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Family Law-I ( LLB -201)


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The objective of the paper is to apprise the students with the laws relating to marriage, dissolution, matrimonial remedies, adoption, contemporary trends in family institutions in India, in particular the Hindus and Muslims.

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Family Law-I ( LLB -201)

  2. 2. 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 ten thousand years and has continued to govern the social and moral patterns of Hindu life with harmonizing the diverse elements of Hindu cultural life.
  3. 3. 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
  4. 4. 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 religion.
  5. 5. • 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
  6. 6. To whom Hindu Law apply: • 1. Hindus by birth • 2. Offshoots 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
  7. 7. 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: 1.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. 2. Smritis • Smriti means “what is remembered”. With Smritis, a systematic study and teaching of Vedas started.. 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.
  8. 8. .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 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 logical. He also gives a lot of importance to customs but hold the king to be below the law.
  9. 9. 3.Commenatries and Digests • After 200 AD, most the of work was done only on the existing material given in Smritis. 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 smritis. As noted earlier, some of the commentaries were, manubhashya and mitakshara. • While the most important 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
  10. 10. 4.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.
  11. 11. Requirements for a valid custom • Ancient • Continuous • Certain • Reasonable • Not against morality • Not against public policy • Not against any law
  12. 12. 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
  13. 13. Justice, equity and good conscience • 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 convincing rules, the decision must be based on ‘Nyaya’
  14. 14. 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.
  15. 15. • 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 Mitakshara School in many respects. • This school is followed in Bengal state only. Sapinda relation is by Pinda offerings.
  16. 16. Evolution of the Institution of Marriage and Family Definition and Forms of Hindu 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 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
  17. 17. 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
  18. 18. Matrimonial Rights and Obligations 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. Rights of a Husband are: he is entitled to the custody and the conjugal society of his wife.
  19. 19. • 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 • 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
  20. 20. Different forms of marriage Ancient Hindu Law: The four obsolete approved forms • Brahma (to a man learned in vedas) • Daiva (to a priest) • Arsha (father’s taking girI from groom: a cow and a bull) • Prajapatya (similar to Brahma, girI of a daughter by father, but bridegroom need not be a bachelor)
  21. 21. The four unapproved forms: • Asura (When groom buys bride through money) • Gandharva (When voluntary union against parent’s wishes) • Rakshasa (When forcible abduction / kidnapping) • Paishacha (when intoxicated)
  22. 22. Forms of Marriage in Modern Hindu Law Hindu Marriage Act 1955 does not specifically provide for any forms of marriage. The Act calls marriage solemnized under the Act as Hindu Marriage which may be performed in accordance with the shastric rites and ceremonies or prevalent custom
  23. 23. Hindu Marriage Act,1955 • Definitions • Custom and Usages • Full Blood, Half Blood and Uterine Blood • Sapinda Relationship • Degree of Prohibited Relationship
  24. 24. Conditions of a Valid Marriage 5 Conditions for a Hindu marriage.: —A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: —(i) neither party has a spouse living at the time of the marriage; [(ii) at the time of the marriage, neither party —(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity (iii) the bridegroom has completed the age of 4 [twenty-one years] and the bride, the age of 5 [eighteen years] at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
  25. 25. • Monogamy: The first essential condition for a valid marriage is that neither party should have a spouse living at the "me of marriage. Monogamy is the voluntary union for life of one man with one woman to the exclusion of all others. • Bigamy is the reverse of monogamy. • Section 11 makes a bigamous marriage void and section 17 makes it a penal offence under Section494 and 495 IPC
  26. 26. Leading Case Laws: • Bhaurao Shankar Lokhande v. State of Maharashtra (AIR 1965 ALL 489) • Sarla Mudgal v. UOI ( AIR 1995 SC 1531) • Lily Thomas v. UOI ( AIR 2000 SC 1650) • S.Nagalingam v. Sivagami (2001 (7) SCC 487
  27. 27. Age Condition • Prohibition of Child Marriage Act 2006 Leading Case laws • P.V Venkataramana V. State (AIR 1977 A.P 43) • 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 doctrine came from Roman maxim ‘factum valet quod peri 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.
  28. 28. Void ( Section 11) and Voidability ( Section 12) of Marriage • The Act introduced the concept of void, voidable and dissoluble Marriages. Some marriages performed in contravention of certain legal provisions are void ab initio and have no legal effect. • There are those which are legal so long as they are not challenged, and these are called voidable. The other category of marriages that are perfectly legal or valid but due to existence of certain conditions, the petitioner is entitled to seek a divorce.
  29. 29. Impediments or Bars to marriage: a. Absolute, if exist marriage is void b. Relative, if exist marriage is voidable Section 11:Void marriages Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.
  30. 30. Section 12:Voidable marriages 1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely: [(a) that the marriage has not been consummated owing to the impotence of the respondent; or] (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 2[was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)], the consent of such guardian was obtained by force 3[or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent]; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
  31. 31. (2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of [the said ground].
  32. 32. Impotency Leading Cases • Shantabai v. Tara Chand (AIR 1966 M.P 9) • Digvijay Singh v. Pratap Kumari (AIR 1970 SC 137) • Amendment of 1976
  33. 33. Incapacity to consent and Mental disorder Leading cases • Bennett v. Benett (1969) ALL ER 539 • R.Lakshmi Narayan v. Santhi(AIR 2001 SC 2110) Fraud and Force • 1976 Amendment Leading Cases • Asha Qureshi V. Afaq Qureshi (AIR 2002 MP 263) • Babui Panmato Kuer v. Ram Agya Singh (AIR 1968 Pat 190)
  34. 34. Restitution of Conjugal Rights Section 9: • When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, 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, may decree restitution of conjugal rights accordingly. [Explanation.—Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]
  35. 35. • 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"on 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 Right
  36. 36. Pre-Requisites for grant of RCR 1. Respondent has withdrawn from the society of the petitioner 2. Withdrawal is without reasonable exuse 3. Court is satisfied that statements made in petition are true 4. No legal ground for refusing to grant application
  37. 37. Problem of Choice of Matrimonial Home(Case of Working Ladies) • Can a husband compel his wife to resign her job and stay with him? Cases to be discussed: Traditional view • Kailashwati v. Ajodhia Parkash,79 PLR 216 (1977) Progressive view • Shanti Nigam v. Ramesh Chandra,AIR 1971 ALL 567 • Swaraj Garg v. K.M Garg, AIR 1978 Del 296
  38. 38. Constitutional Validity of Section 9 Cases to be discussed: • T.Sareetha v. Venkata Subbaiah, AIR 1983 AP 356 • Harvender Kaur v. Harmender Singh, AiR 1984 Delhi 66 • Saroj Rani v. Sudharshan Kumar, AIR 1984 SC 1562
  39. 39. Divorce • 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, then it will 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 "e could not be severed under any circumstances whatsoever. • Manu did not approve of the dissolution of marriage in any condition
  40. 40. Theories of Divorce • Divorce at Will Theory • Frustation of Marriage Theory • Offence or Guilt or Fault Theory • Mutual Consent Theory • Irretrievable Breakdown Theory ( Yousuf v. Sowramma, AIR 1971 Ker 261)
  41. 41. Position in Modern Hindu Law(Amendments) • The Hindu Marriage Act,1955 originally based divorce on the faulty theory and enshrined nine fault ground in Section 13(1) on which either husband or wife could sue for divorce and two fault ground in Section 13(2) on which wife could sue for divorce. • In 1964,by an Amendment, clauses (viii) and (ix) of Section 13(1) were recasted in the form of 13(1A),thus recognizing two grounds of breakdown of marriage. The 1976 Amendment Act inserted two additional fault grounds of divorce for wife and a new Section 13 B (Divorce by Mutual Consent)
  42. 42. Statutory Provisions (Section 13,13A,13B,14,15,23 & 23A) Section 13:(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— • 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:
  43. 43. • (1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground: • (i) that there has been no resumption of cohabitation as between 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; or • (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
  44. 44. Section 13(2) Grounds available for wife: • Bigamy: • Rape, Sodomy and bestiality: • Maintenance decreed to Wife • Repudiation of Marriage by Wife
  45. 45. Adultery ( Section 13(1)(i)) • Adultery (extra marital sex), may be defined as consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of the marriage. • Prior to 1976 Amendment, it was only available for judicial separation and for divorce, the respondent had to prove that respondent was ‘living in adultery’( which means continuous period of acts), now one single act is enough.
  46. 46. Points to discuss • Voluntary Sexual Intercourse • After the solemnization of Marriage • Nature and Burden of Proof • One Single Act
  47. 47. Cruelty (13)(1)(ia) • Out of all grounds it is the most difficult to define. No precise definition. • In Russel v. Russel(1897) A.C (305), cruelty defined as, Conduct of such a character as to have cause danger to life ,limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such danger. • Before 1976,cruelty was not a ground of divorce, but only judicial separation.
  48. 48. Physical and Mental Cruelty Instances of Physical Cruelty • Repeated beating • Burning any limb • Neglect in providing or starving • Keeping in illegal confinement
  49. 49. Instances of Mental Cruelty • False Charge of unchastity • Compelling the wife to adopt the adopt life of prostitution • Repeated threats to commit suicide • Voluntary abortion
  50. 50. Leading case Laws • Dastane v. Dastane (1975) 2 SCC 326 • Samar Ghosh v. Jaya Ghosh, 2007(3) SCJ 253 • Concept of Mental Cruelty explained in Parveen Mehta v. Inderjit Mehta,(2002) 5 SCC 706 • V. Bhagat v. D. Bhagat (AIR 1994 SC 710 • Suman Kapur v. Sudhir Kapur ( AIR 2009 SC 589)
  51. 51. Desertion( Section 13(1)(ib) • It may be defined as permanent foresaking or abandonment of one spouse by the other without any reasonable cause and without the consent of the other. • Total repudiation of obligations of marriage • Withdrawal not just from a place but also from a state of thing. • Thus desertion is there even if spouses are living under one roof but refuses to fulfill the matrimonial obligation.
  52. 52. • Desertion may be Actual or Constructive or Willful Neglect. For Actual Desertion, following elements must be there: a. The factum of separation b. Animus deserdendi (intention to desert) c. Without reasonable excuse d. Without the consent of other party e. Statutory period of two years must have run out before petition is presented
  53. 53. Constructive Desertion • It cannot always be equated with separate living by the parties to marriage. If it is proof that despite of living under same roof spouse intentionally neglects the other spouse then also he is guilty of desertion. • Thus desertion is not actually the abandonment of a place but of a relationship. • It has same requirements as actual.
  54. 54. Willful Neglect • Explanation to 13(1) of the Act states that desertion includes willful neglect of the petitioner by the other party to the marriage. • Thus it can be said that willful neglect adds a new dimension to the notion of desertion. • Thus it will amount to willful neglect if a person consciously acts in a reprehensible manner in the discharge of his obligations.
  55. 55. Leading Case Laws • Bipinchandra v. Prabhawati ,AIR 1957 SC 176 • Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591
  56. 56. Conversion 13(1)(ii) • Conversion implies that the person has voluntary relinquishes his faith and adopted another religion after ceremonial conversion. • Conversion does not itself result in Divorce. A petition under this section is to be made to the court for obtaining divorce. Leading Case Laws: • Sarla Mudgal v. UOI, AIR 1995 SC 1531 • Lily Thomas v. UOI, (2000) 6 SCC 224
  57. 57. Mental Disorder( Section 13(1)(iii) & Virulent and Incurable form of Leprosy(13(1)(iv) • Prior to 1976 “unsoundness of mind” and virulent and incurable form of leprosy for one year was a ground for judicial Separation, and for three years for divorce. But after amendment now no period is prescribed. Leading Case Law • T.N Bhagat v. Bhagat ( AIR 1967 Bom. 80)
  58. 58. Irretrievable Breakdown of Marriage (13(1A)) • [(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground: • (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8[one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or • (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
  59. 59. Things to Discuss • The Law Commission of India,71st Report • The Supreme Courts Recommendations • The Marriage Laws (Amendment) Bill,2010 Leading Case Laws • Yousuf v. Sowramma (AIR 1971 Ker 261) • Dharmendra Kumar v. Usha Kumar AIR 1977 SC 2213 • Hirachand Srinivas v. Sunanda, AIR 2001 SC 1285 • Naveen Kohli v. Neelu Kohli, 2006 4 SCC 558
  60. 60. Divorce by Mutual Consent (13B) Section 13B. Divorce by mutual consent. • (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
  61. 61. • (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]
  62. 62. • 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. Essentials • parties living separately for a period of one year or more • not able to live together • mutual agreement in dissolving the marriage • consent of the parties has been obtained
  63. 63. Leading Case Laws • Sureshta Devi v. Om Prakash, AIR 1992 SC 1904 (One Party withdraws consent unilaterally) • Anil Kumar Jain v. Maya Jain, 2009 10 SCC 415 • Amardeep Singh v. Harveen Kaur, Manu/SC/1134/2017
  64. 64. Judicial Separation Section 10: [(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.] (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so
  65. 65. • 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.
  66. 66. Grounds • Adultery • Cruelty • Desertion • Unsoundness of Mind • Conversion/Apostasy • Virulent and /incurable Leprosy • Venerable Disease • Renunciatiation of World • Presumed Death (missing Spouse)
  67. 67. Additional Grounds to Wife • Bigamy • Rape, Sodomy or Bestiality • Non-resumption of Cohabitation after decree or Order of Maintenance • Option of Puberty
  68. 68. Incidents and effects of Decree of Judicial Separation (Section 10(2)) 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
  69. 69. Rescission of Decree of Judicial Separation (Section 10(2)) • 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
  70. 70. Difference between Divorce and Judicial Separation • 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 "me 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 • It is a lesser remedy than divorce, but in Divorce, it is stronger, drastic and last remedy than judicial separation
  72. 72. Introduction In India, Muslim personal laws are governed by the Shariat Law (by the provision of the Quran and the teachings of Prophet Mohammad) due to Art. 25 of the Constitution of India which incorporates the Right to Religion. While most Islamic countries in the world have chosen to modify and incorporate a modernized version of the Shariyat laws, India is still battling to do the same in the personal law governing marriage, divorce, inheritance, maintenance, etc. Personal laws are those which have been witnessed to be beyond the concept of the legislature, as they are very much identified with religion, customs or their beliefs. Shariat is law in the wider sense which means the totality of Allah’s commandment. Each of such commandments are called Hukum. It is the doctrine of duties. Thus the Shariat is totalitarian; human activity is embraced in its sovereign domain.
  73. 73. Who is a Muslim: • Muslims are people who follow or practice Islam, Quran, their holy book, to be the verbatim, (word of God), revealed to the Islamic prophet and messenger Muhammad. The majority of Muslims also follows the teachings and practices of Muhammad (sunnah) as recorded in traditional accounts. (hadith) "Muslim" is an Arabic word meaning "submitter" (to God). • Muslim law in India means “that portion of Islamic Civil Law which is applied to Muslims as a personal law”. It consists of the injunctions of the Quran, of the traditions introduced by the ‘practice’ of the Prophet of the common opinion of the jurists of the analogical deductions of these three (Qiyas) and of the pre Islamic customs not abrogated by the Prophet Mohammed.
  74. 74. • The Shariat Act,1937 This is the most important enactment dealing with the application of Muslim Law.It is applicable to every Muslim regardless of the school he belongs to. • Sources Of Muslim Law It may be divided into two categories: 1. The Primary ( Shariah) Sources- These are those which the prophet himself directed to be the sources of Law. These are (i) The Quran, (ii) Sunnah or Hadith, (iii) Ijma and (iv) Qiyas 2. The Secondary Sources- These are those sources which are developments on the foundation laid down by the primary sources. These are (i) Customs(Urf), (ii) Judicial Precedents,(iii) Legislation and (iv) Justice, equity and Good Conscience.
  75. 75. Primary Sources 1. Quran • Muslim law is founded upon Al-Quran which is believed by the muslamans to have existed from eternity, subsisting in very essence of god. The word Quran has been derived from the Arabic word Quarra which means to read. The word Quran which is the a divine communication and revelation to the prophet of Islam is the first source of Muslim law. • Quran is a primary source of Muslim law, in point of time as well as in importance. The Islamic religion and Islamic society owes its birth to the word of Quran. It is a paramount source of Muslim law in point of importance because it contains the very word of god and it is foundation upon which the very structure of Islam rests Quran regulates individual; social, secular, and spiritual life of Muslims.
  76. 76. 2. Sunnat • The word sunna means the trodden path & as this meaning shows it denotes some kind of practices and precedent. It is belief of Muslim that revelations were two kinds- manifest (zahir) and internal (batin). Internal revelation is opinions of the prophet which is delivered from time to time on questions that happened to be raised before him. Sunna means the model behavior of the prophet. The narrations of what the prophet said, did or tacitly allowed is called hadis or traditions. The traditions, however, were not reduced to writing during lifetime of Mohammad. They have been preserved as traditions handed down from generation to generation by authorized persons. The importance of hadith as an important source of Muslim law has been laid down in the Quran itself. 3. Ijma • It means the consensus of the companions and followers of the Prophet. Ijma has been defined by Sir Abdul Rahim as agreement of the jurists among the followers of Prophet Mohammad in a particular question of law. The validity of ijma, as containing a binding precedent, is based upon a hadis of the prophet which says that god will not allow His people to agree on an error. Ijma thus become a source of law. According to the classical theory, failing Quran and traditions, and consensus of opinion amongst the companions of the prophet is recognized as the best guide of law. Thus it is the third source of law, both in point of time and importance.
  77. 77. 4) Qiyas • This is a last primary source of Muslim law. Qiyas means reasoning by analogy from above 3 sources i.e., Quran, Sunna and Ijma. In Qiyas rules are deduced by the exercise of reason. • Qiyas may be defined as a process of deduction by which the law of the text is applied to cases, which though not covered by the languages are governed by reason of text. Thus, it should be noted that Qiyas does not purport to create a new law, but merely to apply old established principles to new circumstances. Secondary Sources • Customs • Judicial Decisions • Legislations • Justice, Equity and Good Conscience
  78. 78. Schools of Muslim Law During the lifetime of Prophet Mohammed, there were no schools of Muslim Law and the Principles of Muslim Law were uniform at that time. After the death of the Prophet Mohammed, the question of succession to prophet arose. There were two conflicting views/opinions among Arabs. One group supported election method/principle, while the other group supported the principle of inheritance. According to the first view (i.e., election method) , the successor to Prophet Mohammed should be elected by the Muslim Community. The other view (i.e., the principle of inheritance) the legal heir of the Prophet Mohammed should succeed. The members of the first group, who supported the Election principle/method came to be known as ‘Sunnis’. While the other group, who supported the principle of inheritance came to be known as ‘Shias’. Thus, there are two main Schools of Muslim Law namely –i) Sunni School, and ii) Shia School. Both sects are subdivided into various schools.
  79. 79. • The Sunni Schools were developed during the reign of the Abbadids. They are sub-divided into four as stated below; i) Hanafi School; ii) The Maliki School; iii) Shafei School; and iv) Hanabali School • Imam Jafar as Sadik, the Sixth Imam of Imamias founded the Shia School and hence, the Shia School is earlier than the Sunni School). After the Sunnis, the Shias consist of the next largest group of Muslims in India. The Shias do no accept any tradition. According to them, the Imam is the final interpreter of the law. The Shia Schools are sub-divided into three as follows: • i) The Ismailias • ii) Athna Asharias or Immamia; and • iii) The Zaidia.
  80. 80. Nikah (Muslim Marriage) • The Arabic word ‘Nikah’ (marriage) means “the union of sexes” and in law, this means “marriage”. The term Nikah has been used for marriage under Muslim law. ‘Nikah’ literally means, “to tie up together”. It implies a particular contract for the purpose of legalizing generation. Nikah in its primitive sense means carnal conjugation. It is a matrimonial contract as well as an institution that gives the women a particular and high status in the society. Nikah was to ensure stability in married life as it bound both the partners together for an indefinite period and also required the woman to be honoured with the Mahr. • Hedaya : - Marriage is a legal process by which the several process and procreation and legitimation of children between man and women is perfectly lawful and valid. • Abdur Rahim :- The Mohomedan priests regard the institution of marriage as par taking both the nature of Ibadat or devotional arts and Muamlat or dealings among men. • Under Section 2 of Muslim Women (Protection of Rights on Divorce) Act, 1986 Marriage or Nikah among Muslims is a ‘Solemn Pact’ or ‘Mithaq-e-ghalid’ between a man & a woman
  81. 81. Muslim Marriage a Civil Contract or Sacramental tie: According to the Mohommedan law, marriage is a not a Sacrament but a Civil Contract. All rights and obligations it creates arise immediately, and are not dependent on any condition precedent such as the payment of dower by husband to wife. Marriage according to Muslim law is a contract for the purpose of legislation for intercourse, procreation of children and regulation of social life in the interest of society by creating: • the rights and duties between the parties themselves, and • between each of them and the children born from union Justice Mahmood observed: Marriage among Mohammedans is not a Sacrament, but purely a civil contract; and though it is solemnized generally with the recitation of certain verses from the Quran, yet the Mohammedan law doesn’t positively prescribe any service peculiar to the occasion. He described that Muslims marriage dependent upon declaration or proposal of the one and the consent or the acceptance of the other of the contracting parties.
  82. 82. Lawfully, a Muslim marriage is considered as a contract; because the aspects which constitute a marriage and the manner in which it is completed, is almost similar to that of a civil contract. The contractual nature of a Muslim marriage is explained on the basis of the following elements: • The parties to the marriage also must be competent. • The marriage is not complete without offer, acceptance and free consent of the parties or guardians. • The terms of marriage contract within legal limits may be settled by the parties themselves. • Just as there are rules for governing the rights and duties of the parties upon the breach of a contract, there are also provisions for various rights and duties of husband and wife on divorce or dissolution of marriage.
  83. 83. Essentials of a valid Marriage • Competency/ Capacity of the Parties: (a) Age of Puberty (b) Sound Mind (c) Muslims ( Refer Ghulam Bibi v. Mohammad Shafi, AIR 1940 Pesh 4) • Free Consent of Parties: No Compulsion, Fraud and Mistake of Fact • Formalities and Ceremonies are duly Completed-Offer(Ijab) is there, Acceptance (Qabool) must be there • Absence of Prohibition and Impediment
  84. 84. Absence of Prohibition and Impediment • Absolute Prohibitions: A marriage contracted in violation of any of the absolute prohibitions is null and void under all the schools of Muslim law. For a valid marriage, therefore, there must be absence of prohibited relationship between the parties. There is an absolute prohibition for a Muslim to marry a person who is within his or her prohibited relationship if they are related to each other by: i. Affinity( Relation by Marriage):Affinity means nearness. It is created through marriage. On the basis of affinity one cannot marry with any of the following relations: a. his wife’s mother or grandmother how highsoever; b. his wife’s daughter or granddaughter how lowsoever; c. the wife of his father or paternal grandfather how highsoever; and d. the wife of his son, of his son’s son or daughter’s son how lowsoever, A marriage with a woman prohibited by reason of affinity is void.
  85. 85. ii. Fosterage: Where a child, under the age of two years, has sucked the milk of any woman (other than its own mother) such a woman is called the foster-mother of that child, although there is no blood-relationship between that woman and the child yet, she is treated as the real mother of that child for purposes of prohibitions in the marriage. iii. Consanguinity ( Relation by blood): Under Consanguinity or blood relationship, a Muslim cannot marry with any of his or her following relations: (a) Ones own descendants or ascendants, how highsoever (b) Descendants of ones father and mother how lowsoever (c) Brothers or sisters of ones ascendants how highsoever
  86. 86. Relative Prohibitions • Relative prohibitions are those prohibitions the compliance of which is not mandatory (must) but their presence is deemed to be unjust. Therefore, a marriage contracted in violation of these prohibitions is merely irregular but not void. As a matter of fact, these violations of any relative prohibition in marriage is because of some small irregularity. As soon as that irregularity is removed, the marriage becomes perfectly valid. Under Shia law, which does not recognize an irregular marriage, a marriage against any of these prohibitions is either void or perfectly valid. The relative prohibitions are given below: i. Marriage with Fifth Wife: ii. Marriage without Witnesses iii. Unlawful conjunctions iv. Marriage with Non-Muslim v. Marriage during Iddat
  87. 87. Miscellaneous Prohibitions 1. Marriage during Pilgrimage 2. Rule of Equality 3. Re-marriage between divorced couple 4. Polyandry Presumption of Marriage: Under Muslim Personal law, a marriage can be proved directly or indirectly evidences. In direct evidences, a marriage has to be proved by calling witnesses present at the time of marriage or showing the Nikahnama, whereas in the case of absence of direct evidence, the marriage may be inferred from circumstances. This is called presumption of marriage. Presumption of a valid marriage arises even though there is lack of some formalities of a marriage.
  88. 88. A valid marriage is presumed in the following cases: 1. When there is consummation of marriage which is presumed from a valid retirement. 2. When a man acknowledges a child of a woman as his legitimate child, a presumption of a valid marriage between the man and the mother of the child arises. 3. When a man acknowledges that a woman is his wife. 4. When there is a continuous and a prolonged cohabitation of a man and a woman.
  89. 89. Classification of Marriage All the schools of the Sunnis classify marriage into: • Sahih (Valid) • Batil(Void) • Fasid (Irregular) The Ithna Ashari School of the Shias does not recognize the irregular marriage; and therefore, among them, marriages are either valid or void ( i) Sahih (Valid) Marriage Under all the schools of Muslim law, a valid marriage is that which has been constituted in accordance with the essential conditions prescribed under the law. That is to say, a marriage is valid only where- • The parties must be competent; • The consent must be free; • There must be proper offer and acceptance according to law • Proposal and acceptance must have taken place at one meeting and before two witnesses.
  90. 90. Legal Effects of a Valid Marriage • Mutual Rights and Obligations between the parties. • Prohibited degree of relationships would be created between the parties. • Sexual intercourse and the procreation of child is legalised • Wife becomes entitled to her Dower Batil ( Void) Marriage When a marriage is performed in violation of absolute impediments or perpetual impediments, the marriage is Batil, null and void and void ab initio. A void marriage is no marriage and no legal consequences flow from it. Neither it confers the status of legitimacy on the children, nor mutual rights and obligations arise from such marriage. It is called a marriage because two persons have undergone the necessary formalities of marriage. But since they totally lack capacity to marry, marriage cannot come into existence between the two.
  91. 91. Under Shia Law following marriage are Void: • Marriage in violation of absolute in capacity. • Marriage with any non-Muslim. • Marriage with fifth wife. • Marriage during pilgrimage. • Marriage with the woman undergoing Iddat. Case Law: Chand Patel v. Bismillah Begum, (2008) 4 SCC 774
  92. 92. Fasid ( Irregular or Invalid) Marriage • In Muslim law, there are some marriages which are not valid but which are not wholly void. Marriages of this kind are defective or irregular but are not entirely without any effect. Irregular marriage is one which may be regularized by certain attempts or which becomes regular (lawful) after lapse of time. • Irregular marriages are recognized only under Sunni law. Irregular marriage is an incomplete marriage. Only the observance of formalities is the basis of determining whether a marriage is valid or not. It is possible that in some cases, only minor formalities were not observed. Under such circumstances, the marriage may not be void but only irregular. The Ithna Ashari School of Shias does not recognize the irregular form of marriages. Legal Effects of Irregular Marriage • Marriage against unlawful Conjunctions • Marriage with the fifth wife • Marriage without two competent witnesses • Marriage with a woman undergoing iddat • Marriage with two sisters at the same time
  93. 93. Muta Marriage In Pre-Islamic Arabia, there was a custom whereby the Arab women used to entertain men in their tents. The man entering the tent had to pay some consideration as the entrance fees. There were no mutual rights and obligations between the parties. Any one of them could terminate the union at any time. The children born out of the union belonged to the woman. In fact, it was prostitution and nothing else. The practice was found convenient by the Pre-Islamic Arabs particularly during long travels. Slowly, this union got some changes and the fixation of the term of union for some amount to be given to the woman, was made compulsory which attained the name of Muta. The literal meaning of the Arabic word Muta is “enjoyment” or “use”. In original Quranic text, Arabic word “Tamtaa Turn” has been used. “To enjoy” means, in Arabic “istamta-a”. It was also be regarded as ‘marriage for pleasure’. It is a kind of temporary marriage recognized in the Ithna Asharis of Shia School, but according to the Sunnis, such marriages are void
  94. 94. Conditions of Muta: • In the contract of Muta, the term and duration denotes a period of cohabitation. If the period would be specified, the marriage become Muta. • Dower must be specified. • If the period of cohabitation is not fixed, but dower is specified, then it will be regarded as permanent marriage. • If the term or duration is fixed but dower is not specified, the Muta marriage will be void. • The period for which, the Muta is being contracted, must be clearly specified. It would be for few hours, few days, a few weeks or a few months or few years. A Muta without any stated period is to be treated as a permanent marriage. Even supposing, the word Muta was used, but since the term was not specified, the marriage was considered as permanent marriage.
  95. 95. Legal Effects of Muta Marriage: • The cohabitation between the parties lawful. • The period for which a Muta is contracted, need not commence immediately from the time when the contract for marriage is concluded. • The children are legitimate and have rights to inherit in the properties of both the parents. • The wife under is not entitled to any maintenance under Shia Law. • The husband can also terminate the contract after making Zihar. • The parties may also terminate the contract by mutual consent. • Muslim wife in a Muta marriage is required to observe Iddat in case of death of her husband, for a period of four months and ten days. In case of pregnancy, this period is extended till delivery.
  96. 96. CONCEPT OF TALAQ UNDER MUSLIM LAW • Divorce means the legal dissolution of the marital union between a man and a woman. In India, divorce law and procedures generally varies depending upon the community to which the couple belongs. Among Muslims in Pre-Islam Arabs, the powers of divorce fascinated by the husband were unlimited. They could divorce their wives at any time, for any reason or without any reason. • Talaq is originated from Urdu word and its literal meaning is to ‘release’, which is used for divorce. Under Muslim law, the divorce is considered to be the absolute power of husband to obtain or may pronounce it at his pleasure through express words or implied acts. However, the theory of divorce in the Islamic world have varied according to time and place. • The Prophet Mohammad pronounced Talaq to be the most detestable before God of all permitted things.
  97. 97. Conditions for a Valid Talaq 1. Capacity - All Muslim husbands of sound mind and attained the age of puberty is competence to pronounce a Talaq. No guardian can pronounce Talaq on behalf of the minor husband, Talaq which is pronounced against a minor or insane wife is void. 2. Free Consent - The consent of the husband pronouncing the Talaq should be free as per Hanafi law, also Talaq pronounced under coercion, undue influence, fraud, compulsion and voluntary intoxication etc. is valid and dissolve the marriage. 3. Express Words - The pronouncement must be expressed, the words of Talaq must clearly indicate the husband’s intention to dissolve marriage. 4. Formalities of Talaq
  98. 98. Case Laws: • Shamim Ara v. State of U.P , (2002) 7 SCC 518. • Masroor Ahmad v. State , (2008) (103) DRJ 137 .
  99. 99. Kinds of Talaq Extra Judicial From the point of view of Mode of pronouncement and effect, there are two kinds of Talaq: 1. Talaq-ul- Sunnat or revocable Talaq, and 2. Talaq-ul-Biddat or irrevocable Talaq Talaq by Husband: • Talaq-ul-Sunnat - The approved form of Talaq.There is a possibility of compromise and reconciliation between husband and wife so it is also called as Talaq-ul-Raje, followed by shia and sunnis and it may be pronounced either in Ahsan or Hasan form.
  100. 100. ( i) Talaq Ahsan ( Most Proper) The most proper form of repudiation of marriage because there is possibility of revoking the pronouncement before the expiry of the Iddat period and the evil words of Talaq are to be uttered only once. There is only a single declaration during the period of purity followed by no revocation by husband for three successive periods of purity. In this form, the following formalities are required: a. The Husband has to make a single pronouncement of Talaq during the Tuhr of the Wife. b. After this pronouncement, Wife has to observe iddat of three monthly courses.
  101. 101. ii. Talaq Hasan ( Proper) This is also regard as proper and approved form of Talaq, there is also provision of revocation but it is not the best mode because the evil words of Talaq are to be pronounced three times in the successive Tuhr/s. The husband has to make a single declaration of Talaq in a period of Tuhr/s. 2. Talaq-ul- Biddat ( Disapproved) Biddat means sinful. This is the disapproved mode of divorce. This becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties so it is also called Tlaq-ul-Bain. This mode of Talaq was introduced by the Omayyad Kings. It is practice under Sunni Muslims, under Shia law irrevocable Talaq is not recognized.
  102. 102. Constructive Divorce (Ila and Zihar) • Besides Talaq, a Muslim Husband can repudiate his marriage by two other modes Ila and Zehar, though no practical importance as virtually non existent in India.Under this Husband does not expressly repudiate the marriage but through his conduct he intends to dissolve the marriage Ila Husband takes an oath not to have sexual intercourse with the Wife. After this oath if for four months no consummation takes place then the marriage stands as dissolved. Zihar(Injurious Comparison) In this the Husbans compares his wife with a woman within his prohibited relationship. If for four months then marriage dissolved.
  103. 103. Divorce at Wife’s Instance • Muslim Wife has no independent right of divorce, she cannot divorce her husband whenever she likes, as her husband may do. She cannot do so without her husbands consent or without judicial decree. • Following are the forms of divorce at the instance of Wife: a. Talag-e Tafweez( Delegated Divorce)- Where the husband delegates to the wife the right of Talaq. b. Where she is a party to divorce by Mutual Consent ( Khula and Mubarat) c. Where she wants to dissolve the marriage under the Dissolution of Muslim Marriage Act, 1939
  104. 104. Divorce by Mutual Consent ( Khula and Mubarat) • Khula In this form wife does not want to continue with marital tie.It literally means to lay down. Generally the wife offers to give up her claim to Dower. Essentials: 1. Competence of Parties 2. Free Consent 3. Formalities 4. Consideration • Mubarat Under this the offer may come either from husband or from wife. Essential is willingness of both parties to get rid of each other.
  105. 105. Lian ( False charge of Adultery) Wife is entitled to sue for divorce on the ground that her husband falsely charged her with Adultery. Features of Lian: 1. Husband chardeg with adultery 2. This charge is false 3. Does not ipso fact dissolve marriage 4. She files regular suit for dissolution of marriage
  106. 106. Judicial divorce (Faskh) The Dissolution of Muslim Marriage Act The Act now lays down several other grounds on the basis of any one of which, a Muslim wife may get her marriage dissolved by an order of the court. Now according to this Act, a Muslim wife can claim a Judicial divorce from her husband under any of the following grounds mentioned u/s 2 of the said Act; • Failure to perform marital obligations • Impotency of Husband • Insanity • Option of Puberty • Cruelty; Husband treats wife with cruelty • Absence of Husband • Neglected to Maintain • Other grounds
  107. 107. • Case Laws Cruelty Itwari v. Smt Asghari, AIR 1960 ALL 684 Option of Puberty ( Khyar-ul- Bulugh) Ghulam Sakina v. Falak Sher, AIR 1950 Lah 45 Also discuss Section 4: Apostasy (Giving up of ones religion)
  108. 108. TOPIC: Adoption and Maintenance
  109. 109. INTRODUCTION • The concept of adoption is not a new concept rather the custom and practice of adoption is continuing from the past. The dictionary meaning of the term ‘adoption’ is the act of taking and rearing of the child of other’s parents as one’s own child. Attitudes and laws regarding adoption vary greatly. Not all cultures have the concept of adoption. One of the biggest examples is Muslim law where adoption is not recognised. • Adoption is the institutionalized practice through which an individual belonging by birth to one kinship group acquires new kinship ties that are socially and legally defines as equivalent to the congenital ties. These new ties supersede the old ones either wholly or in part • In the past, a childless couple would ‘adopt’ a child from one’s own family. But now, it’s not like this; adoption is not limited to relatives’ children.
  110. 110. • The Act has no description of the word “Adoption” per se, but it is a Hindu law derived from uncodified Hindu laws of Dharamsastra, specifically Manusmriti. • Adoption has been described in Manusmriti as ‘taking someone else’s son and raising him as one’s own’. • Hindu Adoption and Maintenance Act has made the definition of ‘adoption’ much wider by using the word ‘child’ instead of ‘son’. Child includes both a girl and a boy child, and not merely a son. • In the present scenario, the Hindu Adoption and Maintenance Act, 1956 has completely codified the law of adoption and has materially modified it in correspondence to the needs of dynamism of Hindu society. Therefore, every adoption shall be made in conformity with this act and any contravention of the provisions of this act shall be void.
  111. 111. The Act sheds light upon: • What a valid adoption is? • Who can adopt children? • Procedure to adopt children along with other duties and obligations that occur after adoption.
  112. 112. Requisites of a Valid Adoption Section 6 of the Act enumerates the requisites of a Valid Adoption • The person adopting has the capacity and also the right to take in adoption. • The person giving in adoption has the capacity to do so, • The person adopted is capable of being taken in adoption and the adoption made in compliance with the other conditions mentioned in this Chapter.
  113. 113. Capacity of a Hindu male to adopt(Section 7) Section 7 states that a male Hindu who is willing to adopt a child must fulfil the following conditions: • Attained the age of majority; and • Be of sound mind. • If have a wife that is alive, then her consent is absolutely necessary. • If a person has multiple wives, the consent of all the wives is necessary for adoption. • In the case of Sarabjeet kabir v. Gurumal Kaur, AIR 2009 NOC 889 (P & H), the Court upheld that if adoption taken by the husband without the consent of the wife, that adoption will be illegal • But the consent of the wife of a male Hindu is not necessary in the following three conditions:- • The wife has completely and finally renounced the world, or • The wife has ceased to be Hindu, or • The wife has been declared by a Court of competent jurisdiction to be unsound mind
  114. 114. Capacity of a Hindu female to adopt( Section 8) • The 2010 amendment of the Section 8 of the Hindu Adoption and Maintenance Act, 1956 has brought a radical change in the Hindu Law. • The newly enacted Section 8 reads as under, • “Any female Hindu who is of sound mind and is not a minor has the capacity can take a son or daughter in adoption, • Provided that, if she has a husband living, she shall not adopt a son or daughter except with, the consent of her husband unless the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.” • Ghisalal v. Dhapubai, AIR 2011 SC 644
  115. 115. Who can give a child for adoption( Section 9) • According to the Hindu Adoptions and Maintenance Act (HAMA), no person except the father or mother or the guardian of a child will have the capacity to give the child in adoption. Rights of Father • If the father is alive, he has the right to give in adoption, but such right will 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 the court of competent jurisdiction to be of unsound mind. Rights of Mother • The mother can 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.
  116. 116. Rights of Guardian • The guardian of the child can give the child in adoption with the previous permission of the court to any person including the guardian himself • In case of both the father and mother are dead • In the case of parents are finally renounced the world • Abandoned child • It has been declared by a court of competent jurisdiction to be of unsound mind • In the case of the parentage of the child is not known
  117. 117. Who can be adopted(Section 10) Section 10 of the Hindu Adoption and Maintenance Act, 1956 the following person who fulfil the conditions are capable for adoption:- • He or she should be Hindu. • He or She not already be adopted any child adopted. • He or She has not completed the age of fifteen years which is to be considered being taken for adoption .
  118. 118. Adoption of an orphan- • Under the present law an orphan could also be taken in adoption. In such cases the guardian of the orphan can obtain the permission of the court to this event and thereafter could give the child in adoption. • The case of Balakrishna v. Sadashive-1977, another case of Mayaram v. Jai Naraian -1989 and Kodippa Rama Papal urf Shirke v. Kannappam -1990. It was held that where customs or traditions allow there a person aboove 15 years of age or married can be adopted. • Another case of Dev Gonda v. Sham gonad -1992, the Bombay High Court held that any insane can also b e adopted. Further any orphan found child or abandon child may be adopted. •
  119. 119. Other conditions for a valid adoption ( Section 11) • The Hindu Adoption and Maintenance Act prescribes a set of rules for a valid adoption, which must be complied with. Such as: Adoption of a son • Section 11(i) of the act states that if a Hindu male or female desires to adopt a son, they must not have a living son, grandson, or even a great-grandson at the time of adoption. • It is irrelevant whether the son is legitimate, illegitimate, or adoptive. They should not already have a son who is living. Adoption of a daughter • Similar to the conditions of adopting a son – Section 11(ii) states that one wishing to adopt a daughter must not have a living daughter or a granddaughter from their son at the time of the adoption. • It is immaterial whether the daughter or granddaughter is legitimate, illegitimate, or adoptive.
  120. 120. Adoption of a female child by a male • A Hindu male willing to adopt a girl child must have the capacity to adopt a child as prescribed in Section 7 of the act, and Section 11(iii) states that he must be at least 21 years older than the girl child that is to be adopted. Adoption of a male child by a female • If a Hindu female wants to adopt a male child she must first meet the requirements prescribed in Section 8 of the act and have the capacity to adopt a child. • Also, she has to be at least 21 years older than the child she wishes to adopt
  121. 121. Other conditions • When adopting a child a person must comply with some additional conditions along with all the aforementioned conditions. • These additional conditions are basic and are very important for the welfare of the child. • Section 11(v)of the act says that the same child can not be adopted by multiple people at the same time. • Section 11(vi) states that a child that one wants to adopt must have been given up for adoption as per the guidelines of this act, by their biological parents or guardian. • The Section further states that the child shall be given up for adoption with the intention to transfer him/her from their biological family to the adoptive one. • In the case of an abandoned child or whose parents are unknown, the intention must be to transfer him/her from the place or family that they have been brought up to their adoptive family.
  122. 122. Effects of a valid adoption(Section 12) • Adoption will completely change the life of a child in many ways. He becomes a part of a new family and will have rights in the property as well. Section 12 of the act states: • When a child has been adopted, • They shall be considered as the child of their adoptive parents for all purposes. • The adoptive parents shall have all the parental obligations and rights. • The child shall have all the rights and obligations of a son/daughter.
  123. 123. However, there are some conditions that the child must abide by after he has been adopted, such as: • He/she must not have an incestuous relationship with anyone from their biological family, and should not marry anyone from their birth family. The rules of the Hindu Marriage Act, 1955 regarding ‘sapinda relation’ shall be applicable to them towards their birth family. • If the child had any property before the adoption, it shall continue to be in their possession after. However, such property may bring some obligations over him and he shall be liable to all those obligations, including having to maintain his biological family if required. • The adopted child shall not deprive any member of his birth family of any property that he held before the adoption.
  124. 124. Right of adoptive parents to dispose of their properties(Section 13) • If adoptive parents wish to dispose of their properties by transfer by gift or will, they are free to do so and adoption does not stop them. Unless there is an existing agreement that states the contrary. • Thus an adoptive parent is in no way restrained in the disposal of their property by reason of adoption.
  125. 125. Determination of Adoptive Mother(Section 14) Section 14 lays down as to how an adopted child will be related to certain relations of adopter. The Section provides for the determination of adoptive mother in certain cases. The Section lays down that – • Section 14(1) of the act states that in such cases the wife shall be deemed to be the mother of the adopted child. • If a male who adopted the child has multiple wives, the senior-most wife shall be considered to be the mother of the adopted child while his other wives shall have the status of stepmothers as stated in Section 14(2) of the act. • Section 14(3) of the act states that if a child has been adopted by a bachelor or a widower, the woman he marries if he ever gets married will become the stepmother of the child. • A widow or bachelorette who adopts a child will be their mother and in case she gets married to anyone, the man will be deemed to be the child’s stepfather as per Section 14(4) of the act.
  126. 126. Can a valid adoption be cancelled?( Section 15) • When a person has opted for adoption and it has been validly made, there is no way that they can cancel the adoption. • Section 15 of the act clearly states that neither the parents can cancel a valid adoption, nor the child has any right to renounce their adoption and return to their biological family. • Once a valid adoption is made, there is no going back. It is final.
  127. 127. Leading Case Laws: • Sitabai v. Rameshchandra ( 1969) 2 SCC 544 • Brajendra Singh versus State of Madhya Pradesh, AIR 2008 SC 1058 • Malti Roy Choudhary v. Sudhindranath Majumdar, AIR 2007 Cal 4
  128. 128. Law of Maintenance in India • Hindu sages in most unequivocal and clear terms laid down that maintenance of certain persons is a personal obligation. Manu declared: “the aged parents, a virtuous wife and an infant child must be maintained even by doing hundred misdeeds.” Brihaspati said, “ A man may give what remains after the food and clothing of family: the giver or more (who leaves his family naked and unfed ) may taste honey at first but afterwards finds it poison.” According to the Mitakshara, “where there may be no property but what has been self-acquired, the only persons whose maintenance out of such property is imperative, are aged parents, wife and minor children.” A person who involves in charity or at the cost of maintenance of his aged parents, infant children and wife is condemned by the sages; it is like tasting honey which turns out to be poison later. During the British period, it was a well established rule that the maintenance of the aforesaid three sets of persons was a personal obligation of every male Hindu.
  129. 129. • The whole concept of maintenance was introduced in order to see that if there is a spouse who is not independent financially than the other spouse should help him/her in order to make the living of the other person possible and independent. Providing maintenance means that the other person who is getting the maintenance should be able to live the life as he or she lived before marriage in case of divorce and in case where the two partners are not living together and they seek maintenance than the spouse getting maintenance should be able to live a life as when they lived together. Maintenance is the amount which a husband is under an obligation to make to a wife either during the subsistence of the marriage or upon separation or divorce, under certain circumstances
  130. 130. • Therefore it can be said that maintenance not only includes basic necessities like food, clothing and residence but it also includes the things necessary for comfort and status in which the person entitled is reasonably expected to live. The main aim of providing maintenance is that the wife should not be left destitute on separation or divorce from her husband. In a laymen’s term maintenance are those things which are indispensible for the survival of human being. • The most important aspect of maintenance is that the party which relies on maintenance has no independent source of income to support himself/herself.
  131. 131. Hindu Marriage Act • Section 24 and 25 of Hindu Marriage Act provides for maintenance and alimony. These are the terms of English Matrimonial Law. Under English law, maintenance and alimony can be claimed by wife alone and not by the husband. Under the Hindu Marriage Act, alimony and maintenance can be claimed by either party. • The Corpus Juris defines alimony as “the allowance required by law to be made to a wife, out of her husband’s estate for her support either during the matrimonial suit or on its termination, where the fact of the marriage is established and she proves herself entitled to a separate maintenance.
  132. 132. Maintenance pendent lite and Expenses of the proceedings -Section 24 of Hindu Marriage Act • Section 24: - Where in any proceeding under this Act it appears to the court that either the wife or the Husband , as the case may be has no independent income sufficient for her or his support and the necessary expenses of the proceedings, it may, on the application of the wife or the husband , order the respondent to pay to the petitioner the expenses of the proceeding and monthly during the proceeding such sum as, having regard to the petitioners own income and the income of the respondent, it may seem to the court to be reasonable. • [Provided that the application for payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be]. •
  133. 133. • The above section deals with the Maintenance during the pendency of the proceedings which is known as maintenance pendente lite, interim maintenance or temporary maintenance. The Hindu Marriage Act uses the first expression. Under S.24 of Hindu Marriage Act, 1955 (herein after mentioned as HM Act), either the wife or husband can apply for interim maintenance. An application for interim maintenance can be made both at the trial court as well as at the appellate court. Claim may be made for (i) personal maintenance of the claimant and (ii) expenses of proceedings. • In fixing the quantum of maintenance, the court takes into consideration several factors. Viz, income of the applicant and the non-applicant, means of the non-claimant, the conduct of applicant as well as of the non- applicant.(Balbir Singh vs. Swaran Kanta , 981 Raj 266),number of members to be maintained, reasonable wants of the claimants, and other factors the court may deem necessary.
  134. 134. Permanent Maintenance and Alimony Section 25:- (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant [, the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
  135. 135. (2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just. (3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].
  136. 136. • In B.P Achala Anand v. S. Appi, 2005 SC 986, it was held that Right to maintenance under Section 25 would include right to residence. • On the application of either spouse, the court may pass an order for permanent alimony and maintenance: (i)at the time of passing of the decree granting the petition, or (ii)at any time after passing of the decree granting petition. • Further, In Rameshchandra Ramparatapji Daga vs. Rameshwari, 2005 SC 422, the Supreme Court has held that the expression “at the time of passing of any decree” encompasses or takes into fold all decrees governed by Section 9 to 13 of the Act. Thus, Court can award maintenance at the time of passing of any type of decree resulting in breach of marriage relationship.
  137. 137. • In fixing the amount of maintenance, the court is required to consider the following matters: (i)the income and other propert of the claimant (ii)the income and other property of the non-claimant (iii)the conduct of parties, and (iv)any particular circumstance or special factor. Further Section 25(3) lays down two circumstances in which an order passed in favour of a party may be rescinded: (I) if he or she has remarried, or (ii) if she ( in case of the wife) has not remained chaste, or he ( in case of the husband) has sexual intercourse with any women. • There may be a third case also when an order for maintenance may come to an end. The resumption of cohabitation by the parties after maintenance order, nullifies that order, whatever be the duration of the stay together, if there is a clear intention to resume cohabitation •
  138. 138. Maintenance Of Wife Under The Hindu Adoptions And Maintenance Act, 1956 • S. 3(b)(i) of Hindu Adoption and Maintenance Act, 1956 defines maintenance as "provision for food, clothing, residence, education, and medical attendance and treatment." In the case of unmarried daughter, it also includes her marriage expenses. The provisions for permanent maintenance are present in all the personal laws and are substantively similar. However there are some differences between the personal laws.
  139. 139. • Under section 18(1) of the act wife is entitled to maintenance by her husband for lifetime i.e. she will be given maintenance until she dies or her husband dies. Under section 18 of this Act a Hindu wife is entitled to live separately from her husband without cancelling her right to claim maintenance. Grounds for award of maintenance: • Only upon proving that at least one of the grounds mentioned under the Act, exists in the favour of the wife, maintenance is granted. These grounds are as follows:- a. The husband has deserted her or has willfully neglected her; b. The husband has treated her with cruelty; c. The husband is suffering from virulent form of leprosy/venereal diseases or any other infectious disease; d. The husband has any other wife living; e. The husband keeps the concubine in the same house as the wife resides or he habitually resides with the concubine elsewhere; f. The husband has ceased to a Hindu by conversion to any other religion; g. Any other cause justifying her separate living; • But there are two bars which will prevent a wife from claiming maintenance from her husband i.e. (i) if she is unchaste or (ii) if she ceases to be a Hindu by conversion to another religion.
  140. 140. Quantum of Maintenance: • The means and capacity of a person against whom the award has to be made should be taken into consideration for determining the quantum of maintenance. In fact, in case of the husband, it is not only the actual earning, but also his potential earning capacity, which must be considered i.e. there is a presumption that every able- bodied person has a capacity to earn and maintain his wife. The income of the husband is a significant factor to be considered by the court in fixing the quantum of maintenance. It is disposable income and not the gross income, which is to be considered. Section 23(2) of act states the factors to be considered in determining the amount of maintenance payable to the wife, children and aged parents, and they are as follows – the position of and status of the parties, the reasonable wants of the claimant, the claimant if living separately is justified or not, the income of the claimant and the value of the claimant’s property and the number of persons entitled to maintenance under the Act.
  141. 141. Maintenance of Children: • Section 20 of the act imposes an obligation upon the parents –mother and father, both equally to maintain the children – both legitimate and illegitimate. This is a unique feature of the Hindu law where both the parents are equally responsible to maintain the children. S.20(2) of the act lays down that the children are entitled to maintenance during their minority. This right of maintenance for the daughter is extended till she gets married. The parents are obliged to bear her marriage expenses. However even after marriage a minor married daughter, if she is unable to maintain herself then she can claim for maintenance under S.125 CrPC. When an application has been filed under section 24 and 25 of the act, the children are also entitled to get maintenance if the claimant has the responsibility of maintaining them i.e. the claimant’s right to maintenance also includes the right of maintenance of the children. Section 26 of the act also provides that in any proceeding under the Act the court can from time to time pass interim orders and make provisions in respect of the custody, maintenance and education of the minor children.
  142. 142. Maintenance of Parents: • Further, Section 20 of the act also lays down an obligation of maintenance of old and infirm parents who are not able to maintain themselves out of their own personal earnings and property. This act is the first statue in India, which imposes an obligation on the children to maintain their parents. The obligation to maintain is not only limited to the sons but it also extends to the daughters. Under this act, both the mother and the father have an equal right to claim maintenance. The explanation to this section also includes stepmother in the term parent. However it is important to note that the section imposes an obligation to maintain only those parents, who are unable to maintain themselves and therefore the obligation to maintain the parents other than those infirm and unable, is only moral.
  143. 143. Maintenance Under Muslim Law • Muslim Law passively considers male to be superior to the woman. It is believed that a man can take care of himself whereas the woman cannot, in other words it is deduced that a woman cannot be self reliant. Hence, in Muslim law the wife has been bestowed with an absolute right to be maintained and the husband is bound to maintain her regardless of the fact whether she’s poor or not. Wife’s right to maintenance is a debt against the husband. • Prior to the landmark judgment of Supreme Court in Shah Bano case, Divorced Muslim women did not have right to maintenance. This in the point of fact handicapped the situation of Muslim women as the husband according to Muslim law possesses the Authority to divorce from his wife whenever he wants whereas the woman lack this right. Hence, the said case led to the enactment of Muslim women (protection of rights on divorce) Act, 1986 which enables a divorced Muslim to have a reasonable and fair provision of maintenance from her husband and from the relatives who are entitled her property after her death after Iddat.
  144. 144. Maintenance Under The Muslim Women Act, 1986 • According to this act a Muslim women is to be awarded maintenance by her husband only during the iddat period and not after that. But in case if she is financially not independent and needs maintenance than in that case her relatives who would get the share of her property will award her with maintenance. In the scenario where she does not have any such relatives than the State Waqf Board has to pay her the maintenance. So in a way the personal law of the Muslims was saved and the new law prevented any conflict between the two major communities of the country. The divorced wife is also entitled to unpaid dower and all such properties which were given to her during her marriage by her husband, his relatives, friends or her relatives. She also has an option to use the Sections 125-128 of the CrPC, 1973. Finally the cases pending under the provisions Sec. 125-127 shall be disposed by the Magistrate. •
  145. 145. Maintenance Under Muslim Law In Comparison With Hindu Law • From the above it can be seen that a Hindu woman is more privileged than Muslim women .As a Hindu woman is entitled to maintenance by her husband throughout her life but in case of Muslim women she is entitled to maintenance by her husband only during the iddat period. The court tried to make both the communities on the same line and tried to provide women of both the communities with maintenance throughout the life. The judiciary tried to provide women of both communities with equal opportunities and rights. But as usual in the case of Indian democracy the congress government bowed in brought in the ‘The Muslim Women (Protection of Rights on Divorce) Act, 1986.’ This act completely took away the right of the women to maintenance beyond the period of iddat by the husband. Hindu women can ask for award of maintenance under section 125 of the Code of Criminal Procedure but in case of a Muslim women she can file a case under the same but will be awarded maintenance under this act only if the husband recognizes this in a way
  146. 146. Maintenance Under Section 125 Cr.P.C According to this Section magistrate of first class has the power to order the person to provide monthly allowance to: • His parents, • Wife, or • To his legitimate or illegitimate minor children who are unable to maintain themselves • Legitimate or illegitimate major child not being a married daughter, who are unable to maintain themselves due to any physical injury or abnormality • Married daughter till she attains her majority if her husband is unable to maintain her • His or her father or mother if they are unable to maintain themselves,whoever neglects or refuses to do so.
  147. 147. • Magistrate may issue warrants for levying the amount due, in case of non- compliance with the order. Making of an application is mandatory to the court for levying such amount within a period of one year from the date on which the amount was due, otherwise warrant cannot be issued. • Where in case a wife is living separately without any sufficient reason or is living in adultery or they have separated through a mutual consent, then in such cases she is not entitled to receive allowance. • Ramesh Chandra Kaushal v. Veena Kaushal , 1978 (4) SCC 70
  149. 149. Special Marriage Act • In our country if we go back to the Vedic age it can be said that inter-religious and inter-caste marriages were recognized. The Hindu Prince use to marry girls from other land and other religion, and to an extent this practice continued to prevail till the codification of Hindu Law of Marriage. In the pre- Hindu Marriage Act, the courts observed that as such there is no condition that a Hindu cannot marry a Non- Hindu and even if it exists it does not effects to Sudras. • But after the codification of Hindu Law, 1955 a Hindu cannot marry a Non- Hindu. The Act permits marriage between any “two Hindus” and marriages among the people belonging to the four religions and considered by law as Hindus viz., Hinduism, Buddhism, Jainism, and Sikhism is absolutely valid under the Hindu Law.
  150. 150. • As far as Muslim community is concerned, there are two different sects Sunnis and Shia, Shia follow very stringent rules as far as inter-religious marriages are concerned and render such marriages as void. But on the other hand Sunnis adopt a liberal approach as such Muslims can marry with a Kitabia one who is not an idol worshipper but this thing is only with males but not females as they are not allowed to marry a Non- Muslim. • Under the Christian and Parsi community, their respective personal laws do not permit marriage outside the religion and thus declaring such marriage as invalid. For instance, the parsi law prohibits the marriage of a Parsi with a non- Parsi. • Thus from the above it can be seen that in our country most marriages are governed by the specific personal laws governing each religion and almost all the personal laws of different communities prohibit marrying outside ones religion.
  151. 151. • Earlier interaction between girls and boys was very less as compared to present time, these days people very often meet and fall in love with people outside religion and thus wishes to turn this out into marriage but as they face disagreements from the society such an act becomes an important piece of legislation. • The Special Marriage Act mandates certain pre-conditions essential for any marriage to be solemnized under this law. • This provision is definitely a huge step towards an end to narrow minded society.
  152. 152. • Under the act any “two persons” can perform a marriage. • Thus, inter-religious or inter-communal or international marriages are possible in India only under The Special Marriage Act, 1954. • The Act does not stipulate any form of ceremonies or rituals to be performed and does not support forceful conversion to another religion in order to get married. • In May 2011, the Department of Foreign Affairs and Trade (DFAT) regarded India as a secular nation where inter religious marriages are absolutely legal.
  153. 153. Scope of the Act • The Special Marriage was specially enacted to give way to a new form of marriage where caste and religion has no role to play. Now gone are those days when people used to blindly marry the person chosen by their parents just on the basis of religion and caste. • Now youth have their own saying and prefer marrying one who is more compatible rather than one who simply belong to their religion and as personal laws are little stringent when it comes to marry outside ones religion The special marriage Act enhanced its scope and made this thing possible.
  154. 154. Conditions for Marriage( Section 4) • The Following are the conditions to perform a marriage under this Act, though almost similar to the conditions prescribed in the other law: – • The first and foremost condition to marry under this act is the age of the boy and girl i.e. 21 for boy and 18 for the girl. • The girl and boy both should not have any other livingspouse at the time of marriage i.e must not perform bigamous marriage. • Both boy and girl must be of sound mind at the time of marriage. • Marriage between them is possible that is must not be restricted by any prohibited relationship between them. Thus from the above provision related to the conditions for marrying under this act nowhere it is mentioned that person marrying under this act should belong to a particular religion and thus this act is beyond ones religion.
  155. 155. Ceremonies • Under this act the marriage has to be in civil form and as such does not require any particular ceremony to be performed for solemnisation of marriage, though the parties are free to perform any ceremony they choose to perform, the only thing required is consent of parties and not their religion or caste. Application on succession Rights • People who marry under the act are governed by Indian Succession Act with regard to succession. However in cases where parties belong to Hindu, Buddhist, Sikh or Jain Then it will be governed by Hindu Succession Act.
  156. 156. Conflict of Laws in the Special Marriage Act • The Act specifies for prohibited degrees of marriages in Schedule I and Schedule II of the Act. The important entries to be noted are that on cousin relations, both paternal and maternal. Under the personal Hindu Law marriage with second cousins is prohibited as they come under sapindas. • But the SMA does not mention second cousins in the prohibited degree of marriage. Similarly under the Muslim and Christian Law marriage between cousins both paternal and maternal is allowed. But SMA specifically prohibits such marriage in the schedule.
  157. 157. Surrogacy and IVF • The nature offer human beings a beautiful capacity to procreate or produce a life within a woman. And it is observed that each woman who gets a chance cherishes the experience of motherhood but unfortunately there are a few women in this world who due to some physiological conditions or some other reasons cannot give birth to their own child i.e. are not capable of keeping the child in the womb. • The acute thoughts to become parents and to experience the joys of motherhood drives them to search for alternative options, and for some surrogacy presents itself as one of the most suitable options. • Earlier couples who were not able to bear child only had the option of adoption to attain their dream of becoming a parent. But now with advent of technology in the field of medical science there are many options available to infertile couples, single parents as well homosexual couples who cherish a dream of having their own kids. • The desire to become parents leads them to try alternative options like Artificial Reproductive Technology (ART), In-Vitro Fertilization and Intra-Uterine Injections (IUI).
  158. 158. Assisted Human Reproductive Technologies(ART) • Artificial Insemination (AI) • In-Vitro Fertilization (IVF) • Surrogacy
  159. 159. Surrogacy • The word ‘surrogate’ has its origin in Latin term ‘surrogatus’ meaning a substitute, that is a person appointed to act in place of another. Thus we see that surrogate mother is the one who carries the child for another woman. She does that either from her own eggs or from the implantation in her womb of a fertilized egg from another woman. • According to Black’s Law dictionary, surrogacy means the process of carrying and delivering the child for another. • The Report of the Committee of Inquiry into Human Fertilization and Embryology or the Warnock Report (1984) defines surrogacy as the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth.
  160. 160. • According to Artificial Reproductive Technique (ART) guidelines, surrogacy is an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention of carrying it to term and handing over the child to the person or persons for whom she is acting as surrogate. Surrogacy Includes: • Surrogate Mother • Commissioning Parents • Surrogate House
  161. 161. Types of Surrogacy • Natural (Traditional/ Straight) Surrogacy • Gestational Surrogacy • Commercial Surrogacy • Altruistic Surrogacy