10 marks

1. A executed a will appointing B as the executor. A authorized his widow to adopt a

son and she adopts accordingly. The property of the deceased consists of a money-
lending business. B orrowed money from a bank for the conduct of money-
lending business, which was necessary for the estate. Later the adopted son
repudiates the debt to the bank.. Decide with relevant case law on the point.

APPOINTMENT OF TESTAMENTARY GUARDIAN - HIS POWERS

The father is the natural guardian of his minor children. By his will he can point a guardian to
look after the property and person of his mior children. Such a guardian is called a testamentary
guardian. Under Sec 9 he cannot function if the testator is survived by his widow (i.e. mother of
the children for whom the testamentary guardian is appointed). As natural guardian the mother
has a superior right to guardianship. In fact she can herself by her will appoint whether
testamentary guardian who will look after her children and their property during their minority
on her death. But if she dies without leaving such a will, the appointment of testamentary
guardian by the father revives and such testamentary guardian can fuction.

The powers of the testamentary guardian are defined by the will of the testator, He has the
powers of a natural guardian subject to any restrictions that may have been imposed upon them
by the will appointing him as testamentary guardian.

In Ramanathan v. palaiappa, A executed a will appointing B as executor of the will and

authorizing his (A's) widow to adopt a son. Till the son became a major the executor was to
manage the property which consisted of an ancestral money lending business. The widow later
on adopted a so. In the course of the business B appointed an agent for conducting the business
borrowed from a Bank executing a promissory note along with C each taking a half of the
money. C had to pay the whole amount to the Bank. After paying the whole amount to the Bank,
C sued the minor for contribution. The minor's plea was that B or his agent could not borrow so
as to bind his estate. It was held that it was a testamentary guardian and had the powers of a
natural guardian as defined in Hanuman Prasad case. The appointment of an agent for a business
of the kind was held to be within the powers of natural guardian under Hindu law. The
continuation of the business was also within his powers even apart from the directions contained
in will. The borrowing was for the benefit of the minor’s estate and so the suit for contribution
was decreed.

Under Sec. 8 the powers of the natural guardians have been curtailed in regard to the making of
alienations In other respects their powers are still those recognised by the doctrine of Necessity
or benefit" as laid down in Hanuman Prasad's case. So testamentary guardians can exercise the
powers of natural guardians

(1) subject to the restrictions thereon under Sec 8 and

(2) further, subject to the directions in the will itself. Such are the powers of testamentary
guardians.

2. “We have not lost sight of the fact that the conduct of the husband is blame worthy
in that he married a second time and got a child during the pendency of the
proceedings but that factor cannot be blown out of proportion or viewed in isolation
nor can deter this court to take a total and broad view of the realities of the situation
when we deal with adjustment of human relationships” In the light of the above
statement critically examine the case of Ashok Hurra Vs Rupa Bipin Zaveri,
AIR1997SC1266

INTRODUCTION

The marriage can be said to be broken down when the objects of the marriage cannot be fulfilled.
It was recognised as early as 1972 by the Bombay High Court in the following words: “the
enactment of Section 13(1-A) in 1964 is a legislative recognition of the fact that if there has been
a breakdown of marriage there is no purpose in keeping the parties tied together”. The intention
of the Parliament becomes clear when we look at the statement of objects and reasons of the
amended Bill

In Ashok Hurra v. Rupa Bipin Zaveri, the Supreme Court Observed that a period of nearly
thirteen years had already passed and there was no useful purpose of prolonging the agony and
that the curtain should be rung at some stage. In such a state of affairs, the Supreme Court
exercised its jurisdiction under Article 14247of the Constitution and granted a decree of divorce
by mutual consent under Section 13-B of the Hindu Marriage Act 1955. But certain safeguards
were also provided, such as the husband was directed to pay a lumpsum of ten lakh rupees to the
wife and also another sum of fifty thousand rupees as litigation cost within a given time as
condition precedent of the decree taking effect. Therefore, it may be noted that even though the
High Court used the expression “irretrievable breakdown of marriage”, the Supreme Court
avoided it. Instead, on the peculiar facts and circumstances, the provisions of Article 142 of the
Constitution were invoked as no other legal provision could apply. But it leaves such problems
unsolved as only the Supreme Court can invoke the provisions under Article 142 of the
Constitution. No other Court, not even the High Court, has such power.

FACTS:

The marriage between appellant and respondent was solemnized on December 3rd, 1970.
Differences cropped up between them and on June 30th, 1983 the wife left the matrimonial
home. On August 21st, 1984 a joint petition for divorce was filed under Section 13B of the
Hindu Marriage Act, 1955. The parties sought a decree for dissolution of marriage by mutual
consent. On April 4th, 1985 the husband alone moved an application praying for passing a
decree of divorce. On March 27th, 1986 the wife filed an application withdrawing her consent
for divorce. The husband contended that the wife has no right to withdraw or revoke the consent
after the period of 18 months, under Section 13B of the Act.

ISSUE:

Whether a decree of divorce be passed if one of the parties withdraws consent before passing of
the same?

JUDGMENT:

The Court held that the observations made by the Supreme Court in the matter of Sureshta Devi
Vs. Om Prakash that the mutual consent should continue till the divorce decree is passed, even if
the petition is not withdrawn by one of the parties within the period of 18 months, appears too
wide and does not logically accord with Section 13B(2) of the Act. The paramount consideration
should be that a party who comes to the Court with clean hands should be assisted. The Court
held that the wife has not withdrawn her consent lawfully given for a period of 18 months and it
is not a case where the consent given is revoked on the ground that it is vitiated by fraud or
undue influence or mistake etc. Court observed that there is no scope of reconciliation between
the parties and marriage has broken down irretrievably. The Court held that appropriate
safeguard or provision for the respondent to enable her to have a decent living should be made.
The Court held that the respondent should be paid a sum of Rupees 10 lakhs and her cost in
litigation, as a condition precedent for the decree to take effect.

HELD:

Decree of divorce for dissolution of marriage by mutual consent passed. A decree for divorce can
be passed even if one of the parties withdraws consent before such passing.

3. Under the Shastric Hindu Law there is no limit of time within which a widow can
make a valid adoption to her deceased husband. The Privy council, however on
grounds of public policy imposed a limit upon the widow’s power of adoption. The
limit is not a durational limit measured in years. It is a contingent limit. Mention
the contingencies in which the widow’s power of adoption comes to an end.”. In
the light of the above statement mention the law involved in the law of adoption
with the decided cases

The Privy Council, however, on grounds of public policy imposed a limit upo the widow’s
power of adoption. The limit is not a durational limit measured in years. It is a contingent limit
i.e., a limit measured in contingencies. The contingencies in which the widow's power of
adoption becomes extinguished were laid down in the following decisions:

Bhoobun Moyee's Case (1865):- In Bhoobun Movee v. Ram Kishore This question was first
considered by the Privy Council. The under noted genealogical table clarifies the facts of this
case :

Gour Kishore = Chundrabullee (w)

| Ram Kishore (Adopted)

Bhowani Kishore Bhoobun Moyee (sw)

Rajendra Kishore (Adopted)

Gour Kishore authorised his wife Chundrabullee to adopt a son to him. He died leaving his
widow Chundrabullee and his son Bhowani Kishore. Subsequently, Bhowani Kishore died and
his widow Bhoobun Moyee adopted Rajendra Kishore. Later, Chundrabullee adopted Ram
Kishore and he sued for possession of Bhowani Kishore's property. The Privy Council held that
Chundrabullee's power of adoption came to an end as soon as Bhowani Kishore died leaving his
widow to continue the line. Two independent reasons were given for this conclusion:

(1) Suppose Bhoowani Kishore had left a son who subsequently died. Gour Kishore would then
have received religious offering from his son and grandson. The spiritual purposes of sonship
would have been fully satisfied. On the death of the son leaving a grandson Chundrabullee's
power of adoption would come to an end and would not be revived by the subsequent death of
the grandson. The Privy Council thought that the result would be the same even if Bhowani
Kishore died leaving a widow instead of a son for the widow could be the means of continuing
the line.

(2) If Ram kishore’s adoption is to be treated as valid, he should be able to recover his adoptive
father property. But that property has vested in Bhoobun Moyee as widow of Bhowani Kishore
and she could not be divested because Ram Kishore would only be Bhawani Kishore’s brother
and so a remoter heir than thonbon Moy wife of the last male holder Bhowani Kishore.

Subsequently, Bhoobun Moyee died. The property was inherited by Chundrabutle because the
adoption of Rajendra Kishore by Bhoobun Moyee was invalid. This adoption was invalid
because under the Bengal School of Hindu Law governing the parties the widow must have
express authority from her husband to make an adoption. Such an authority was set up in the
form of a will executed by Bhowani Kishore but this will was held to be a forgery in Bhoobun
Moyee's case itself. Now that the estate was vested in Chundru Bullee her adopted son would
divest only her estate. So another attempt was made to support the adoption of Ram Kishore.
This led to the decision of the Privy Council in Padma Kumari v. Court of Wards The Calcutta
High Court held that since the adopted son was divesting only the estate of his adoptive mother,
the adoption was valid. But on appeal to the Privy Council it was held that it was not so. Sir
Richard Couch observed :

Upon the vesting of the estate in the widow of Bhowanee, the power of adoption was at an
end, and incapable of execution."

The true basis of the Privy Council decision was explained by Chandavarkar, J, in Ram Krishna
v. Shamrao, in that case a grandmother, succeeded to her grandson who died unmarried. The
subsequent adoption by her was held to be invalid. The law was stated thus: "Where a Hindu dies
leaving a widow and a son, and that son dies leaving a natural born or adopted son or leaving no
son but his widow to continue the line by means of adoption, the power of the former widow is
extinguished and can never after wards be revived". This statement of the law was approved by
the Privy Council in Madan Mohan v Purushottam.

The matter was put beyond all doubt in Amarendra v. Santana Singh,' here the widow made the
adoption after the death of her son who died unmarried at the age of 20 years, The property of
her son being impartible was vested in collateral, as a mother being a female was excluded by
custom from inheriting such property. Although the divestment was not of the estate vested in
the adoptive mother herself but of someone else, the adoption was held to be valid. So the
question of validity of the adoption was delinked from the question of vesting and divesting of
the estate. The spiritual aspect alone was to be considered. The widowed mother's power to adopt
to her husband comes to an end only when her son hands over the spiritual torch of providing for
the continuance of the line to another namely his son or in the absence of such son to-his own
widow. Thereafter the mother cannot take up that torch; i.e., her power to adopt comes to an end.

The Supreme Court also and has set its seal of approval upon the rule in Bhoobu Moyee's case in
Guru Nath v. Kamalabai, the question was whether the mother could adopt on the death of the
son leaving his own son who also died without leaving a widow or Son. It was held that the
moment the son died leaving his own son the mother's power came to an end. The subsequent
death of the grandson does not revive that power. It is extinguished as soon as the son leaves his
own son or widow. Mahajan. I held that it is now well established by judicial decisions ranging
over three quarters of a century that the power of a widow to adopt comes to an end by the
interposition of a grandson or the son's widow.competent to adopt

The learned Judge conceded that there is no Sastrie foundation for this rule but it has been made
part of the Hindu Law by Judicial decisions.

The famous rule in Bhoobun Moyee's case which was the source of much litigation for many
decades has not been embodied in the Act of 1956. Now a widow may adopt without any
authority for the purpose being bestowed upon her by her husband or his Sapindas. This
independent power to adopt a son she can exercise if at the time of adoption she has no son
grandson or great grandson.

Illustration (1) - A dies leaving widow W and a son S. Subsequently S dies leaving his own
widow SW. Prior death S gives consent to an adoption by W and prohibits SW from adopting.
Can W adopt to her husband?

This problem is governed by the rule in Bhoob Moyee's case. In that case the daughter-in-law
widow's adoption was invalid for want of express authority from her husband which was
necessary under the Bengal school of Hindu Law by which she was governed. Still it was held
that the mother-in-law's adoption was invalid. The mother-in-law's power to adopt comes to an
end in two contingencies

(1) When her son has procreated a son or adopted a son

(2) When her son dies issueless but leaving his widow. It is true that when the daughter-in-law is
in no position to continue the line either for want of express authority or because of positive
prohibition by the husband, it would be a great hardship to deny to the mother-in-law the right to
adopt to her husband and continue the line. But the Supreme Court has affirmed the rule in
 Bhoobun Moyee case and so the conclusion is that the mother-in-law's power of adoption has
come to an end and cannot be revived.

Illustration (2):- A dies leaving a widow and two sons. One son dies married and his widow
dies shortly thereafter. The other son dies unmarried. Can A's widow adopt a son?

The moment the son died leaving his own widow, the mother- in-law widow's power of adoption
comes to an end. So A's widow cannot adopt.

Illustration (3):- A Hindu dies leaving a widow K and a son M, adult and married. M dies
leaving a direction that no adoption should be made to him, but that his mother K may adopt K
adopts. Discuss the validity of the adoption.

The adoption is not valid because the power to adopt has become extinct.

4. On what grounds the constitutional validity of Muslim women (Protection of Right son
Divorce)Act, 1986 was challenged and what are the principles laid down by the Supreme
Court in Danial Laiff Vs. Union of India AIR2001,S.C.3958

Introduction:
After the landmark judgment of Shah Bano’s case, there was a chaos condition in the Muslim
Personal Law. Also there was many political issues and protest.

The Parliament to undo the effect of the judgment, passed and implemented Muslim Women
(Protection of Rights on Divorce) Act, 1986, which provided that under section 3 (1) a, a
divorced women is entitled to reasonable and fair provision and maintenance within the iddat
period.

The one of the counsel of Shah Bano’s Danial Latafi challenged the above Act on the basis of its
constitutional validity as violation of Art 14 and 15.

Facts:
1. Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844), commonly referred to as
the Shah Bano case, was a controversial maintenance lawsuit in India. Shah Bano, a 62-
 year-old Muslim mother of five from Indore, Madhya Pradesh, was divorced by her
husband in 1978.
2. She filed a criminal suit under Section 125 of the CrPC, ultimately in the Supreme Court
of India, she won the right to alimony from her husband. However, she was subsequently
denied the alimony when the Indian Parliament reversed the judgment under pressure
from Islamic orthodoxy.
3. This case caused the Congress government, with its absolute majority, to pass the Muslim
Women (Protection of Rights on Divorce) Act, 1986 which diluted the judgment of the
Supreme Court and, in reality, denied even utterly destitute Muslim divorcées the right to
alimony from their former husbands.
4. The constitutional validity of The Muslim Women (Protection of Rights on Divorce) Act
1986 was challenged before the Supreme Court in this case through filing a writ petition.

SUPREME COURT:
The principle question for discussionbefore this Court was the interpretation of Section 127(3)(b)
CrPC that wherever a Muslim lady had been single by her husband and paid her mahr, wouldn't
it indemnify the husband from his obligation below the provisions of Section 125CrPC. The
court held two conditions by Shah Bano’s case:
1. in the case where, such sum was paid before such order, from the date on which such
order was made,
2. in any other case, from the date of expiry of the period, if any, for which maintenance has
been actually paid by the husband by the woman;

Issue: Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986 is
constitutionally valid.

Arguments:
The Petitioner (represented by Counsel Smt. Kapila Hingorani and Smt. Indira Jaisingh)
submitted:

i. Muslim marriage is of contract nature and an element of consideration is necessary by

way of mahr or dower and absence of consideration will discharge the marriage. On the
other hand, Section 125 CrPC has been enacted as a matter of public policy.
 ii. Section 125 CrPC is part of the Code of Criminal Procedure and not a civil law, which
defines and governs rights and obligations of the parties belonging to a particular
religion. The basis there being, neglect by a person of sufficient means to maintain these
and the inability of these persons to maintain themselves, these provisions have been
made and the moral edict of the law and morality cannot be clubbed with religion.
iii. The argument is that the purpose of Section 125 CrPC is to off-set or to meet any
particular situation where a divorced wife is likely to be led into destitution. Section 125
CrPC is enacted to prevent the same in furtherance of the concept of social justice
embodied in Article 21 of the Constitution.
iv. There is discrimination being held with Muslim Women. Apart from the gender injustice
caused in the country, this discrimination further leads to a monstrous proposition of
nullifying a law declared by this Court in Shah Banos case. Thus there is a violation of
not only equality before law but also equal protection of laws.
v. The Act is an un-Islamic, unconstitutional and it has the potential of suffocating the
Muslim women and it undermines the secular character, which is the basic feature of the
Constitution; that there is no rhyme or reason to deprive the Muslim women from the
applicability of the provisions of Section 125 CrPC and consequently, the present Act
must be held to be discriminatory and violation of Article 14 of the Constitution; that
excluding the application of Section 125 CrPC is violation of Articles 14 and 21 of the
Constitution.

The Respondent (represented by Counsel Shri Y.H.Muchhala and Solicitor General)

submitted:

i. Under Section 3 of the Act, it is provided that a reasonable and fair provision and
maintenance to be made and paid by her former husband within the iddat period would
make it clear that it cannot be for life but would only be for a period of iddat and when
that fact has clearly been stated in the provision, the question of interpretation as to
whether it is for life or for the period of iddat would not arise.
ii. Personal law is a legitimate basis for discrimination, if at all, and, therefore, does not
offend Article 14 of the Constitution. If the legislature, as a matter of policy, wants to
apply Section 125 CrPC to Muslims, it could also be stated that the same legislature can,
 by implication, withdraw such application and make some other provision in that regard.
Parliament can amend Section 125 CrPC so as to exclude them and apply personal law
and the policy of Section 125 CrPC is not to create a right of maintenance dehors the
personal law. He further submitted that in Shah Banos case, it has been held that a
divorced woman is entitled to maintenance even after the iddat period from the husband
and that is how Parliament also understood the ratio of that decision. To overcome the
ratio of the said decision, the present Act has been enacted and Section 3(1)(a) is not in
discord with the personal law.
iii. The Court has harzarded interpretation of an unfamiliar language in relation to religious
tenets and such a course is not safe as has been made clear by Aga Mahomed Jaffer
Bindaneem vs. Koolsom Bee Bee & Ors., 24 IA 196, particularly in relation to Suras 241
and 242 Chapter II, the Holy Quran. In conclusion, he submitted that the interpretation to
be placed on the enactment should be in consonance with the Muslim personal law and
also meet a situation of vagrancy of a Muslim divorced wife even when there is a denial
of the remedy provided under Section 125 CrPC and such a course would not lead to
vagrancy since provisions have been made in the Act. This Court will have to bear in
mind the social ethos of Muslims, which are different and the enactment is consistent
with law and justice.
iv. The Parliament enacted the impugned Act, respecting the personal law of muslims and
that itself is a legitimate basis for making a differentiation; that a separate law for a
community on the basis of personal law applicable to such community, cannot be held to
be discriminatory; that the personal law is now being continued by a legislative
enactment and the entire policy behind the Act is not to confer a right of maintenance,
unrelated to the personal law; that the object of the Act itself was to preserve the personal
law and prevent inroad into the same; that the Act aims to prevent the vagaries and not to
make a muslim woman, destitute and at the same time, not to penalise the husband.
v. The impugned Act resolves all issues, bearing in mind the personal law of muslim
community and the fact that the benefits of Section 125 CrPC have not been extended to
muslim women, would not necessarily lead to a conclusion that there is no provision to
protect the muslim women from vagaries and from being a destitute; that therefore, the
Act is not invalid or unconstitutional.
Judgment:
Daniel Latifi judgment basically revived the principles settled in Shah Bano case that, the
husband’s liability to maintain his wife doesn’t end with the iddat period. However, it explained
this principle, not as contravening the Act which was enacted as a result of the Shah Bano case,
as a commentary on that Act. Also, the Act is consistent with section 125 of the CrPC and hence,
there is no scope for conflict. Hence, the position of law is that, the provisions of the Act
basically emanate from principles set forth in the Shah Bano case.
The same has not been changed till now, and continues to govern matters related to maintenance
of Muslim women after dissolution of marriage. The principle has been seconded by the
Supreme Court once again in Iqbal Bano V State of U.P1.
In the case the court reiterated the position that divorced women are entitled for maintenance
beyond the Iddat period and stated that provisions of the Act do not contravene Article 14, 15 &
21 of the Indian Constitution. The court further observed that “right under Section 125 of Cr.
P.C. extinguishes only when she receives “fair or reasonable” settlement u/Sec. 3 of the Muslim
Women Act.
The wife will be entitled to receive maintenance u/Sec. 125 of Cr.P.C. until the husband fulfils
his obligation u/Sec. 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986.
This was once again reiterated in the recent judgment in Shabana Bano v. Imran Khan2 that after
the expiry of iddat, a divorced Muslim woman can seek maintenance under S.125CrPc as long as
she doesn’t re-marry. Hence, the position as laid down in the Daniel Latifi case is the settled
position and has not undergone any change.
Ratio Decendi
The Muslim Women (Protection of Rights on Divorce) Act, 1986 doesn’t violates any
fundamental right prescribed under the Constitution of India.

Obiter Dicta
Any personal law which sought to be drafted has to draft by considering the all aspects including
their religion prospective, views and impact on particular projected group of people. The
Personal law may connote a different thing but keeping the changing society in mind, it should

1
AIR 2007 SC 2215
2
AIR 2010 SC 305
be open to interpretation only for positive changes. That only can help us achieve the objectives
of Social Justice laid down both expressed and implicitly in our Constitution.

Conclusion
Prior to both cases, of Shah Bano’s and the present case, there was bedlam with respect to the
provision of maintenance. But, after the Shahbano’s Case, the MWA, 1986 prescribed some
more guidelines for the application of maintenance. Also, if we see from other point of angle it
could be seen that the act was further approved and supported by the Indian Constitution, from
the supreme law of the India as non-violative and constitutionally valid.

The controversy still remains. The interpretation provided by the judiciary in the Danial Latifi
case fails to satisfy the minds of the reasonable people, as there are glaring defects on the face of
it. But we should also keep in mind the social perspective. On one hand where it upholds the
Constitutional validity of the Act, it also interprets the provisions of the Act in favour of the
divorced Muslim women.

The Muslim women had feared that the 1986 Act had taken away their right to maintenance
beyond the iddat period. But these court judgments have given them hope. The Muslim leaders
are not likely to protest against these judgments as they did in the Shah Bano case and even if
they do, they will not get the kind of response from Muslims as they did in the mid-1980s.

5. A sole surviving coparcener executed a will under which he authorized his wife to
adopt a boy to him. Under the same will he gave certain property to his wife and
also to his daughter. After his death his widow adopted a boy. Can he challenge
the bequests:
(i) If the property bequeathed was the testator’s separate property;
(ii) If it was his ancestral property. Would it make any difference if the testator
himself made the adoption during his life time
Effect of adoption on testamentary power of adoptive parent:- A sole surviving coparcener
executed a will under which he authorised his wife to adopt a boy to him. Under the same will he
gave certain property to his wife and also to his daughter. After his death his widow adopted a
boy. Can he challenge the bequests

(1) if the property bequeathed was the testator's separate property.

(2) if it was his ancestral property. Would it make any difference if the testator himself made the
adoption during his life-time?

PRE-ACT LAW

If the Testator makes the adoption :- (1) Ancestral Property: It was held in Krishnamurthi v.
Krishname that the adopted son becomes a coparcener and so the will of the adoptive father does
not bind him.

(2) Self-acquired property :- In the first Pittapur case, Sri Raja Rao Venkata Surya Mahipathi
Ramakrishna Rao v. Court of Wards, it was held that adoption does not deprive the adopter of
his rights to dispose of property when in respect of that property the adoptive son does not
become a coparcener. In that case the property disposed of by will was an impartible raj and so
the adopted son did not become a coparcener with reference to it. The will was held to be valid.
The same principle is applicable to self-acquired property.

If the widow makes the adoption :- In this case the will as to separate property had already
come into effect and a valid bequest had been made thereunder. So the son adopted by the widow
is bound by it. A will as to coparcenary property also when the testator is the sole surviving
coparcener has the same effect and the adopted son is bound by it.

Under new act: - adoption does not effect the testamentary power of adoptive father or divest
any vested estate. So the adopted son cannot challenge the bequests.
 6. In Shamim Ara Vs. State of UttarPradesh, A.I.R,2002S.C.3551, SupremeCourt
Observed that “A mere plea taken in the written statement of a divorce having been
Pronounced some times in the past cannot, by itself, be treated as effecting talaq on
the date of the delivery of the copy of the written statement”.In the light of the
above observation critically examine the above saidcase

FACTS

The appellant-wife and Abrar Ahmed(respondent no.2) were married in 1968. The appellant filed
an application in 1979 under Section 125 CrPC complaining of cruelty to her and her children as
well as desertion. The husband replied by claiming that he had divorced her on 11-7-1987, and
therefore her disentitlement for maintenance.

No statement of circumstances, no justification by reasons, no proof of efforts at reconciliation

and no evidence of witnesses in support of the talaq were adduced. The Family Court had
accepted an affidavit by the husband (in some case where the appellant was not even a party) as
proof of the talaq and accordingly dismissed the wife’s suit for maintenance. The wife appealed
to the High Court. The High Court of Allahabad held that although the alleged divorce had not
been communicated to the appellant, the divorce stood completed in 1990 when the husband
filed written statement to her appeal.

The appellant has filed this appeal by special leave before the Supreme Court.

Legal Reasoning

Whether a written statement by the husband that he had divorced his wife (without
communicating the divorce to her) would amount to a divorce effective from the date of filing of
the written statement.

R.C Lahoti, J.: “None of the ancient holy books or scriptures of Muslims mentions in its text
such a form of divorce as has been accepted by the High Court and the Family Court. No such
text has been brought to our notice which provides that a recital in any document, whether a
pleading or an affidavit, incorporating a statement by the husband that he has already divorced
his wife on an unspecified or specified date even if not communicated to the wife would become
an effective divorce on the date on which the wife happens to learn of such statement contained
in the copy of the affidavit or pleading served on her.” (para 7)

The Hon’ble Judge noted that there is no mention in any Holy Book or Islamic scripture of a
form of divorce given by way of a pleading in a written statement, provided that the divorce was
not communicated to the wife prior to filing the written statement. Therefore, such a form of
divorce cannot be effected on the date on which the wife learns of such statement contained in
the copy of the affidavit/pleading served on her.

Commenting on a finding of fact, Judge Lahoti said: “The particulars of the alleged talaq are not
pleaded nor the circumstances under which and the persons, if any, in whose presence talaq was
pronounced have been stated. Such deficiency continued to prevail even during the trial and the
respondent No. 2, except examining himself, adduced no evidence in proof of talaq said to have
been given by him on 11.7.1987. There are no reasons substantiated in justification of talaq and
no plea or proof that any effort at reconciliation preceded the talaq.” (para 17)

Prior to this statement, Justice Lahoti had discussed precedents stating that “talaq must be for a
reasonable cause and be preceded by attempts at reconciliation between the husband and the
wife…; if the attempts fail, talaq may be effected”.(Para 15)

Justice Lahoti: “We are also of the opinion that the talaq to be effective has to be pronounced…
There is no proof of talaq having taken place on 11.7.1987…We are very clear in our mind that a
mere plea taken in the written statement of a divorce having been pronounced sometime in the
past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the
written statement to the wife. The respondent No. 2 ought to have adduced evidence and proved
the pronounced [sic]of talaq on 11.7.1987 and if he failed in proving the plea raised in the
written statement, the plea ought to have been treated as failed.”(para 18)

Justice Lahoti thus stated that the correct legal position is that a mere plea of divorce given in a
written statement by the husband will not by itself operate as proof of talaq; hence, it cannot be
said that talaqhas take effect from the date the written statement made by the husband comes to
the knowledge of the wife.
Conclusion:- “The appeal is allowed. Neither the marriage between the parties stands dissolved
on 5.12.1990 nor does the liability of the respondent No. 2 to pay maintenance comes to an end
on that day.”

7. Discuss briefly the grounds for judicial separation under the Hindu Marriage Act,
1955. How does a decree of judicial separation affect the marital status of the
parties?

Judicial separation is an instrument devised under law to afford some time for introspection to
both the parties to a troubled marriage. Law allows an opportunity to both the husband and the
wife to think about the continuance of their relationship while at the same time directing them to
live separate, thus allowing them the much needed space and independence to choose their path.

Judicial Separation and Divorce in India as per Hindu Marriage Act

Judicial separation is a sort of a last resort before the actual legal break up of marriage i.e.
divorce. The reason for the presence of such a provision under Hindu Marriage Act is the
anxiety of the legislature that the tensions and wear and tear of every day life and the strain of
living together do not result in abrupt break – up of a marital relationship. There is no effect of a
decree for judicial separation on the subsistence and continuance of the legal relationship of
marriage as such between the parties. The effect however is on their co-habitation. Once a decree
for judicial separation is passed, a husband or a wife, whosoever has approached the court, is
under no obligation to live with his / her spouse .

The provision for judicial separation is contained in section 10 of the Hindu Marriage Act,
1955. The section reads as under:

A decree for judicial separation can be sought on all those ground on which decree for
dissolution of marriage, i.e. divorce can be sought.
Hence, judicial separation can be had on any of the following grounds:

A. Adultery
B. Cruelty
C. Desertion
D. Apostacy (Conversion of religion)
E. Insanity
F. Virulent and incurable form of leprosy
G. Venereal disease in a communicable form
H. Renunciation of world by entering any religious order
I. Has not been heard of as being alive for seven years

If the person applying for judicial separation is the wife, then the following grounds are also
available to her:

1. Remarriage or earlier marriage of the husband but solemnised before the

commencement of Hindu Marriage Act, 1955, provided the other wife is alive at the
time of presentation of petition for judicial separation by the petitioner wife.
2. Rape, sodomy or bestiality by the husband committed after the solemnization of his
marriage with the petitioner.
3. Non-resumption of co-habitation between the parties till at least one year after
an award of maintenance was made by any court against the husband and in favour of
the petitioner wife.
4. Solemnization of the petitioner wife’s marriage with the respondent husband before
she had attained the age of 15 years provided she had repudiated the marriage on
attaining the age of 15 years but before attaining the age of 18 years.

It is on all the above grounds that judicial separation can be sought. The first 9 grounds are
available to both the husband and the wife but the last four grounds are available only to the
wife. It is to be noted that it is on these grounds that divorce is also to be granted. It has been
held that unless a case for divorce is made out, the question of granting judicial separation does
not arise. Therefore, the Courts while dealing with the applications for judicial separation shall
bear in mind the specific grounds raised for grant of relief claimed and insist on strict proof to
establish those grounds and shall not grant some relief or the other as a matter of course. Thus on
a petition for divorce, the Court has discretion in respect of the grounds for divorce other than
those mentioned in section 13 (1A) and also some other grounds to grant restricted relief of
judicial separation instead of divorce straightway

if it is just having regard to the facts and circumstances.

Another question that arises is of decree of maintenance vis-à-vis decree for judicial separation.
Where a decree for judicial separation was obtained by the husband against her wife who had
deserted him, the wife not being of unchaste character nor her conduct being flagrantly vicious,
the order of alimony made in favour of the wife was not interfered with by the Court.

ILR (1964) 2 Punj 732.

The Punjab and Haryana High Court has also held that a reading of sec 24 and 26 (maintenance)
does not show that if a petition under section 9, 10 12 or 13 is disposed of, the jurisdiction of the
court to award maintenance pendent lite by an order to be passed is taken away.

AIR 1981 Punj 305 ; 1981 Hindu LR 345

The above decisions go on to show that even where a decree for judicial separation is passed in
favour of the husband, maintenance may still be awarded to a wife and judicial separation is no
defence to a claim for maintenance under Hindu Marriage Act.

Though section 10 of the Hindu Marriage Act does not provide any time as to how long judicial
separation can last. But section 13 of the Act provides that if there is no resumption of co-
habitation between the parties one year after the decree for judicial separation is passed, the
parties can get a decree for divorce on this ground itself. But divorce on this ground will be given
only when one year has expired after the passing of the decree for judicial separation and not
earlier. The reason for this is that one year is a long period and it provides sufficient time to the
parties for reconciliation or to arrive at a decision. If the parties fail to overcome their differences
within this period, then there is no fun in allowing the legality of the marriage to just linger on
when in substance the relationship of marriage has long expired.

It is to be noted, however, that if the parties do agree to resume co-habitation any time after the
passing of the decree for judicial separation, they can get the decree rescinded by applying to the
court. The Act does not refer to any specific grounds on which a decree for judicial separation
can be annulled or rescinded. Section 10(2) however, empowers the Court to rescind the decree
for judicial separation if it considers it just and reasonable to do so. However Courts have
repeatedly warned that this power of rescission has to be exercised with great circumspection and
not in a hurry and only after satisfying themselves that it would be just and reasonable to allow
such rescission.

8. Whether a muslim woman can divorce her husband under muslim law? What Is
the Effect of divorce upon the wife and husband after divorce? Elucidate the
grounds available to a muslim married woman under the provisions of the
Dissolution of Muslim Marriages Act,1939?

INTRODUCTION: An Act to consolidate and clarify the provisions of Muslim Law relating to
suits for dissolution of marriage by women married under Muslim Law and to remove doubts as
to the effect of the renunciation of Islam by a married woman on her marriage tie. These are as
under:-

i. By stipulation in the marriage contract that she shall have such rights as to effect a
divorce. ii By an option to divorce from the husband. iii By judicial divorce on ground of
impotency false charge of adultery. iv By Lian. v By Khula vi By Mubarat.

Whereas it is expedient to consolidate and clarify the provisions of Muslim Law relating to suits
for dissolution of marriage by women married under Muslim Law and to remove doubts as to the
effect of the renunciation of Islam by a married Muslim woman on her marriage; it is hereby
enacted as follows:
2. Grounds for decree for dissolution of marriage:- A woman married under Muslim Law
shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the
following grounds provided under Dissolution of marriage Act-VIII of l939:-

(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has filed to provide for her maintenance for a period of
two years;

(ii-A) that the husband has taken an additional wife in contravention of the provisions of the
Muslim Family Laws Ordinance, 1961; but wife is not entitled to maintenance in the following
situations and it is the reason that she cannot present a litigation of divorce against her husband
on the following grounds :

a) When she lives separately without any reasonable cause. A case of Yusuf Saramma -1971.

b) When she is unchaste to her husband case: Mu. Khadiza v/s Abdula-1942.

(iii) that the husband has been sentenced to imprisonment for a period of seven years or
upwards;

(iv) That the husband has failed to perform, without reasonable cause, his marital obligations for
a period of three years;

(v) That the husband was impotent at the time of the marriage and continues to be so.

(vi) That the husband has been insane for a period of two years or is suffering from leprosy or
venereal disease. Mulla the wife may obtain a decree for the dissolution of her marriage if the
husband has been insane for a period of two years and suffering from leprosy or a verneral
diseases.

(vii) That she, having been given in marriage by her father or other guardian before she attained
the age of sixteen years, repudiated the marriage before attaining the age of eighteen years:
Provided that the marriage has not been consummated.
(viii) That the husband treats her with cruelty, that is to say,

I. habitually assaults her or makes her life miserable by cruelty of conduct even if such
conduct does not amount to physical ill-treatment, or

II. associates with women of evil repute of leads an infamous life, or

III. attempts to force her to lead an immoral life, or

IV. disposes of her property or prevents her exercising her legal rights over it, or

V. obstructs her in the observance of her religious profession or practice, or

VI. if he has more wives than one, does not treat her equitably in accordance with the
injunctions of the Quran. Noorjahan Bibi v/s Kazim Ali-1977: a false charge of adultery by
husband over wife was considered to be cruelty.Begum Zohar v/s Mohammad Isfaq ut Majid-
1955: The use of abusive language by husband and use of defamatory words by husband was
held to be cruelty.

VII. on any other ground which is recognized as valid for the dissolution of marriages
under Muslim Law. They are known as Traditional Grounds: such as : IIa, Zihar, Khula, Mubarat
and Tafweez.

(a) no decree passed on ground (i) shall take effect for a period of six months from the date of
such decree, and if the husband appears either in person or through an authorised agent within
that period and satisfies the Court he is prepared to perform his conjugal duties the Court shall
set aside the said decree; and

(b) before passing a decree on ground (v) the Court shall, on application by the husband, make
an order requiring the husband to satisfy the Court within a period of one year from the date of
such order that he has ceased to be impotent, and if the husband so satisfied the Court within
such period, no decree shall be passed on the said ground.

(c) If husband converts to another religion the marriage is dissolved at the instance, so if husband
changes religion wife has ground for divorce under section 4 of the Act-1939.

consequences of divorce
Islamic law does not recognize the concept of communal property, and division of property is
based on its attribution to either spouse. The wife obtains custody of the children until their
majority (whose definition varies according to legal school), while the father retains
guardianship

Child custody practices under Ottoman rule appear to have followed the rules of Hanafi
juridprudence, although in Ottoman Egypt children generally stayed with their divorced mother
beyond the prescribed age. A divorced woman could keep custody of the children unless she
remarried and her husband claimed custody, in which case it generally passed to one of her
female relatives. Under the Mamluks, women could waive the right to child support in order to
obtain extended custody.