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 Law (Sample Theory)

Family Law

7.1 HINDU LAW

The concept of hindu law is deeply rooted in hindu philosophy and hindu religion. The ancient
hindu social structure and its continuance in modern times is, to a great extent, outcome of the hindu
philosophy and religion.
The ultimate aim of life, according to Hindu law is to achieve salvation or Moksha from this
physical world. Human being is mortal but the soul is immortal. When a person dies, the soul is in a
free state and it acquires a new form of re-birth. Thus the change of birth and death continues till the
soul attains moksha from this world.
According to dharmashastra, there are 4 goals of human life- Artha, Dharma, Kama and Moksha.
Moksha or salvation is the ultimate goal. As a matter of fact Artha and kama are concerned with this
world, whereas Dharma and moksha are concerned with the next world. A life in accordance to dharma
leads to happiness and pleasure in this life also.
Hindu social structure is the outcome of Hindu philosophy. According to hindu philosophy, the
attainment of salvation is the ultimate goal of life and can be achieved by performing good deeds.
The hindu social structure may be referred alongwith the concept of Ashrama-Dharma. According
to Shastric concept of hindu life, it has been considered that the average life of a human being is 100
years. It was to be divided into 4 stages of 25 years each. The division was related to the division of
the 4 Ashramas :
 Brahmacharya
 Grihastha
 Vanaprastha
 Sanyasa
Who is a Hindu ?
The term Hindu is not very definite in its significance. It has not been defined anywhere or even
explained. In fact, it is not to be found even in the ancient Sanskrit texts. The term Hindu in the modern
sense denotes all those people who profess the Hindu religion. Therefore the term now applies to the
broad categories of persons :
1. Hindus by Birth : Under the modern Hindu law, a person is a Hindu if,
(a) He is born of Hindu parents, that is, both his parents are Hindus.
(b) He is born of anyone of the parent, that is, one of the parent is a Hindu and the
child is brought up as a Hindu.
2. Hindus by Religion : It refers to all those who are converts to Hinduism. If a person
discards the religion of his birth and embraces Hinduism, he will become a Hindu for all
the purposes of a Hindu law although he may not on conversion come into any caste.
It is not necessary that a person needs to become a part of any caste before converting
to a Hindu. This is because the adoption of Hinduism is enough to become a Hindu. In
fact the converts to Hinduism are often treated as Sudras.
The test thus, to discover whether a person is a Hindu or not, is whether he professes a Hindu
religion. If so, he is a Hindu and shall be governed by the Hindu law.
Does the Hindu law apply to only those who are born Hindus ?
“A Hindu is born and not made” ?
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 Law (Sample Theory)

Who is governed under the Hindu law ?

Although the Hindu law is applicable to a person who is Hindu by birth, the applicability of the law
is not confined to those persons only. It has also been extended to those who have embraced the Hindu
religion and discarded the religion of their birth.
Besides them, the following persons also come within the purview of Hindu law :
1. Illegitimate children whose both parents are Hindu.
2. Illegitimate children whose mother is a Hindu and father is a Christian, provided the
children are brought up as a Hindu- except for the purpose of succession and
coparcenaries.
3. Illegitimate children whose mother is a Hindu and father is a Mohammedan, provided
these children are brought up as a Hindu.
4. If the person is a :
(a) Jain
(b) Sikh
(c) Buddhist
5. A converted Hindu, that is, where a Hindu by birth, who having renounced Hinduism, the
religion of his birth again embraces it.
6. A member of :
a. Brahmos, or Brahma Samaj
b. Arya Samaj
7. To Hindus who made a declaration that they were not Hindus for the purpose of the
Special Marriage Act 1872 (now replaced by the Act, 1954). In such cases the Hindu law
will apply to them except under cases of marriage.
8. To all other persons domicile in India who are not Muslims, Christians, Parsis or Jewish
by religion unless it is shown that they are not governed by the Hindu law.
To whom does the Hindu law not apply ?
The Hindu law does not apply to the following persons :
1. Hindu law does not apply to illegitimate children where the father is a Hindu and the
mother is a Christian and the children have been brought up as a Christian. Similarly,
where the father of an illegitimate child is a Hindu and the mother is a Mohammedan and
the child is brought up as a Mohammedan, the Hindu law will not hold good and will not
be applicable to the child.
2. Converts to Christianity : A Hindu who has become a convert to Christianity ceases to
be governed under the Hindu law. This is obviously because he no more professes the
Hindu law although he was Hindu by birth.
3. Converts to Mohammaden Faith : A Hindu who has become a convert to the
Mohammedan faith ceases to be governed under the Hindu law. The Khojas and Cutchi
Manas have embraced the Mohammedan faith.
4. Converted to form a New Community : The Hindu law does not apply to any person
who although are the descendants of Hindus, have formed a separate community or sect
and have adopted usages and traditions peculiar to them and quite different to what the
Hindu Shastra enjoy.
5. Buddhists not Governed Under Both : their own laws and under the Hindu law.
Is there any element of territoriality in the application of the Hindu law ?
“Hindu law is not lex loci ( law of the land ) but a personal law” ?

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 Law (Sample Theory)

Hindu law has been termed the “law of the status” as the law applies to him because he is a
Hindu. It does not apply because a person resides in a particular locality or territory, but because he
holds the status of a Hindu.
A person residing in a particular state would continue to be governed by the law of the state even
though he has migrated to another state. He will cease to be governed under the former law only if he
renounces it.
7.1.1 Sources and Schools of Hindu Law
Sources of Hindu Law
The Hindu Law is credited to be the most ancient law system which is approximately 6000 years
old. The sources of Hindu Law can be kept under two headings :
1. Ancient or Original Sources : According to Manu there are four sources of Hindu Law
as per following details, in addition to these four there was also that what is agreeable to
one's conscience such as Shruti, Smriti, Digest and Commentaries, Custom and Usages.
2. Modern Sources : Following are the modern sources of Hindu Law such as Equity,
justice and good conscience, Precedent, Legislation.
All the above sources can be enumerated as :
1. Sruti : Sruti (or Shruti) literally means that which was heard. The Srutis are believed to contain
the very words of God. They are supposed to be the divine utterances to be found in the four Vedas,
(namely the Rig Veda, the Yajur Veda, the Sama Veda and the Atharva Veda), the six Vedangas (i.e.,
appendages to the Vedas) and the eighteen Upanishadas. Although the Srutis are believed to be the
ultimate sources of law, in the sense of rules of human conduct, they are mostly religious in character
and one finds very little secular law in the Srutis.
A departure from the vedic principles had brought about several evils in the fabric of Hindu Law,
some of which were removed by legislation. Thus, for instance, the Vedas did not allow polygamy, but
the same became popular in the Hindu community, and it was only in 1955 that the Hindu Marriage Act
put an end to this undesirable practice.
2. Smriti : Smriti literally means that which was remembered. Both Sruti and Smriti refer to the
utterances and precepts of the Almighty, which have been heard and remembered respectively, and
handed down by the Rishis (sages) from generation to generation. The exact number of Smritis (or
Codes) is not definitely known, but the earliest one seems to be the Manu Smriti. The principal Smritis
are those of Manu, Yajnavalkya and Narada.
As understood by a devout Hindu, law is a branch of Dharma, and its ancient framework is the
law of the Smritis. Traditionally, Dharma is defined as that which is followed by those who are learned
in the Vedas, and what is approved by the conscience of the virtuous who are exempt from hatred and
inordinate affection.
The ancient law, as promulgated in the Smritis, was essentially traditional, and the injunction was
that time-honoured institutions and immemorial customs ought to be preserved intact. The law was to
be found, not only in the text of Smritis, but also in the practices and usages prevailing there under.
The Smritikars declared and stressed the divine origin and sanction of the rules of Dharma.
"Since the law is the king of kings, far more rigid than they, nothing can be mightier than the law by whose
aid, as by that of the highest monarch, even the weak may prevail over the strong". (Shatapatha
Brahmana, XIV)
Although Smritis deal with rules of morality and religion, one finds in them more of secular law,
than in the Srutis. For all practical purposes, the interpretation put on the Smritis by the commentaries
written on the Smritis forms the basis of Hindu Law. Of course, the Commentaries and Digests, in their
turn, are controlled by the decisions of the Courts, which are ultimately the most fertile sources of Hindu
Law.
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 Law (Sample Theory)

It may be remembered that if the text of the Smritis conflicts with any of the Vedic texts, the
former is to be disregarded. "Where there is a conflict between the Vedas and the Smriti, the Vedas
should prevail". (Vyasa)
The Supreme Court has observed that if there is divergence of opinion among the Smritis, the
court should consult the prevailing practice among the people, while deciding a case. If there is a clear
usage to the contrary, the Smriti must yield to such usage. (Shyam Sunder Prasad Singh v. State of
Bihar, (1980) Supp. S.C.C. 720)
3. Commentaries on The Smritis (Nibandhas) : All the Smritis did not agree with one another
in all respects, and this conflict led to several interpretations put upon them. This, in turn, gave rise to
commentaries called Nibandhas. Nibandhas are thus nothing but the interpretations put on the Smritis
by various commentators. However, it is interesting to note that these commentators did not merely
interpret the Smriti, but they also recited the customs and usages which the commentators found
prevailing around them. In other words, while professing to interpret the law as laid down in the Smriti,
these commentators introduced modifications in order to bring it into harmony with the current usages.
Despite the fact such commentators have modified the original texts in order to bring them in line
with the local customs and conditions, the commentaries are now considered to be more authoritative
than the original texts themselves.
The reason for this is that although the interpretations of the age-old texts may be inaccurate, they
nevertheless have the sanction to recognise the rules contained in such Nibandhas, the reason being
that under the Hindu system of Law, "clear proof of usage will outweigh the written text of the law".
(Collector of Madras v. Moottoo Ramalinga, 12 M.I.A. 397)
In this context, the Allahabad High Court has pointed out that there is a distinction between a law
giver and a commentator. A Code enunciated by the former has the force of law, but the opinion of a
commentator, howsoever valuable for elucidation of the Code, cannot override the law itself. (Kastoori
Devi v. Chiranjit Lai, A.I.R. 1960 All. 446)
The authority of the several commentators varied in different parts of India, giving rise to what are
known as the different schools of Hindu Law. Broadly speaking, there are two Schools, the Mitakshara
School and the Dayabhaga School. The former prevails throughout India, except in Bengal, where the
latter finds a large following. (The Schools of Hindu Law have been discussed in greater detail later in
this Chapter.)
4. Puranas : The Puranas are also a source of Hindu Law. The Puranas are Codes which
illustrate the law by instances of its application. As observed by the Allahabad High Court in Ganga Sahai
v. Lekhraj (9 All. 253):
"Somewhere in the order of precedence, either between the Srutis and the Smritis, or more
probably after them, come the Puranas, which the celebrated author Colebrooke states, are reckoned
as a supplement to the scripture, and as such, constitute a fifth Veda".
5. Judicial Decisions : After India came under British rule, another element was added to the
effective sources of Hindu Law. The courts had to ascertain and administer the personal law of the
Hindus in various matters such as marriage, adoption, inheritance, and so on. The decisions of the
courts, based on the judicial interpretation of the ancient Hindu texts, began to stake their claim as the
most practical source of Hindu Law.
Strictly speaking, it cannot be said that judicial decisions are a source of law. This is so, because
the Judge is supposed to interpret and explain the existing law, and not to create new law.
Nevertheless, since all the important aspects of Hindu Law have now found their way into Law
Reports, these may now be considered as a source of Hindu Law. Such decisions have played an
important part in ascertaining, and sometimes in developing and crystallizing, Hindu Law.
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 Law (Sample Theory)

The commentaries are often silent on several points and the Judges have filled in these blanks
whilst deciding cases coming before them. As a result of the British rule in India, judicial precedents
became necessary and useful guides in the application of Hindu Law. Thus today, no lawyer will be seen
referring to the original texts of Hindu Law, as he would find all his requirements in the Law Reports.
Commenting on the sources of Hindu law, the Supreme Court has (in Shri Krishna Singh v.
Mathura Ahir, (1981) 3 S.C.C. 689), observed that in applying Hindu law, the Judge should not introduce
his own concepts of modern times, but should enforce the law as derived from recognised and authoritative
sources of Hindu law, i.e., Smritis and commentaries, as interpreted in the judgments of the various High
Courts, except where such law is altered by any usage or custom, or is modified or abrogated by statute.
Case-law has never formed part of the judicial system of the Hindus, but since the administration
of Hindu Law was taken up by the Courts, judicial decisions have not only become a source of Hindu
Law, but have been the chief agency by which changes have been effected in that law. The progress
that Hindu law has made in the 19th and 20th centuries is entirely due to the rulings of the Courts. The
decisions of these Courts have often superseded the Commentaries. As precedents, these decisions
have a binding force.
As observed by the Mysore High Court, the duty of a Judge administering Hindu Law is not so
much to inquire as to whether a disputed doctrine is fairly deducible from the earliest authorities, but to
ascertain the law as laid down by the superior Courts in India, as well as by the Privy Council. (Madanvali
v. Babu Padmanna Tamadaddi, A.I.R. 1960 Mys. 299)
A full Bench of the Allahabad High Court has, however, warned that it is still not well-settled that
Hindu Law, as administered in India, is not the shastric law, but the law as declared by the Courts. (Dudh
Nath v. Sat Narain, A.I.R. 1966 All. 315)
6. Legislation : The next source of Hindu Law is legislation. Several enactments had come into
force with the advent of British rule in India, and kept coming with greater gusto after the British departure.
These legislative enactments which declare abrogate or modify the ancient rules of Hindu Law, thus form
an additional modern source of Hindu Law.
The Hindu Law Committee, appointed in 1941, recommended that this branch of the law should
be codified in gradual stages. However, the most important enactments were those which came in 1955
and 1956, namely the Hindu Marriage Act, the Hindu Minority and Guardianship Act, the Hindu Succession
Act and the Hindu Adoptions and Maintenance Act. (All these statutes are discussed at length later in this
book.)
This process of legislation is a continuous one. Thus, several amendments have been made in
the four principal Acts referred to above. Notable amongst such amendments was the Amendment
passed in 1976, which has radically modified the Hindu Marriage Act, as for instance, by introducing the
concept of divorce by mutual consent in Hindu matrimonial law.
Yet another recent landmark is the amendment of the Hindu Succession Act in 2005, which has
conferred equal rights on a daughter in coparcenary property. Gender inequality in this respect has now
become a thing of the past. The 2005 Amendment has also abolished the doctrine of "pious obligation"
which was deeply rooted in uncodified Hindu law. (Both these important amendments have been discussed
at length in the relevant Chapters.)
7. Justice, Equity and Good Conscience : The principles of justice, equity and good conscience
may also be regarded as a modern source of Hindu Law. In the absence of any specific law in the Smriti,
or in the event of a conflict between the Smritis, the principles of justice, equity and good conscience
would be applied. In other words, what would be most fair and equitable in the opinion of the Judge would
be done in a particular case.
As the Supreme Court has observed in Gurunath v. Kamalabai (A.I.R. 1955 S.C. 206), in the
absence of any clear Shastric text, the Courts have the authority to decide cases on principles of justice,
equity and good conscience.

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 Law (Sample Theory)

In a case decided before the passing of the Hindu Succession Act, 1956, (Kenchava v. Girimalappa,
(1924) 51 I. A. 368), the Privy Council held that a murderer was disqualified from succeeding to the
property of the victim. Thus, a rule of English law founded on public policy, was applied to a Hindu on
grounds of justice, equity and good conscience. Now, this disqualification is statutorily recognised in the
Hindu Succession Act, 1956.
8. Customs and Usages : Custom is one of the most important sources of Hindu Law. Where
there is a conflict between a custom and the text of the Smritis, such custom will override the text. As
observed earlier, "Under the Hindu system of law, clear proof of usage will outweigh the written text of
law". (Collector of Madura v. Mootoo Ramalinga, 12 M.L.A. 397)
Custom may be defined as a habitual course of conduct generally observed in a community. The
Sanskrit equivalent of custom is sadachara, which means "the approved usage" or "the usage of the
virtuous man". Custom is thus a rule which, as a result of a very long usage, has obtained the force of
law in a particular community or in a particular district. Custom thus plays a very important part in Hindu
Law. It modifies and supplements the written law. "Immemorial custom is transcendent law". (Manu)
It must, however, also be noted that a custom cannot be enlarged by parity of reasoning, since
it is the usage, and not the reason underlying the custom, that makes the law. (Venkata Challamma v.
Cheekati, A.I.R. 1953 Mad. 571)
Schools of Hindu Law
The Schools of Hindu law emerged from the commentaries and digests. There are two main
schools, namely :
1. Mitakshara School and
2. Dayabhaga School
Vijnaneswara's commentary on yajnavalkya smriti is called mitakshara, which means 'measured
in words'. Dayabhaga school got it's name from a leading smritis by name dayabhaga, written by
jimuthavahana. Mitakshara school prevails all over India except the state of Bengal and Assam, while
dayabhaga prevails in Bengal and Assam. Mitakshara deals with all titles of law, while dayabhaga deals
with partition and inheritance
Sub-Schools of Mitakshara : Mitakshara school may be subdivided into the following four
schools :
1. Dravida or Madras School;
2. Maharashtra or Bombay School;
3. Benaras School; and
4. Mithila School;
There are two main school of Hindu Law – Dayabhaga and Mitakshara
Difference between Dayabhaga Coparcenary and Mitakshara Coparcenary
The powers of the manager are the same under both systems. But under the Dayabhaga the
coparceners can call upon the manager to account while Under the Mitakshara the manager is not liable
to account for past management. In the absence of fraud, under the Mitakshara the liability of the
manager is only to account for the assets existing at the date of the partition.
1. Mitakshara
(a) Joint Family : According to the Mitakshara a son, grandson and great-grandson acquire
right by birth in the ancestral property. This doctrine is based on Mitakshara Joint Family.
Under the Mitaksha the Father's power are qualified by the sons equal right by birth.
(b) Survivorship : Brothers who have inherited property from their father have a right of
Survivorship in the Mitakshara Joint family

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 Law (Sample Theory)

(c) Widow's Rights : When one of the brothers dies, his widow can succeed to his share
under the dayabhaga but under Mitakshara her rights are excluded by the right of survivorship
of the brothers. The widow can have only a right to maintenance.
(d) Sapinda : Heirship The relationship of sapinda arises according to community of blood.
2. Dayabhaga
(a) Joint Family : Under Dayabhaga School the ownership of son can arise only after the
death of the father. There is no right by birth. The father has uncontrolled power of
alienation over the family property under the dayabhaga.
(b) Survivorship : Dayabhaga does not recognize such survivorship
(c) Widow's Rights : When one of the brothers dies, his widow can succeed to his share
under the dayabhaga.
(d) Sapinda : Heirship The Heirship arises by means of pinda offerings (Spiritual benefit)
7.1.2 Marriage and Dissolution of Marriage in Hindu Law
Marriage Under Hindu law
Marriage : Sacrament or Contract
Marriage being one of the essential Samskaras is sacramental in nature. The sacramental nature
of marriage has three characteristics :
1. It is a permanent union i.e. once tied cannot be untied.
2. It is an eternal union i.e. valid not only in this life but in lives to come.
3. It is a holy union i.e. performance of religious ceremonies is essential.
Since Hindu marriage was considered to be sacrament, the consent of the parties did not occupy
any important place. Thus the person married may be a minor or even of unsound mind, if the marriage
is duly solemnized there is valid marriage. Under the Contract Act, the contract of a minor or of a person
of unsound mind is void. Further, Section 12 of Hindu Marriage Act does lay down that a marriage is
voidable if consent is obtained by fraud or force, but it is not laid down that if one's consent was not
obtained the marriage is voidable. This shows that despite the fact that a party is able to prove the
absence of consenting mind, the marriage will continue to remain valid.
Forms of Marriage
The ancient Hindu law recognised three forms of Shastric marriages as regular and valid. These
were
Brahma (bride given gift by father),
Gandharva (mutual agreement of bride and bridegroom) and
Asura (bride virtually sold by the father). The first and the third are arranged marriage whereas
the second one is love marriage.
Ceremonies
Marriage among Hindus being a religious and sacred tie, performance of certain ceremonies is
still necessary for a valid marriage. There were three important stages wherein certain ceremonies were
to be performed. They were:
1. Betrothal or Sagai: it is a formal promise to give the girl in marriage.
2. Kanyadan: It is actual giving away of the girl in marriage by her father.
3. Saptapadi: it consisted in performing a ceremony of taking seven steps before the sacred
fire by the bride and the groom. The performance of Saptapadi marked the completion of
a marriage. It made the marriage irrevocable.
As per Section 7, a marriage is a ceremonial affair. Saptapadi is an essential part of the ceremonies
of marriage, its non-performance will invalidate the marriage. The performance of vedic rights is not
enough to solemnise the marriage.
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 Law (Sample Theory)

Customary ceremonies may not include any one of the Shastric ceremonies including Saptapadi.
It may be totally non-religious ceremony or it may be very simple ceremony. For instance, among
santhals smearing of vermilion by bridegroom on the forehead of the bride is the only essential ceremony.
 There may of course be a custom which dispenses with the need for observing the
traditional religious ceremonies. Thus, In re Ponuswami, AIR 1950 Mad. 777, Chandra
Reddy, J., held that the tying of a tali in the presence of an idol in the temple was a form
of customary marriage and that even without any priests to officiate at the ceremony.
There was thereby a complete marriage. The learned judge accordingly upheld a conviction
for bigamy when the second marriage was thus celebrated.
 In Dr. N.A. Mukerji v. State, AIR 1969 All. 489, a physician was prosecuted for bigamy
by W1. She alleged that she married him thrice, firstly before the moon, secondly in Kali
Temple by exchange of garland after taking seven steps and thirdly as an imitation of Sikh
marriage before Guru Granth Sahib. It was held that such mock ceremonies will not
constitute a valid marriage. Hence, the prosecution for bigamy has failed in the absence
of proof the marriage based upon valid ceremonies.
 It would be thus seen that there is no valid marriage when the parties have not observed
any religious ceremonies at all. When some ceremonies are observed the question whether
they are sufficient, depend upon their conformity with the Panigrahanika ceremonial ending
with Saptapadi or with the ceremonies prescribed by the customary law applicable to
either the bride or the bridegroom.
 It may be noted, however, that there is always a presumption of marriage under s. 114
of the Indian Evidence Act if there is a continued cohabitation between the parties unless
contrary is proved. Performance of marriage cannot be proved by mere au thorisation
letter for payment of the salary in which the alleged wife had mentioned the deceased as
husband (Mrs. Sudershan v. State, AIR 1988 Delhi 368.)
 This Section does not prescribe any particular form of ceremonies requisite for
solemnization of the marriage but leaves the parties to choose any form of marriage.
 But where it includes Saptapadi, the marriage becomes complete when seventh step is
completed. When it is proved that Saptapadi-gaman is not part of the customary rites, it
need not be performed; otherwise Saptapadi remains an essential ceremony in a Hindu
marriage.
Valid Condition for a Hindu Marriage
The five important conditions of a valid Hindu marriage laid down by S. 5, are as follows :
1. Neither party should have a spouse living at the time of the marriage :
 This clause establishes the rule of monogamy and prohibits polygamy, which was permitted
before the Act came into force. It also prohibits polyandry, which was prohibited by the
ancient Hindu law also.
 The contravention of the first condition will render the marriage void under Section 11, and
a competent Court may declare such a marriage to be a nullity on a petition presented
by either party to such marriage.
 Further, the parties to a bigamous marriage are also liable to be punished under Section
494 and 495 of the Indian Penal Code (which has been made applicable to such a Hindu
marriage by Section 17 of the Act).
 The Supreme Court has held that a marriage with a person who has living spouse is
totally null and void; it cannot be treated as voidable under S. 12 of the Act. (Adhav v.
Adhav, A.I.R. 1988 S.C. 644)

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 Law (Sample Theory)

 In Sarla Mudgal v. Union of India the husband converted himself into a Muslim by adopting
Islam, and then married another wife. Here the question was whether by conversion the
first marriage is annulled or it becomes void and whether the husband commits an
offence of bigamy. The court said that the first marriage subsists and the husband commits
an offence of bigamy. Against this an appeal was filed by the husband and this appeal was
disposed of along with the case of Lily Thomas by the Supreme Court.
 In Lily Thomas v. Union of India, the same questions arose before the Court for
consideration. The Supreme Court observed that the institution of marriage under every
personal law is a sacred institution. Under the Hindu Law, marriage is a sacrament. Both
these have to be preserved, therefore, religion is not a commodity to be exploited, it is a
matter of faith.
2. Neither party should be suffering from unsoundness of mind, mental disorder or
insanity :
 Under the pure Hindu Law, a Hindu marriage was a pure sacrament, and therefore, idiots
and lunatics could be lawfully married, as a consenting mind was not necessary.
 There were conflicting decisions on the point as to whether a Hindu marriage was also
a contract, and this conflict of decisions was set at rest by the Act, which originally laid
down that lunatics and idiots could not marry at all, thus making free consent a necessary
ingredient of a valid Hindu marriage.
 After the 1976 Amendment of the Act, the second requirement of a valid Hindu marriage
came into effect.
 If this condition of a valid marriage is not fulfilled, the marriage becomes voidable at the
option of the other party under S. 12 of the Act.
 Under s. 5 (ii) (a) persistent unsoundness of mind is not required. It is sufficient if the party
is incapable of giving valid consent to the marriage because of his/her unsoundness of
mind.
 Under s. 5 (ii) (b) every mental disorder will not give rise to remedy under s. 12 but only
that mental disorder which renders the party unfit for the marriage and for procreation of
the children. In Alka Sharma v. Abhinesh Chandra Sharma, AIR 1991 MP 201, it has been
held that the word "and" under s. 5 (ii) (b) has to be read as "and/or".
 Under sub-clause (c) recurrent attacks of insanity and epilepsy are covered, thus, equating
epilepsy with insanity. It may be submitted that epilepsy if curable cannot be interpreted
to vitiate the marriage. However, the courts are not inclined to qualify epilepsy with the
word "incurable" Bala Krishna v. Lalitha, AIR 1984 AP 22.
3. The bridegroom should have completed the age of 21 years and the bride the age of
18, at the time of marriage :
 Under the ancient Hindu Law, no minimum age limits were prescribed for a Hindu marriage.
 The Act of 1955 however, lay down that the bridegroom should have attained 18 years of
age which is normally the age when the majority is attained under the Indian Law. In 1978
this has been raised to 21 years by amendment.
 The violation of this clause does not make a marriage void or even voidable. However,
both the husband and wife are liable to be punished with imprisonment or fine or both, if
either of them is below the prescribed age. (Section 18)
4. The parties to the marriage should not be within the degrees of prohibited relationship,
unless a custom or usage governing each of them permits such a marriage :
 Under this clause, a marriage between persons who are within the degrees of prohibited
relationship with each other is prohibited.
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 Law (Sample Theory)

 Two persons would be regarded to be within prohibited degrees :

(a) If one is a lineal ascendant of the other; or
(b) If one was the wife or the husband of a lineal ascendant or descendant of the
other; or
(c) If one was the wife of the brother or of the father's or mother's brother or of the
grandfather's or grandmother's brother of the other.
(d) If two are brother and sister, uncle and niece, aunt and nephew, or children of
brother and sister or of two brothers or of two sisters.
It is noteworthy that relationship in the above context would also include :
(i) Relationship by half or uterine blood as well as by full blood;
(ii) Illegitimate blood relationship as well as legitimate;
(iii) Relationship by adoption as well as by blood.
To be a valid custom or usage, such a custom or usage must satisfy the definition of this term
laid down in Section 3 of the Act. Thus, a custom must not be unreasonable or opposed to public policy.
A custom would not be recognized if it is abhorrent to decency or morality or if it is inconsistent with the
practices of good men.
Thus, a custom prevailing amongst the Jats of Punjab allows a marriage with a brother's widow.
Likewise, in some parts of South India, a marriage of a man with his sister's daughter is also recognized
by custom.
A marriage which is performed in breach of this condition is void ab initio, and a competent Court
can declare it to be so, on a petition presented by either party to such a marriage. Further, the persons
contravening the provisions of this clause are also liable to be imprisoned or fined (or both) under Section
18 of the Act
5. The parties to the marriage should not be sapindas of each other, unless a custom or
usage governing each of them permits such a marriage :
 A marriage between sapindas would be valid only if the custom or usage governing both
the parties permits such a marriage.
 Needless to say, such a custom must fulfill the requirements of a valid custom, laid down
by Section 3 of the Act. Thus, a custom must not be unreasonable or opposed to public
policy. No custom would be recognized if it is abhorrent to decency or morality or if it is
inconsistent with the practices of good men.
 A marriage between sapindas is void ab initio and the persons contravening the provisions
of this clause are liable to imprisonment or fine or both under S. 18 of the Act.
Shortly stated, the effect of violating any of the above five conditions is an under :
Violation of Condition No.1 : The marriage is void and the parties are liable to punishment.
Violation of Condition No.2 : The marriage is voidable at the option of the other party.
Violation of Condition No.3 : The marriage is valid, but the parties are liable to punishment.
Violation of Condition No.4 : The marriage is void and the parties are liable to punishment.
Violation of Condition No.5 : The marriage is void and the parties are liable to punishment.
Section 8-Registration of Hindu Marriages
1. 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 in such manner and subject to such condition as may
be prescribed in a Hindu Marriage Register kept for the purpose.

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 Law (Sample Theory)

2. Notwithstanding anything contained in sub-section (1), 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 in sub-section (1) shall be compulsory in the State or in any part
thereof, whether in all cases or in such cases as may be specified and where any such
direction has been issued, and person contravening any rule made in this behalf shall be
punishable with fine which may extend to twenty-five rupees.
3. All rules made under this section shall be laid before the State Legislature, as soon as
may be, after they are made.
4. The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall
be admissible as evidence of the statements therein contained and certified extracts
therefrom shall, on application, be given by the Registrar on payment to him of the
prescribed fee.
5. Notwithstanding anything contained in this section, the validity of any Hindu marriage shall
in no way be affected by the omission to make the entry.
Divorce in Hindu Law
Repudiation Of Marriage
1. Judicial separation; or
2. Divorce.
The provision relating to judicial separation is contained under section 10 of the Hindu Marriage
Act, 1955, whereas, the provisions relating to divorce comprises of 5 sections, i.e. 3 from the original
act whereas 2 new sections inserted via amendments.
1. Section 13-describes the circumstances which extend the right of divorce.
2. Section 14-provides that no petition for divorce can be presented within one year of the
marriage unless it causes exceptional hardship to the petitioner or it becomes a case of
exceptional depravity on the part of the respondent.
3. Section 15-lays down the limitations on the right of divorced persons to marry again.
4. Section 13A- providing Alternate relief in divorce proceedings.
5. Section 13B- has introduced a new mode of divorce, i.e. divorce by mutual consent,
Judicial Separation
Section 10 of the Hindu Marriage Act,1955 reads as :
1. Either party to a marriage, whether solemnized before or after the commencement of this
Act, may present a petition praying for a decree for judicial separation on any of the
grounds specified in sub-section (1) of section 13, and in the case of a wife also on any
of the grounds specified in sub-section (2) thereof, as grounds on which a petition for
divorce might have been presented.]
2. Where a decree for judicial separation has been passed, it shall no longer be obligatory
for the petitioner to cohabit with the respondent, but the court may, on the application by
petition of either party and on being satisfied of the truth of the statements made in such
petition, rescind the decree if it considers it just and reasonable to do so.
 The section deals with judicial separation and the consequences that flow from it.
 A decree of judicial separation does not terminate the marriage but on the other
hand it puts the obligation of conjugal duties to an end.
 After the decree, neither spouse is under an obligation to cohabit with the other.
 The section applies also to Hindu marriages solemnized before the commencement
of the Act. The Marriage Laws (Amendment) Act, 1976 has re-casted Section 10(1)
of the Act.
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 Law (Sample Theory)

 It now enables either party to a marriage to move for a decree of judicial separation
on any one of the grounds specified in sub-section (1) of Section 13, and in the
case of wife also on any of the grounds specified in sub-section (2) thereof, as
grounds on which a petition for divorce might have been presented.
 Now, the grounds on which judicial separation and divorce can be sought are
identical. Sub-section (2) of Section 10 preserves the right of the court to rescind
the decree of judicial separation, if on the petition of either party; it is satisfied of
the truth of the statements made in such petition.
Under the Act, Section 10 does not provide any separate grounds for a decree of judicial separation.
Its provisions are to be read with Section 13 of Hindu Marriage Act (which provides grounds for divorce)
and Section 13-A (which empowers the Court to grant judicial separation where divorce is prayed).
The remedy of judicial separation is available is every case whether the marriage was solemnized
before or after the commencement of this Act, e.g., :
(i) For Husband or for Wife : On any ground on which he or she can seek a divorce under
Section 13(i) of the Act.
(ii) For Wife :
 Besides the above grounds she can have additional grounds available as mentioned in
Section 13(2) of the Act.
Thus grounds for divorce have become grounds for judicial separation.
Main Grounds of Judicial Separation
1. Extra-Marital Voluntary Sexual Intercourse : Where either party to marriage willfully had
sexual intercourse with another person after marriage, the other party to marriage could obtain the
decree of judicial separation. The decided cases elucidate that in order to establish extra-marital intercourse
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 etc.
 Pre-marital illicit intercourse cannot be a ground to the relief of judicial separation.
 In Suvrai v. Saraswathi, the court held that in most cases the evidence is circumstantial
and the circumstances under which the act is alleged to have been done must be
determinative and in every probability must lead to a conclusion of illicit cohabitation. If a
stranger to the family is found in the bedroom of wife at mid-night in absence of an
acceptable explanation, it would normally be concluded that illicit intercourse must have
taken effect.
 In Chandra Mohini v. Avinash Srivastava– the Supreme Court observed that love letters,
written to wife by a certain person, howsoever objectionable contents they might contain
or might they be leading to an inference of adulterous relations could not establish adultery
between the two in absence of proof of similar letters being dispatched by the wife to him.
2. Cruelty :
 The expression cruelty has not been defined in the Act but the judicial decisions have
made it distinct that cruelty in the legal sense not necessarily be physical violence.
 A course of conduct or treatment which tends to undermine the health of the spouse on
that account or affects the reasonable happiness of the life and ill-treatment both physical
and mental would constitute cruelty.
 As held in Russel v. Russel, "cruelty which is a ground for dissolution of marriage may
be defined as willful and unjustifiable conduct of such a character, as to cause danger to
life, limb or health, bodily or mental or as to give rise to a reasonable apprehension of such
a danger"
 The false imputation made by the husband against his wife that she is living an adulterous
life amounts to such cruelty as to cause reasonable apprehension in her mind that it
would be harmful or injurious for her to live with the husband.
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 Law (Sample Theory)

Different kinds of cruelty justifying judicial separation can be classified under the following heads:
(i) Actual or Threatened Physical Injury : In Prarnati Chatterjee v. Gautam Chatterjee,
the Calcutta High Court observed that the wife left matrimonial home after two years of
marriage and was not willing to come back. Wife was having separate source of income
and interested in looking after father's business making false allegation against husband
before police and his employer and also deprived him from cohabitation. Therefore, husband
is entitled to decree of divorce as wife had failed to prove the allegation of physical cruelty
against husband.
(ii) Verbal Abuse or Insults : Insulting conduct indulged in by the wife in public against her
husband would cause mental agony and pain and therefore, it would amount to cruelty.
(iii) Excessive Sexual Intercourse :
(iv) Refusal of Intercourse : In Shanker Prasad v. Madhabi the court held that where the wife
has been refusing to sexual intercourse without any reasonable justification or expressed
her inability to co-operate in the sexual act or she behaves in a manner that the
consummation becomes impossible, such deliberate acts of the wife would amount to
legal cruelty and the husband would be entitled to matrimonial relief.
(v) Neglect : In Rajender Singh v. Taramati, the husband was seriously injured in an accident
and was admitted in a hospital. He remained in the hospital for treatment for about eight
months, but the wife did not care to visit him regularly despite the information of his
condition. The court held that the conduct of wife was so neglectful that it amounts to
cruelty and the husband is entitled to get a decree of divorce.
(vi) Communication of Venereal Disease :
(vii) Drunkenness and Use of Drugs : In Rita v. Brij Kishore, the Delhi High Court observed
that excessive drinking is a vice and cannot be considered a reasonable wear and tear
of married life. No reasonable person marries to bargain to endure habitual drunkenness,
a disgusting conduct. And yet it is not an independent ground of any matrimonial relief in
India.
(viii) Refusal to Speak
(ix) Forcing Association with Improper Persons
(x) False Charge of Immorality against the Wife
(xi) Ill-Treatment of Children
(xii) Refusal to have Children
Dastane v. Pastime is a leading case on judicial separation. In this case, the petitioner husband
moved a petition for annulment of marriage or alternatively for judicial separation or for divorce. The
annulment was sought on the ground of fraud, divorce on the ground of unsoundness of mind and judicial
separation on the ground of cruelty. The petition was dismissed hence the husband filed the appeal
before the apex court asking for judicial separation on the ground of legal cruelty.
It was alleged by the husband that his wife used to threaten him by saying that she will put an
end to her own life or that she will set the house on fire. She also gave the threat that she will make
him lose his job and have the matter published in the newspaper and persistent abuses and insults
hurled at the husband and his parents were so grave as to imperil the husband's sense of personal
safety, mental happiness, job satisfaction and reputation. Her once too-frequent apologies do not reflect
genuine contrition but were merely impromptu devices to tide over a crisis temporarily.
In Dastane v. Dastane, it was held that where the spouses led normal sexual life even after a
series of acts of cruelty by one spouse, it will be a sufficient proof of condonation by the other.

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 Law (Sample Theory)

3. Desertion :
 Desertion is the act of forsaking or abandoning or the act of quitting without leave with an
intention not to return.
 To constitute desertion, there must be cessation of cohabitation without cause thereof and
consent thereto and with an intention to abandon which is willfully persisted in a space of
the statutory period.
 A mere severance of the relation is not sufficient, since there may be separation without
desertion and desertion without separation.
 Continued separation of husband and wife which may be consistent with no intention to
willfully desert, is not desertion within the meaning of the statute.
 In Labh Kaur v. Narain Singh the court held that desertion means the intentional
permanent forsaking and abandonment of one spouse by the other without that other's
consent, and without reasonable cause. It is total repudiation of the obligations of marriage.
In case a spouse abandoned the other spouse in a state of temporary passion, like anger
or disgust, without intending permanently to cease cohabitation, it will not amount to
desertion.
 Desertion implies the factum of separation and animus deserendi i.e., the intention to
bring cohabitation permanently to an end. In the absence of animus deserendi a desertion
cannot be taken as proved merely because the parties are living separately.
 For the offence of desertion, so far as the deserting spouse is concerned two essential
conditions must be there (1) the factum of separation, and (2) the intention to bring
cohabitation permanently to an end (animus deserendi).
 In order to constitute desertion, the following facts must be established :
(i) The spouse must have parted or terminated joint living,
(ii) The deserting spouse must have the intention to desert the other spouse,
(iii) The deserted spouse must not have agreed to the separation,
(iv) The desertion must have been without cause, and
(v) This state of affairs must have continued for the requisite period, i.e., two
years.
Constructive Desertion
In simple desertion there is abandonment, in constructive desertion there is expulsive conduct.
The conduct must be grave and weighty. Constructive desertion is not abandonment of a place (matrimonial
home) but of a relationship, namely, matrimonial relationship. If one spouse by words and conduct
compels the other to quit the matrimonial home the former will be guilty of desertion though the latter
has physically separated from the other and left the matrimonial home.
In the case of Tarachand v. Smt. Narain Devi, the court laid down that where the appellant had
himself created a situation under which the respondent was compelled to leave home and live separately,
the appellant could not raise the plea of desertion against the respondent and file a petition for judicial
separation.
Willful Neglect and Desertion
The explanation to Section 10 lays down that desertion includes the willful neglect of the petitioner
by the other party to the marriage; "willful" means 'on purpose' 'intentional' and neglect means neglect
in the discharge of marital obligations of consortium and cohabitation. Mr. Subba Rao, J., expressed the
view that the use of the expression 'willful neglect' aims at including constructive desertion within its
ambit and so it must have all the ingredients of desertion. Inclusion of 'willful neglect' has considerably
widened the scope of desertion.

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 Law (Sample Theory)

4. Conversion : Prior to the amendment of Section 10 of the Act by Marriage Laws (Amendment)
Act, 1976, conversion was a ground of decree of divorce and now it has also been made a ground for
judicial separation. According to this sub-section, ceasing to be a Hindu by conversion on the part of the
other party to the marriage forms a ground for a decree of judicial separation and of divorce. The
petitioner, who himself ceases to be Hindu by conversion, cannot claim a decree for judicial separation
or for divorce on the ground of his or her conversion.
5. Unsoundness of Mind : Incurable unsoundness of mind of either party to marriage is a
ground of judicial separation. The Amendment Act of 1976 has amended the section and now it is no
longer required to establish that the other party has been continuously of unsound mind for a period not
less than two years immediately prior to the presentation of the petition. 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. The expression 'mental disorder' means mental illness, arrested or incomplete
development of mind, psychopathic disorder or any other disorder or disability of mind and includes
schizophrenia.
6. Leprosy : Prior to the amendment in the Hindu Marriage Act, 1955 by the Amendment Act of
1976, for getting a decree for judicial separation under this clause, it was to be established that the
respondent has, for a period not less than one year immediately prior to the presentation of the petition
been suffering from virulent form of leprosy.
Under the Amendment Act of 1976, the period of one year has been deleted and the word
incurable has been added. In order to get a decree of judicial separation under this clause, it has to be
established that the respondent has been suffering from a virulent and incurable "form of leprosy."
The leprosy which is malignant or venomous can be termed as virulent. Lepromatous leprosy is
virulent and incurable.
7. Venereal Disease : Tine Amendment Act of 1976 has dispensed with the requirement of three
years suffering from venereal disease and now it requires establishing for judicial separation that the
respondent has been suffering from venereal disease in a communicable form. By this amendment the
words "the disease not having been contracted from the petitioner" have also been omitted.
8. Renunciation of the World : Before the amendment in the Hindu Marriage Act, 1955 this
ground was not available for a decree of judicial separation and it was a ground only for divorce. The
Marriage Laws (Amendment) Act, 1976 has made this clause also a ground for judicial separation.
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. Mere declaration of the
renunciation of the world by a person is not sufficient and it has to be further proved that such person
has joined some religious order contrary to the concept of marriage.
9. Presumption of Death : Under the Marriage Laws (Amendment) Act, 1976, the fact that the
other party has not been heard of as being alive for a period of seven years or more by those who would
naturally have heard of it, had that party been alive, has also been made a ground for judicial separation.
Previously it was ground for divorce only.
Additional Grounds
The Marriage Laws (Amendment) Act, 1976 has brought out significant changes in the grounds
of judicial separation. The grounds of judicial separation and divorce have been made identical.
Accordingly additional grounds have been made available to the wife for a decree of judicial
separation, which are as follows :
(i) Bigamy : In case of any marriage solemnized before the commencement of this Act, that
the husband had married again before such commencement or that any other wife of the
husband married before such commencement was alive at the time of the solemnization
of the marriage of the petitioner:
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 Law (Sample Theory)

Provided that in either case the other wife is alive at the time of the presentation of the
petition, or
(ii) Rape or Sodomy : The husband has, since the solemnization of the marriage, been guilty
of rape or sodomy; or
(iii) That 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; or
(iv) That her marriage (whether consummated or not) 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. The above four grounds are available to a wife whether her
marriage was solemnized before or after the commencement of Marriage Laws
(Amendment) Act of 1976.
When Court May Rescind the Decree for Judicial Separation under Hindu Law ?
The Court may rescind the decree where :
(i) The decree has been obtained ex parte, by showing reasonable excuse for his or' her
absence,
(ii) The parties cohabited with each other after the decree was passed or they have resumed
living together,
(iii) The opposite party has condoned the offence, i.e. the opposite party has satisfied the
court that he or she is willing to live as husband and wife and is not going to do any such
thing in future on which judicial separation was granted.
Divorce (Sec 13 of Hindu Marriage Act)
The following eleven grounds of divorce available to either spouse, i.e. husband and wife :1
1. Adultery :
 Means a consensual sexual intercourse between a married woman and another of opposite
sex during the subsistence of marriage.
 Formerly, to obtain a divorce on the ground of adultery, the petitioner had to prove that the
other party was living in adultery, which expression would cover a more or less continuous
and habitual course of action. However, after the 1976 amendment, even one single and
isolated act of infidelity would be a sufficient ground for obtaining a divorce.
 An attempt to commit adultery does not, however, amount to adultery, and cannot, therefore,
be a sufficient ground for obtaining divorce.
 Barker v. Barker, AIR 1955 Mad 103- it was held that direct proof of adultery is not
necessary, and the nature of the act is such that I would not even be reasonable to expect
any direct evidence. Thus, circumstantial evidence is all that can be expected in such
cases. The time and place is, therefore, not needed.
2. Cruelty :
 That the other party has, after the solemnization of marriage, treated he petitioner with
cruelty.
 The legal concept of cruelty cannot be defined with any degree of precision.
 Cruelty may be subtle or brutal. It may be physical or mental. It may be by words or by
words or by gestures or even by mere silence.

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 Law (Sample Theory)

 The leading case on mental cruelty is :

 Kalpana Shrivastava v. Surendra Nath AIR 1985, the unique question before the
court was : if a wife refuses to prepare tea for the husband and his friends, would
amount to mental cruelty ? Answering the question in the affirmative the court
observed that such an act on the wife's part certainly hurts the husband's ego, and
causes him humiliation before his friends. This act along with other acts on the
wife's part (viz. lodging false police complaints against her husband and terminating
pregnancy without the husband's consent) were held to constitute a grave form of
anguish and gross mental cruelty.
 Shobha Rani v. Madhukar Reddi AIR 1988 SC 121-the supreme court has held
that cruelty also includes unintentional cruelty, as for instance, where there are
repeated demands for dowry by the husband or his relatives.
 Russel v. Russel 1897 AC 395- cruelty refers to "conduct of such a character as
to have caused danger to life, limb or health (bodily or mental) or as to give rise
to a reasonable apprehension of such danger.
 Narendra v. K. Meena (2016) The Supreme Court held that unsubstantiated relations
levelled by wife and threats and attempt to commit suicide by her amounted to
mental cruelty.
 Two distinct elements are present in the legal concept of cruelty. Firstly, the ill-
treatment complained of, and secondly, he resultant danger or apprehension of
such danger.
 Shobha Rani v. Madhukar Reddi AIR 1988 SC 121- the Supreme Court has held
that the concept of cruelty is fast changing. A set of facts which amount to cruelty
in one case may not be regarded as cruelty in another case. The concept of
cruelty is to be viewed against the background of the way of life of the parties, their
economic and social condition, their culture, sense of values, etc. thus, precedents
cannot always be relied upon.
3. Desertion :
 It may be noted that the concept of desertion (from the point of view of matrimonial law)
is not easy to define.
 It has been rightly said that no judge has ever attempted to give a comprehensive definition
of desertion and no judge no judge would probably ever succeed in doing so.
 Pulford v. Pulford 1923 – in this case, a well-established principle of English matrimonial
law was give that desertion is "a withdrawal, not from a place, but from the state of
things."
 He leading case on desertion is Bipin Chandra v. Prabhawati 1956 – the Supreme Court
discussed the term quoting extensively from Halsbury's Laws of England i.e. "desertion
is the intentional forsaking and abandonment of one spouse by the other without the
other's consent and without reasonable cause. It is a total repudiation of marriage…..
There can be desertion even without previous cohabitation by the parties or without the
marriage having been consummated."
 Lastly, it may be noted that desertion from other matrimonial offences like adultery and
cruelty in that it does not consist of an act or series of acts which are separate and
distinct in them. Rather, it is an activity or course of conduct which must persist for the
statutory period up to the presentation of the petition. If the period is broken, the broken
periods cannot be added together to make a period of two years.

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 Law (Sample Theory)

4. Conversion :
 The ancient uncodified law contained no rule forbidding the subsistence of a marriage
where one of the parties had ceased to be a Hindu. The Act now gives a right to the
spouse who continues to be Hindu to obtain a divorce on the ground that the other spouse
has ceased to be a Hindu by conversion to some other religion.
 The term Hindu must be understood in the wide sense given to it under section 2 of the
Act and would, therefore, include all Hindus, Buddhists, Jains and Sikhs. Thus, a person
will be a Hindu even if he is converted from say, the Sikh to the Buddhist or Jain faith.
 Further, a person does not cease to be a Hindu merely because he is an ardent admirer
of some other religion, or if he professes a theoretical allegiance to such other religion.
 If, however, he abdicated the Hindu faith by a clear act of renunciation, and formerly
converts himself to the other religion, he would cease to be a Hindu under this clause.
5. Insanity :
 The onus of proving the unsoundness of mind is on the petitioner, i.e. the spouse seeking
divorce on this ground. Dealing with this ground of divorce, the Supreme Court has
cautioned that the mere branding of a spouse as schizophrenic is not sufficient. The
degree of mental disorder of the spouse must be proved to be such that the other spouse
cannot reasonably be expected to live with him or her. Gupta v. Gupta AIR 1988.
6. Leprosy :
 Leprosy was "the dreaded disease" once upon a time. However, modern medicine has
taken great strides in the direction of its treatment, and with the new drugs that are now
available, a scientific approach is warranted when answering the question that whether in
any given case, leprosy is virulent or not.
 Before the 1976 Amendment, it was necessary that such leprosy should have existed for
at least three years before the presentation of the petition. The minimum requirement of
three years is no longer necessary.
7. Venereal Disease :
 Before the 1976 Amendment, it was necessary that such venereal disease should have
existed for at least three years before the presentation of the petition. The minimum
requirement of three years is no longer necessary.
8. Renouncing the World :
 Under the ancient Hindu law, if a person entered a religious order, renouncing all worldly
affairs, his actions would tantamount to civil death. Under this Act, his action would afford
a ground for divorce for the other spouse.
 Two essential conditions have to be satisfied before a court can grant divorce under this
clause viz. :
(i) Such person must have renounced the world; and
(ii) Such person should have entered any religious order.
Both these requirements must co-exist, and the presence of one of them will not suffice.
 It is to be remembered that a person cannot be said to have adopted a religious order
merely for declaring himself to belong to such order.
 Thus, for example, if a person calls himself a sanyasi, puts on clothes of a particular color
and shaves his head; he does not thereby become a sanyasi. He will be deemed to have
entered that order only if he has also performed the necessary rites and ceremonies
prescribed for this purpose by the shastras.

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 Law (Sample Theory)

9. Not Heard of :
 It is a well-established legal presumption that a person can be taken to be dead, if he is
not heard of for a period of 7 years or more, by those persons (like his near relatives and
friends) who would have naturally heard of him, had he been alive. This is a presumption
of legal convenience, and has been adopted by the Evidence act also.
 Under this clause, the fact that for a long period of seven years (or more), the respondent
has been absent from the petitioner and the petitioner (and other close relatives) have not
heard of him at all, should normally be sufficient evidence that such a person is dead, and
a divorce ought to be granted to the petitioner.
 It is to be noted that a decree of divorce granted under thus clause is valid and effective,
seven if I is subsequently discovered that the respondent was alive when the decree was
passed.
Section 13(1-A) which was included in 1964 envisages only two grounds which have their roots
in the break-down theory. These two grounds include (i) non-compliance with the decree of restitution
of conjugal right and, (ii) omission to resume cohabitation for a period of one year after the decree of
judicial separation is passed. Thus in both these situations, on the breakdown of marriage, either party
thereto could avoid the marriage through a decree of divorce.
10. Decree of Judicial Separation :
 The scheme of the Act is not to encourage divorce or to enforce conditions which may
cause hardship to the parties. Thus, a period of one year has been fixed, and this would
give maximum opportunities of mutual adjustment after a decree of judicial separation.
 If cohabitation is not resumed during this period, the marriage ought to be regarded as
having been a complete failure and a decree for divorce can be granted to either party to
such a marriage.
 It is to be noted that this clause does not confer any absolute or unrestricted right on a
spouse to obtain a divorce.
 Under section 23, the court would still have to be satisfied there is no bar of any kind
(mentioned in section 23) to the granting of such relief.
 Thus, for example, if the court is satisfied that the petitioner is taking advantage of his own
wrong, the court will decline to grant a divorce, even if the case falls under this clause.
 Under this clause, either party to the marriage, and not necessarily the one who had
obtained the judicial separation, can present a divorce petition.
 Originally, the period prescribed under this clause was two years. This was reduced to
one year by the 1976 Amendment.
11. Decree of Restitution of Conjugal Rights :
 Here, a decree for restitution of conjugal rights between the parties has been passed, but
there has been no restitution of conjugal rights for a period of at least one year after the
passing of such ad decree.
 Under this clause also, either spouse can present a divorce petition, in other words, this
right is not given only to spouse who had obtained the decree for restitution of conjugal
rights.
 Originally, the period prescribed under this clause was 2 years. This was reduced to one
year by the 1976 Amendment.

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 Law (Sample Theory)

In addition to the 11 grounds of divorce discussed above, the following four additional grounds are
available only in those cases where the wife applies for a divorce :
1. Bigamy :
 Here, in the case of a marriage solemnized before the commencement of the Act, the
husband has married again before such commencement, or any other wife of the husband
married before such commencement, under this clause that the other wife should be alive
at the time of the petitioner's marriage.
 This ground can obviously exist only in the case of a marriage solemnized before the Act
came into force.
 As regard, marriages solemnized after the Act, under section 5 and 11, such marriages
would be bigamous and void ab initio, and there would naturally be no question of divorce
in such cases.
 It is also necessary under this clause that the other wife should be alive at the time when
the petition is presented to the court.
 It will be seen that this remedy is available to a wife irrespective of the fact that the other
marriage had taken place before or after the marriage of petitioner wife with him.
 Thus, the remedy is available to the first as well as the subsequent wives.
2. Rape, Sodomy and Bestiality :
 Here, the husband has been guilty of rape, sodomy or bestiality after the solemnization
of the marriage.
 Rape refers to the ravishing of a woman, whereas, sodomy and bestiality refers to carnal
intercourse by a man against the order of nature with another man or with an animal
respectively. Although these are also offences under the Indian Penal Code, a divorce
would be granted even if the husband has not been convicted of any of these offences
in any criminal proceedings.
3. Decree or Order Awarding Maintenance :
 Here, a suit under section 18 of Hindu Adoptions and Maintenance Act, 1956, or in a
proceeding under section 125 of Criminal Procedure Code,1973, decree or order has been passed
against the husband awarding maintenance to the wife, (notwithstanding, that she was living apart), and
that since the passing of such decree or order cohabitation between the parties has not been resumed
for one year or more.
4. Repudiation of The Marriage :
 Here, the marriage was solemnized before the wife attained the age of 15 years and that
she has repudiated the marriage after attaining that age, but before attaining the age of
18 years.
 When the Hindu Marriage Act came into force, one of the essential conditions of a valid
Hindu marriage was that the bride should be at least fifteen years old. This age was raised
to eighteen in 1978. However, in case of a marriage before the 1978 Amendment, even
if the bride was under fifteen, such a marriage was not void or voidable; only the parties
to such a marriage were liable to imprisonment, or fine, or both. This provision now
enables a wife in such a case to obtain a divorce, provided that she has repudiated the
marriage before she becomes eighteen years old.
 For the purposes of this ground of divorce, it is immaterial whether the marriage was
consummated or not.

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 Law (Sample Questions)

Sample Questions With Solutions

1. In which of the following cases, the Supreme Court held that the controversial Judgment of the
Madras High Court which held “sex amounts to marriage” has no universal application ?
(A) Aysha v Ozir Hassan (B) Uday Gupta v Aysha
(C) Sobha v Gangadhara Swamy (D) None of the above

2. Which of the following statements is correct ?

Hindu Law originally _________.
(A) Was not the result of legislation (B) Is of divine origin
(C) Was the result of legislation (D) Both (A) and (B) are correct.

3. Hindu Law includes

(A) Codified law (B) Un-codified law
(C) Both (A) and (B) (D) None of the above

4. Which of the following is a school of Hindu Law ?

(A) Mitakshara school (B) Dayabhaga school
(C) Both (A) and (B) (D) None of the above

5. The entire codified Hindu Law has been enacted by the _________ .
(A) State Legislatures (B) Parliament
(C) Both (A) and (B) (D) None of the above

6. In India, family law _________ differ from state to state.

(A) Does (B) Does not
(C) None of the above (D) Sometimes

7. Indian citizens, who are abroad, are regulated by the _________.

(A) The Hindu Marriage Act, 1955 (B) The Foreign Marriage Act, 1969
(C) Either (A) or (B) (D) Neither (A) nor (B).

8. Under the Indian Constitution, all aspects of family law are in the _________ list.
(A) Union (B) State
(C) Concurrent (D) None of the above

9. Manu classified Dharma in to _________ .

(A) Achara (B) Vyavahara
(C) Prayaschita (D) All of the above

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 Law (Sample Questions)

10. Hindus are categorized into _________.

(A) Brahmins (B) Kshatriyas
(C) Vaishyas (D) All of the above

ANSWER KEY
1 2 3 4 5 6 7 8 9 10
B D C C B B B C D D

SOLUTIONS

1. (B) Uday Gupta v Aysha

2. (D) Both (A) and (B) are correct.
3. (C) Both (A) and (B)
4. (C) Both (A) and (B)
5. (B) Parliament
6. (B) Does not
7. (B) The Foreign Marriage Act, 1969
8. (C) Concurrent
9. (D) All of the above
10. (D) All of the above

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