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

UNIT – II

Marriage and Kinship

Evolution of the Institution of Marriage and Family

Definition and Forms of Hindu Marriage

• Definitions of Marriage: Marriage is a civil and religious contract whereby a man is joined and united to a woman for the purpose of civilized society. In law ‘marriage’ may mean either the acts, agreements, or ceremony by which two persons enter into wedlock, or their subsequent relation created thereby. Marriage is the civil status or personal relation of one man and one woman joined together in a matrimonial union which was lawfully entered into.
• Characteristics of Marriage: Marriage is universal, It is for the formation of family, It forges a new social link, It fixes the responsibility of bringing up children on the parents, It is a result of civil or religious ceremony, Legitimization of children born out of such union which is a social need, In marriage, the male and female get the right of mutual relationship in economic, social and biological spheres.
• Origin of Marriage: The Institute of Marriage evolved in an evolutionary manner. In the earliest form of groupings of people, sex was absolutely unregulated and the children were considered to be the children of the group. According to Morgan, marriage institution started with group marriage, then polygamy and lastly monogamy.
• Importance of the Institution of Marriage: The institute of marriage regulates and socially validates relatively long-term legitimate sexual relation between males and females, Marriage serves to start reproductive process, Marriage is also a way to acquire new Kinsmen, It is only after marriage a family comes into being
• Hindu Marriage:
• Matrimonial Rights and Obligations
  • Duties of a Husband are: to protect his wife, to give her a home, to maintain her by providing her with comforts and necessities of life within his means, to treat her kindly with affection and courtesy, to honour the wife, not to assault or commit battery against his wife’s person
  • Rights of a Husband are: he is entitled to the custody and the conjugal society of his wife, he is entitled to succeed to her if she predeceases him without issue, and can utilise her Sridhana property to relieve himself in circumstances of extreme distress
  • Duties of a Wife are: to attend to the needs of her husband both in religious and household activities, to show obedience and veneration for the husband, to live with him wherever he may choose to reside unless he is guilty of cruelty or misconduct
  • Rights of a Wife are: right for maintenance throughout her life, right of equality in the house of her husband, right to bring suit for the restitution of conjugal rights, right to get divorce for the cruelty, insults, etc

Different Forms of Hindu Marriage

The four obsolete approved forms

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

The four unapproved forms

• Asura (When groom buys bride through money)
• Gandharva (When voluntary union against parent’s wishes)
• Rakshasa (When forcible abduction / kidnapping)
• Paishacha (when intoxicated)

Salient Features of Hindu Marriage Act, 1955

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

Application of Hindu Marriage Act, 1955

Definitions

• Custom and Usages
• Full Blood, Half Blood and Uterine Blood
• Sapinda Relationship
• Degree of Prohibited Relationship

Overriding Effect of the Hindu Marriage Act, 1955

Conditions of Hindu Marriage

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

• Monogamy: The first essential condition for a valid marriage is that neither party should have a spouse living at the time of marriage. Monogamy is the voluntary union for life of one man with one woman to the exclusion of all others. In the case of Varadrajan v. State, it was held that a party to be bigamous marriage could be punished only upon the proof of the prior marriage having been solemnized according to religious ceremonies and customs.
• Mental Capacity: A marriage is bliss. A sound mind is a key to a happy married life. Clause (ii) of Section 5 of the Act lays down as one of the conditions for a Hindu Marriage that neither party must be suffering from unsoundness of mind, mental disorder, and insanity.
• Age of Parties: The Hindu Marriage Act, 1955 lays down the condition that at the time of the marriage, the bridegroom must have completed the age of 21 and the bride the age of 18 years. In the case of Rabindra Prasad v. Sita Devi, the court held that a child marriage is not void and observed that “the marriage solemnized in violation of Section 5 (iii) remains unaffected.
• Degrees of Prohibited Relationship: Clause 10 of Section 5 of the Hindu Marriage Act, 1955 lays down that no marriage is valid if it is made between persons related to each other within the prohibited degrees unless such marriage is sanctioned by custom or usage governing both the parties.
• Beyond Sapinda Relationship: According to Mitakshara, Sapinda means a person connected by the same blood relation. Clause (v) of Section 5 of the Hindu Marriage Act, 1955 itself provides that the parties to marriage should not be sapindas of each other, unless the custom or usage governing each of them permits of a marriage between two.
• The question of virginity of the bride: The Hindu bride is expected to be a virgin. If the bride had been made pregnant by another, the husband can have the marriage set-aside by a decree of nullity, provided (a) he was ignorant of this fact at the time of marriage; (b) he did not have marital intercourse after discovering the fact; (c) petition is brought within one year from the date of marriage
• Impotency and other physical infirmities: If the bridegroom is found impotent after the marriage, the marriage can be set-aside under section 12 of the Act. Such marriage is voidable.
• Inter-caste Marriage: The Government of India enacted ‘Hindu Marriages Validating Act, 1949, which validates intercaste marriages and also marriages between Hindus, Jains and Sikhs. In the case of Bai Gulab v. Jiwan Lal, the Bombay High Court upheld the validity of Anuloma marriages.
• Doctrine of Factum Valet: It is a doctrine of Hindu law, which was originally enunciated by the author of the Dayabhaga, and also recognized by the followers of the Mitakshara, that ‘a fact cannot be altered by a hundred texts’. The text referred to are directory texts, as opposed to mandatory texts. The maxim, therefore, means that if a fact is accomplished, i.e., if an act is done and finally completed, although it may contravene a hundred directory texts, the fact will nevertheless stand, and the act done will be deemed to be legal and binding.This doctrine came from Roman maxim ‘factum valet quod fieri non debuit’ which literally means that ‘what ought not to be done become valid when done’.In the case of Venkatrama v. State, the court has applied the doctrine of factum valet to child marriage and held that the marriage itself is valid though penal consequences are attracted. The child marriages are neither void nor voidable. They continue to be valid even though punishable.

Ceremonies of Hindu Marriage

• No particular form of marriage
• Necessary religious ceremonies
  • Vagdan
  • Formalities including the recitation of holy texts before the sacred fire
  • Saptapadi
• State amendments

• Registration of Hindu Marriages
• Types of Marriage: Monogamy, Polygamy, Polyandry

Matrimonial Remedies

Restitution of Conjugal Rights

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

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

Case Laws:

1. T. Sareetha v. Venkata Subbaiah

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

Void and Voidable Marriages

Void Marriages

Section 11. Void marriages :- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5.”

A marriage is void in three circumstances:
– at the time of marriage, a party is having living spouse
– two persons come under prohibited degrees of relationship
– two persons com under sapinda relationships

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

Voidable Marriages

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

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

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

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

In Hiranand S Managaonkar v. Sunanda, the Supreme Court has observed that a decree of judicial separation does not dissolve the bond of marriage but rather provides an opportunity to the spouses for reconciliation and readjustment.

Grounds

• Adultery: Extra-marital voluntary sexual intercourse. In order to establish extra-marital, one has to depend on ancillary facts which may be:- circumstantial evidence, birth of a child to the wife when there is no evidence of contact with her, contracting of a venereal disease, admission on the part of the respondent, discovery of letters which might contain such contents which suggest sexual relationship between the two
• Cruelty: There is mental as well as physical cruelty. To establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, verbal abuse and insult, refusal to speak, ill-treatment of children, refusal to have children, etc
• Desertion: Desertion is the act of forsaking or abandoning or the act of quitting without leave with an intention not to return. Desertion has been defined in the Indian Divorce Act as “implying an abandonment against the wish of the person changing it”.  In the case Shanti Devi v. Govind Singh, it has been observed that for constituting ‘desertion’ two essential conditions must be fulfilled namely (i) the factum of separation; and (ii) the intention to bring cohabitation permanently to an end
• Conversion: Ceasing to be a Hindu by conversion on the part of the either party to the marriage, forms a ground for a decree of judicial separation.
• Unsoundness of Mind: The petitioner has to establish that the respondent has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot be expected to live with the respondent.
• Leprosy: If either of the party has been suffering from venereal disease in communicable form, then the other party can present a petition for decree of judicial separation. The leprosy which is maligned or venomous can be termed as virulent. Lepromatous leprosy is virulent and incurable.
• Venereal Disease: It requires to establish for judicial separation that the respondent has been suffering from venereal disease in a communicable form.
• Renunciation of the world: The renunciation implies a religious order which operates as a civil death and, therefore, the other party has been given right to obtain a decree of judicial separation or divorce.
• Presumption of death: That the other party has not been heard of as alive for a period of seven years or more by those persons who would naturally have heard of him, had that party been alive.

Additional Grounds

• Bigamy: Marrying again during lifetime of husband or wife: Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment and fine.
• Rape or sodomy or bestiality: The husband has, since the solemnization of the marriage, been guilty of rape or sodomy or bestiality.
• In maintenance case:  Either in a suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956, or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, a decree or order has been passed against the husband awarding maintenance to wife and that since the passing of such decree or order cohabitation between the parties had not been resumed for one year or upwards.
• In child marriage case: That, her marriage was solemnized before she attained the age of 15 years, and she has repudiated the marriage after attaining that age but before attaining the age of 18 years.

Power of Court to rescind the decree of Judicial Separation

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

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

Effects of Judicial Separation

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

Divorce – Section 13 of the Hindu Marriage Act, 1955

Divorce in Ancient Hindu Law

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

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

Dissolution of Marriage

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

• Grounds available for wife
  • Bigamy:
  • Rape, Sodomy and bestiality:
  • Maintenance decreed to Wife:
  • Repudiation of Marriage by Wife:

Alternate Relief

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

Divorce by mutual consent

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

• parties living separately for a period of one year or more
• not able to live together
• mutual agreement in dissolving the marriage
• consent of the parties has been obtained

Distinction between judicial separation and divorce

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

Presentment of petition for divorce

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

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

Divorced persons when may marry again

Section 15 of the Hindu Marriage Act, 1955 provides: “When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal have been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.”

Punishment of Bigamy and other matrimonial offences

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

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

Maintenance and Alimony

Section 24 – Maintenance Pendente Lite

Difference between Section 24 of Hindu Marriage Act, 1955 and Section 18 of Hindu Adoptions and Maintenance Act, 1956

Section 25 – Permanent Alimony and Maintenance

Difference between Maintenance pendente lite under Section 24 and the permanent alimony under Section 25

Section 27 – Disposal of Property

Case Laws:

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

Customary Provisions and Legislative Provisions Relating to Dowry Prohibition

THE DOWRY PROHIBITION ACT, 1961

Other Laws

• Code Of Criminal Procedure, 1973
• Indian Evidence Act, 1872
• Indian Penal Code, 1860