This section specifies that adoption must meet certain conditions, including the capacity of
the adopter, the authority of the giver, the eligibility of the adoptee, and adherence to other
specified conditions.
• Describes the capacity and conditions under which a Hindu male can adopt.
Text: > "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:
• This section ensures that a Hindu male must be of sound mind, not a minor, and, if married,
must obtain the consent of his wife unless specific exceptional conditions apply.
• Details the capacity and conditions under which a Hindu female can adopt.
Text: > "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."
Explanation:
• This section outlines that a Hindu female must be of sound mind, not a minor, and
unmarried, or in specific conditions regarding her husband's status, to adopt.
Text: > "(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 sub-section (3) and (4), the father
alone if he is alive shall 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 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 ceased to be Hindus 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."
Explanation:
• This section clarifies the hierarchy and conditions under which a child can be given in
adoption, emphasizing the need for consent and court involvement in specific scenarios.
Text: > "No person shall be capable of being taken in adoption unless the following conditions are
fulfilled, namely:— > (i) he or she is a Hindu; > (ii) he or she has not already been adopted; > (iii) 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; > (iv) 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."
Explanation:
• This section specifies the eligibility criteria for adoption, ensuring that the adoptee is a
Hindu, unmarried (with exceptions), and under a certain age (with exceptions).
Explanation:
• This section lays down specific conditions to ensure the adoption process is conducted
properly, including age differences, existing children, and formal ceremonies.
Text: > "An adopted child shall be deemed to be the child of his or her adoptive father or mother for
all purposes with effect from the date of the adoption, and from such date all the ties of the child in
the family of his or her birth shall be deemed to be severed and replaced by those created by the
adoption in the adoptive family: > Provided that— > (a) 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; > (b) 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; > (c) the adopted child shall not
divest any person of any estate which vested in him or her before the adoption."
Explanation:
• This section outlines the legal effects of adoption. The adopted child is considered the
legitimate child of the adoptive parents from the date of adoption, severing all ties with the
biological family. However, certain legal relationships and property rights remain unaffected.
Text: > "Subject to any agreement to the contrary, an adoptive father or mother shall have the same
rights of disposal over his or her property, with respect to the adopted son or daughter, as he or she
has over his or her own property with respect to a son or daughter not adopted."
Explanation:
• Adoptive parents have the same rights to dispose of their property concerning the adopted
child as they would with a biological child. This ensures equality in the treatment of
biological and adopted children in terms of property rights.
Section 14: Determination of adoptive mother in certain cases
Text: > "In any case where a Hindu who has a wife living adopts a child, she shall be deemed to be
the adoptive mother of the child, and if he has more wives than one, the senior-most in marriage
among them shall be deemed to be the adoptive mother, and the others to be step-mothers of the
child."
Explanation:
• This section clarifies the status of the adoptive mother when a Hindu male with multiple
wives adopts a child. The senior-most wife by marriage is considered the adoptive mother,
while other wives are considered step-mothers.
Text: > "No adoption which has been validly made can be cancelled by the adoptive father or mother
or any other person, nor can the adopted child renounce his or her status as such and return to the
family of his or her birth."
Explanation:
Text: > "Whenever any document registered under any law for the time being in force is produced
before any court purporting to record an adoption made and signed by the person giving and the
person taking the child in adoption, the court shall presume that the adoption has been made in
compliance with the provisions of this Act unless and until it is disproved."
Explanation:
• Registered adoption documents are presumed to be valid unless proven otherwise. This
provides legal certainty and simplifies the process of proving an adoption in court.
Text: > "(1) No person shall receive or agree to receive, and no person shall make or give or agree to
make or give to any person any payment or reward in consideration of the adoption of any person. >
(2) If any person contravenes the provisions of sub-section (1), he shall be punishable with
imprisonment which may extend to six months, or with fine, or with both."
Explanation:
Explanation:
• A Hindu wife is entitled to maintenance from her husband for her lifetime. She can live
separately without losing this entitlement if specific conditions, such as desertion or cruelty
by the husband, are met.
Section 19: Maintenance of widowed daughter-in-law Text: > "(1) A Hindu wife, whether married
before or after the commencement of this Act, shall be entitled to be maintained after the death of
her husband by her father-in-law: > Provided and to the extent that she is unable to maintain herself
out of her own earnings or other property or, where she has no property of her own, is unable to
obtain maintenance— > (a) from the estate of her husband or her father or mother, or > (b) from her
son or daughter, if any, or his or her estate."
Explanation:
Section 20: Maintenance of children and aged parents Text: > "(1) Subject to the provisions of this
section, a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate
children and his or her aged or infirm parents. > (2) A legitimate or illegitimate child may claim
maintenance from his or her father or mother so long as the child is a minor. > (3) The obligation of a
person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far
as they are unable to maintain themselves out of their own earnings or other property."
Explanation:
• Hindus are obligated to maintain their children (both legitimate and illegitimate) and aged or
infirm parents during their lifetime. Minor children and unmarried daughters are specifically
entitled to maintenance if they cannot maintain themselves.
Section 21: Dependents defined Text: > "For the purposes of this Chapter 'dependents' mean the
following relatives of the deceased:— > (i) his or her father; > (ii) his or her mother; > (iii) his widow,
so long as she does not remarry; > (iv) his or her son or the son of his pre-deceased son or the son of
a pre-deceased son of his pre-deceased son, so long as he is a minor: > Provided and to the extent
that he is unable to obtain maintenance, in the case of a grandson from his father's or mother's
estate; > (v) his or her unmarried daughter or the unmarried daughter of his pre-deceased son or the
unmarried daughter of a pre-deceased son of his pre-deceased son, so long as she remains
unmarried: > Provided and to the extent that she is unable to obtain maintenance, in the case of a
granddaughter from her father's or mother's estate; > (vi) any widow of his son or of a son of his pre-
deceased son, so long as she does not remarry and to the extent that she is unable to obtain
maintenance from her husband's or her father's or mother's estate or from her son or daughter, if
any, or his or her estate."
Explanation:
• This section defines "dependents" who are entitled to maintenance under the Act. It
includes a broad range of relatives, ensuring they are supported in the event of the death of
the primary provider.
Section 22: Maintenance of dependents Text: > "(1) Subject to the provisions of sub-section (2), the
heirs of a deceased Hindu are bound to maintain the dependents of the deceased out of the estate
inherited by them from the deceased. > (2) Where a dependent has not obtained any share in the
estate of a Hindu dying after the commencement of this Act by testamentary or intestate succession,
the dependent shall be entitled, subject to the provisions of this Act, to maintenance from those
who take the estate."
Explanation:
• Heirs are obligated to maintain the dependents of a deceased Hindu from the inherited
estate. Dependents have a right to maintenance even if they did not receive a share of the
estate through succession.
Text: > "(1) It shall be in the discretion of the court to determine whether any, and if so, what
maintenance shall be awarded under the provisions of this Act, and in doing so the court shall have
due regard to the considerations set out in sub-section (2), so far as they are applicable. > (2) In
determining the amount of maintenance, if any, to be awarded to a dependent, the court shall
consider— > (a) the position and status of the parties; > (b) the reasonable wants of the claimant; >
(c) if the claimant is living separately, whether the claimant is justified in doing so; > (d) the value of
the claimant’s property and any income derived from such property, or from the claimant’s own
earnings or from any other source; > (e) the number of persons entitled to maintenance under this
Act."
Explanation:
• The court has discretion in determining the amount of maintenance. It considers various
factors such as the status and needs of the parties, the claimant’s justification for living
separately, the value and income of the claimant’s property, and the number of dependents
entitled to maintenance.
Text: > "No person shall be entitled to claim maintenance under this Chapter if he or she has ceased
to be a Hindu by conversion to another religion."
Explanation:
• Maintenance under this Act is only available to Hindus. If a person converts to another
religion, they lose the right to claim maintenance.
Text: > "The amount of maintenance, whether fixed by a decree of court or by agreement, either
before or after the commencement of this Act, may be altered subsequently if there is a material
change in the circumstances justifying such alteration."
Explanation:
Text: > "A dependant’s claim for maintenance under this Act shall be a charge on the estate of the
deceased Hindu, whether in possession of the testator’s heirs or in the hands of any other person,
and the decree for maintenance may be enforced against the estate by sale or otherwise, as the
court may direct."
Explanation:
• Maintenance claims are treated as a charge on the estate of a deceased Hindu. This means
that the estate can be used to satisfy the maintenance claim, ensuring dependents' needs
are met.
Text: > "Where a Hindu who is bound to maintain any person under this Act has transferred the
property, the right to receive maintenance from the transferee shall not be affected by the transfer if
such person has notice of the right or if the transfer is gratuitous; but if the transfer is for
consideration and the transferee has no notice of the right, the right shall cease."
Explanation:
• If property is transferred, the right to maintenance is not affected if the transferee is aware
of the right or if the transfer is gratuitous. However, if the property is transferred for
consideration and the transferee has no notice of the maintenance right, the right ceases.
Text: > "Nothing contained in this Act shall affect the provisions of the Hindu Succession Act, 1956,
with respect to the right of dependents, as defined in that Act, to maintenance."
Explanation:
• This section ensures that the provisions of the Hindu Succession Act, 1956, concerning the
right of dependents to maintenance, remain unaffected by this Act.
maintainance under provisions of code of criminal procedure code 1973
Text: > "When any person having sufficient means neglects or refuses to maintain— > (a) his wife,
unable to maintain herself, or > (b) his legitimate or illegitimate minor child, whether married or not,
unable to maintain itself, or > (c) his legitimate or illegitimate major child, if a male, who is unable to
maintain himself, or if a female, who has attained majority, if she is unmarried and is unable to
maintain herself, or > (d) his father or mother, unable to maintain himself or herself, a Magistrate of
the first class may, upon proof of such neglect or refusal, order such person to make a monthly
allowance for the maintenance of his wife, child, father, or mother, as the case may be, at such
monthly rate as the Magistrate thinks fit."
Explanation:
• This section allows a Magistrate to order a person to provide maintenance to their wife,
children, or parents if they are unable to maintain themselves and the person has sufficient
means.
Text: > "Proceedings under section 125 may be taken by a person against whom maintenance is
claimed, or by any person on behalf of a person entitled to maintenance under section 125."
Explanation:
• This section outlines who can initiate maintenance proceedings under Section 125.
Text: > "Any Magistrate may, on proof of a change in the circumstances of any person receiving
maintenance under an order made under section 125, alter that order accordingly."
Explanation:
• This section allows for the modification of maintenance orders if there is a change in
circumstances.
Text: > "If the person against whom an order has been made under section 125 neglects or refuses to
comply with the order, the Court may, on proof of such neglect or refusal, issue a warrant for levying
the amount due in the manner provided for the recovery of fines."
Explanation:
• This section provides for the enforcement of maintenance orders through legal means if the
obligated person fails to comply.
Key Provisions
Maintenance of Parents and Senior Citizens
• Section 4: This section mandates that children and heirs are legally obligated to provide
maintenance to their parents and senior citizens. Maintenance includes provisions for food,
clothing, residence, and medical attendance and treatment1.
• Section 5: Any person who is entitled to maintenance under this Act can apply to a
Maintenance Tribunal for an order of maintenance.
• Section 6: This section outlines the jurisdiction of the Maintenance Tribunal and the
procedure for filing an application for maintenance.
• Section 7: The Act provides for the establishment of Maintenance Tribunals to handle
applications for maintenance.
• Section 9: The Tribunal can pass an order for the maintenance of parents or senior citizens,
specifying the amount and manner of payment.
Enforcement of Order
• Section 11: If the person ordered to pay maintenance fails to comply, the Tribunal can
enforce the order through various means.
• Chapter III: The Act also provides for the establishment of old age homes for indigent senior
citizens and parents who are unable to maintain themselves.
• Chapter IV: This chapter includes provisions for medical support for senior citizens.
• Chapter V: Measures are outlined to protect the life and property of senior citizens.
• Chapter VI: The Act specifies offences related to the neglect and abandonment of senior
citizens and the procedure for their trial.
Miscellaneous Provisions
• Chapter VII: This chapter includes various miscellaneous provisions, such as the barring of
civil court jurisdiction and the power of the Central Government to give directions.