YOUR LAW GUIDE AND PATHFINDER

Family Law

Module 2

Topic : A. Concept of Marriage under Hindu law

The concept of marriage is to establish a relationship between husband and wife. Based on
Hindu law, the marriage is a sacred tie and last of ten sacraments that can never be broken.
Also, it is a relationship that is established by birth to birth. Based on smritikars even death
cannot break this relationship.

Also, it is not only considered as sacred but it is also a holy union. The main objective of marriage
is to enable a woman and a man to perform their religious duties. Along with this, they also have
to beget progeny. Based on ancient writings, a woman is considered half of her husband and
thus completes him. While a man is also considered incomplete without a woman.

Every Hindu whether they are male or female has to marry. Also, a person could not remain a
perpetual student and where he did not desire for an ascetic life. But he was enjoyed or
engrained in the shashtra to marry. Therefore marriage is considered as good as compulsory
more so in the case of a female.

B. Marriage as Sacrament (Concept under old law)

Marriage is one of the most important of all Samskaras under the Girah Sutras. Among the
Hindu, the marriage was considered as a sacrament. In Hinduism, the ultimate goal of human life
is to attain Moksha. Marriage was meant for doing a good deed and for the attainment of
Moksha. It was obligatory for every Hindu through which his well-conducted life progresses to
its appointed end.

In ancient times, there was no need for the girls’ consent. Fathers have to decide the boy
without asking for her advice or consent. It is the sole duty of the father to find a suitable boy. 1

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Therefore, Religious sacrament in which a man and a woman are bound in a permanent
relationship for the physical, social, and spiritual purposes of dharma, procreation, and sexual
pleasure.” The Vedas hold marriage to be one of the important sacrament sanctifying the body.
That is why marriage is given great importance by the Hindus. It is said, a man who does not win
a wife is really half, and he is not the full man as long as he does not beget an offspring.

Hindu marriage is deemed valid and complete only when certain religious rites like (Home,
Panigrahana, Saptapadi, etc.) are duty performed by a Brahmin with Agni devata taking
cognizance of the rites. If not performed the legal validity of the marriage itself may be called
into question.

The Hindu Marriage Act a marriage of a minor or unsound person is voidable and not void. So,
although consent is necessary for the absence of consent, marriage becomes merely voidable
and party to the marriage can treat their marriage as a valid marriage. Hindu marriage is not
purely a contract.

Moreover, in the case of Tikait v. Basant, the court held that marriage under Hindu law was a
sacrament, an indissoluble union of flesh, bone with a bone to be continued even in the next
world.

In the case of Shivonandh v. Bhagwanthumma, the court observed that the sacraments
marriage among Hindus has three main characteristics:

1. It is a permanent union.

2. It is an eternal union.

3. It was a holy or sacrosanct union.

C. Marriage as Contract (Concept under Hindu Marriage Act, 1955)

2

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

A Hindu marriage cannot take place without the performance of sacred rites. But after the
enactment of the Hindu Marriage Act, 1955 Hindu marriage is no longer a sacrament but it is a
contract.

Section 12 of the Hindu Marriage Act 1955 lays down that when one’s consent is not obtained,
the marriage is considered void. It shows that despite the absence of consent of the bride, the
marriage is valid and legal.

The nature of modern marriage is contractual. Thus, it accepts the idea of equality and liberty. It
has been adopted due to western Ideas. There must be an agreement of voluntarily entering
into it by both parties. Thus, the Hindu marriage is not a contract and neither is it a sacrament.
But it can be said it is a semblance of both.

The first fundamental of sacrament marriage ha s been affected by section 13 of the Hindu
Marriage Act, 1955 for Hindu marriage can be dissolved on certain specified grounds. And
the Widow Remarriage Act, 1856 also affected the sacramental marriage.

Section 5 and 12 of the Hindu Marriage Act, are the pertinent provisions to determine whether
Hindu marriage is sacrament or contract. Clause 2 of section 5 of the Hindu Marriage Act deals
with the mental capacity of the parties. It says that neither party to the marriage must be
incapable of giving a valid consent in consequence of unsoundness of mind. Further clause 3 of
section 5 enumerates that the bridegroom has completed the age of twenty-one years and the
bride, the age of eighteen years at the time of the marriage.

Moreover, in the case of Bhagwati Seran Singh v. Parmeshwari Nandar Singh, the court held
that Hindu marriage is not only a sacrament but also a contract.

In the case of Anjona Dasi v. Ghose , Court observed that the marriage, whatever else it is,
sacrament and institution, is undoubtedly a contract entered into for consideration with
3
correlative rights and duties.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

In most of the Hindu marriage, a religious ceremony is still the sine qua non. Viewed from side
one may conclude that Hindu marriage has not remained purely a sacrament and at the same
time, it has become complete a contract.

Topic : Salient features of the Hindu Marriage Act, 1955

Hindu Marriage Act, 1955 has reformed Hindu law of Marriage. It is a landmark in the history of
social legislation. It has not simply codified the Hindu law of marriage but has introduced certain
important changes in many respects. The Hindu marriage contemplated by the Act hardly
remains sacramental. The Act has brought in some changes of far reaching consequences which
have undermined the sacramental nature of marriage and rendered it contractual in nature to a
great extent.

The following changes are important:

(1) A Hindu marriage is now not so much concerned with religion. It is more a result of mutual
consent than sacramental [Sections 5(ii), (iii), 11 to 13 and 7].

(2) Marriages amongst Hindu, Jains, Sikhs and Buddhists are now valid Hindu marriages in the
eyes of the law (Section 2).

(3) As per Section 3 the divergence between the Mitakshara and Dayabhaga schools in
connection with the expression “prohibited degrees of relationship” for the purpose of marriage
is now removed. The strict rule prohibiting marriages within the limits of Sapinda relationship, as
defined in the Smritis, have been considerably relaxed. Some new degrees of relationship have
also been added. Thus one cannot now marry a person who was the wife of the brother of the
other.

(4) Monogamy amongst the Hindus is introduced for the first time by the Act. Bigamy is now 4
punished under the Indian Penal Code. The conditions and requirements of a valid marriage are
now very much simplified as is evident from the provisions of Sections 5 and 17 of the Act.
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

(5) Caste considerations for inter-caste and inter-communal marriages have now been made
irrelevant, eliminating all restrictions thereupon.

(6) There were different kinds of marriages in vogue before the Act. Now they are of no
consequence and the only form of marriage will be that accepted by the parties as prevailing in
his or her community (Section 7).

(7) The Act now makes no distinction between the marriage of a maiden and the marriage of a
widow.

(8) The ancient Hindu law did not prescribe any age for marriage but it is now a condition of
marriage that the bridegroom must have completed 21 years and the bride must have
completed the age of 18 years (Section 5).

(9) The Act now lays down conditions of a valid marriage and does not recognise any particular
form of a Hindu marriage (Section 5).

(10) For a valid Hindu marriage no particular ceremony is prescribed by the Act. Sections 5 and 7
lay down that such a marriage can be solemnised in accordance with the customary rights and
ceremonies of any one of the parties to the marriage.

(11) Provision for registration of Hindu marriages has been provided for the first time (Section
8).

(12) Eliminating restrictions based on gotra, pravara and Sapinda relationship the Act makes
5
provisions for judicial separation, for divorce and for annulment of marriages (Section 10 to 14).

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

(13) Provisions for restitution of conjugal rights of the parties (Section 9).

(14) After a valid divorce either party may remarry (Section 15).

(15) Provisions for legitimacy of children born out of alliances which may be subsequently
declared annulled or void or voidable (Section 16).

(16) Provisions for maintenance pendente lite and for expenses of legal proceedings (Section
24).

(17) Permanent alimony and maintenance (Section 25).

(18) The custody, maintenance and education of minor children during the pendency of legal
proceedings as also after passing of decree (Section 26).

Applicability of legislation (Section 2)

The Act applies to three types of persons: (i) who are Hindus by religion in any of its forms or
developments. (ii) who are Buddhists, Jainas or Sikhs by religion and (iii) who domiciled in the
territory to which this Act extends and not a Muslim, Christian, Parsi or Jew by religion.

This Act, however, will not apply to those; (i) why have renounced the Hindu religion and have
became converts to some other religion and (ii) persons, who descended from Hindu ancestors
and on account of marriage or on account of some new occupation converted into new
community having their own religion and usages (iii) children, whose either parents though a
Hindu, are not brought up as Hindus.

Forms and Ceremonies

6

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

The normative texts, dharma texts and some Gṛhyasūtras classify marriage into eight different
forms which are Brahma, Daiva, Arsha, Prajapatya, Asura, Gandharva, Rakshasa, Paishacha. This
order of forms of marriage is hierarchical.

Even the Supreme Court of India in Koppisetti Subbharao vs the State Of A.P, recognized the
existence of 8 forms of marriage given by Aryan Hindus.

The eight forms are divided into 2 categories of approved and unapproved forms of marriage.

Approved forms

Brahma, Daiva, Arsha and Prajapatya come under the approved forms of marriage. These
marriages involve the exchange of gifts, the “gift of a maiden” (kanyādāna). Brahmins, according
to the dharma texts, have the duty to accept gifts. Therefore, the first four marriage types are
generally pronounced legal for Brahmins.

Unapproved forms

Asura, Gandharva, Rakshasa and Paisacha come under the unapproved forms of marriage.
According to Rajbir Singh Dalal vs Chaudhari Devi Lal University, 2008, the property of a
childless woman married in one of the unapproved forms goes to her family rather than her
husband.

Topic : Conditions for the validity of marriage (Section 3 and 5)

A marriage may be solemnised 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:

7
(a) Is incapable of giving a valid consent to in consequences of unsoundness of mind; or

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

(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 or epilepsy.

(iii) The bridegroom has completed the age of twenty one (21) years and the bride the age of
eighteen years at the time of 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.

Ingredients of Section 5
Parties must be Hindus under Section 2(3) of Hindu Marriage Act. According to this section both
the parties to the marriage under the Act must be Hindus. If one of them is a Hindu and the
other a non Hindu or both are non Hindus, the marriage will not be a subject matter of this Act
but will relate to some other law i.e. Special Marriage Act etc.

Clause (i) – Condition of monogamy

This condition implies monogamy and prohibits bigamy or polygamy. The expression “neither
party has a spouse living” depicts that the spouse must not be alive at the time of marriage. If
the spouse is alive at the time of marriage that could bar the remarriage of a person. However
one must note that the first marriage of a person should be a legally valid marriage. In spite of
one’s valid marriage if the person remarries in violation of Section 5(i), the second marriage will
be null and void and he will be subjected to penal consequences. The Scheduled Tribes are 8
exempted from the application of the Act. But there must be a proved custom to this effect.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Bigamy – Section 5(i)

Section 5(i) prohibits bigamy or polygamy. Section 11 makes a bigamous marriage void and
Section 17 makes it a penal offence for both Hindu males and females under Section 494 and
495 of IPC. The offence of bigamy is committed only if the required ceremonies of marriage are
performed. The second marriage cannot be taken to be proved by the mere admission of the
parties; essential ceremonies and rites must be proved to have taken place. In the case of a
bigamous marriage, the “second wife” has no status of wife.

Clause (ii) – Condition regarding mental health or capacity

Sub clause (a) requires that at the time of marriage neither party is incapable of giving a valid
consent to marriage due to unsoundness of mind.

Sub clause (b) – Mental disorder: According to sub-clause (b) at the time of marriage neither
party to marriage should be suffering from a mental disorder of such nature and to such a
degree as to be unfit for two purposes (i) marriage and (ii) procreation of child. In Tarlochan
Singh v. Jit Kaur, the court held the marriage void on the ground that wife was suffering from
schizophrenia within short period after marriage and the disease was not disclosed to the
husband before marriage.

Sub clause (c) – Recurrent attacks of insanity: If a person has been subject to recurrent attacks of
insanity he is also not qualified for marriage under Hindu Marriage Act. He cannot marry even
during a lucid period.

Post marriage mental illness: If a party to a marriage is not suffering from any mental defect
described under section 5(ii) but fails ill mentally after the marriage, there is no violation of this
condition.
9

Clause (iii) – Condition of marriageable age

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

According to this clause, at the time of marriage the bride must have completed the age of 18
years and the bridegroom of 21 years. Thus a child marriage is prohibited under Hindu Marriage
Act. However, violation of this condition does not make the marriage void or voidable. It means
that it is valid though it may attract penalties. But it can become a valid ground for repudiation
of the marriage. The Hindu Marriage Act and the Child Marriage Restraint Act provide for
punishment for such marriage.

According to Section 18 of Hindu Marriage Act, anyone who procures a marriage for himself or
herself in contravention of Section 5(iii) may be punished with upto 15 days imprisonment or
with a fine upto Rs. 1000 or with both. Under the Child Marriage Restraint Act, 1929, a male
above the age of 25 years marrying a girl below 15 years is punishable with upto 3 months
imprisonment and is also liable to fine. The Child Marriage Restraint (Amendment) Act 1978 has
also raised the age of marriage of girl to eighteen.

Clause (iv) – Avoidance of degrees of prohibited relationship

The parties to marriage must not fall within the degree of prohibited relationship. This
relationship is defined under Section 3(g) of the Act.

According to Section 3(g) “degree of prohibited relationship” means when two persons are
related to each other in any of the following manners:

(i) By lineal ascent: If one is a lineal ascendant of the other. This relationship covers the Sapinda
relationship which extends upto fifth degree in the line of father and third degree in the line of
the mother. The distinction of this category is that it extends even beyond the Sapinda
ascendants.

10
(ii) By affinity: If one is the husband or wife of the lineal ascendants or descendants of the other.
For example, father-in-law and daughter-in-law, mother-in-law and son-in-law, step mother and

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

step son or step father and step daughter are thus within the degrees of prohibited relationship.

(iii) Wives of certain brother relations if one was the wife of:

(1) The brother, or

(2) The father’s brother, or

(3) The mother’s brother, or

(4) The father’s father’s brother, or

(5) The mother’s father’s brother, or

(6) The father’s mother’s brother, or

(7) The mother’s mother’s brother.

(iv) Certain close relations if both are:

(1) Brother and sister, or

(2) Niece and uncle (paternal or maternal), or

(3) Nephew and aunt (paternal or maternal), or

11
(4) Children of a brother and a sister, or

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

(5) Children of two brothers, or

(6) Children of two sisters.

According to Section 11 of Hindu Marriage Act, a marriage in contravention of this condition is

void. It is also punishable under section 18(b) of the Act.

(i) ‘A’ marries his adopted sister. This is not a valid marriage, as it falls within the degrees of
Prohibited relationship. (ii) ‘A’ marries with the wife of Pre-deceased brother. It is not a valid
marriage as it falls within the degree of Prohibited relationship. (iii) ‘A’ marries his stepmother’s
sister. It is not a valid marriage, ‘A’ is related to his step-mother by half blood relationship.

Clause (v) – Avoidance of sapinda relationship

According to the Dharmashastra the Sapinda relationship is very important in the matter of
marriage. According to Mitakshara Law of Marriage ‘Pinda’ means body and therefore those
who are related by body or blood or consanguinity are sapindas among themselves. The Hindu
Marriage Act has adopted Mitakshara definition but has limited the extent of Sapinda
relationship to 5 degrees in line of ascent through the father and 3 degrees in the line of ascent
through the mother.

According to Section 3(f)(ii) two persons are said to be “sapindas” of each other if one is a lineal
ascendant of the other within the limits of sapindas relationship, or if they have a common lineal
ascendant to each of them.

Whereas Section 3(f)(i) states that “sapinda relationship” with reference to any person extends
12
as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth
(inclusive) in the line of ascent through the father, the line being traced upwards in each case

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

from the person concerned, who is to be counted as the first generation.

Rules for determining sapinda relations:

1. The relationship extends as far as the third generation in the line of ascent through the
mother in case of both the parties.

2. The relationship extends as far as the fifth generation in the line of ascent through the father
in case of both the parties.

3. Sapinda relationship may submit in case of both the parties through the father or in case of
both through the mother; or it may subsist in case of one of them through the father and on
case of the other through the mother.

4. The line is traced upwards in case of both the parties counting each of them as the first
generation; the generations in the line of ascent whether three or five are to be counted
inclusive of the persons concerned and the common ancestor or ancestress.

Sapinda relationship includes relationship by half or uterine blood as well as by full blood and by
adoption. It also includes both, legitimate and illegitimate blood relationship.

Solemnisation of marriage (Section 7)

In connection with marriage the word ‘Solemnise’ means to celebrate marriage with proper
ceremonies and in due form. Unless the marriage is celebrated or performed with proper
ceremonies and in the due form, it cannot be said to be solemnised.

Section 7 provides that (i) A Hindu marriage may be solemnised in accordance with the
13
customary rites and ceremonies of either party thereto. (ii) where such rites and ceremonies
include the saptapadi, the marriage becomes complete and binding when the seventh step is

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

taken.

Section 7 provides two kinds of ceremonies (i) Customary Ceremonies and (ii) Shastric
Ceremonies.

As the rites and ceremonies to be observed are customary, they should possess all the qualities
which are necessary for the validity of a custom defined under section 3(a) of the Act.

According to Section 3(a) the expression ‘custom’ and ‘usage’ signify any rule which having been
continuously and uniformly observed for a long time, has obtained the force of law among
Hindus in any local area, tribe, community, group or family: provided that the rule is certain and
not unreasonable or opposed to the public policy; and in the case of a rule applicable only to a
family it has not been discontinued by the family.

It is not necessary that the customary rites or ceremonies must be very very old. What section
3(a) of Hindu Marriage Act requires is that for maturing into a custom a rule should have been
observed for a long time, continuously and uniformly.

When essential ceremonies consulting a Hindu marriage are not proved, the mere issuance of
certificate under Special Marriage Act cannot validate the marriage if the marriage has not been
solemnised as per the requirements of this Act.

The Act does not, however prescribe the ceremonies requisite for solemnisation of the marriage
but leaves it to the parties to choose a form of ceremonial marriage which is in accordance with
any custom or usage applicable to either party; and where the form adopted includes the
Saptapadi–that is the taking of seven steps by the bridegroom and the bride jointly before the
14
sacred fire–marriage becomes complete when the seventh step is taken.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

The essential rites which may, however, be said to be the requirement common in all ceremonial
marriages are: (i) invocation before the sacred fire; and (ii) saptapadi.

Registration of Marriage (Section 8)

Section 8(1) of Hindu Marriage Act provides that for the purpose of facilitating the proof of
Hindu marriages, the state government may make rules providing that the parties to any such
marriage may have the particulars relating to their marriage entered on such manner and
subject to such conditions, as may be prescribed in a Hindi Marriage Register kept for the
purpose.

Registration when necessary

Section 8(2) of the Act provides that the State Government may, if it is of opinion that it is
necessary or expedient so to do, provide that the entering of the particulars referred to above,
shall be compulsory in the state or in any part thereof, whether in all cases, or in such cases as
may be specified.

There was no requirement for the registration of Hindu marriages before the Hindu marriage
Act, 1955. Generally, Hindus do not get their marriages registered unlike Adoption, Will Transfer
of Property and Partition. The Act does not contain the rules of registration and the State
Government have been authorised to frame them.

The purpose of registration is only to furnish a convenient evidence of marriage Clause (4)
provides that Hindu Marriage Registers will be admitted as evidence. The certificate is however
not a conclusive proof of marriage.

Besides the evidentiary value, the national commission for women has pointed that registration
15
of marriage has critical importance to various women related issues, such as :–

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

(a) Prevention of child marriage.

(b) Prevention of marriage without the consent of the parties.
(c) Prevention of illegal bigamy or polygamy.
(d) Enabling married women to claim their right to live in the matrimonial home, maintenance,
etc.
(e) Enabling the widows to claim various rights after the death of their husbands.
(f) Deterring men from deserting their wives after marriage.
(g) Deterring the sale of girl under the garb of marriage.

It is explicitly laid down in this Act that non registration does not affect the validity of marriage.
Thus marriage can be valid without registration.

In Seema v. Ashwini Kumar, the Supreme Court has dwelt at length on the topic of registration
of marriages. It suggested for the compulsory registration of marriages in all the states.

Void and Voidable Marriage

If there are any impediments (obstructions), then the parties cannot marry each other. If
someone marries and there are any obstructions in the marriage process then it is not a valid
marriage. Impediments are divided into two types which are: absolute impediments and relative
impediments.

In absolute impediments, a fact that disqualifies a person from lawful marriage exists and the
marriage is void i.e an invalid marriage from the beginning.

In relative impediments, an impediment that forbids marriage with a certain person exists and
the marriage is voidable i.e one party can avoid the marriage. These impediments gave rise to
the classification of marriage which are:
16
• Void Marriages

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

• Voidable Marriages

Provisions

Void Marriages (Section 11)

A marriage is considered void under the Hindu Marriage Act if it doesn’t fulfils the following
conditions of Section 5 of the Hindu Marriage Act:

• Bigamy

If any of the parties have another spouse living at the time of marriage. It shall be considered as
null and void. Illustration: there are three parties ‘A’,’B’ and ‘C’ where ‘A’ has a living spouse ‘B’,
but he again marries to ‘C’ then this will be called as bigamy and it will be void.

• Prohibited Degree

If the parties are within a prohibited relationship unless the customs allows it. Illustration: there
are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and ‘B’ is his wife. They both went on a
relationship which is prohibited by law. This marriage can also be called void marriage.

• Sapindas

A marriage between the parties who are sapindas or in other words a marriage between the
parties who are of his or her relations or of the same family. Illustration: there are two parties
‘A’ and ‘B’ where ‘A’ is the husband and ‘B’ is the wife, who has blood relation or close relation
to A which can also be termed as Sapinda. So, this process will be treated as void.

• Conversion to Islam.—The second marriage of a Hindu husband after his conversion to

Islam is a void marriage in terms of Section 494 IPC, Sarla Mudgal v. Union of India, 1995
SCC (Cri) 569.
17
Consequences of a Void Marriage

The consequences of void marriage are:

Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

• The parties don’t have the position of husband and wife in a void marriage.

• Childrens are called legitimate in a void marriage (Section 16 of Hindu Marriage Act,
1955).

• Mutual rights and obligations are not present in a void marriage.

Voidable Marriages (Section 12)

A marriage is voidable on either side of the party is known as voidable marriage. It will be valid
unless the petition for invalidating the marriage is made. This marriage is to be declared void by
a competent court under the Hindu Marriage Act, 1955. The parties of such marriage have to
decide whether they want to go with such marriage or make it invalid.

The grounds where marriage can be termed as voidable:

• The party to the marriage is not capable of giving consent due to the unsoundness of
mind. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is
his wife. ‘B’ gave the consent of the marriage when she was suffering from an unsound
mind. After some years, ‘B’ gets cured and raised that her consent was invalid and this
marriage is voidable because during the time of the consent of ‘B’, she was in an
unsound mind. So, this is a ground of voidable marriage.

• The party is suffering from a mental disorder which makes her unfit for reproduction of
children. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is
his wife. If ‘B’ is suffering from mental disorder due to which she is unfit for reproduction
of children. Then this can be a ground for voidable marriage.

• If the party has been suffering from repeated attacks of insanity. Illustration: There are
two parties ‘A’ and ‘B’, where ‘A’ is the husband and ‘B’ is his wife. Anyone from ‘A’ or ‘B’
is suffering from repeated attacks of insanity, then this can also be a ground for voidable 18

marriage.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

• The consent of marriage by either of the parties is done by force or by fraud. Illustration:
There are two parties ‘A’ and ‘B’ where A is the husband and B is his wife. If either party
gave consent to the marriage by force or fraud, then it will be a voidable marriage.

• If either of the parties are under-aged, bridegroom under 21 years of age and bride
under 18 years of age. Illustration: There are two parties ‘A’ and ‘B’, where ‘A’ is the
husband and ‘B’ is his wife. If ‘B’ is under the age of 18 years then this marriage will be
considered as voidable or if A is under the age of 21 years then it can also be considered
as a voidable marriage.

• If the respondent is pregnant with a child of someone other than the bridegroom while
marrying. Illustration: There are two parties ‘A’ and ‘B’ where ‘A’ is the husband and ‘B’
is his wife. During the time of the marriage if ‘B’ is pregnant through another person.
Then the marriage would be voidable.

Necessary conditions to be fulfilled by a petition under Section 12 for nullity of a Voidable

Marriage:

1. On the plea of fraud or application of force on marriage, a petition can be filed before
the court within one year of discovery of such fraud or application of force.

2. The allegation based upon which the petition is filed was beyond the knowledge of the
petitioner at the time of solemnization of marriage.

3. The petition on such an allegation must be presented in the court within one year of
knowledge of such facts.

4. No sexual relationship is established after knowing about alleged facts.

Children of Void and Voidable Marriage

19
• Legitimacy of children under void and voidable marriages are specified under Section 16
of Hindu Marriage Act, 1955.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

• In a void marriage, any children born out shall be treated as legitimate.

• In a voidable marriage, any child born of a marital relationship subsequently declared as

nullity by court shall also be termed as legitimate.

• Even if the marriage under Section 11(void marriage) or Section 12 which is declared as
null and void, notwithstanding such circumstances the child born out of such marriage is
held to be legitimate.

• If prior to the marriage, the bride was pregnant and gave birth to the child after the
marriage, such a child cannot be treated as legitimate because that child was not born
out of the marital relationship of the present marriage and therefore, the child born after
the marriage having been conceived prior to the marriage is to be held
illegitimate. Illustration: If there are two parties ‘A’ and ‘B’ where, ‘A’ is the husband and
‘B’ is his wife. During the time of the marriage ‘B’ is pregnant through another. After the
marriage of ‘A’ and ‘B’, the child born does not come from the marital relationship of ‘A’
and ‘B’. That child will be termed as illegitimate.

• Difference between void and voidable marriage

Void Marriage Voidable Marriage
A marriage which is void ab initio is a total A voidable marriage remains valid and binding
nullity. A marriage is non-existent in such a till avoided. It is and continues to be valid
case and does not affect or alter the status of marriage for all the purposes till a decree
the parties. Moreover, it does not create any annulling it is passed under Section 12.
rights and obligations of the parties, which
normally result from a valid marriage.
Parties to a void marriage are criminally liable. No penalty is laid down for a voidable
marriage.
A void marriage is void ab initio and it can be While for a voidable marriage, to put an end to
held to be so without a formal declaration by a it, annulment is necessary.
court under Section 11.
Section 11 applies to a void marriages only Section 12 applies to marriages contracted 20
contracted after the commencement of the Act. before or after the commencement of the Act.
In case of Section 11 the Act itself declares a The remedy available under Section 12 is an
marriage to be null and void without any action optional remedy, i.e., the party concerned has
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

on the part of any spouse. Of course, nobody to take the aid of a court for an annulment
can stop a spouse from getting a declaration of decree.
nullity for the purpose of precaution and for
the record. Children born out of void and
voidable marriages are legitimate (Section 16).
It is not necessary that a decree declaring a
void marriage as void is passed. The parties to
a void marriage may perform another marriage
without getting a decree declaring their
marriage as void and neither will be guilty of
bigamy.

Restitution of Conjugal Rights and Judicial Separation

One of the basic requisites of marriage is that the husband and wife should live together and
respect each other’s mutual rights. Both husband and wife have some mutual obligations
towards each other which cannot be ignored come what may. This is a distinctive feature of a
conjugal relationship. In no other relationship, right to society exists. The expression “conjugal
rights” signify two ideas:

• The right of the couple to have each other’s society.

• The right to marital intercourse.

According to Manu, “Let mutual fidelity continue till death. Let a man and woman united by
marriage, constantly beware, lest at any time disunited they violate their mutual fidelity.” This is
the only positive remedy under the Hindu Marriage Act,1955 while other reliefs tend to weaken
the marriage.

Definition

21
The term “conjugal” means “matrimonial”. It refers to the relationship between a married
couple. Conjugal rights are matrimonial rights of both of the spouses. One spouse is entitled to

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

the society, comfort and consortium of each other. The expression “Restitution of conjugal
rights” means the restoration of matrimonial rights. Provisions regarding restitution of conjugal
rights are provided in various Personal Laws such as:

• Section 9, Hindu Marriage Act, 1955

• Section 22, Special Marriage Act, 1954

• Section 32, Indian Divorce Act, 1869

• Section 36, The Parsi Marriage and Divorce Act, 1936

Effects of Non-Compliance of Decree of Restitution

Rights to Set Up Matrimonial Home

In India, there is no law which deals specifically with a matrimonial house. Therefore, a
matrimonial house is neither defined nor is there any right regarding it per se. However, owing
to the general right to a shared household under the Act, a wife has a right to reside in the
shared household with her husband. This would imply that there is a right to live in a house
owned/rented by the wife and husband (together or separately), or a house in which the
husband has a right, title or interest in, including the joint family house in which the husband is a
member.

However, the right to reside would not extend to a house owned/purchased by the parents or
relatives of the husband as he has no subsisting right in it. For instance, houses owned (not
inherited) by the mother-in-law or sister-in-law would not be a shared household.

Allowing the wife (or husband) to stay in such a house is purely at the discretion of the house
owners. Parents-in-law have no obligation to give residence to their daughter-in-law in a house
owned by them. Therefore, a claim to reside in a house owned by the in-laws/relatives of the
22
husband is bound to fail.

Judicial Separation
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Judicial Separation is a medium under the law to give some time for self-analysis to both the
parties of a disturbed married life. Law gives a chance to both the husband and wife to rethink
about the extension of their relationship while at the same time guiding them to live separately.
By doing this, the law allows them the free space and independence to think about their future
path and it is the last option available to both the spouses for the legal breakup of the marriage.

Section 10 of the Hindu Marriage Act, 1955 provides the Judicial Separation for both the spouse,
those who are married under the Hindu Marriage Act, 1955. They can claim the relief of Judicial
Separation by filing a petition. Once the order is passed, they are not bound to have
cohabitation.

Filing petition for Judicial Separation

Any spouse who is hurt by another spouse, can file a petition for Judicial Separation in a District
Court under Section 10 of the Hindu Marriage Act, 1955 and the following should be satisfied:

• The marriage between the husband and wife should be celebrated properly under Hindu
marriage Act.

• The respondent should be settled in the jurisdiction of the court where the petitioner
filed the petition.

• The husband and wife lived together for a particular period of time before the filing of a
petition.

Every petition should according to Order VII Rule 1 of the Civil Procedure Code, 1973 must
contain:

• The date and place of marriage.

• The person should be a Hindu, by his/her affidavit.

23

• Name, status, address of both the parties

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

• Name, DOB and gender of children(if any).

• Details of litigation filed before filing the decree for judicial separation or divorce.

• For the judicial separation, the evidence should prove the grounds.

Grounds for Judicial Separation

The judicial sanction of separation creates many rights and obligations. A decree or an order for
judicial separation permits the parties to live apart. There would be no obligation for either
party to cohabit with the other. Mutual rights and obligations arising out of a marriage are
suspended. The decree, however, does not sever or dissolve the marriage. It affords an
opportunity for reconciliation and adjustment. Though judicial separation after a certain period
may become a ground for divorce, it is not necessary and the parties are not bound to have
recourse to that remedy and the parties can live keeping their status as wife and husband till
their lifetime. It is given under Section 10 of the Act; the spouse can file a petition for judicial
separation on the basis of the following grounds:

• Adultery [Section 13(1)(i)]- It means where any of the spouses voluntarily had sexual
intercourse with any other person except his/her spouse. Here, the aggrieved party can
claim the relief but that intercourse should be placed after the marriage.

• Cruelty [Section 13(1)(i-a)]- When the spouse treats his/her partner with cruelty or
inflicts any mental or physical pain after the marriage. The sufferer can file a petition on
the grounds of cruelty.

• Desertion [Section 13(1)(i-b)]- In this section, it is defined that if the spouse left the other
spouse for any reason without informing him/her for a period not less than 2 years
before filing the petition by another spouse, desertion gives a right to claim relief of
judicial separation for the hurt party.
24

• Conversion/Apostasy [Section 13(1)(ii)]- If any spouse gets converted into any other
religion other than Hindu, then the other spouse can file for judicial separation.
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

• Unsound mind [Section 13(1)(iii)]- If any spouse in a marriage is suffering from any
mental disease which is difficult to live for the other spouse with the sufferer. The other
spouse can claim relief from judicial separation.

• Leprosy [Section 13(1)(iv)]- If any spouse suffering from any disease like leprosy, which
can not be recovered, then the other party can file a petition for judicial separation
because he/she can not waste their own time due to the sufferer.

• Venereal Disease [Section 13(1)(v)]- If any party to a marriage or a spouse has any type
of disease which is incurable and communicable and the spouse does not know about
the fact at the time of marriage, then it could be a valid ground for the spouse to file
petition for judicial separation.

• Renounced the World [Section 13(1)(vi)]- In Hindu law, by renouncing the world means
“Sannyasa”. Renunciation from the world conveys that the person has given up the
world and leading a holy life. He is considered a civil dead. If a spouse renounces the
world to live a holy life, his/her partner can file for judicial separation.

• Civil death/Presumed death [Section 13(1)(vii)]- If a person is not found for 7 or more
years and their relatives or any other person have not heard from him/her or it is
believed that he/she may be dead. Here, the other spouse can file for judicial separation.

Divorce

The word ‘divorce’ had not been defined under any statutory provisions but it could be defined
as a legal dissolution of judicial ties established at marriages. Thus a divorce is also a seven
lettered word, which separates the united couple at their own wish with their own consent.
Thus divorce can be considered a means to break marriage that happens not just between two
individuals but also between two families.
25
Divorce grounds

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

The grounds of divorce under the Hindu Marriage Act had been stated under Section 13 of the
said act. Thus these grounds are lawfully valid grounds for divorce and if such circumstances
arise, then, unfortunately, divorce is bound to take place.

Adultery

Adultery had been defined under Section 13(1)(i). It states that after solemnization of marriage if
a married person with the ties of marital bonds is having sexual intercourse with another person
who is not his or her spouse, is said to have committed adultery. Adultery is a crime in India and
also has its penal provision under Section 497 of the Indian Penal Code. Section 497 of the Indian
Penal Code defines as whoever has sexual intercourse with an individual who is and whom he
knows or has as reason to accept to be the wife of another man, without the assent or intrigue
of husband, such sexual intercourse not adds up to the offense of rape, but is blameworthy of
the offense of adultery, and will be punished with an imprisonment of either for a term of five
years, or with fine, or with both. In such a case, the wife will not be culpable as an abettor.
However, it also draws a link with Section 198(2) of the Code of Criminal Procedure which deals
with the prosecution for offenses against marriage. Thus the Supreme court in the case
of Joseph Shine v Union of India had held that Section 497 of the Indian Penal Code and Section
198(2) of the Code of Criminal Procedure together constitute a legislative packet to deal with the
offense of adultery had been held unconstitutional and thus, it is also being struck down by the
Supreme Court.

Cruelty

Cruelty in simple terms means torturing or unreasonable brutal behaviour against one. Thus
Section 13(1)(ii) states that even after solemnization of marriage, treating the petitioner with
cruelty can also be considered as a ground for marriage. Cruelty is also a criminal offense and
also has statutory provisions for the same. Section 498A of the Indian Penal Code states about
26
the cruelty by the husband or the relative of the husband on the woman or wife. This section
clearly defines cruelty as :

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

• any wilful behavior which is of such a nature as is probably going to drive the lady to end
her life or to cause grave injury to her life, limb or wellbeing (regardless of whether
mental or physical) of the woman; or

• harassment of the woman where such harassment is with the end goal of pressuring her
or any individual identified with her to fulfil any unlawful need for any property or
important security or is because of disappointment by her or any individual identified
with her to satisfy such need.

Thus when two such constituents of cruelty are being meted out, the person committing the
same shall be punished with imprisonment for a term which shall extend for 3 years or with fine
or both. Its link can also be drawn with Section 113(A) of the Evidence Act. Thus when such
brutal acts are committed where an individual wants to end his or her life is bound to be
considered as a basic ground of divorce.

In my opinion, it can also be concluded by criticizing that such acts of cruelty only happen on
women, but society being dynamic such cases of cruelty also happens on men but there is still
no penal provision to protect their rights and dignity. Though such cases of torture on men are
rare, it is existing in the Indian society.

Desertion

Previous cohabitation is essential for pleading desertion, except in cases of mental or physical
incapacity or other special circumstances. Desertion in simple terms can also be considered as
an act of abandoning a person. Thus it had been defined under Section 10(ib) of the Hindu
Marriage Act 1955. It states that divorce can happen if the petitioner had been deserted by the
respondent for a continuous period of two years immediately after preceding the presentation
of the petition. Even if the spouse had left the home but still contacts the petitioner through
emails or phone calls it cannot be considered as a ground of divorce or it could be stated that no 27
desertion had taken place. However, if the respondent or the other spouse suddenly without
any reasonable cause ceases to live with the petitioner or dismisses all the rights, obligations

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

and duties tied with the marital bond, then the essence of the only intention which he had was
to desert the partner in the marriage. Thus it could be a valid ground for divorce as well.
Therefore in the case of Ashok Kumar Arora V. Prem Arora, AIR 1987 Del 255, it had been held
that when one spouse separates himself/herself to bring cohabitation to an end the other is
entitled to seek for a decree of divorce. In the case of Jyothi Pai v. P.N. Pratap Kumar Rai, AIR
1987 Kant 24, it had been held that the initial burden of proving discontinuation from the
society without reasonable cause lies on the petitioner.

Insanity

The word insanity had been derived from the word insane which means not in a correct state of
mind. Thus a person who is not able to understand the difference between right or wrong or
who is unable to provide consent or to approve or disapprove the happenings around him
cannot be considered as competent enough to tie himself or herself within the matrimonial
bonds. Insanity had been defined under Section 13(1)(iii).

• Thus the articulation “mental disorder” implies dysfunctional behaviour, captured or

deficient advancement of the brain, psychopathic confusion or some other issue or
incapacity of the brain and incorporates schizophrenia;

• And similarly, the articulation psychopathic disorder implies a tenacious issue or

incapacity of the brain (regardless of whether including sub-typicality of insight) which
brings about strangely forceful or genuinely irresponsible conduct lead with respect to
the other, and whether it requires or is susceptible to clinical treatment; thus when a
person is suffering from such an unstable mental condition, he/ she can never perform
their right and duties in a marriage, hence, it is also one of the most important grounds
of divorce.

Other fault grounds 28

• Conversion

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Lily Thomas v. Union of India, (2000) 6 SCC 224 : 2000 SCC (Cri) 1056

In the case of Lily Thomas v. Union of India in 2000, on the ground that the judgement in the
impugned case violates the fundamental right to life and liberty and freedom to practice any
religion enshrined under Articles 20, 21, 25 and 26 of the Indian Constitution.

The court held that the contention of the petitioner that the judgment of Sarla Mudgal amounts
to the violation of freedom of conscience and free profession, practice and propagation of
religion as guaranteed under Article 25 and 26 of the Constitution, is far fetched and is alleged by
those who hide behind the cloak of religion to escape the law.

The court further stipulated that the freedom guaranteed under Article 25 of the Constitution is
such freedom which does not encroach upon similar freedom of the other persons. The petition
also claimed that making converts liable for committing polygamy would be against Islam. The
apex court observed the ignorance of the petitioners and rightly said that even under Islamic law,
purity of marriage is upheld by Prophet Mohammad.

The interpretation of Islamic law in the modern sense would never allow such acts in its religion.
Islam is a progressive, pious and respected religion that cannot be given a narrow concept as has
been allegedly done by the petitioners.

• Leprosy

Lepromatous leprosy is a virulent and incurable form of leprosy and thus a ground for divorce.

• Venereal Disease

• Renunciation

Wife’s special grounds of Divorce

The wife also has some special rights such as: 29

If the husband has one or more wife living at the same time,

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

• If the husband has one or more wives living after the initiation of this Act, a wife may
exhibit an appeal for divorce under cl. (I) of sub-sec. (2) of s. 13 of the Act. Just constraint
on the right of a wife who applies for divorce under this provision is that the other wife
ought to be alive at the hour of presentation of the petition independent of discoveries
that the petitioner knew about the presence of the other wife and that the husband was
not liable of cruelty.

• Postponement as leading an induction of approbation of or intrigue or lack of concern to

a wedding incorrectly isn’t a proper thought for cases under Section 13(2)(i) of the Act.
The right of divorce given to the wife by s.13(2)(i) doesn’t rely upon her behavior before
the beginning of the Act. The presence of the first wife at the hour of execution of the
subsequent marriage need not be built up by direct proof and that reality might be
gathered from different realities demonstrated for the situation.

If the husband is guilty of rape, sodomy, and bestiality after the solemnization of marriage.

1. Under s. 13(2)(ii) of the Act of a wife entitled is for a petition of divorce on the ground of
rape, sodomy or bestiality submitted on her by the husband. Rape is additionally a
criminal offense and characterized in Section 375 of the Indian Penal Code. A man is said
to commit rape who had intercourse with a lady without wanting to, without her
consent, or with her assent which is obtained by placing her in dread of death or of hurt.
Thus when a wife gets to know that her husband did such an act, she has a special power
to dissolve the marriage by letting him free.

2. Sodomy is committed by an individual who has sexual intercourse with an individual from
similar sex or with a creature or has non-coital carnal copulation with an individual from
the contrary sex. Bestiality implies sexual association by a person against the request for
nature with a creature.
30
Where a decree of maintenance under Section 18 of the Hindu Adoptions and Maintenance Act
1956, or a decree for maintenance of wife under Section 125, Cr PC 1973, has been passed

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

against the spouse, the wife is qualified to present a petition for divorce which would be based
on the fulfillment of two conditions of the divorce. In the first place, she was living separated,
and besides, after passing of the order or decree, there had been no cohabitation between the
husband and the wife for a time period of one year.

In some situations, the wife got married before attaining the age of 15. At such an age a little
bride would have no understanding of what marriage actually means and the duties and
obligations which are associated with it. Thus she has the right to revoke the marriage before
the attainment of 18 years of age. Thus in such circumstances, the wife is being given the option
to continue the marriage or to revoke the same.

Bars to Remarriage and Matrimonial Relief

Reconciliation by Court

Irretrievable Breakdown grounds

Irretrievable breakdown of marriage is not a ground for divorce under Hindu Marriage Act, 1955.
However, where marriage is beyond repair on account of bitterness created by Acts of either of
the spouses or of both, courts have always taken irretrievable breakdown of marriage as a very
weighty circumstance amongst others necessitating severance of marital tie. Marriage which is
dead for all purposes cannot be revived by court’s verdict, if parties are not willing since
marriage involves human sentiments and emotions and if they have dried up, there is hardly any
chance of their springing back to life on account of artificial reunion created by court decree.

Merits (Advantages)

If the individuals, tied within the matrimonial bond feels that the marriage is not working out,
then mutually it may give the right to both of them to stay and live life separately and happily
without any botheration on either part. As there is no reasonable probability of staying together
31
thus it gives both of them the opportunity to start their life as per their own wishes
independently and separately.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Demerits (Disadvantages)

• Irretrievable breakdown of the marriage may become an excuse where the married
couples may always feel that little arguments are unreasonable as a result of which there
is no probability of them staying together. Therefore, in my opinion, the process of
divorce following the irretrievable breakdown of marriage theory is not justified.

• It may also result from sudden arbitrary unreasonable decisions.

• It sometimes happens based on temporary emotions such as anger, humiliation, etc.

which a couple may go through during the heat of the argument.

• It fosters no communication procedure between the partners.

• It is not just the breakdown of marriage but it is also the wreckage of two united families
at the time of marriage.

• If children are born out of that marriage when the parents ‘now’ think that there is no
reasonable probability of staying together, such broken families could be a matter of
stress for the child born out of the marriage as well.

Maintenance

The words “Hindu wife” used in Section 18 includes only lawful wife or legally wedded wife if it
does not include wife married during subsistence of first marriage. It is often referred to as
“alimony” or a kind of monetary support from the spouse i.e. spousal assistance. Maintenance
on the other hand, is an act of bearing the financial expenses or reducing the burden of the
spouse whose burden increases and if the husband is wealthy and leading an opulent life, his
wife also has the right to be the partner in his prosperity and live with the same standards and
equal dignity. It does not lie in the mouth of the husband, after separation of the spouses, to say
that the wife is no longer entitled to the standard in which she has been living with the husband 32

and that she should re-adopt the standard of her parental home. The status of the parents of the

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

wife is a totally irrelevant consideration. After the marriage, it is the status of the husband which
is determinative of the quantum of Maintenance to be given to the wife.

Further, the main purpose of granting maintenance is to maintain the standard of living of the
spouse equivalent to that of the other spouse and in accordance with status prior to the
separation. It is granted during the proceeding of decree or after the decree of divorce and
ceases to exist on the death or remarriage of the alimony holder. The spousal maintenance is
determined on the existence of various factors by the court as follows:

1. No separate source of income. The most important factor to be considered before

granting maintenance or alimony is to check whether the spouse seeking maintenance
has any separate source of income or not or is solely dependent on the income of
his/her spouse.

2. Standard of living of both the litigating parties before separation.

3. Expenses required to maintain children.

4. Requirement to maintain the same standard of living of the spouse as it was before the
separation.

5. Skills, capabilities and educational background of the spouse to earn his/her living and
maintain themselves etc.

Types Of Maintenance

On consideration of factors by the competent court, maintenance can be granted on the

following basis-

• Temporary Maintenance- It is also referred to as maintenance pendente lite which is

awarded by the courts during the continuation of proceedings of the divorce. The
33
purpose is to meet the necessary and immediate expenses of the spouse who is a party
to the proceedings. On satisfaction, the court may grant it. Section 24 of Hindu Marriage

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Act,1955 deals with this kind of maintenance. Further can be claimed under Section
125(1) of CrPC.

• Permanent Maintenance- As the term suggests, it refers to the granting of a sum on

a periodical basis or on a continued basis once the proceedings have been disposed
of. Section 25 of Hindu Marriage Act, 1955. Either of a spouse is entitled to receive it.

Prior Status of Right of Maintenance

Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 initially dealt with
the provisions of granting maintenance. The Hindu Marriage Act was formed in the year 1955
and applies specifically on individuals who are Hindus including Sikh, Jains and Buddhists and
persons who come under the ambit of Section 2 of Hindu Marriage Act, 1955. Also children
whose either of a parent is a Hindu, Sikh, Jains or Buddhist and are brought up under the same
religion will also be considered as a Hindu and will be entitled to maintenance. Under old Hindu
law, a Hindu male was under an obligation to maintain the following persons:

• His wife,

• Unmarried daughter,

• Legitimate sons,

• Illegitimate sons, and

• Aged parents.

Thus, only hindus (the applicability of which could be checked from Section 2 of Hindu Marriage
Act, 1955) are covered under this Act.

From ancient times women have been kept at a disadvantaged position which not only weakens
their stake in society but also leads to unequal treatment with them. The Code of Criminal 34

procedure came into force in the year 1973 and according to Section 125 of this code,

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

maintenance is granted to wives, children and parents irrespective of any religion or personal
laws. Hence, it has provided for a better status to women by granting rights in a dignified
manner.

Hindu Marriage Act, 1955

Obligation To Maintain Wife

Even though there may have been as per uncodified Hindu law, some obligation upon a father-
in-law to maintain his widowed daughter-in-law even out of his self acquired property; it has
ceased to have effect and cannot be implemented if right to claim it accrued after 1956 Act
came into force. Section 24 and Section 25 of the said act deals with the provisions of allowing
pendente lite and permanent maintenance respectively. In Dr. Kulbhushan v/s Raj Kumari and
Anr, the court while deciding the amount of maintenance observed that it is determined based
on the facts of each case and declared that if the court enhances or moulds the amount of
maintenance, then such a decision would be justified. It was further held in this case that it
would be fair to provide the wife with 25% of the husband’s net salary as maintenance.

• Under Section 24 of the act if the court considers fit and is satisfied that either wife or
husband does not have an independent income, then it can order the respondent to pay
the maintenance to the petitioner in accordance with the provisions of this Section. Thus,
the claimant can be a husband as well.

• Further, according to the provisions of Section 25 of the Act, which deals with the
granting of alimony on a permanent basis, the court may on the application made by the
respondent , order to provide for maintenance either in the form of periodical payments
or a gross sum to be provided. Thus, in this case as well the respondent can either be a
wife or a husband.
35
• The purpose of interpreting the provision in this way is to avoid the discrimination
because both husband and wife are equal in the eyes of law.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Delhi High Court recently in the case of Rani Sethi v/s Sunil Sethi, ordered the wife(
respondent) to pay maintenance to her husband (petitioner) of Rs 20,000 and Rs.10,000 as
litigation expenses. Further a Zen car was ordered to be given for the use of the petitioner.

• Wife on being aggrieved by the same order approached the High Court, where the scope
of Section 24 of HMA was construed and it was held that the purpose of this Section was
to provide support to the supposed who is incapable of earning his/her independent
income.

• Further it was held that the term “support” shall not be construed in a narrow sense
and thus, it includes not only bare subsistence. It aims to provide a similar status as that
of the respondent spouse. Thus, considering all the facts and circumstances, the appeal
of the wife was dismissed.

• Though Section of the above said Act provides sufficient right to both husband and wife
to move an application before the court for seeking maintenance, if they do not have an
independent source of income and have been solely dependent upon his/her spouse. But
this Section cannot be invoked in such a manner as to where husband though capable of
earning does not continue to do so intentionally for the sole purpose of depending on his
wife. In such a case the husband cannot move an application for seeking maintenance.
This was held by the Madhya Pradesh High Court in the case of Yashpal Singh Thakur vs
Smt. Anjana Rajput where husband incapacitated himself by stopping to run an auto
rickshaw. Hence, where a person intentionally incapacitates himself he loses the
opportunity to file an application for seeking maintenance.

Obligation To Maintain Children And Parents

Live-in relationship, as such, is a relationship which has not been socially accepted in India,
unlike many other countries. A live-in relationship between two consenting adults of 36
heterosexual sex does not amount to any offence even though it may be perceived as immoral.
However, in order to provide a remedy in civil law for protection of women, from being victims

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

of such relationship, first time in India, the DV Act has been enacted to cover the couple having
relationship in the nature of marriage, persons related by consanguinity, marriages, etc. There
are other legislations also where reliefs have been provided to women placed in certain
vulnerable situations. Section 125 CrPC, of course, provides for maintenance of a destitute wife
and Section 498-A IPC is related to mental cruelty inflicted on women by their husbands and in-
laws. Section 304-B IPC deals with the cases relating to dowry death. The Dowry Prohibition Act,
1961 was enacted to deal with the cases of dowry demands by the husband and family
members. The Hindu Adoptions and Maintenance Act, 1956 provides for grant of maintenance
to a legally wedded Hindu wife, and also deals with rules for adoption. The Hindu Marriage Act,
1955 refers to the provisions dealing with solemnisation of marriage and also deals with the
provisions for divorce. For the first time, through the DV Act, Parliament has recognised a
“relationship in the nature of marriage” and not a live-in relationship simpliciter.

Under the proviso to Section 19(1), the words used are (a) from the estate of her husband or her
father or mother and they mean that she has a right-apart from the right she has against the
estate of her husband – a personal right against her father or mother during their respective
lives. The words the estate of before the words her husband, are not to be read into the latter
part of the clause as estate of her father or mother. What the proviso does here is to create (i) a
right against the estate of her husband and also (ii) an independent and personal right against
the father during his lifetime (or against the mother) if the daughter is unable to maintain
herself out of her earnings or other property etc. That right against the father during his lifetime
can be enforced against the property he is holding. The legislature has deliberately not used the
words state of her father in the proviso (a) to Section 19(1)

Section 26 of the same act deals with the custody, maintenance and education of minor
children. Court may, as it considers necessary and deems fit, from time to time pass interim
orders in this regard and at the same time has the power to revoke, suspend or vary such an
37
order. Obligation to maintain lies on both father and mother of the child or on either of the
parents as ordered by the court. Section 20 of Hindu Adoption and Maintenance Act, 1956 lays

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

down an obligation on a hindu male or female to maintain their legitimate/ illegitimate minor
children and aged/ infirm parents, the amount of which is to be determined by the competent
court on the following factors-:

1. Economic position and status of the litigating parties.

2. Reasonable wants and needs of the parties.

3. Dependence of the parties, etc.

In Sukhjinder singh saini v/s Harvinder kaur, certain observations were made by the Delhi High
Court while dealing with the issue of deciding the maintenance to be granted for a child:

• Both the parents have a legal, social and a moral obligation to maintain their children and
provide them with the best standard of living, depending on the financial footing of the
parties.

• They are equally obligated to provide means for best education.

• It was further held that even if the child is living with the spouse whose income is
sufficient enough to maintain the child cannot be taken as a good ground by the other
spouse of not maintaining the child or taking care of the child’s welfare.

Jurisdiction and Procedure

Procedures of Divorce (Detailed study under the Hindu Marriage Act 1955)

Section 19 of the Hindu Marriage Act 1955 states about the court in which the petition of
divorce should be presented. It also highlights the fact that every petition which is sought to
have been presented under this Act should be presented to the district court within the local
limits of the original ordinary civil jurisdiction. The petition can, therefore, be filed in:
38
• The place where the marriage was solemnized.

• The place where the respondent resides during filing of the petition.
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

• The place where the couple last resided together.

• The place where the wife of the petitioner last resided.

• If the respondent is residing at a place which is outside territorial limits to which the act
extends or not had been heard of being alive for a period of 7 years, then the petitioner
could file a petition depending upon the places where he or she is presently residing.

Section 20 states about the contents and verification of the petition.

• Section 20 sub-section 1 states that every petition of divorce presented under the Hindu
Marriage Act 1955 should be distinctly examined based on the nature and facts of the
case depending on which the claim of relief is decided.

• Section 20 sub-section 2 states that the statement contained in every petition under this
Act should be verified either by the petitioner or any other competent individual in a
manner presented by the law for the verification of the plaints and during hearing it may
also be used as evidence.

Section 21A states that:

Clause (a) sub-section 1 of Section 21A states that where,

• (a) a petition under this Act has been exhibited to a district court having jurisdiction by
the party involved with a marriage wanting for a decree for judicial separation as being
stated under Section 10 or for a decree for divorce under Section13; and

• (b) another petition under this Act has been displayed from that point by the other party
to the marriage praying for a decree of judicial separation under Section 10 or for a
decree of divorce under Section 13 on any ground, regardless of whether in a similar
district court or in an alternate or different district court, in a similar State or in an
39
alternate or different state State,

• The petitions will be managed as indicated in sub-section (2).

Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Sub-section 2, states, for a situation where subsection (1) applies,

• (a) if the petitions are introduced to a similar district court, both the petitions will be
attempted and heard together by that district court;

• (b) if the petitions are exhibited to some other different district courts, the petition
which is being presented later will be moved to the district court in which the previous
petition was introduced and both the petitions will be heard and discarded together by
the district court in which the prior request was introduced.

• Sub-section 3, states, for a situation where condition (b) of sub-section (2) applies, the
court or the Government, by and large, able under the Code of Civil Procedure, 1908 (5
of 1908), to move any suit or proceeding from the district court in which the later appeal
has been presented to the district court in which the previous request is pending, will
exercise its authority to move such later petition as though it had been enabled so to do
under the said Code.

Section 21B states that firstly the trial of a petition shall be taken in with the interest of justice
and it shall be taken day-to-day until the case is being concluded. Day-to-day all the necessary
reasons for filing the divorce petition should be recorded. This is stated in Section 21B(1).
Secondly, an attempt should be made to conclude the cases within a period of 6 months.
Therefore the cases are to be dealt expeditiously as being stated under Section 21B(2). Thirdly in
Section 21B(3) every appeal under the act should be dealt expeditiously as possible and should
be tried to be concluded within the period of 3 months from the date on which notice of appeal
had been served to the party.

Section 21C states that no document in this regard shall be admissible if it is not duly stamped or
registered. Therefore Section 21C states about the documentary evidence.

40
Section 22 under this act states that all the proceedings under this Act should be conducted in a
camera, and it is unlawful for anyone to print or publish the same. However, if any act happens

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

contrary to the given provision then he or she shall also be punishable with a fine which shall
extend to one thousand rupees. In this section the word ‘camera proceeding’ means that all the
acts should only happen in the presence of the Judge, the concerned advocates of the two
parties and the two parties i.e the petitioner and respondent themselves. Thus it is not an open
court where one could be allowed.

Section 23 of the Hindu Marriage Act 1955, provides a bar to matrimonial relief. It explains the
conditions under which the court would not be granting matrimonial relief.

The conditions are as follows under sub-section 1 of Section 23:

1. Clause (a) of sub-section of Section 23 states that the petitioner needs to show that he or
she is not taking advantage of his own wrong. For example, if the petitioner had been
constantly torturing the respondent, and the respondent also had shown some act of
cruelty against the petitioner then the petition cannot want relief on the ground of
cruelty committed by the respondent as it was the petitioner who started the act of
torturing and teasing the respondent. Hence in this regard, the Court holds up the
principle of equity that one who comes for equity must come with clean hands.

2. Clause (b) of sub-section 1 of Section 23 states that a petition which is being filed on the
ground of adultery has not in any manner been an accessory to connived at or condoned
the acts complained off. Thus ‘accessory’ in the regard means aiding or assisting or
actively participating in the offense complained against. If this ground of participation by
the petitioner is being established then the court would grant no relief. Similarly
‘connivance implies a willing consent to a conjugal offense. Therefore if one spouse is
willingly, intentionally or recklessly allowing the conjugal offense then no relief could be
given by the court. Lastly, condonation means to forgive. Thus, if there is a reinstatement
of the spouse who had suffered the matrimonial offense, then the court will see that
41
such there are chances of forgiveness and smooth functioning of a relationship, as a
result, no relief would be given.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

3. Clause (bb) of sub-section 1 of Section 23 if the divorce is given on the ground of mutual
consent and that consent had not been derived by any fraud, force or undue influence,
then such a relationship would also be barred from any sort of relief.

4. Clause (c) of subsection 1of Section 23 states about collusion. Thus it holds the view that
if two parties within the marital ties had consented for divorce but in order to get the
relief they trick the court, therefore in such circumstances also relief will not be given.

5. Clause (d) of sub-section 1 of Section 23 states that if there is an unreasonable, or

improper delay for filing a decree for divorce or for judicial separation then relief also be
given:

• As per Section 23(2), it is the duty of the court to look into the nature and circumstances
of the case and try every possible endeavor to bring about a reconciliation between the
parties.

• If the court thinks fit and if the parties desire, the court may adjourn the proceeding for a
reasonable period of 15 days and refer the matter to any person as named by the parties
or on behalf of the person selected by the court if the parties fail to name them with
directions to report to the court. This had been stated under sub-section 3 of Section 23
of the Hindu Marriage Act 1955.

• Section 23 sub-section 4 states that if the marriage is dissolved by the decree of divorce
then the copy of the decree passed by the court shall be given free of cost to both the
parties.

Concept of marriage under muslim Law

Islam, unlike other religions is a strong advocate of marriage. There is no place of celibacy in
Islam like the Roman Catholic priests & nuns. The Prophet has said There is no Celibacy in Islam. 42
Marriage acts as an outlet for sexual needs & regulates it so one doesn’t become slave to his/her
desires. It is a social need because through marriage, families are established and the families
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

are the fundamental entity of our society. Furthermore marriage is the only legitimate or halal
way to indulge in intimacy between a man and woman.
Islamic marriage although permits polygamy but it completely prohibits polyandry. Polygamy
though permitted was guarded by several conditions by Prophet but these conditions are not
obeyed by the Muslims in toto.
Essentials of Valid Marriage under Muslim Law

Capacity for Marriage

The general essentials for marriage under Islam are as follows:-

(i) Every Mahomedan of sound mind and having attained puberty can marry. Where there is no
proof or evidence of puberty the age of puberty is fifteen years.
(ii) A minor and insane (lunatic) who have not attained puberty can be validly contracted in
marriage by their respective guardians.
(iii) Consent of party is must. A marriage of a Mahomedan who is of sound mind and has
attained puberty, is void, if there is no consent.

Essentials of Marriage

The essentials of a valid marriage are as follows:-

(i) There should be a proposal made by or on behalf of one of the parties to the marriage, and an
acceptance of the proposal by or on behalf of the other party.
(ii) The proposal and acceptance must both be expressed at once meeting.
(iii) The parties must be competent.
(iv) There must be two male or one male & two female witnesses, who must be sane and adult
Mahomedan present & hearing during the marriage proposal and acceptance. (Not needed in
Shia Law)
(v) Neither writing nor any religious ceremony is needed.
43

Essentials Explored

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

(i) A Muslim marriage requires proposal ‘Ijab’ from one party and acceptance ‘Qubul’ from the
other side. This must be done in one sitting.
(ii) The acceptance must be corresponding to what is being offered.
(iii) The marriage must be effectively immediate. If the Wali says I will marry her to you after two
months, there is no marriage.
(iv) The two parties must be legally competent; i.e. they must be sane and adult.
(v) The women must not be from the forbidden class.
(vi) The consent given must be free consent,. It must not be an outcome of compulsion, duess,
coercion or undue influence.

Kinds of Marriage
Under Muslim generally two types of marriage is recognized
(i) Regular Marriage (essentials discussed earlier)
(ii) Muta marriage

Muta Marriage:

Muta marriage is a temporary marriage. Muta marriage is recognized in Shia only. Sunni law
doesn’t recognize it. (Baillie, 18). A Shia of the male sex may contract a Muta marriage with a
woman professing the Mahomedan, Christian or Jewish religion, or even with a woman who is a
fire worshipper but not with any woman following any other religion. But a Shia woman cannot
contract a Muta marriage with a non muslim.

The essentials of Muta marriage are:-

(1) The period of cohabitation should be fixed.
(2) Dower should be fixed.
(3) If dower specified, term not specified, it could amount to permanent or regular marriage.
44
(4) If term fixed dower not specified, it amounts to void marriage.

Aspects of Marriage
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

(i) Valid or Sahih

(ii) Irregular or Fasid
(iii) Void or Batil

(i) Valid or Sahih Marriage:

Under the Muslim law, a valid marriage is that which has been constituted in accordance with
the essential conditioned prescribed earlier. It confers upon the wife; the right of dower,
maintenance and residence, imposes on her obligation to be faithful and obedient to her
husband, admit sexual intercourse with him & observe Iddat.

(ii) Irregular or Fasid Marriage:

Those marriages which are outcome of failures on part of parties in non fulfillment of
prerequisites but then also are marriages; to be terminated by one of the party is termed to be
Irregular marriages. They are outcome of-
(a) A marriage without witness (Not under Shia Law)
(b) Marriage with fifth wife.
(c) Marriage with a women undergoing Iddat.
(d) Marriage with a fire-worshipper.
(e) Marriage outcome of bar of unlawful conjunction.
An irregular marriage has no legal effect before consummation but when consummated give rise
to several rights & obligations.

(iii) Void or Batil Marriage:

A marriage which is unlawful from it’s beginning. It does not create any civil rights or obligations
between the parties. The offspring of a void marriage is illegitimate. They are outcome of-
(a) Marriage through forced consent.
45
(b) Plurality of husband.
(c) Marriage prohibited on the ground of consanguinity.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

(d) Marriage prohibited on the ground of affinity.

(e) Marriage prohibited on the ground of fosterage.

Effect of Marriage (Sahih)

The lawful obligations which arise after marriage are as follows-

(i) Mutual intercourse legalized and the children so born are legitimate.
(ii) The wife gets power to get ‘Mahr’
(iii) The wife entitles to get maintenance.
(iv) The husband gets right to guide and prohibit the wife’s movement(for valid reasons only)
(v) Right of succession develops.
(vi) Prohibition of marriage due to affinity.
(vii) Women bound to complete Iddat period & not to marry during Iddat period; after divorce or
death of husband.

The obligations and rights set between the two parties during and after the marriage are to be
enforced till legality. On the basis of a marriage husband and wife do not get the right on one
another’s property.

• Registration

Registration of Marriage is not necessary according to Muslim Law. However, few states like
Assam, Punjab, Bengal, Bihar and Orissa have enacted laws for registration of Muslim Marriage.
The registration is not an essential part for a Valid Muslim marriage but it acts as an authentic
proof. The apex court in the Case of Seema v. Ashwani Kumar[v], held that marriage of Indian
citizens irrespective of their religion should be registered in their states where the marriage has
been solemnized. Also, in the case of M. Jainoon v. Amanullah Khan[vi], Madras High court
observed that although registration of Marriage is not necessary, it cannot be said that
46
registration of Marriage is prohibited under Muslim personal Law.

Requirement of dower under muslim law

Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Mahr or Dower is a sum of money or other property to be paid or delivered to the wife. It is
either specified or unspecified but in either case, the law confers a mandatory right of Mahr or
Dower on wife.

The Mahr (Dower) belongs to wife and she can deal with it in the manner she likes it and neither
her husband nor husband’s relations nor even her relations can dictate her in matter of using
the Mahr money or property. No doubt, Mahr was originally analogous to sale price, but since
the inception of Islam, it is hardly correct to regard it as the price of sexual intercourse.

• Mahr or Dower has to be given to wife however she is vested with discretion to remit it.

• Mahr is non-refundable even after divorce (unless she remits it at her sole discretion)
and it becomes the property of wife in perpetuity.

• Payment of Mahr is mandatory even if marriage is not consummated. But in that case,
Mahr is half of the amount fixed.

• In a way, Mahr provides a check on the capricious exercise by the husband of his almost
unlimited power of divorce. Even a middle class man can fix the Mahr of eleven lakhs of
Ashrafis (an ashrafi would be 15-20 rupees). This sum of money would give serious cause
for anxiety for a middle class man for giving divorce.

Object Of Dower

The object of Dower are:

i. to enforce an obligation on husband as a mark of respect towards his wife,

ii. to place a check on the misuse of power to give divorce by the husband,

iii. to provide for her livelihood on the dissolution of her marriage, so that she can lead her
dignified life after the death of her husband or divorce. 47

Increase Or Decrease Of Dower

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Husband can increase the amount of dower at any time and also the wife can remit the dower
wholly or partially but it should be done by her free consent. A Muslim girl who has attained
puberty can relinquish her dower, it is not mandatory that she has attained majority (which is 18
years according to Indian Majority Act) or not. The remission of Mahr by wife is called Hibe-e-
Mahr.
In any case after the death of husband, wife suffers mental distress, then remission of dower at
that condition will be considered against her free consent and will not be binding on her.
In Karachis case, it was held that in certain circumstances remission of dower will not be binding
on her, for instance husband shows indifference towards his wife and he makes it obvious that
the only way to resolve those indifference is when she remit the dower, and makes a document
for the same, then it will be against her free consent and also against justice and equity.

Classification Of Dower

Dower can be classified into two:

i. Specified Dower (Mahr-i-Musamma)- This type of Dower is further divided into two:

a. Prompt Dower

b. Deferred Dower

ii. Customary (Proper) Dower (Mahr-i-Misl).

i. Specified Dower

When the amount of dower is specified in the marriage contract, then that dower is known as
Specified Dower. The amount of dower may be settled before or during, even after the marriage
ceremony. If the marriage is contracted by the guardian due to minority or lunacy of husband,
then guardians can fix the amount of dower and the amount fixed by the guardian is binding in
nature on boy, after attaining puberty he cannot take plea that he was not a part of the contract 48
when it was made and even after the marriage of minor or lunatic boy guardians can fix the
amount of dower if the boy is still minor or lunatic.
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Husband can fix any amount of dower as per his will even if it doesnt leave anything for the heirs
after the payment of dower but according to Hanafi School the amount of dower in no case
should be less than 10 dirhams and 3 dirhams according to Maliki School. In Shia Law there is no
minimum amount fixed for the amount of dower.
But if there are any Muslim husbands who are unable to give 10 dirhams to their wives due to
poverty then in such cases Prophet Mohammad has directed them to teach Quran to their wives
in exchange for the payment of dower. At present there is no maximum amount of dower and
minimum amount is no longer in practice as it is very low according to the present situation.

Specified Dower if further classified into:

a. Prompt Dower (Muajjal Mahr)

Prompt dower becomes payable immediately after the marriage ceremony. According to
Ameer Ali, if the payment of prompt dower is not made by the husband, then wife can
refuse to enter into the conjugal domicile until the amount of prompt dower is paid.
Following points of Prompt Dower are:

i. Prompt Dower becomes payable immediately during or after the marriage ceremony
and it must be paid on demand, unless the other parties have agreed for the delay. If
the dower is not paid then wife can refuse to live with her husband until the amount is
paid and in case the wife is minor then her parents can refuse to send her to her
husbands house and husband has to give maintenance to her wife even if she is not
living with him.

ii. If the marriage has been consummated that does not convert the prompt dower into
deferred dower. After consummation, wife cannot refuse to live with her husband on
the ground of non-payment of dower, but she can sue her husband for the payment of
dower. And if the wife refuses to live with her husband after consummation due to
49
non-payment of dower, then Court can pass the decree of restitution of conjugal Rights
on the condition of payment of dower by husband.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

iii. Husband can only file petition for the restitution of conjugal Rights if the amount of
dower is not paid when the marriage has been consummated.

iv. Prompt Dower should be paid on demand, the limitation period of filing the suit for
non-payment of dower is three years. The time would begin from the date when the
demand was made and was refused by the husband during the subsistence of
marriage. If the wife does not make any demand, then the limitation period will begin
from the date of dissolution of marriage either by death or divorce.

b. Deferred Dower (muwajjal Mahr)

Deferred Dower becomes payable after the dissolution of marriage either by death or
divorce.
Following points of Deferred Dower:

i. Deferred Dower is generally paid after the dissolution of marriage but any
agreement in which it is mentioned that deferred dower will be paid before the
dissolution marriage, then that kind of agreement will be binding and will not be
considered as void.

ii. Wife cannot claim for the payment of deferred dower during the lifetime or
during the subsistence of marriage but husband can treat it as prompt dower and
can pay or transfer property, and that payment will be valid and will not be
considered as fraudulent preference unless there is actual insolvency of husband
involved.

iii. In case of death of husband, widow can waive off her right to claim for the
payment of deferred dower, but this act must be done on her free consent.

iv. The interest of wife in deferred dower is vested and it is not contingent. Deferred
50
dower does not depend upon the happening of certain contingencies not even on

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

the death of wife, in case of death of wife her legal heirs can claim for the money
payable under deferred dower.

Presumption regarding prompt and deferred dower

In case where in the marriage contract (Kabin-nama), it is not specified that which portion of the
amount decided for the payment of dower will be prompt and which portion will be deferred,
according to Allahabad and Bombay High Courts held that the proportion of amount to be paid
will be specified according to the:

a. position of wife,

b. custom of locality,

c. total amount of dower,

d. status of husband.

Shia Law:

If the amount of dower is specified in the marriage contract but it is not mentioned that which
portion will be prompt and deferred, then according to Ithna Ashari Shia Law the whole amount
of dower will be regarded as prompt. In Madras Presidency, the whole amount to be paid will be
regarded as prompt no matter the person is Shia or Sunni.

Sunni Law:

According to Sunni Law, half of the amount will be regarded as prompt and the other proportion
will be regarded as deferred.

Proper (Customary) Dower

When the amount of dower is not specified in the marriage contract and even if it is agreed that 51
the wife will not claim for dower, then also wife is entitled to proper dower. Amount of proper

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

dower is decided on the basis of the amount of dower paid on the marriage of female members
of fathers family

Determination of Proper Dower- The amount of proper dower is decided on the basis of
following factors:

a. Personal qualification of wife, her age, her beauty, fortune, understanding and virtue.

b. Social Position of her fathers family.

c. Amount of dower given on her female paternal relations marriages.

d. Economic condition of her husband.

e. Circumstances of time.

Wifes Rights And Remedies On Non-Payment Of Dower

Under Muslim Law, wife or widow have following rights on non-payment of dower:

i. Refusal to Cohabit:
Under Muslim law, wife has a right to refuse to live with her husband when the amount
of prompt dower is not paid, if the marriage has not been consummated. If the wife is
minor or a lunatic then her guardians can refuse to send her to her matrimonial home
until the payment of prompt dower is done and during that time husband is bound to
maintain his wife.
In the case Abdul Kadir v. Salima, it was held that wife can refuse to cohabit or to live
with her husband and if before the consummation of marriage husband files petition for
restitution of conjugal rights, then such appeal will be dismissed.
Similarly in the case of Nasra Begum v. Rizwan Ali, it was held by the Allahabad High
Court the wife can refuse to cohabit or to live with her husband until the amount of
52
dower is paid by him. Any suit for restitution of conjugal rights will be void before the
consummation of marriage. In case the wife is minor or lunatic then her guardian can

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

refuse to send her to her matrimonial home until the amount of dower is paid by her
husband and if the minor wife is already in the custody of husband, then her guardians
can take her back on the ground that the amount of dower is not paid.
In the case Rabia Khatoon v. Mukhtar Ahmed[5], it was held that if the suit for
restitution of conjugal rights is brought up after the consummation of marriage with the
free consent of wife, then the decree will be passed on the condition of payment of
prompt dower.

ii. Right to dower as a debt:

The Privy Council has held that dower is ranked as a debt which must be paid to the
widow along with the other creditors out of the estate of the husband on account of his
death. If the husband is alive, then wife can claim for dower debt by filing a suit against
him. After the death of husband, widow can claim for dower by filing suit against the
other heirs of the property from which the amount of dower has to be recovered.
Heirs of deceased husband are not personally liable for the payment of dower debt; they
are liable to the extent in which they inherit the property of the deceased. If the property
of the deceased husband is already in the possession of the widow, then the other heirs
of the deceased are entitled to recover their shares according to the payment of the debt
proportionate to their shares.
In the case of Syed Sabir Hussain v. Farzand Hussain[6], a Shia Muslim took legal
responsibility for the payment of dower of his minor son that if he fails to do pay then he
will pay instead of the son, after the death of the father payment of dower was done
from his estate as he was liable to pay his sons dower and every heir was responsible to
pay for the dower proportionate to their share.

iii. Right to retain possession in lieu of unpaid dower:

Widow has right to retain the possession of the property of her deceased husband which
53
she has already obtained lawfully and without any force or fraud against other heirs and
creditors of the property until the amount of dower is paid. The right to retain the

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

property does not her the owner of the property, therefore she cannot alienate the
property. The right to retain the property also arises in case of divorce.
Right to retain the possession of the property by the widow is for special purpose, so she
has to satisfy the amount of dower as soon as possible from that property. If the widow
is not in possession of the property or has lost it then she cannot claim for the possession
of the property.

Features of right to retain the possession are:

a. No right to retain the possession during the continuance of marriage:

Wife cannot retain the possession of her husband�s property during the
continuance of marriage. This right only arises after the dissolution of marriage
either by death or divorce.

b. Actual possession:
The right of retention means to continue the possession of the property until the
dower debt is paid. Therefore, the wife or widow must be in actual possession of
the property after the dissolution of the marriage and if the wife or widow is not
in actual possession of the property then she cannot retain the possession.

c. Right of retention not analogous to a mortgage:

The wife or widow do not have interest in the property, she has retained the
property as a mortgage. But in case of mortgage, the mortgagee retains the
property under an agreement made between him and the owner of the property
and in case of retention by wife or widow, that right has conferred upon him by
law.

d. Not a charge:
54
The right to retention does not create a charge on the property as the wife or
widow is not a secured creditor. And if the property has been mortgaged to

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

someone by the husband when the wife/widow was having the possession of that
property, then the mortgagee can sell the property and dispose the possession of
wife/widow.

e. A possessory lien on property is no title:

Wife or widow can only satisfy the amount of dower through rents and profits
from the property, she does not get the title of the property. The title goes to the
heirs of the husband including widow. She has no right to sell or mortgage the
property to satisfy the amount of dower, she can only alienate her share in the
property not the share of other heirs. And if she alienates the whole property
then the other heirs become entitled to recover the possession of their shares,
and that share will be given to them without the payment of dower proportionate
to their shares. Widow can acquire the possession of the property if she has been
dispossessed by the heirs under Section 9 of the Specific Relief Act, within the
period of 6 months, and if she fails to do so, then she loses her possession over
the property and if the dispossession is caused by the trespasser, then she can file
case under Article 12 of Indian Limitation Act within 12 years.

In the case of Maina Bibi v. Chaudhary Vakil Ahmad[7], Muinuddin died in 1890
leaving immovable property. In 1902, respondent who were the heirs of the
property filed case against the widow (Maina Bibi) claiming immediate possession
of the property. Widow pleaded that the property was gifted to her by her
husband and therefore she is entitled to retain the possession of the property
until the amount of dower is satisfied from the property.

Trial Judge held that the heirs can acquire the possession of the property on the
condition that they pay the widow Rs. 25,357 within the period of 6 months and 55
the decree also included that if the respondents fail to pay the amount, then the
suit will be dismissed. The respondents did not pay and the widow continued her
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

possession over the property. Later in year 1907, the widow executed two deeds
of transferring the possession of her husband�s property to the donees and
from the terms of the deeds it was obvious that the widow was giving the title of
the property to the donees. In 1915, the respondents again filed suit against the
widow claiming the possession of the property unconditionally because under
Muslim Law, she cannot transfer the title of the property for which she has only
right of retention for the payment of dower.

The appellant pleaded that the suit filed was res judicata and the claim should not
be entered entertained by the court as it has limitations. Their Lordship of the
Privy Council has held that the possession retained by the widow is lawful and the
right to retain the property extends till the payment of dower is satisfied and this
right is conferred upon her by Muslim Law. They further observed that the right
to retain is only to satisfy the amount of dower, she has no estate or interest on
the property as an ordinary mortgagee, she has no right to alienate the property
through sell, gift, mortgage, etc.

f. Widow in possession liable to account:

Widow is bound to account the profits and rents received out the property to the
other heirs of her deceased husband while she is entitled to charge interest on
the dower which is due to her and to set it off against the net profit.

g. Can sue heirs:

widow can sue the heirs of her deceased husband for the recovery of the amount
of dower out of their shares.

h. Right of retention whether heritable or transferable: 56

There is a difference in the judicial opinion on the widow�s right of retention is
whether heritable or transferable.
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

1. One view is that the right to retention is a personal right and is not a lien,
therefore it cannot be transferred through sale, gift or otherwise and it
cannot be transferred to the widow�s heirs on her death.

2. The second view is by Mysore High Court that the right to retention is
both heritable and transferable as the right to retention can be exercised
by the heirs of the widow on her death. In the case Azizullah v. Ahmad, it
was held that the right to retention is heritable without expressing any
opinion whether it is also transferable.

3. Allahabad High Court held in a case that the right to retention is both
transferable and heritable.

Difference Between Sunni And Shia Law Relating To Dower

Sunni Law Shia Law

The minimum amount of specified There is minimum amount of specified

dower is 10 dirhams. dower.

There is no maximum amount of proper The maximum amount of proper dower

dower. is 500 dirhams.

There is maximum amount of specified The maximum amount of specified

dower. dower is also 500 dirhams.

In case the marriage is dissolved by

death of husband, and the payment of Payment of dower will not be due if the

dower is not specified or it has been marriage has not been consummated. 57

agreed that no payment of dower will be

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

done by the husband, in such case the

amount will be due whether the
marriage has been consummated or not.

Any agreement which states that no Such agreement will be valid if the
dower shall be due is void. agreeing party are sane and adult.

In the absence of agreement, a

The whole amount of dower will be
reasonable part of dower will be
considered as prompt dower.
considered as prompt.

Conclusion
Marriage is a religious duty of every Muslim and it is considered to be a moral
safeguard and a social need. The Prophet has also said Marriage is my tradition
whosoever keeps away there from is not from amongst me.

Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a

nature of civil contract. Marriage is necessary for the legitimization of a child.
When the marriage is done in accordance to the prescribed norms it creates
various rights and obligations on both the parties.

Divorce under muslim law

Under Muslim law the divorce may take place by the act of the parties themselves
58
or by a decree of the court of law. However in whatever manner the divorce is

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

effected it has not been regarded as a rule of life. In Islam, divorce is considered as
an exception to the status of marriage.

Classification of Dissolution of Marriage

The dissolution of marriage under Muslim law can be studied under three heads:

1. Extra judicial divorce.

It can be again divided into three:

i) Divorce at the instance of husband (talaq) In this, there are two types of 59
dissolutions: a) talaq pronounced by the husband himself; b) talaq delegated by
the husband (talaq-i-tafweez).
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

ii) Divorce at the instance of wife: Under this heads, fallsa) khula b) ila c) zihar d)
Lian.

iii) Divorce by mutual consent (mubaraat).

2. Judicial separation.

3. Judicial divorce.

By Husband
There are four modes available before a husband for dissolving the tie of marriage:
1. Talaq- ul- Sunnat
This form of talaq is effective in accordance with the traditions established by
the Prophet. It is further divided into two parts:-
• Ahsan
It is known as the best form of talaq as the name clarifies the same. The procedure
followed by the husband is as follows –
• He has to make a pronouncement of divorce in a single sentence, such pronouncement
must be made in a purity state(when a woman is free from her menstrual cycle).
• A husband must not indulge in any form of sexual intercourse during the iddat
period(period of chastity a Muslim woman is bound to observe after the dissolution of
marriage, either by the death of her husband or by divorce) and if he does so, then it will
be considered as implied revocation of talaq. It is pertinent to note that once the iddat
period has expired, the divorce becomes irrevocable.
• When the partners have not consummated, talaq-e-Ahsan can be pronounced even if
the wife is in her menstruation.
• Hasan
The Arabic meaning of Hasan is good, therefore divorce pronounces through Hasan 60

mode is a good but lesser worth than the one pronounced in Ahsan. Husband has to
make three successive pronouncements for divorce.
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

• In the case of a menstruating wife, such three pronouncements should be made in

three consecutive tuhr(state of purity).
• In the case of a non-menstruating wife, pronouncement should be made at three
successive intervals of 30 days.
No sexual intercourse should take place during these periods of three pronouncements
and if such an act takes place then the process of divorce will be revoked.
Talaq Hasan becomes irrevocable on the third pronouncement irrespective of iddat
period.
2. Talaq-ul- Biddat
This form of talaq is introduced by “Umayyads” in order to escape from the strictness of
Law. This is a sinful form of talaq, as it is recognised among the Hanafis. Sunni law
recognises this mode of talaq, though recognised as sinful by that too. Whereas Shias
and Malikis do not recognise this mode.
• Three pronouncements made in a single tuhr either in a single sentence or in separate
sentences eg. “Talaq, talaq, talaq” or “I divorce thee, I divorce thee, I divorce thee.”
• Single pronouncement clearly indicates an intention to dissolve a marriage and makes
it irrevocable. It is usually pronounced as – “I divorce thee irrevocably”.
Partners separated through triple talaq can’t remarry without the formality of the
woman marrying another man and getting divorced from him, this process is called Nikah
Halala.
In the recent judgement of Shayara Bano vs Union Of India And Ors., Supreme Court of
India declared that the practice of triple talaq is unconstitutional, as this form of Talaq is
violative of the fundamental right provided under Article 14 of the Constitution of India.
• Ila (Vow of Continence)
The situation wherein a husband who is of sound mind and has attained the age of
majority swears in the name of God that he will not have sexual intercourse with his wife
61
and leaves her to observe iddat, he is said to make Ila.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

If the husband resumes sexual intercourse within the iddat period being observed by
wife, it will lead to cancellation of Ila It is pertinent to note that Ila is not practised in
India.
• Zihar (injurious Assimilation)
A husband must be of sound mind and above the age of 18 years to be eligible to use this
mode dissolution of marriage. If he compares his wife to his mother or any of the female
within prohibited degrees, the wife has a right to refuse to have sexual intercourse with
him. Such refusal can be accepted until he has expiated himself from penance prescribed
by law. Muta marriage(practised among Shias) which admits no other sort of divorce
may be dissolved by zihar.
Such form of divorce is no longer in use anymore.
Talaq by the wife
Divorce given by wife under the husband’s delegated power.
• Talaq-e-tafweez
This is the only way through which a woman can give divorce to his husband, however,
such power to give divorce needs to be delegated by the husband only. It is a form of
an agreement made either before or after marriage providing that wife will be privileged
to get separated from her husband via divorce under the specified condition as:-
1. In case the husband marries a second wife
2. The husband is unable to maintain her for a specified period of time any other condition
that must not be opposed to public policy.
If the conditions agreed in the agreement by the husband are well practised by him then,
the wife without any prejudice to Law can dissolve her marital ties.
The fact that husband delegates the power to the wife does not dispossess him of his
right pronounce talaq.

Divorce by Mutual Consent

62

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Although the practice of giving Divorce by mutual consent was not recognised in the
Muslim Law, it was only available to the Muslim women after the enactment
of Dissolution of Muslim Marriages Act, 1939.
1. Khula
The literal meaning of khula is “to lay down” before the law. The husband lays down his
right over his wife. It signifies an arrangement entered into to dissolve a connubial
connection in lieu of compensation paid by the wife to her husband out of her property,
everything that can be given as dower.
Khula is a divorce with mutual consent and at the instance of a wife in which she agrees
to give some consideration to her husband. It is basically a “redemption” of the contract
of marriage.
Essentials
• There must be an offer from the wife’s side
• Offer must be accepted by the husband with the consideration for it.
• Observance of the iddat period is necessary.
Under Shia law, husband can’t revoke divorce once accepted whereas the wife has been
given the power to reclaim the consideration during the iddat period.
2. Mubarat
It signifies mutual discharge from the marital tie. The most essential element is that the
mutual consent of both the partners is required in regards to the dissolution of marriage.
In this mode of divorce-
• Offer can be made from either of the sides.
• Acceptance of offer makes divorce irrevocable.
• Iddat is necessary
Under Shia law, parties can dissolve their marriage, if it is not possible for them to
continue their marriage by way of mubarat.
63
The last mode mentioned in the above table for dissolution of marriage is, by way of
judicial separation.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Dissolution of Muslim Marriage Act, 1939.

Further, there are two ways-
• Lian
Lian can simply be described as the wrong charge of adultery on wife by her husband.
Whenever a husband imposes false adultery charges on his wife, then a wife can sue him
and can also obtain a divorce on the same ground under the Act, by filing a regular suit
for dissolution of marriage. In case of Zafar Husain v Ummat – ur – Rahman, Allahabad
High Court held that a wife under Muslim law is entitled to file a suit against her husband
for dissolution of marriage and can obtain decree on the ground that she was falsely
charged with adultery by him.
Essentials
• A husband must be adult and sane.
• He charges his wife of adultery.
• Such a charge must be false.
• False charges do not ipso facto (by that fact itself) dissolve the marriage, it just provides
a ground to the wife to move to the court to dissolve the marriage.
• Marriage will continue until the decree for dissolution of marriage is passed by the court.
• Judicial seperation via mode of lian is irrevocable.
• This mode is applicable only to Sahih marriages not on fasid ones.
Retraction can be made by the husband before the end of the trial, admitting that he
made the charge of adultery against her wife and such charge was false.
• Faskh
Quran says that husband and wife are duty bound to respect each other and treat each
other respectfully and obey all lawful orders of each other.
If both of them find that they can’t live as husband and wife further, they can approach
qazi who after careful examination may terminate their marriage.
64
Section 2 of Dissolution of Muslim Marriage Act, 1939 states nine grounds on which a
Muslim wife can obtain a decree of divorce:-

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Absence of Husband– whereabouts of the husband are not known from the past four
years. Dissolution of marriage decree on this ground will take effect after six months
from the date of such decree is passed, and during that period if the husband appears in
person or through an authorizes agent. Court if satisfied from same may set aside the
said decree.
• Failure to maintain- If a husband fails to provide maintenance to his wife for two years.
There is no defence available before husband on the ground of poverty, failing health or
unemployment.
• Imprisonment of a husband- If the husband is imprisoned for seven years or more.
• Failure to perform marital duties- If, without any reasonable cause, the husband is
unable to perform his marital obligations for three years.
• Impotency of husband- husband was impotent at the time of marriage and continues to
be so. If the husband within one year from the date of the order obtained by wife for
dissolution of marriage on the grounds of impotency on application satisfies the Court
that he ceased to be impotent. If the husband satisfies the court, then no decree shall be
passed on this ground.
• Insanity, leprosy or venereal disease- If the husband is insane or suffering from leprosy,
or any venereal disease from a period of two years, judicial divorce by wife can be
claimed on the same ground.
• Repudiation of marriage by wife- If a girl is married before the age of 15 years by her
father or guardian, then under Muslim law she has been provided with a right to
repudiate such marriage after attaining the age of 18 years provided that marriage is not
consummated. She is entitled to a decree of divorce for same.
• Grounds of dissolution recognised by Mohammedan Law- Wife is also entitled to obtain
a divorce on the ground recognised valid under the law.
• Cruelty by husband- if the husband treats his wife with cruelty, then she can approach
65
the Court and claim for a decree of judicial separation on the same ground.
Some of the ways through which grounds for cruelty could be claimed as follows.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

• Physical assault.
• Making defamatory statements affecting her reputation.
• Forces her to lead an immoral life.
• Obstructing her from practising her religion.
• Husband having more than one wife and does not treat them equally.
Talaqnama
Talaqnama is talaq given in the written form. Talaq via talaqnama can be provided in the
absence of wife and also there is no necessity to be signed in the presence of Qazi or
wife’s father.
• Husband has to execute a proper deed.
• A deed must contain the name of the women whom he has divorced and his name.
Points to be considered for a valid talaq
1. Talaq pronounced under intoxication is not recognised valid under Muslim law.
2. For a valid talaq, intention is not an essential element.
3. Husband may give talaq by mere words without any talaqnama or deed.
Talaq made during death illness
1. An ailing Muslim (generally men) has been given the power to pronounce talaq, just to
prevent his right of inheritance moving to his wife after his death.
2. If the man pronounces irrevocable talaq in death illness and dies before the expiry of the
iddat period, a wife is entitled to claim her share.
3. In case the husband dies after the expiry of the iddat period than there is no right of
inheritance.
Legal effects of divorce
• Mutual rights of inheritances cease.
• Cohabitation becomes illegal, and children born after such intercourse will be
illegitimate.
66
• Dower becomes immediately payable.
• Parties can contract another marriage.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

• Wife is entitled to maintenance during the iddat period.

Conclusion
After the 2017 judgement of the supreme court held and declared triple
talaq unconstitutional, under Muslim law, both husband and wife are given equal rights
to dissolve their marital relationship.
When two people enter into a marital relationship, they might not know each other so
well, as they got to know each other after living together. And after that, if there is no
compatibility between the two, living apart is the best choice to be made.
Bad relations may spoil the life of both the individuals and under Muslim law, talaq is an
ancient practice and is not recognised as a sinful act, unlike under Hindu law.

Special Marriage Act, 1954

The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for civil
marriage (or "registered marriage") for people of India and all Indian nationals in foreign
countries, irrespective of the religion or faith followed by either party.[1] The Act originated
from a piece of legislation proposed during the late 19th century. Marriages solemnized under
Special Marriage Act are not governed by personal laws
The Special Marriage Act, 1954 replaced the old Act III, 1872. The new enactment had three
major objectives:
1. To provide a special form of marriage in certain cases,
2. to provide for registration of certain marriages and,
3. to provide for divorce.
Applicability
Any person, irrespective of religion.
1. Hindus, Muslims, Buddhists, Jains, Sikhs, Christians, Parsis, or Jews can also perform marriage
under the Special Marriage Act, 1954.
2. Inter-religion marriages are performed under this Act.
67
3. This Act is applicable to the entire territory of India and extends to intending spouses who are
both Indian nationals living abroad.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

4. Indian national living abroad.

▪ Provisions of the Special Marriage Act:

o Section 4: There are certain conditions laid down in Section 4 of the Act:

• It says that neither of the parties should have a spouse living.

• Both the parties should be capable of giving consent; should be sane at the time of
marriage.
• The parties shall not be within the prohibited degree of relations as prescribed under
their law.
• While considering the age, the male must be at least 21 and the female be 18 at least.
Sections 5, 6 and 7 of the Act
5. Notice of intended marriage.― When a marriage is intended to be solemnised under this Act,
the parties to the marriage shall give notice thereof in writing in the form specified in the Second
Schedule to the Marriage Officer of the district in which at least one of the parties to the
marriage has resided for a period of not less than thirty days immediately preceding the date on
which such notice is given.
6. Marriage Notice Book and publication.― (1) The Marriage Officer shall keep all notices given
under Section 5 with the records of his office and shall also forthwith enter a true copy of every
such notice in a book prescribed for that purpose, to be called the Marriage Notice Book, and
such book shall be open for inspection at all reasonable times, without fee, by any person
desirous of inspecting the same.
(2) The Marriage Officer shall cause every such notice to be published by affixing a copy thereof
to some conspicuous place in his office.
(3) Where either of the parties to an intended marriage is not permanently residing within the
local limits of the district of the Marriage Officer to whom the notice has been given under
Section 5, the Marriage Officer shall also cause a copy of such notice to be transmitted to the
Marriage Officer of the district within whose limits such party is permanently residing, and that
Marriage Officer shall thereupon cause a copy thereof to be affixed to some conspicuous place in 68
his office.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

7. 7. Objection to marriage.― (1) Any person may, before the expiration of thirty days from the
date on which any such notice has been published under sub-section (2) of Section 6, object to
the marriage on the ground that it would contravene one or more of the conditions specified in
Section 4.
(2) After the expiration of thirty days from the date on which notice of an intended marriage has
been published under sub-section (2) of Section 6, the marriage may be solemnised, unless it has
been previously objected to under sub-section (1).
(3) The nature of the objection shall be recorded in writing by the Marriage Officer in the
Marriage Notice Book, be read over and explained if necessary, to the person making the
objection and shall be signed by him or on his behalf.
Section 5 of the Act provides for intimation by the parties of their intention to marry by a notice.
Section 6(1) provides for the recording of notice given under Section 5 and entering of a true
copy of it in the Marriage Notice Book. The second part of this clause provides that such book
shall be open for inspection to any person desirous of inspecting the same.

The Marriage Officer must inquire into any objections received to the
Section 8 marriage under S. 7. The Officer can uphold the objection and refuse
to solemnize the marriage

In inquiring into the objection, the Marriage Officer will have all the
powers of a civil court when trying a suit. This includes the power to
Section 9
summon and examine witnesses, or the ability to compel submission
of documents.

If the Marriage Officer in the state of Jammu & Kashmir receives any
objection to a marriage in the state, and has a doubt as to the
Section 10
objection, the Officer must transfer the inquiry to the Central
Government and then act in conformity with its decision.

Nandini Praveen v. Union of India

69
The requirement of providing public notice and permitting objections to the marriage does not apply to
couples marrying under the Hindu Marriage Act or Islamic personal law. This violates the right to equality
and against discrimination on the basis of religion under Articles 14 and 15. Further, these provisions
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

open the private information of individuals to scrutiny and impedes their right to control access to such
information. This violates the right to privacy which has been recognized as an integral part of the right to
life and liberty under Article 21.

Justice S. Ravindra Bhat in case of Pranav Kumar Mishra v. Govt. of NCT, delhi, WP(C) No.
748/2009 Delhi High Court, observed : “the special marriage Act was enacted to enable a special
form of marriage for any Indian national professing different faiths or desiring a civil form of
marriage. The unwarranted disclosure of matrimonial plans by two adults entitled to solemnize it
may, in certain situations, jeopardize the marriage itself. In certain instances it may even
endanger the life or limb of one or the other party due to parental interference. In such
circumstances, if such a procedure is being adopted by the authorities, it is completely whimsical
and without authority of law.”

Suggestions
1) The provision of a month gap as mention in section 5 should be annulled so as to prevent the
parties from being harassed.

2) Section 4 are reasonable yet the fact that similar conditions are not applicable to marriage
held outside the purview of the Act makes one wonder whether they are just.

3) The need for such a provision as mention in section 19 is inexplicable especially when such
severance could result in deprivation of inheritance and other rights of the couple intending to
marry under this so called secular Act.
Solemnization of Marriage
After clearing objections, the marriage may be solemnized at the expiry of 30 days, if any field.
The notice is valid for 3 months. Before the marriage is solemnized, the parties and three
witnesses should sign declarations in the prescribed form in the presence of the marriage officer.
In whatever form the parties may choose to adopt, marriage can be solemnized. The marriages
can be solemnized either within a reasonable distance from the office of the marriage officer or 70

at such other place as the parties may wish.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Section 22 of Chapter V of the Special Marriage Act, 1954, sets out the conditions under which a
petition for restitution of conjugal rights would be based.
22. Restitution of conjugal rights – When either the husband or the wife has, without reasonable
excuse, withdrawn from the society of the other, the aggrieved party may apply to 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 as to whether there was a reasonable excuse for
withdrawal from society, the burden of proving a reasonable excuse is on the person who
withdrew from society.
judicial separation.
Section 23 of the Special Marriage Act provides for the relief of judicial separation.
(1) A petition for judicial separation may be presented to the District Court either by the husband
or the wife:
(a) on any of the grounds specified in sub-section (1) and sub-section (1A) of Section 27 on which
a petition for divorce might have been presented, or
(b) on the ground of failure to comply with a decree 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 judicial separation
accordingly.
(2) Where the Court grants a decree for judicial separation, 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.
Difference between the Hindu Marriage Act and Special Marriage Act
The Hindu Marriage Act only applies to the Hindus, whereas the Special Marriage Act extends to
all Indian citizens.
The Hindu Marriage Act was enacted in 1955 by the Parliament of India Act. The Hindu Marriage
Act allows for an already solemnized marriage to be registered. It does not provide for Registrar 71
for solemnization of a marriage. Parties to the marriage must apply to the Registrar in whose
jurisdiction the marriage is solemnized or to the Registrar in whose jurisdiction either party to the
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

marriage has resided for at least six months immediately before the date of marriage. Both
parties must appear with their parents or guardians or other witnesses before the Registrar
within one month from the date of marriage. There is a provision for the Registrar, and
subsequently, the District Registrar concerned to condone delay for up to five years.
The Special Marriage Act, 1954, is an Act of the Parliament of India enacted to provide the
citizens of India and all Indian nationals in foreign countries with a special form of marriage,
regardless of the religion or faith practised by either party. The Special Marriage Act provides for
marriage solemnization as well as registration by a marriage officer. The parties to the intended
marriage must notify the marriage officer in whose jurisdiction at least one of the parties has
resided for at least 30 days prior to the date of the notice. It should be put in his office at some
conspicuous place. If either party lives in another Marriage Officer’s area, a copy of the notice for
similar publication should be sent to him. If no objections are received, the marriage may be
solemnized after the expiry of a month from the date of publication of the notice The Marriage
Officer has to enquire into them if any objections are received and make a decision either to
solemnize the marriage or to refuse it. Registration will be made after the marriage has been
solemnized.
Any marriage already celebrated, subject to certain conditions, may also be registered under the
Special Marriage Act after giving a 30-day public notice.
Maintenance For Wife & Children: Under Special Marriage Act, 1954
Alimony During The Pendency Of The Case In The Court
Where, in any proceeding under the Special Marriage Act, 1954, it appears to the District Court
that the wife does not have enough independent income for her support and the required
expenses of the proceeding, the wife may, at the request of the court, order the husband to pay
her the costs of the proceeding and, in the course of the preceding proceeding, weekly or
monthly, such amount should regard to husband’s income, which the court may seem
reasonable.

Permanent Alimony and Maintenance

Any court exercising jurisdiction under the Special Marriage Act of 1954 may, at the time of the
72
passing of any decree or at any time after the decree, order the husband to secure the wife’s
maintenance and support, if necessary, by charge on the property of the husband, such gross
sum or such monthly or periodic payment of money for a period of time not exceeding her life.
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

If the District Court is satisfied that there is a change in the circumstances of either party at any
time after it has rendered an order pursuant to subsection
(1), it may, in either party’s case, alter, adjust or cancel any such order in such a manner as it may
appear to the Court to be reasonable.
(3) Where the District Court is satisfied that the wife for whom an order has been made pursuant
to this section has remarried or has not lived a chaste life, it may, in the case of the husband,
change, alter or cancel any such order and in such a manner as the Court may deem appropriate.

Case Laws
Maintenance defined
Maintenance requires — (i) in all cases provisions relating to food, clothes, housing, education
and medical care and treatment; (ii) in the case of an unmarried daughter also the appropriate
expenses and incidents of her marriage, Section 3(b), Hindu Adoption and Maintenance Act,
1956.
Maintenance should also include a residential provision. Maintenance is provided to allow the
lady to live the way she was accustomed to, more or less. Therefore, the definition of
maintenance must include food and clothing provision and the like, taking into account the
fundamental need of a roof over the head, Mangat Mal v. Punni Devi, (1995) 6 SCC 88.
Sustenance defined
Maintaining a wife for her ‘sustenance’ does not mean animal living, but it means leading a life in
the same way that she would have lived in her husband’s house. Bhuwan Mohan Singh v. Meena,
(2015) 6 SCC 353 Husband is obliged to allow his wife to live life with dignity according to their
social status and strata.
Wife defined
“Wife” Contains a woman who was divorced by or obtained divorced from her husband and not
remarried, Section 125(1) Explanation (b), CrPC 1973.
“Wife” means a legally wedded wife under Section 125 CrPC and also involves a divorced wife, D.
Velusamy v. D. Patchaiammal,(2010) 10 SCC 469.
Maintenance only to legally wedded wife
73
Only a woman who is legally married has a right to maintenance. A Hindu woman who marries a
Hindu male who has a living wife is not entitled to maintenance because the marriage is void,
Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, (1988) 1 SCC 530.
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Maintenance to ‘previous wife’

A Muslim husband who contracts another marriage or takes a mistress is liable to pay
maintenance to the previous wife who is also entitled to live separately, which is payable from
the date of the other marriage. Regardless of religion, the husband can not alleviate his liability
by offering to take back the wife and maintain her, Begum Subanu v. A.M. Abdul Gafoor,(1987) 2
SCC 285.
Wife ‘living separately with mutual consent’ does not include divorced wife
Under Sections 125(1) and 125(4) of the CrPC, the meaning of’ wife’ is different. Section 125(4)
refers to a married woman. Wife living separately from a husband with mutual consent does not
mean wife who gets a divorce by mutual consent and lives separately and therefore maintenance
cannot be refused on this ground, Vanamala v. H.M. Ranganatha Bhatta, (1995) 5 SCC 299.
Is an earning wife entitled to maintenance?
Wife having her own school and having wetland is in a better financial position than a husband
who does not do well in his profession and has no land. It is therefore unnecessary for the wife to
pay any maintenance, Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.
Wife’s income to be accounted for determining maintenance
The income of Wife must be taken into consideration in determining the amount of maintenance
payable to her. In Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386, it is not an absolute right of a
neglected wife to get maintenance, nor it is an absolute liability of the husband to support her in
all circumstances.
Maintenance to a woman in a live-in relationship
The Supreme Court expressed its opinion that a broad interpretation of “wife” should include
cases where men and women have lived together as husbands and wives for a relatively long
period of time (live-in relationship/suspected marriage/de facto marriage/cohabitation). Strict
proof of marriage should not be a prerequisite for maintenance under S. 125 CrPC, in order to
fulfil the true spirit and purpose of the beneficial provision of maintenance, Chanmuniya v.
Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141. (However, this decision was referred to a
larger bench).
Recently, it is claimed that a woman in a living relationship has an effective remedy for pursuing 74

maintenance under the Protection of Women from Domestic Violence Act, 2005, even if it is
presumed that she is not entitled to the same under Section 125 CrPC. In addition, the victim
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

would be entitled to more protection under the Domestic Violence Act than what is envisaged
under Section 125 CrPC, Lalita Toppo v. the State of Jharkhand, 2018 SCC OnLine SC 2301.
Woman knowingly entering in a live-in relationship with a married man
In the nature of marriage, all live-in relationships are not relationships. There must be some
inherent/essential characteristics of marriage, although not a legally recognized marriage. A live-
in relationship between an unmarried woman who knowingly has a relationship with a married
male can not be defined as a relationship in the “nature of marriage” and her status will be that
of a concubine or mistress and is therefore not liable for maintenance, Indra Sarma v. V.K.V
Sarma, (2013) 15 SCC 755.

Essential and Procedures of Christian Marriage

Introduction
In India the procedure of Marriage differ from community to community. In India Christian
marriage was introduced, when Britishers came to India or simply it was started in British Era and
enacted as The Indian Christian Marriage Act, 1872. In Christian for the valid marriage age of boy
is 21 or above 21 and girl age should be 18 or above 18. The age criteria are defined under Sec.
60 of the Indian Christian marriage act.
Essentials of Christian Marriage
Under Sec. 4 of Indian Christian marriage Act, 1872. The marriage is VOID, if any marriage
between the Christian or when only one person is Christian i.e., when it is solemnized according
to the provision of the act the marriage is Void And it is provided in Sec.4 Of Indian Christian
Marriage Act.
There are 4 Essential Conditions for Valid Christian Marriage
1.Age of Bride should not be less than 18 and the Groom age should not be less than 21[Sec.60]
2.either of the Parties must have spouse still living at the time of marriage[ Sec.60].
3.The marriage ceremony must take place in presence of the person licensed [Sec.9]and in
presence of at least two witness.
4.According to Personal law if there is no concerned of either party or either party forbids the
75
concern of marriage then nothing in the Act shall Validate any marriage. [Sec.88]

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

For Instance, inter-caste marriage between a Christian and another person will be invalid, if the
personal law governing the other person prohibits marriage with a Christian.
In every Indian Marriage in all communities there are some procedures which are must to
follow.
So, In Indian Christian Marriage too there are rules and procedures for solemnize of marriage.
Time for Solemnize Christian marriage
Christian marriage can be Solemnized only between time interval of 6am to 7 pm. At any time
other than between 6am to 7 pm or in absence of two witness if marriage solemnize then person
shall be punished with imprisonment which may extend to three years with fine.
but there are some exceptions ~
i). There should be special license Authorize by a clergyman of Church to the Clergyman who will
solemnize the marriage at any hour other than 6am and 7pm.
ii). Marriage being solemnized by a clergyman of the Church of Scotland according to the
Church’s rules, rites, and ceremonies.
iii). Marriage can be solemnized by Clergyman of the Church of Rome when he has received the
general or special license.
Place of solemnization of Christian Marriage
The marriage only solemnized at a church where worship is Generally held in a form of church of
England as permitted by Sec. 11 to Clergyman of the church. Otherwise if there is no Church
within a 5 miles distance then special license is permitted to the clergyman to solemnize the
marriage at any other places.
The process for solemnization of Christian marriage deals under section 12 to 26 deal with
religion license by minister to solemnize marriage under the Indian Christian Marriage Act.
Sec. 12 deals with the notice of Marriage:
Either of parties is required to give written notice, in form contained in first schedule of the Act,
informing details of other party to whom want to marry to the concerned Minister. The details
mentioned in the notice should be: NAME, SURNAME, PROFESSION, & RESIDENCE of both
marrying parties.
Sec. 13 deals with the publication of Notice; 76

There is requirement of the Minister concern if the parties want to marry in the Church or their
marriage to be solemnized in a Church.
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Sec. 14; Notice of intended marriage in private dwelling.

If it be intended that the marriage shall be solemnized in a private dwelling, the Minister of
Religion, on receiving the notice prescribed in section 12, shall forward it to the Marriage
Registrar of the district, who shall affix the same to some conspicuous place in his own office.
Sec. 15 deals, where either party to the marriage is Minor;
Here the Ministry is required to send a copy of notice to marriage registrar or senior marriage
Registrar of concerned District.
Sec. 16 deals with the procedure of receipt of Notice;
The send notice to marriage Registrar is required to affix the notice in some conspicuous place in
his office & senior marriage Registrar is required that in same district the notice should be
forwarded to each marriage Registrar for affixation.
Sec. 17 deals with the issue of Certificate;
The ministry shall issue a certificate to the parties indicating the giving of the notice and making
of Declaration.
Sec. 18 deals with the Declaration;
If both parties are minor, they need to be present personally before Minister & declaration that
there is no affinity to marry, there is proper consents, mandated by law have been obtained.
Sec. 19 deals with the consent of father or guardian or mother.
for the marriage consent of father or by Guardian if father is dead is required. If there is no
Guardian then Minor Mother consent is required for marriage.
Sec. 20 deals with power to prohibit by notice issue of certificate.
person who have prohibited the issue of certificate for marriage by written notice to the
Minister.
Sec. 21 deals with procedure on receipt of notice.
the notice in which Minister cannot issue a certificate unless satisfied, upon examination for
prohibition of the marriage.
Sec. 23 deals issue of certificate to Indian Christian;.
Before issuing the certificate the Minister shall concerned whether Indian Christian is cognition of
the purport and effect of the notice/certificate. 77

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Sec. 24 deals with form of certificate;

The Act requires the certificate issued under sec. 17 to be in the form contained in second
schedule to the Act.
Sec. 25 Deals with solemnization of marriage after issuing the certificate. Minister is entitled to
solemnize the marriage between the parties in presence of two witness.
Sec. 26 deals with the marriage which is not solemnize within 2 months from the date of
insurance of certificate. The certificate shall become Void, and marriage will not be entitled to
solemnize if parties will not get the fresh certificate.

Important provisions of the Family Courts

Act, 1984
The Family Courts Act, 1984 was enacted on September 14, 1984. This act contains
6 chapters and 23 sections. The act was enacted with the main aim of establishment
of family courts for rapid and safe settlement in the disputes arising in family and
marriage and the matters related therewith.

Establishment of family courts in India

According to Section 3 of this act, the State government, after consultation with the
High Court shall establish the Family Court in every area of the state where the
population is exceeding 1 million or in the area where the State government deem
necessary.

The State government, after consultation with the High Court, shall specify the limits
78
of the area till where the jurisdiction of the Family Court extends. It may also
reduce, increase, or alter such limits of the jurisdiction of the Family Court.

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Appointment of judges
The provisions related to the appointment of judges in the Family court are dealt under Section
4 of the Family Courts Act, 1984. The state government has the power to appoint one or more
persons as the judges of the Family Court after consulting with the High Court. The state
government, after consulting with the High Court, may also appoint any of the judges as the
Principal Judge and any other judge as to the Additional Principal Judge. The main function of the
Principal Judge is to distribute the business of the court among the various judges and the
Additional Principal Judge is appointed to exercise the powers of the Principal Judge in his
absence or when he is not able to do so due to illness or any other cause.
This section also led down the following qualifications which are required for appointing as judge
of the Family Court:
• He must have worked for a term not less than seven years in a Judicial Office in India or in the
office of a Member of a Tribunal or any post under the Centre or a State which requires special
knowledge of law; or
• He must have worked as an advocate of a High Court or two or more courts of succession for a
term not less than seven years; or
• He must possess such qualifications as prescribed by the Central government after consulting
with the Chief Justice of India; or
• He must have not attained the age of sixty-two years.
In this process of selection of judges, it must be ensured that the person selected must know how
to settle a dispute by way of conciliation and counselling, to protect the marriage and to promote
the welfare of the children by their reason and experience. While selecting the judges, it must
also be ensured that the preference shall be given to the women.
The salary or honorarium, other allowances payable and other terms and conditions of the judges
of the Family Court will be decided by the State Government after consulting with the High
Court.

Jurisdiction 79

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

Section 7 of this act confers those power and jurisdiction on the family courts which are exercised
by the District Court or Subordinate Civil Courts in their suits and proceedings. The Explanation of
this section tells about the nature of the suits and proceedings, which are as follows:
• A suit or proceeding for the decree of nullity of marriage, or restitution of conjugal rights, or for
the dissolution of the marriage between the parties;
• A suit or proceeding for determining the validity of a marriage or matrimonial status of a person;
• A suit or proceeding in the matter related to the properties between the parties to a marriage;
• A suit or proceeding for an injunction or order arising out of a marriage;
• A suit or proceeding for declaring the legitimacy of a person;
• A suit or proceeding for maintenance;
• A suit or proceeding for the guardianship of the person, or custody of any minor.
Under Section 7(2), the family courts have also the power to exercise a jurisdiction which is
exercised by a Magistrate of the first class under Chapter IX of the Code of Criminal Procedure,
1973 and such other jurisdiction as provided by any other enactment.
How do family courts promote conciliation and speedy settlement of family affairs
The main aim of the Family Courts Act, 1984 was to provide quick and less expensive relief to the
parties in a less formal way with least technicalities. The object of the establishment of these
courts was to promote reconciliation between the parties and reach a stage of the agreement. It
is the duty of the Court to make reasonable efforts for the settlement. Therefore, the court works
with a conciliatory approach. There are some provisions of the act which suggests that the family
court follows a conciliatory approach to settle the disputes between the party.
Under Section 4 of the act, the judges appointed in the family courts should have the aim to
achieve the purpose of the act, which is to protect and preserve the relations and by way of
conciliation and counselling. The reasonable efforts should be made to settle the disputes by way
of an agreement.

Duty of the court to make reasonable efforts for reconciliation between

the parties
Section 9 of this act prescribes the duty of the family court to make efforts to promote
80
reconciliation between the parties. As, per Section 9(1), in the first instance, the family court, in
every suit or proceeding, shall make efforts to convince the parties to settle the dispute with an

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

agreement and for this purpose, the family court may follow the rules prescribed by the High
Court or follow such rules or procedure as the family court may deem fit.
According to Section 9(2), if the family court finds that at any stage of the proceeding there is a
reasonable probability of settlement between the parties, the court has the power to adjourn the
proceedings until the settlement is reached. And as per Section 9(3), the power prescribed under
sub-section 2 is an addition to the powers of the family court.

Help from medical and welfare experts

As to promote reconciliation between the parties, Section 12 prescribes that the family court can
take assistance from medical and welfare experts. According to this section, the family court is
open with an option to secure the services of a medical expert or any other person (preferably a
woman), whether related to the parties or not or any professional who will promote the welfare
of the family or any other person who can help the family court in discharging its functions.
Association of social welfare agencies and counsellors
According to Section 5 of the family courts act, the state government after consulting with the
High Court may make rules regarding the association of the following persons or institutions with
the family court:
• Organisations or institutions related to social welfare;
• A professional person who will work for the welfare of the family court;
• Any person who is working in the field of social welfare;
• Any other person whose presence will ensure the effective working of the family court.
Section 6 of this act provides that the state government after consulting with the family court
shall determine the number of counsellors, officers and other employees who will help the family
court in discharging its functions effectively and shall ensure the presence of such counsellors,
officers and other employees.
The counsellors play an important role in the working of the family court. Most of the cases of
the family court can be solved by effective counselling. So, the fair selection of counsellors for the
family court must be ensured.
Common cases heard in family courts
81
• Dissolution of marriage

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

India is one of the countries with the largest population, due to which there are many married
couples in the country. While having this large number of married couples, there will be more
chances of having more cases of disputes between the couples and their family. And for seeking
remedy they will surely approach the courts.
In India, the family court can accept the appeals for grant of decree of divorce under various acts
like Dissolution of Muslim Marriage Act, 1939, Muslim Women (Protection of Rights on Divorce)
Act, 1986, the Parsi Marriage and Divorce Act, 1936, the Divorce Act, 1869, the Special Marriage
Act, 1954, Foreign Marriage Act, 1969 etc. For the dissolution of Hindu marriage, one can file an
appeal for divorce under Hindu Marriages (validation of proceedings) Act, 1960.
In the case of Reddy Anada Rao v. Ms Totavani Sujatha, the appellant and the respondent were
living their life by following Christian religion but they got married as per the Hindu rituals in a
Hindu temple. The appellant i.e. the husband claimed that he was forced to marry the
respondent therefore, he appealed for the dissolution of his marriage and to set aside his
marriage certificate. The question was raised by the office of the family court that the marriage
was itself null and void as per the provisions of Hindu Marriage Act, 1955 so there is no need for
the suit. The judge held that the appeal for dissolution of marriage is not maintainable in the
family court as Section 5 and Section 11 of the Hindu Marriage Act has clearly laid down that the
marriage is null and void if it has been done with coercion or without the consent of any party.
Later, the husband appealed in the High Court for which the court held that as per the
Explanation (a) of Section 7 of Family Courts Act, 1984, the family court has jurisdiction in the
concerned matter. As per the provisions of this act, the family court has jurisdiction over the
disputes arising out of the marriage of any caste or creed.

• Child custody
The explanation (g) in Section 7(1) provides that the family court has jurisdiction to grant the
custody of the child to a proper person and to make that right person the guardian of a minor.
The cases related to the custody of the child are filed before the family court where he usually
resides. For example, if the father is residing in Uttar Pradesh and the mother along with the
minor child is residing in Mumbai and the father wants to have custody of the child then he has
82
to file the case in Mumbai’s family court. Thus, the family court has exclusive jurisdiction over
child custody cases. The family court has also the power to accept the petitions made under
the Guardian and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956.
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

• Security orders- domestic violence

The family courts act has not specifically mentioned the jurisdiction of the family court in matters
of domestic violence. And this is the area where family courts are lacking. Though the act hasn’t
made any provision related to the matters of domestic violence. However, there is a provision
under the Protection of women from Domestic Violence Act, 2005 (hereinafter DV Act),
according to which the family court can entertain the matters related to domestic violence. The
DV Act is not wholly a criminal law; it has also granted powers to the civil and family courts. As
per Section 26 of the DV Act, the victim can not only claim relief from the Magistrate but also
from the family court and other civil courts.
In the case of Sudhannya K.N. vs. Umasanker Valsan (2013), the Kerala High Court discussed the
scope of DV Act and held that the scope of DV Act is wide as it guarantees rights to women to
approach either magistrate or family court for filing suit according to her comfort zone. The court
also held that the family court has the power to pass the interim protection orders as well as
interim residence orders under Section 26 of the DV Act.
However, Section 26 is not used adequately because the powers of the family court are not
properly described as in the matters related to domestic violence and also the family courts are
not clear about their jurisdiction under Section 26 of the DV Act. Due to this, most of the victims
approach the Magistrate instead of the family courts.

• Maintenance
Under the family court act, explanation(f) of Section 7(1) clearly provides that the family courts
have jurisdiction over the suits or proceedings for maintenance. Also under Section 7(2), the
family courts have the power to exercise a jurisdiction which is exercised by a Magistrate of the
first class under Chapter IX of the Code of Criminal Procedure, 1973, which is related to
maintenance of wife, children and parents. This means the family courts can grant maintenance
under Section 125 of CrPC.
The Supreme Court recently in the case of Rana Nahid v. Sahisul Haq Chisti (2020) has given a
contrasting judgement over the jurisdiction of the family court under Muslim Women (Protection
of Rights on Divorce) Act, 1986 (1986 Act). The facts of the case are: a Muslim woman moved to
83
the family court of Ajmer under Section 125 of CrPC for claiming maintenance from her husband
as she was harassed for dowry and was thrown out of the home. The family court accepted the

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

application made under Section 125 of CrPC, as an application under Section 3 of the 1986 Act.
The family court ordered the husband to pay Rs 3 Lakh to his wife and Rs 2000 every month for
the maintenance of his child.
The husband moved to the High Court against the order of the family court and questioned the
jurisdiction of the family court under the 1986 Act. The High Court held that the family court has
no jurisdiction to pass such an order under the 1986 Act. However, the petitioner can approach
the Court of competent Magistrate under Section 3 of the 1986 Act. The wife approached the
Supreme Court against the order of the High Court.
Justice Bhanumati was of the opinion that the family court has no jurisdiction for accepting an
application filed under Section 3 of the 1986 Act. She supported her opinion by saying that
Section 3 of the 1986 act confers exclusive power on the Magistrate of First Class to entertain
applications made under the said section. She also made reference to the judgements passed by
various High Courts. However, Justice Indira Banerjee holds the position that the family court has
the jurisdiction for accepting applications made under Section 3 of the 1986 Act. She held that
the preamble of the Family Courts Act suggests that it is a secular statute which means all the
laws are applied in the matters irrespective of the religion. Also, Section 7(1), of the act provides
that the family court has the same powers and jurisdiction as of a District or Subordinate Civil
Court to entertain suits or proceedings for maintenance. She also made a reference to the
principle of equality under Article 14 and Article 15 of the Indian Constitution and extended the
jurisdiction of the family court for the benefits of Muslim divorced women.
• Property disputes
As per the explanation (c) of Section 7(1) of the family courts act, the family court has jurisdiction
over the disputes related to the property of the parties to the marriage. Generally, the disputes
between the parties to the marriage arise when the decree of the divorce has been passed. The
family court can entertain the suit or proceeding related to the disputes of the property of the
parties of the marriage by satisfying two conditions:
• Such a dispute must have arisen between the parties to the marriage only;
• Such a dispute must have arisen due to the property of either party.
In the case of Mrs Mariamma Ninan v. K.K. Ninan (1997), the petitioner i.e. the wife approached 84

the family court for the partition of the property and claimed her separate possession as she also
contributed Rs 3 lakh for the construction of the property. The family court didn’t accept the
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

petition and directed the petitioner to file a Civil suit. However, the High Court set aside the
order of the family court and held that the said matter falls under the jurisdiction of the family
court as per Section 7(1) of the family courts act. The high court held that the family courts have
jurisdiction to entertain the disputes related to the partition of the property of the parties to the
marriage. Therefore, the high court resend the matter to the family court and directed the court
to entertain the matter and settle the dispute.

Procedures followed by the family courts

The procedure followed by the family court is quite friendly as no long formalities are required.
The main objective behind the establishment of the family court was to provide speedy relief to
the parties by way of settlement.
Section 10 of the Family Courts Act, 1984 laid the general procedure which is followed by the
family courts. Section 10(1) applies the provisions of the Code of Civil Procedure, 1908, in the
suits or proceedings of the family court and by applying the Code, the family court shall be
deemed to be a civil court and shall have powers of such court. Section 10(2) says that the
provisions of the Code of Civil Procedure, 1908 are applied on the suits and proceedings of the
family court, under chapter IX of the code. Section 10(3) gives power to the family court to lay
down its own procedure according to the circumstances of the suit or proceeding or at the truth
of the facts made by one party and refused by another, intending to arrive at a settlement.
The proceedings of the family court can be held in the presence of cameras. According to Section
11 of the act, the proceedings of the family court may be held in camera, if the court feels so, or
any party to the suit wants to do such.
As the family courts work with fewer formalities, they don’t record the lengthy evidence of
witnesses, only that evidence of the witness is recorded which is related to the subject matter.
According to Section 14 of the act any report, statement or document, related to the subject
matter is admissible under Indian Evidence Act, 1872. Also, as per Section 15 of the act, it is not
necessary for a family court to record the evidence of a witness at length, only that part is
sufficient which is related to the suit or proceeding and it should be signed by the judge and the
witness.
85
Challenges faced by family courts

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

The Family Courts Act, 1984 was enacted to resolve the family-related disputes through an
innovative forum. It was predicted that this forum will work in a just manner and will secure the
maximum welfare of the family. With this view, the Family Courts were set up under Section 3 of
this act. The main objective of the family court was to provide speedy settlement with fewer
expenses and formalities, in disputes relating to marriage and family and to make an agreement
between the parties for their reconciliation. But this objective is not fulfilled yet.
The following are the challenges which are faced by the family courts:
• Section 2 of the act has defined some terms. However, it has not defined the term “family”, due
to which matters arising out of economic consequences which affect the family in various ways
are not covered by the family court. Only matters related to marriage, maintenance and divorce
are dealt with by the family court.
• The Act has empowered the state government to make rules for the working of the family court
in their states but most of the state government haven’t effectively used these powers to make
rules and set up family courts.
• The situation became worse when the counsellors and other authorities kept on changing. If a
suit went for a long time and in the middle of it if the counsellor got changed then it became
difficult for the parties, especially women to convey their problems again. The same thing has
been witnessed in the state of Tamil Nadu where the marriage counsellors kept on changing
every 3 months.
• As the family court follows the provisions of code of civil procedure in the suits or proceeding it
creates difficulties for a common man to understand the complex law. The act hasn’t created any
simplified rules which can be understood by a layman.
• The act has also negated the presence of lawyers in the suit or proceeding of a family court which
create difficulties for a common person to understand the procedure and formalities of the court.
In such circumstances, the parties of a suit have to depend on the clerks and peons of the court.
• The act was enacted to establish family courts across the country with a conciliatory approach to
secure speedy relief to the parties but it failed to ensure gender justice and equality due to
orthodox thinking of judges and patriarchal attitude of the counsellors.
Are family courts functioning adequately towards fulfilling their purpose 86

The parliament enacted the Family Courts Act, 1984 to provide speedy settlement with fewer
expenses and formalities, in disputes relating to marriage and family and to make an agreement
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

between the parties for their conciliation. But they are not functioning adequately towards
fulfilling their purpose. There are various reasons behind it like lack of clarity in the procedure
followed by the court, improper infrastructure, biased counselling, lack of lawyers, the
inappropriate mechanism for execution and many others.

Suggestions
The family courts were established to settle the disputes arising from a marriage with a
conciliatory approach and providing speedy relief to the parties through settlement. But these
objectives were not fulfilled due to various reasons like lack of clarity in the procedure followed
by the court, improper infrastructure, biased counselling, lack of lawyers, an inappropriate
mechanism for execution and many others. There are following suggestions which should be
adopted by a family court to ensure proper working of the court:
1. The only aim of family courts is to settle the dispute of the family through a conciliatory
approach. They don’t make any attempt to secure gender-based equality. The disputes can be
resolved in a woman-friendly manner. But the government and the legislature haven’t thought of
making some changes in the law.
2. The judges of the family court are appointed based on the qualification as that of judges of
District Court. There is a need to change this process. There should be an organised program
where judicial education on gender justice should be imparted. Also, the judges should be trained
well in dealing with the disputes related to the family.
3. The role of counsellors should be more clear as they only focus on the reunion of family and not
care about the interests and security of a woman. They should be trained to be more neutral
while settling the disputes.
4. The suggestions made by the workshop of the National Commission for Women should be
incorporated with the Act such as:
• The procedure prescribed by the act should be simplified by the legislature so that it could be
easily understood by a layman;
• The provision of the Act which grants maintenance should also include the residence of women;
87
• Family courts can take assistance from NGOs and other welfare societies to help the court in
discharging its functions;
• The counsellors should not be changed frequently and they should be trained well;
Magister Law Academy
Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131
 YOUR LAW GUIDE AND PATHFINDER

• A woman should be allowed to file a case in the family court or district court of where she resides
not particularly of where the marriage was solemnized or of where the husband is residing.
Conclusion
Before 1984, all family matters were heard by the ordinary civil court judges who used to take a
long time to provide relief to the parties. In 1984, the Family Courts Act was passed and came
into force. The main objective of the act was to take family and marital disputes out from the
overburdened and traditional courts of law and to bring them in the simple court where a layman
could also understand the procedure of the court. The main aim of the act was to follow the
conciliatory approach to promote a settlement between the parties and provide them with
speedy relief. But these aims were not fulfilled. Nowadays the conclusion has been derived that
the speedy remedy is a myth. The family courts need to adopt various appropriate steps for the
smooth functioning of the family court.

88

Magister Law Academy

Notes by: Aswany Ujwal ( B.A.L, LL.B., LL.M.) TRIPUNITHURA, KERALA, INDIA
www.magisterlawacademy.wordpress.com  [email protected]
 +91 8921 55 8131