CHAPTER 10

MISCELLANEOUJS
SYNOSPSIS
10.1 I n t r o d u c t i o n . . .*********************
.. 431 10.8 ******4**** ************" 440
Natural Guardian...
Hindu LaW..************************************** )1 10.8.1 Powers.. 41
10.2 Hindu L a w . . .

436 10.9 De-facto Guardian... ********°*"'**°'°***** 443

****************** i
10 ParSI LaW..
103 Christian LaW....******************.*******. 437 10.10 Testamentary Guardian.. *** 445

43/ T0.10.1 Appointment...a ....

Law.*******************************

105 Muslim 445

10.5.1 Need
for review in view of 10.10.2 Powers.. .. *****************
*********.. 445
Protection of Women from 10.10.3 Removal. *****

2005... 437 10.11 Muslim L a w . . . . easnanssarss 448

#O
Domestic ViolenceAct, 10.12 The Registration of Marriage of NRI
. 438
***********
106 Hindu LaW..
10.6.1 Ingredients... *******e**************** 438 Bill, 2019.....nssaana ..************ 460
10.7 Muslim LaW... .****************o***. 439|

(A) Legitimation of Children of Void

and Voidable Marriage
10.1 Introduction
The conditions for a void or voidable marriage are laid down
under all personal law
Starutes. While the breach of some conditions is considered very serious, and the
of others renders a marriage voidable
marnage is rendered void, the non-compliance voidable
Omly. The basic distinction between a void and marriage is that while in the
is void ab initio,
Omer there is no legal status conferred on the parties and the marriage
ght from inception, in the latter, all rights and obligations matrimony subsist
of
void marriage may be declared a
emarriage is annulled by the court. Besides, a voidable
a t the instance of either party, but in case of marriage, the decree of
anulment can be made by the court at the instance of the aggrieved party.
102 Hindu Law
As
thogards the status of children, while children of voidable marriage were legitimate,
to be illegitimate under the Hindu
Maarriage Out of void marriage were considered
r a Act, 1955,' such marriage obtain a decree
of an (prior to 1976), unless the parties to
other words, if any of the parties to the
aria ge do in respect of the marriage. In under section 11,
t

not choose the children of such

0ose to make a petition
to such marriage dies before any
uch declaln illegitimate, and if any of the parties
wife
decree i passed, the children wouldnot be protected. Thus, in a suit by
the second
of a deceased and d her minor daughter against the children by the first wife for
tuon of
the estate of the deceased, it was held that the second marriage was void
SiStncewife
it had
ke n place after the Hindu Marriage Act, 1955 came into force, and the
taken
v e , the deceased could not have taken the second wife; it was also held

Hindu Marriage Act, 1955, section 16.

431
 432 Chapter 10-Miscellancous

that the child by the second wife was illegitimate and could not he
ed voidcgarded as legit
.

under section 16 of the Act since marriage was not got declared
section 11.2 on a
p
However, children
tition unde
of void and voidable marriage, which has
decree, were deemed to be the legitimate children "for the been
parent's property". purpose of annulled b
inheriting their
Though the provision contained in section 16 aimed at oratece.
children whose parents marriage suftered ng the right
purpose as children could be
from a legal flaw, it did
did
legitimated only if the parents obtained.not serve
1f t
nullity. the parents failed to go to court for such decree, the a
dec
illegitimate. childre cre of
remained
This provision was criticised in
inconsistent with the intention several Juagments, as it appearedto
of the
children of void marriage legislature, which
obviously was not to ten
a
illegitimate
This issue was deliberated by the Law
it decree
to a
that effect was
not ohtain
CommisSion" and there were
made, i z two proposul
) the condition of decree of nullity should be done
a
away with; and
(i) the section should apply only if at the time of
the time of celebration intercourse resulting in birth
of the marriage where marriage (or at

intercourse) both takes place after

either of the parties
or
was valid. reasonably believed that the marrage
The latter proposal did not find favour.
It was pointed out that in the context of the
status of children born of a void
G) such children should be
marriage, four options could be possible:
regarded as filius nullus with no status;
i) they should be deemed
legitimate for purposes of succeeding to
their of
provided the marriage was contracted bona fide without knowledge parens,
any
impediment;
(i) they should be entitled to succeed to their
(iv) they should be entitled to succeed to parents in all cases
other relations in all cases.
The Law Commission found the third view as most acceptable, as it was d not
the
innocent children and also in
give legitimacy to the
harmony with changing social opinion. Wnic dhip
on children.
marriage relationship as such, it sought to miuga
The
Commission therefore, recommended revision of section 16. n 1976.
the section was
amended.5 nder the
Hindu Marriage Act, 1955 Consequent to the amendment, the positio
and the Special Marriage Act, 1954 is notwithstanding

that no decree of
nullity been
has that, no arriage, the
children would be deemed obtained in the case of a void or volda
to be legitinmate if the
as
marriage was vald
2. Thulsi Ammal v
3. Gouri Ammal Gauri Ammal, AIR 1964 Mad 118. AIR

Thulsi Ammal, AIR 1962

v
Mad 510; later:affirmed in Gouri Amnudh,
Thulsi Ammal v
1964 Mad 118; Thirumurthi
4. Ramayammal
Thir r nurthi Muthammal, (1974) 1 Mad
v Thirumur
LJ34.
Law Commission
107510n
1954 1974.
of India
India,
":4ammalv

"Fifty Ninth Report on Hindu Marriage Act, 19> a

SpecialMarriage

simlary
5. Vide
Marriage
amended.
Laws Amendment Act, 68 of 1976; 26
Section
was

Special Marriage Act, 17

 Family Law Lectures 433

Hindu Marriage Act, 1955 reads as follows:

6 ofthe
umat Ation

itimacy of children of void and voidable marriages.-(1)

Und s 16) Legitim.
arriage is null and void under section 11, any child of
nding that marr

Norwit
who would have been legitimate if the marriage had been valid,
guch m a r r i a g
her such child is born before or after the commencement
c h a l lb e l e g i t i m a t e ,

Marriage Laws
a the Marriage (Amendment) Act, 1976 (68 of 1976), and wherher or
Laws (AA
is granted in respect of that marriage under this Act and
decree of nullit
the marriage is held to be void otherwise than on a petition
the
or
not
whether
under this Act.

a decreegranted in respect of a voidable marriage

of nullity 1s
2Where
child begotten or conceived before the decree is made,
section 12, any
under
the marriage if at the
A wOuld have been the legitimate child of the parties to shall be
ed ate of the decree it had been dissolved instead of being annulled,
date
nullity. the decree of
emed to be their legitimate child notwithstanding
o r sub-section (2) shall be construed
) Nothing contained sub-section (1) which is null and void o r which is
in

Conferring upon any child of a marriage

annulled by a decree of nullity under section 12, any rights in or to the property
of any person, other than the parents, in any case where, but for the passing of
20
this Act, such child would have been incapable of possessing or acquiring any
such rights by reason of his not being the legitimate child of his parents.
section was
At the outset it may be mentioned that the constitutional validity of this
nalenged in PEK Kalliani Amma v K Devi, whereinofthe Supreme Court held that
fiction contained in
aon 16 is not ultra vires the Constitution. In view the legal succession to
On 16, the illegitimate children, for all practical purposes, including
of their parents, have to be treated as legitimate; property rights, however,
Operty
ae
imited to the properties of the
parents.
An In Rameshwari Devi v State of
Bi On may be made of a few cases on the point.
Bihar the Supre born of a legally valid marriage and
reme Court acknowledged children
children of a void marriage
born status. The case
concerned payment of
-retirementequal
tamaly pension and death-cum-r on an
gratuity to two wives and their sons. The
decease u entered into second marriage while his first marriage subsisting. He was
had one a
the second bigamous marriage,
and hence, om the first marriage and four sons from
of both wives were equally
tided tomarriage. The High Court held that sons
a share inin death-cum-retirement gratuity, while the
Second vife the family pension and
would not be entitled to the Supreme Court against
en to anything. In appeal
order, void and no marriage in
lie eyes ofthethefirst wite argued that the second marriage being The court,
owever, law, the children born of the relationship had noas rights.
widow of the
held that tho not be rtermed
the
deceased, the though the second wife could
n a t she lived with him for 24 years as his
wife and had tour sons trom

. Date of
Commencemc
PEK Kalliani
Amma
encement 27-5-1976.
(1996) 4 SCC 76 appeal against
Kerala High Court
Kaes in KEM vK.Devi, AIR
1996 SC 1963
Rameshwari DeviKalianiv
v*
KDevi, AIR 1989 Ker 279. 2 SCC 431.
otate of Bihar, AIR 2000 SC 735: (2000)
 Chapter 10-Miscellaneous
434
would not be entitled to any shate L
established. While she her son, the court
sons would
him was
the first widow and neld. Likewise
equal rights alongwith marriage was void as it took
G Seethapathi," where the cPlace d
G Nirmalamma v with the mother
the subsistence of the carlier marriage of the deceased earlier marri
the son, it was
be equated of
with the sons
ge, as
held that the son has to
Schedule annexed to the legal heir
Hindu Succession Act, 1hein
under
son, sections 8, 10 and the
according to the court, has to be treated as coparcen of property held b 1956. The
was originally joint family Property
or not. The onl .the father
being thatthe
whether during the lifetime of the father, son of a void marriage is not entitled itation
property to sek
a partition.
Kangavalli v Saroja," reiterated the position that while a wife of a void m:
her deceased husband, the children have an age
has no right to the property of
children. In this case, the deceased married the
along with the legitimate his death, the appellant (
during the subsistence of his first marriage. After cond
wife) filed a suit for declaration that she and her four children, along with frsr wife
and her child, and husband's mother are equally entitled to the deceased's minal
benefits. The trial court dismissed the claim of the appellant, but declared her fou
children as heirs. Against this, the first wife filed an appeal which was allowed; hence
the second wife's appeal. The court found enough and more evidence to establish
that the deceased was the biological father of the four children of the second wiít
accordingly, in view of section 16 of the Hindu Marriage Act, 1955, they were
legitimate children and heirs of the deceased. The second wife, however, was held not
to be entitded as heir because her marriage was void under section 11 of the Hindu
Marriage Act, 1955.
In Parvathi v K Sivalingam,2 presumption of marriage was drawn on the basis of long
cohabitation berween the deceased male (who had another two wives) and a female and
their son were held to be entitled to claim a share in the self-acquired properties ot the
deceased, vide section 16.
Devi wete
In Prem v Director of DG
Border,3 the pensionary
divided berween the first wife and the children of the
benefits of the deceased
second wife of the deceascd
Bharasha Matha v R Vijaya Ranganathan, is a judgment on the issue of property
rights of children born of a live-in-relationship. To state the facts: the
witei
a
live-in-relationship was already married to "A" and while that "R wacictiag
she entered into a live-in-relationship with one "M, After the marriage
death of
roperty
disputes ensued and it was argued that due to long live-in-relationship theriage
berween "R and "M should be relationship
presumed and hence, children born or
2001
9.GNirmalamma v GSeethapathi, AIR 2001 AP 104: see also P Kanhavalla v KKaua
AlHC 806 (Ker);
10. Daulat Ram v Board
Radhakrishnanv Balakrishnan,
2001 AIHC 3866 (Mad).
of Revenue, 2001 AIHC
Kangavalli v Saroja, AIR 2002 Mad 73; see1129 (Raj). Kant:
11. 2001
Shailendera Singh v Nitendra Kumar, also Chandramathi Kv BN Usha
AIR 2013 (NOC) 167 be
12. Parvathi v (Chh).
KSivalingam, (2008) 7 MLJ 528 (Mad).
13. Prem Deu v Director
Venkatalashmana, 2003(2)of HLR Border,
DG
(2007) 1 Shim LC 311 (HP); see also Nag
14. 59 (Karn).
Bharatha Matha vR Vijaya Ranganathan, AIR 2010 SC 2685; .
Aauniamnmah
2010 AlR SCW 585; also S Khushboo v
2770-live-in see d major person
heterogeneous sex. relationship is permissible only in
unna
 Family Law Lectures 435

rimate childr
he legitimate children of "R and "M and therefore, entitled to coparcenary
muld
bethe
their father viz, "M. It was held that in this case no presumption of
noperty o f
could be drawn "R already in married
he basis of long cohabitation as was
marrnage ving with "M'. Hence, the children born to them would be
started livin
hen she
inheritance of coparcenary property by them could in
not
of
ate
afe and the question
by section 16 is limited only to the extent of rights
ilegitimate.

ion of legitimacy created

aTIse

the parents,
the court held,
of
the property
of this however, is still very restrictive since children born of a
provision,
he scODe
The
circumstance not mentioned in section 11 of the Act are
which is void under
marriage 16. Thus, in Ramkali v Mahila Shyamwati,1 the court
e n the benefit of section for invoking the statutory fiction envisaged under
L chat the condition precedent In a case, where
must be either a de jure or de facto marriage.
ion 16 is that theresolemnisation of marriage, nor even a proof that there was
a de
here wwas no proof of
there
such union cannot be conferred
u de facto marriage, then
children born of
section 16 of the Act. In Laxmi Sahoo v Chatarbhuj
or
the provisions of
istimacy under that there was a
wife along with minor daughter filed a suit for declaration
Suhoo 6
the born to them was
the respondent and the female child
ralid marriage berween her and maintenance also,
out of that marriage.
She alleged desertion and filed a petition for
which was rejected. In
Criminal Procedure, 1973,
under section 125 of the Code of and
that there was no marriage
the proceedings family court, it was held
before the
much less that the daughter was born of him.
Her appeal against the order was also
of marriage and there were
dusmissed as the court found that there was no proof
had
statements by the witnesses
in this regard. According to the court,
contradictory even though
wife and respondent been proved,
u marriage between the appellant union could have claimed rights
under
clared invalid, the child born through their this case no marriage could be proved,
*Tion 16 of Hindu Marriage Act, 1955 but with
in
to such marriage." The
Sne has given prevaricating statementsshroudedregard in mystery. Likewise, in Cbodon
of the child thus, held to be
macy was
solemnisation of marriage at all,
amalavalli v K
isha,17 where there was no
conferred under section 16 of
such alliance could not obtain benefits
th Dorn of mother and father of the child
Ct. Similarly, in Babulal v Nathibai,18 where the held that atter the death ot the
Were
Ving together without any marriage, it was in
a suit for partition
and claim the share ot his father
the child could not file
marriage but just a physical relationship
betW nmily property. There being no benefit of section 16 of the
and father, the child could not get the
HMA
HMA, the nother
Court ruled.
of property claimed by plaintiffs/
KuppPpan v Kuppusam
amy Gounder,19
was also a case

held that since the alleged marriage

of
Ppellants
their under
atander section 16 of the Act. Itthe earlier marriage was not proved, they were
was

customary divorce of
uOT
entitled .to the abenefit.
entitled

15. 2000 AlHC 3764.

6 amkali Mahila
v also Chinnamal v Elumalai,
1. mi
Sahoo "a Shyamu AlR 2000 MP 288;
dhyamwati,
see

Chodon v
Chataro Sahoo, AIR 2003 Ori 8.
arbhuj also Ramkali v Mahila Shyamvati,
AIR 2000
MP 288. P
18. Babula Shyamalav
4lavalivKJisha, AIR 2007
Ker 246; see

9. Kuppaxal v
v
Nathibai, AlR 2013 MP 134.
uppusamy JOunder, (2008) 8 MLJ 985.
 Chapter 10-Miscellaneous

436

v Kumar
Sitaram Manjhi," while reiterating thar
InJinia Keotin
are deemed to be legitima iction af
or voidable marriage
children born of void
their property rights are
confined only to the parents.
The
argument that
treated at par for purnoenceStati
mphasised the
has been conferred they
should be
legitimacy
with children born in
wedlock was rejected. Any attempt to do so heritance
would amount
violation of the provision specifically engrafted
in suh o to
doing, not only tion 8)
but also would attempt to re-legislate on thehe subject
section 16 of the Act, n r the
against the will expressed in the enactment, the COue eld.
guise interpretation
of
the Kerala High Court in Krishna kKumari
Lamenting on this restrictive provision,
Board observed:21
Thampuran v Palace Admn
For the indiscretion of the parents, the poor innocent children should not be made to

suffer but at the same time by that legal fiction

the right of others shall not be affected
and therefore, the rights of such children are contined to the property of parents who
alone are responsible for the difficult position
children are put in.
Konde Asme,22 also which was a ase of her
Thus, in Shahaji Kisan Asme v Sitaram
of the Hindu Mariaæe
inheritance, it was held that as per the provision of section 16(3)
to inherit propery of their parents alone and
Act, 1955, illegitimate children are entitled
parents does not include grandparents. 121L

father is the sole coparcener at the time of his death, the

Where, however, a
to which such
coparcenary property held by him is his separate and exclusive property U.
child would be entitled.23
In Pashupati Nath Singh v State of Bihar,24 the issue of compassionate appointme
the son of second void marriage was involved; while
the District Compassionar
Authority rejected his claim, on appeal the
court held that pos
thewite
APpointment
decision tor compassionate appointment refers only to a son and as son or scLonnd
Nnot

also a legitimate son under section 16, his claim for compassionate apponl
be rejected. Hindu
ue
same as under
he provISIOn under the Special Marriage Act, 1954 is the
Marriage Act, 1955.25
10.3 Parsi Law 1988
a m e n d e d i n

sub-sectuion
Under the Parsi Marriage and Divorce Act, 19360 as

of the provisions of.

the
that it
"norwithstanding marriage is invalid under any
a
have been legitima
(1) of section 3 any child of such marriage who would
marms
tor a
ribed

marriage had been valid, shall be legitimate." The conditions prescr degrePm
ohibited
deg
under section 3(1) are that the parties should not be within the the
to
ing
consanguinity or aftinity as prescribed; it should be solemnised accor

a s w a n m aKedta"

1.
20. Jinia Keotin v Kumar Sitaram Manjhi, (2003) SCC 730 : (2003) I DMC
. Arishna Kumari Thampuran v Palace Admn Board, 2006 (4) KLT 432; see also"

Arunachala Reddiar, AIR 1999 Mad 143.

22. 2008A
Shahaji Kisan Asme v Sitaram Konde Asme, AIR 2010 Bom 24. EDRatesuaroo,
AIR

23. Chikkamma v N Suresh, 2000 (4) Kant LJ 468; see also Vempati v Goaru Venkane
24. Pashupati Nath
Singh v State of Bihar, 2005(3) PLJR 458 (Pat).
25. Special Marriage Act, 1954, section 26.
26. Parsi
Marriage and Divorce Act, 1936, section 3(2).
 Family Law Lectures 437

v called ashirvad and the parties should not be below the age of 21 in
formo tceremon
eremon 1 8 in
case of girl. Thus, only children born of a marriage solemnised in
boyand off thes
these conditions would be deemed to be legitimate.
a n d

o
C of
ontravent, of any
on

104Christian L a w

Under the
ndian Divorce Act, 1869, children of marriages annulled on ground of
in good and with full belief of the parties that the former spouse
contracted
biganmy
rhe ground of insanity, are entitled to succeed in the same manner as
hildren, to the estate of the parent who, at the time of the marriage was
leitimate c h i l d r

tent t o
27 Thus, if a father is incompetent to enter into a marriage because
c o n t r a c t . 2 7

gompetcr hecause his former wife was alive, then the children will succeed only to the
insanmiy
mocher and not to the father. This appears to be an unfair and illogical provision. It does
status
egitimacy, but only a concession under certain situations, to succeed
of leg
who is competent to contract the marrias
conter

not
of a parent
n the estate
nertinent that children born of a marriage which is void for reasons
to note
1i
no legal status at all. Thus, children born of a
than the rwo mentioned above, have
other
riaoe within prohibited degrees of consanguinity21orof affinity, or of a marriage where
by section the Indian Divorce Act, 1869
hehusband is impotent, are not covered
status of even partial legitimacy like children of bigamous
and therefore do not enjoy the
which is void for reasons of insanity. Even the amendment of
marriage or a marriage
Aca in 2001 has not made any change in the original provision.23

105 Muslim Law

and clearly child who is illegitimate
Muslim law does not recognise legitimation,
a

A child can, however, be

under the law cannot be conferred a status of legitimacy.
aknowledged as legitimate in certain situations viz, where:
established beyond doubt;
paternity of the child is either not known or is not
t 15 nor proved that the child is the offspring ofillicit intercourse (zina); and

and the
Curcumstances are such that marriage between the acknowledger
mother is not an
impossibility.
his is known as the doctrine of acknowledgement of paternity. A valid
2dknowled
e n t is not revocable and gives rights of inheritance
to the child.

This doctrin of acknowledgem of paternity is, however, ditterent from

kgyumation as as provided under the other personal laws."
1 Need Domestic Violence
hc, 2005 for review in view of Protection of Women from
ew

is Significant to Protection of Women

from Domestic Violence Act,
note that the the rights of
Cognises
Cognises 1live-innote
relatio of marriage" and protects
Women andA tionships "in the nature
Act, 1955
under that relationship. Section 16 of the Hindu Marriage
children under
8. Indi
Kusyan Divorce Act,
Sum, "Rights and 1869, section 21. Institute, vol 40, 1998, pp
Journal of Indian Law Law
um, T
Statu Sof llegitimate Children",
2001: A Critique,"
Journal of Indian
e Divorce (Amendment) Act,
yee,O vol 42hdian
Law, 1972, p 328.
Ouslines 3, pp 550-558.
of Principles of Mohammedan
Mohamme.
"medan Law, 1974, p 196; Mulla,
 Chapter 10-Miscellancous
438
needs to be reviewed in view of this. In fact, courts have alreadv star
ted recognising he
status of children born in such relationship.30
(B) Repudiation of Marriage or Option of Puberty

Despite laws against child marriages, it is common knowledge that chila

are quite rampant in our country. The Hindu Marriage Act of 1955 child matiag
of Muslim Marriages Act of 1939, give an option to a minor wife to olution
marriage. The Muslim law gives this option to a minor husband also. Th erepud te su
been given to the hus. ght to avoid
usband also (section 3(1) proh
underage marriage has now
Child Marriage Act, 2006). ition of
10.6 Hindu Law

Under section 13(2)(iv) of the Hindu Marriage Act, 1955, a wife mav n
petition for dissolution of the marriage by a decree of divorce on the groundpresent
t hera
marriage (whether consummated or not) was solemnised before she attained the 309,f
15 years and she has repudiated the marriage after attaining that age, but beo
attaining the age of 18 years. This provision was introduced in 1976. Thus, even thouh
a marriage solemnised in violation of prescrilbed minimum age of marriage under section
5 ) of the Hindu Marriage Act, 1955 (which is 18 years for girls and 21 years for bog)
is not invalid,3l a wife has been given an option to repudiate such marriage.

10.6.1 Ingredients
The ingredients of this clause are:
G) The marriage was solemnised before she was 15.
(i) She has exercised her right of repudiation after attaining age of 15, but betoe
completing age of 18.
(11) Consummation or non-consummation is immaterial.
A girl married at the age of 15 or above cannot invoke this provision. Shemust
been married before she was 15.32
ut befor
The right has to be exercised by the wife after attaining the age of 15 yeas, o
completing 18 years33
The challenge to this provision as being gender discriminatory was rejected in i e Sanosh

v
Narayan Verma v UOl* even while prior tothis, in Ram Gopal Chouaa
ary

Shanti,35 a husband's petition for repudiating the marriage pertorm of

Child

Prohibition
minor was granted. However, in view of the n t of the enactment artagehas

Marriage Act, 2006 it is now a settled position that the right to avoid child oftwoyea
been given to both spouses. This option has to be exercised within a Deriod.
peroe
of attaining the legal age for
marriage.
2010

30. See e.g. Mohan Singh v arbas, AlR199

Rajni Kant, Civil Appeal No 6466 of 2004, order dateuKK
31. VMallikarjunaiah v HC
Gowramma, AIR 1997 Kant 77; Gajar Naram DIu
Guj 185; Harvinder Kaur v Gursewak Singh, 1998 AIHC 1013 (P&H).
32. Laxmi Devi v
Ajit Singh, (1996)1 DMC 569 (P&«H).
33. Savitri Bai v Sitaram, (1985) 1 DMC
467 (MP).
34. Roop Narayan Verma v UOl, AIR 2007 Chh 64.
35. Ram Gopal Choudhary vSantosh Shanti, (2006) II DMC 427 (Raj-D5).
 Family Law Lectures
439
smg te that the re
ieted that retention of
It is
submitted
ti-child
ell with the anti-
provision in section
13(2)(iv) of the HMA does
not8 nd section 3(3) marriage agenda. Further,
of the PCMA, 2006. there is
anomaly between
an
uhis
provision,
married beloow the of
While under the latter Act, a
of
age 18, can seek annulment of her girl
who
thea 20, under the HMA, the marriage until she
racheabelow
was below .15 is available
option
to
repudiate
the marriage performed
s duits
are sv
while she
shereaches the legal age for marriage.
only till she reaches 18
years of age i.e., even before
10.7 Muslim Law
ar the Muslim law, if a Muslim minor has been
wian, the nminor a married during
has right, on
attaining minority
majority, to repudiate such marriage. by a
. inown as Khiyar al-bulugh," or This
option of
nariage either by the father or grandtather, orpuberty. Such a minor may be given in
et h Hindu law, this option has been given both to theby husband
any other guardian. Thus, unlike the
and the wife.
The Dissolution of Muslim
alder Muslim law. It Marriages Act, 193937 has made some
gives under the Muslim law, changes
ho to woman married
a in the
isolurtion of her marriage, the right to seek a
mariage by her father or other ground, inter alia, that she having been given in
on
pudiated the guardian before she attained the
marriage before attaining the age of 18,
age of 15 years,
signiticant to note that providedto
noT been consummated. that the
conracted
It is marriage has
by the father or grandfather could not prior this Act, marriage a
be repudiated unless:
grandfather acted negligently or
wickedly, or (i) the
() the father or
duadvantage of the minor. The Dissolution of Muslim
marriage was to the manifest
amoved these conditions, and minor Muslim
a Marriages Act, 1939 has
grandfather can also exercise girl whose marriage has been contracted
Dy the father or
COnditions are satisfied, her option of
viz: repudiation if the following
the
marriage took place before she was 15
she repudiated the marriage before years old;
the marriage has not been attaining the age of 18 years;
h gi consummated.35
WOuld,
attans however, not
lose her right if the
B ge of 15 years,39 In Shabnam v
marriage is consummated betore she
Mohd
i that 9I before attaining puberty and theShabir,0 the wife claimed that she was
Ycnif swas a
minor at marriage was not consummated. The
the time of marriage was
e wac d stayed with established. The court held that
her husband and the
Cr marriage was not consummated
Therenor,was no
this would
eny. not end her
right to repudiate the marriage after when
consummated after attaining
n
evidence that the
er Thetys also, the husband had marriage was she had
e
Dislage between already married again and was not
solution of Muslim
the parties was, accordingly, dissolved under living with
Marr section 2(vi) of
arriages Act, 1939.
51. Dis
uian Mohammedan
Law, 1974, p 94; Mulla,
n of
ee also Muslim Marriages Act, 1939, section 2(vii).Principes of Mobammedan Law, 1972, p 268.
45. Khan Mulla, Principlleses ofo Mohammedan Law, pp 268-70; Ghulam Sakina
). Bebram
. Falak Sher, AIR 195o
Shabnaam han
v
v
Akhtar
Shabir,Begum,
v
Mohd m, 1957 PLD (WP) Lah 651
AIR 2004 Raj 303.
 440 Chapter 10-Miscellaneous
The repudiation by an adult of a
marriage contracted during min
facto dissolve it, but renders it the duty of a civil judge to
to decree
its nority does nor i
application being made. In the meantime, the parties remain dissolus
them dies, the other will inherit to him or her in the married and ifonextherpio
prorpe
intercourse between the parties is not unlawBul,
the
though fact of the and
permitting it will have the effect of cancelling a repudiation already decla
awaiting confirmation2 decared iland on
lt is to note that in the case of the
significant
time provided within which he can exercise his
husband, there is no star.
option. All
All that is tatutory
artaining majority, he may exercise his option. A husband who is that
on his
required period of
after attaining majority would lose his
right to opt out, pays dower or col
cohabitation implies ratification. because payment of d
of dower ot
(C) Kinds of Guardians
10.8 Natural Guardian
A natural is one who this
guardian gets
status by of his natural virtue
with the minor. He is a relationshin
person who has the care of the person and
because of his relationship. property of the minor
Amongst the Hindus, the father is the natural guardian of his
children during minority, and after him, it is the
mother. Under section 6 of the
Minority and Guardianship Act, 1956, the natural Hindu
girl is the father and after him, it is the mother, guardian of a boy or an unmaried
who has not provided that the of a minor
completed the age of five years shall ordinarily be with thecustody
mother
In case of an
and after her, the father.
illegitimate boy or illegitimate girl, the natural guardian is the mother
In the case
of a minor married girl, the husband is the natural guardian. Thus, even
though law prohibits child marriages both under the Hindu Marriage Act, 1955 and
Prohibition of Child Marriage Act, 2006,14 tie
yet it is valid and upon such marnage
husband is the guardian. In Kakkula Suresh v
State of UP5 a writ petition by a huspun
challenging the order of a magistrate where his minor bride was ordered to De to nt a

State Home, the court held that he being the legally wedded hc

guardian as per the law and hence, entitled to her physical custody.husband was
In the case the
a
of an adopted child who is
minor, the adoptive father and a
adoptive mother is the natural
guardian.46 In KM Rao v K
agreement for sale of property of an adopted minor was entered into oy naud Nagavuo
guardian. lt ws
tather. There was no
proof of his being appointed as a testamentary gua
boAN
41. Mulla, Principles of Mohammedan Law, p 270; Fyzee, Outines of Mohammedan Lae P
Saha, Marriage and Divorce, Sixth Edn, e d nLaas
42.
2002, pp 675-76.
AN Saha, Marriage and Divorce, Sixth Edn, 2002, pp 675-76; Roland Wilson, Angi0-
Sixth Edn, p 96, section 16.
43. The expression "father" and
"mother" do not include "step-father" and "step-motne Prohibitou
44. Marriage is void
of minors 12 ofthe
under this Act in some See sections
situations. oee sections 3 and
Child Marriage Act, 2006. algondi

v
45. Kakkula Suresh v State UP, AIR
of 2009 AP 52; see also Makemalla Sailoo
AlR 2007 (DOC) 135:
(2006) 2 Mad LJ (AP--DB). du
46. Hindu Minority and
47. KM Rao v K
Guardianship Act, 1956, section 7.
AlR 2001 AP 531.
Nagabhushnam,
 Family Law Lectures 441

of sale deed was void ab initio as being entered into by rhe

ereement
dld that the agre
as upon adoption, the guardianship of the minor no longer
Was
sstranger,
wiho
was aa
ather natural father.
the
e.ained with
to act as the natural guardian under the Hindu Minority
person
shall be entitled
No
Act, 1956 if
Guardianship
and to be a Hindu; or
he has ceased renounced the world an ascetic or
he has completely and finally by becoming
hermit.
10.8.1 Powers
or
has powers to do all acts which are necessary, proper,
The natural guardian of his
of the minor's person or for the benefit or protection
asnable for the benefit can do the
bind the minor by a personal covenant. He/she
STI. but he can, in no case
acts only after obtaining prior
permission of the court:48
fallowing or otherwise, any part of
6) mortgage or charge,
or transter by sale, gift, exchange
the immovable property of the minor; term
five years, or for a
of such property for a term exceeding
i) lease any part majority.
more than one year beyond
the date of the minor's attaining
extending
to exercise the above
The court
shall grant permission to the natural guardian
viz:
mentioned powers only in these situations,

0) necessiry;"
i)evidentadvantage to the minor. and
for permission under section 8 of the Hindu Minority
An application obtaining court or to a
District Court, or to the civil
uardianship Act, 1956, can be made to the and Wards Act, 1890, to
empowered under section 4-A of the Guardians
T Specially be the court within whose jurisdiction
cases. The court having jurisdiction will
ACh
the is situated within the jurisdiction
pro in dispute is situated, and if the property
ftn Pay n one court, then all such courts will have jurisdiction.
the
of the court cannot be impeached by
made with the permission
horation other of fraud or underhand dealing.
y except in a case
person,
alienation of minor's properties
As in case of physical custody of a minor, in c a s e of at the time of the
In Ram Krishan Gupta v
100, Concern of the court is the interests of the minor who
lienar and incapable of making decisions. for sale of
of property of minor sons, applied
nother, as guardian and with the
NootanAgarwalncompetent
50 the moti to sell these plots
wanted
sons.
Vacant plots belonging
Onging to minor In fact she where most of her
le prOce
proceeds buy buil
uilt flats in
established residential colony
an the court
on appeal
latives Iso had flats. denied permission,
While the lower court sons in a residential
held that the e of vacant land to buy the n a m e s of the
flats in

8. Hindu Minority and Wards Act, 1890,

section 8; see also Guardian
and Guardianship Act, 1956,
49. Under dhe
sectio 29. case of legal necessity
alienation only in
old law, a could exercise his power of
Renefit of hatural guardian
rs estate.
Krishan (NOC) 649 (All).
DVootan Agarwal, AIR 2007
442 Chapter 10-Miscellancous
colony where most of their relatives also had flats, would be in thet. .
permission was granted. nter and heng
Any disposal of immovable property by ence
natural guardian,
a
which
reasonable, or not for the benefit of the of the minor, or estate not necessan
which has not SSarbeeny,
s
sanctioned by the court, or is leased out for a period
beyond the.
without sanction, is voidable at the instance of the minor or
ninor any nerso
any cribed
him by a suit filed within three
years from the date when a minorperson period claiming
Thus, in Dirya Dip Singh v Ram attai under
Bachan Mishra, disposal of immovahle ble rity
minor without previous permission of the court, was held to be
of the minor. The court held that the natural
guardian has
at the
insta
of a voidable properry
encumbrance or sell the property without court permission. no tance
Create
Likewise, assignment of minor's property by the mother during the lifetima
father also set aside in KM Chander v CS
was
Nair,)" as the mother could n
execute the sale document, since she was the
te
alive, and also no sanction was obtainednotfrom natural guardian when the father
the court. In
Narayana,4 an alienation of minor's properties made by the Vishuwambhar Lacmi
necessity and without prior court permission was held to be mother withoutilegal
plaintiffs, on attaining majority, however, could not recover the voidable. The ming
ninor
suit had become time-barred. properties back as ttheir
PV Madhavi PV
mother had sold certainBalakrishnan
v
is
significant judgment in this context. The
a

properties belonging to the minor son without seeking cout

permission. On attaining majority, the son filed suit within the
setting aside the alienation. He contended that the limitation period for
a

alienation
wrongful and injurious to him and also the consideration i.e. theby his mother was

meagre. While the court conceded that the sale price, was to0
set aside but plaintiff
clarified that equity requires that the
is competent to have the alienanon
minor should restore to the
any benefit he may have received
under the transfer transteret*tn
benefit of any decree in his before he (minor) can take
favour. It held:56
the legal
position is that whether the sale deed is void or voidable, the
Seeking to set it aside cannot claim minor
interference of a court of law without maki
restitution. The law is clear that if a
person sells or mortgages another's no
iegal or cquitable right to do so and
that other benefits property lna
the transaction, tn
without making restitution to the by
cannot have it set aside
s been
applied for the benefit
of the estate. The person whose mo
the
equitable maxim "he who seeks equity principle of restitution in such casesS d on
must do
equity...
In this case, since the minor refused to make erived under the
sale deed, the court
refused to
restitution of benetits derve
grant him relief.
This restriction the guardian's
on oweven

applies only to a minor's separate

right to alienate minors prop the j o i n ta n u l y

property and not to his interest

n
51. Hindu
Minority and
52. Diuya Dip Singh vRamGuardianship Act, 1956, section 8(3).
Bachan Mishra, AIR 1997
53. KM Chander CS SC 1465: (1997) 1 SCC
54. Nair, 1998 AIHC 1876
v
9
Vishwambhar Laxmi v (Ker).
55. PV Madhavi v PV Narayana, AIR 2001 SC 2607: (2001) 6 SCC
56. Ibid, at p 144. Balakrishnan, AIR 2010 Ker 114. 10
 Family Lauw Lectures 443

The father powers of alienation of joint family property, including

has special
is for legal necessity or for the benefit of the
hare, provided such alienationdebts which are not avyaharika, i.e., not tainted
of antecedent
for the discharge incurred
where a sale was made for discharging debts
nlirv or immorality. Thus, of decreed debts, the same was
expenses and for payment
fther for meeting litigation
fat

Ind. heldto bevalid member of Hindu

as guardian but as an elder
where a mother acts not only
Likewise, her own share and also the
she sells the joint family property, including
uint family and had not taken court permission, was
held not
of her minor sons, the fact that she
dare
w invalidate
the sale.58
and Guardianship Act, 1956 there is
no
Under section 6 of the Hindu Minority
for minor's undivided interest in the joint family
rquirement of natural guardian undivided interest in the
and likewise, under section 12, where a minor has an
propery, of an adult member of
and the property is under the management
ant family property
for the minor in respect of such
undivided
no guardian shall be appointed
tie amly,
consideration in Narayan Bal v Sridhar
Sutar59 A karta
Tierest. This issue came up for own capacities and also
as
t ount Hindu
family, joined by the widows in their of some
of their minor sons, executed a sale deed in respect joint family lands
ardians defendants. The plaintiffs, who
D hISt
defendants, who sold them further to second
members of the Hindu family, challenged the sale as being illegal and void on
eE joint widows who
and taking of undue advantage of
und of fraud, misrepresentation karta was not illiterate, and the
rate For the defendants, it was argued that the
n in their personal capacities, as
also in the
OWS joined him in the transaction held the sale to be invalid.
Orguardians of the minor members. The trial court
The A second
the sale was valid and for legal necessity.
Da to Ppelate court held that as it was of the opinion that no
e High Court was dismissed in limine, the Court challenging the
uistuion of law was involved. Hence, the appeal to Apex
lawwas involvea. interest of the
ka» of the joint Hindu family to sell the undivided Act.
mpetence of the karta
TAnor without
beld ut permission of the court as required a
under section 8 of the The court

joint Hindu family, by itself being entity is capable of acting

legal
ugh itse
turoueh
kartaand
a adult family members insofar as the management of the properties
oncerne the court ruled that section 8
oud norIn view of sections 6 and 12 of the Act,
not beacted.The sale was consequently held to be
valid.
9 De-facto Guardian
Ade facto person or ot the minor,
guardian is person who looks atter the To
property
generaly act his
OLS C In
a erson

for the time being.

interest
be de facto guardian,
a

fugitive
an isolated or act
some

of a
Person in regard
course
to a m
of conduct is
his part;
necessary on
defacto guardian.
not make him a
A de facto
Sardian, thus, is person who is
minor's property does
legal guardian, who has authoriry
in law
no to
i Such,d
aa
persS
,but, nonethel
as though who
not a

himself assumes the management

of property of the
heless, a person may neither be a
C Were a guardian. According Mulla,"
to

Samaraju
S%. Naras vKM Rao, 1999 AIHC 2590 (AP).
an Balanna, AlR 2007 (NOC) 2228 (Karn
SCC 54.
"TciplesSridhar Sutar, AIR 1996 SC 2371: (1996) 8
of Mohammedan Law, 1972, p340, para 361.
444
Chapter 10-Miscellaneous
legal guardian .. nor a guardian appointed by the court
placed hinmself in charge of the person and property of a minor.but mas ...

nay have voluntariy

de facto guardian. A de Such.
facto guardian merely custodian of the persona person is ca
is a
u OTesta

the minor." Tyabjis defines a de n

facto guardian as an "unau nd propery,
matter of fact, has
custody and care of the person and or
authorised person
his property." guardh
The Madras High Court2 defined the term as follows: Tdhano
s f

A de facto guardian is one who is not a legal guardian in the sense a n by

natural guardian or a testamentary guardian or a court guardian,.that he is.neither a uardhan
by

interested in the minor, though a stranger, takes charge of the But. ewho being
property management of the , act,

minors from

Prior to the Hindu

Minority and Guardianship Act, 1956, a de facto uard
nother

nderthe
power alienate the property of the minor
to for
of the minor.3 This was also the view of severallegal necessity
or for
benefit of theestate goLnting.

Act, "no person shall be entitled to

High Courts. Under section 11dof the
OAmCntarA

dispose of, or deal with, the property of a Hinde nilbe inet

minor merely on the ground of his or her the

being de facto guardian of the minor"T
provision, however, in the opinion of Paras Diwan," does not mean anc

guardianship has been abolished. According to him, in cases where a minor'sthat de fr Jesnot ap
not much, or in cases where a propemyis a
person is not willing
to take the
pain and the minorof
getting oneselt appointed a guardian, yet he is willing to act in the interest ofexpenses by reason

in our peculiar social context, the

de facto guardian fulfils a social need. anounced

pnoperty W
While an alienation of minor's property not
valid unless set aside, such alienation by a de
supported by benetit or necessity is the ste
facto guardian is void and the minor odmoche
can, on attaining majority, ignore it or ratify it. In Jadav Jethabhai v PK Jthabhai"
where an alienation of minor's property was made by a de facto guardian without ts Signi
rOnt a gu
authority or legal necessity and the minor challenged the same, the issues raised wer
o conters
whether the alienation of immovable property by the de fucto guardian of a minor s
always void and whether it is obligatory for the minor to get it quashed by leg he guarc
process, and furcher, whether the minor is also obliged to resort to such legal pross
within the limitation period of three years upon attaining majority. The cour 0.2Po-
that the minor could simply ignore the transaction and need not have it se f
nder th-
However, if he files a suit for declaration, possession or mesne profit, the pe NETS OVer
limitation is prescribed. Further, the court clarified, that a bona fideoed
executed by the de facto guardian of a Hindu minor for the benefit ot hise he Aé he Cau
he
with due regard to his interest, can1not be challenged on the
merely a de facto guardian. Thus, an alienation affected for the marriage
minor s

hid
sole groundi
sister could not be impeached simply because the same had been done Dyesi, it
wad, s
guardian. However, when the same is done without authority or iegf
of
minor
could be challenged, but within the period of three years from thed rto
Arder
hs
attaining majority. If it is not done within the limitation period, thcd oet
challenge is extinguished, and the person in possession of property w
possession or title perfected. estan
61. Tyabji, Mobammedan Law. Third Edn, p 270.
62. Palani v Vanjikkal, AIR 1956 Mad 476, p 477.
63. Hanuman Pd v Babooe, (1856)6 MIA 393. 380.
2000, p
64. Paras Diwan, Law of Adoption, Minority, Guardianship and Custody, Third Edn,
Eau, a
stody,
65. Jadav Jethabhai v1PK Jihabhai, AlR 2001 Guj 1118.
 Family Latw Lectures
445
10.10 Testamentary Guardian

10.10.1 A p p o i n t m e n t

guardt:
an aDDointed by the will of the father or mother, who are the natural
ofa minor, is a testamentary
guardian. No one else has the
only the father who had right to appoint
power
to a
early
his will. In the
he law, it
uardia,

was
guardian by a
appoint a
The mother had no such
ardian by will. power.
Gact. the father, by appointing a testamentary guardian, could exclude the
natural guardianship of the children after his death. However, now,
her from her
h e Hindu Minority and Guardianship Act, 1956, testamentary power of
unde
inring a guardian has been conterred on both parents.6 The father may appoint a
4ntar guardian
eStalmen
but if the mother survives him, his
testamentary appointment
wll be ineffective and the mother will be the natural guardian.67 If the mother
a00oints a testamentary guardian, her appointee will become the testamentary
auardian and the father's appointment will become ineffective. If however, the mother
dves not appoint one, the father's appointee will become the testamentary guardian.A
Hindu mother entitled to act as the natural guardian of her minor legitimate children
bv reason of the father' s disability (i.e., if he has ceased to be a Hindu, or has
renounced the world), may appoint a guardian in respect of minor's person or
popery. Where a father appoints his mother as guardian of his minor sons through a
will, the step mother would not have any right to raise objection as to appointment of
grandmother as guardian.68
tis signiticant to note that in respect of illegitimate children, a Hindu father cannot
0ta guardian by will. Section 9(4) ofthe Hindu Minority and Guardianship Act
16 conters such power on the mother alone.
Ihe
guardian of a minor girl will cease to be the guardian of her person on her marriage.
10.10.2 Powers
nder the Hindu Minority and Guardianship Act, 1956, the testamentary guardian's
powers
t h e minor's property are equated with the powers of a natural guardian,
28 afuch restrictions as may be specified in the Act or in the will." Under section
the Guardians
and Wards Act, 1890, the powers of such guardian to mortgage or
1arge, or
is wa transfer by sale
ale, gift, exchange or otherwise, immovable property belonging to
ared Subjectandtotheanycourt
declWinardian restriction in the will, unless he has under the Act been
which made the declaration permits him by an order in
ting norwithstanding
the order ting the restriction, to dispose of any immovable property specified
in a
manner permitted by the order.
10.10.3 Removal
Atestar
cntary guardian can be removed by the court on the following grounds:
.
This power
67. farnily property De extend to appointment of guardians in respect ot minor s undivided interest in joint
Hindu
Ibid,
Minorinyry and
i
Kumari
section a Guardianship Act, 1956, section 9.
0. Draupadi
v
Devi,
1 AIR 2010 (NOC) 982 (All).
uardians and95).
Wards Act, 1890, section 39.
 446
Chapter 10-Miscellancous
() abuse of his trust;
(i) continucd failure to ht
otchildrer
perform duties; unsequency,up
ii) incapacity to perform duties;
iv) ill-treatment, or neglect to take This
Judgme

proper care of his ward; e-inrelations/

(v) contumacious
disregard any provisions of the Act or of any
of
nel

(vi) conviction of an offence ord..

implying,
There can,

in
character which unfits him to be the the opinion of the court COur,
qahabntationbes

guardian; a
defect o
whens h es t a r t e

(vii) having an interest adverse to the faithtul

(vii) ceasing to reside within the local limits ofpertormance duties
of his h u t a b i ea n 7 d

the jurisdiction of the co. Thus, when

(ix) in the case of guardian of

property, bankruptcy or
insolvency. isa
child

Apart from these grounds, the Hindu stere

1s leg
provides the following two disqualifications,Minority and Guar
uardianship
child

viz: Act, 1956 efinthers prop

) if he has ceased to be a Hindu; or a nfe
of
the tar
t e dwife a

Gi) has completely and finally renounced the

world by
wband a n d

ascetic.71 becoming hermir

a anonshupa s

(D) Factum Valet Likewise

The Roman doctrine wr to

of factum valet means that what should not be gnt

umage. He
being done, it shall be valid. It is equal to the Hindu law done, yet,
altered by a hundred texts". The doctrine doctrine that "a fact havine Bibaha
was, however, to be
cannot be3
law, which were directory and not applied to texts of
Hindu Dt this ar
interpretation of the
prohibitory
doctrine in the context of
or
mandatory. In accordance with
this
valid where there is a marriage, a
marriage is presumed to be was s

marriage between the

enjoys the laws' favour; consequently in caseparties
which is prima facie valid. ndu law.
of doubt, the "Marriage
marriage until the contrary is proved".72 Thus, where presumption is in favour of
for a long parties live together and cohabt 3marriag
period of time and have children and their relationship is so recognised, the which
same is
presumed to be valid and in accordance with the law. A that the MOD,2
parties were validly married arises under section 114 of the Indianpresumption
Evidence Act, AErEINO
from long, continuous and
exclusive cohabitation. Children born of such 1872, long
cohabitation with a presumption of
legal marriage are children." legitimate
Mohan NULSDars
Singh vRajni Kan?" was a dispute over the inheritance of the property ot
freedom fighter. The dispute was between the children of the deceased born of
wedlock against those born out of his live-in relationship which the had
entered into after the death of his wife. deceascu there he
The children born in wedlock arguea t
was
nothing record to show that their father
on
a had been living with wonan ae
the
death of their mother. The
Supreme Court, however, ruled that it must
resumed

that couples involved in be p stained

long-term
association cannot be termed "walk in
live-in relations are married.
fot the
and walk out" relationships and The
party opposing the presumption of marriage to prove the contrary in sucn

71. Hindu Minority and

Guardianship
Act, 1956, section 6. e
72. Codex Luris Canocici, (1917, can. 1014) cited by J Duncan M Derrett "The Death of a Marrs
Law

Epitaph for the Rishis" (1976) at (vi).

73. Chandrammal v S Sankar, (2009) 3 MLJ 1041.
74. Civil Appeal No 6466 of 2004 decided on 13 August 2010.
 Family Law Lectures 447

born out of the live-in relationship to inherent the prosperity was

g h to fc h i l d

egucntly, upheld.

This judgment will have r-reaching implications in favour of children born out of
Ine-in r e l a t i o n s h i p s .

can. however, be no presumption of marriage drawn in case of long

can,

COUrr There

ion
between a e-in
live-i couple where the female was an already married person
Efect ahab rarted living with the live-in male partner. This presumption, however, is
he
ble and the onus lies on ose who impeach the validitry of the marriage.
Tag when man and woman live together for 50 years as husband and wife, and
e is a child of this connection, there is a presumption that the marriage is val id and
d islegitimate.7 In Laksbmamma v Kamlamma,7 which was a suit for partition
hr'sproperty and the plaintiff claimed to be the daughter born through the first
als
s o the father, one of the issues was whether the plaintiff's mother was the legally
snidied wife of the father. The court held that if a man and woman professing to be
their
uchand and wife cohabited for a long time, and if society has recognised
ruationship as such, a presumption would arise that they are legally wedded.
nit or an

Likewise, in Namita Patnaik alais Mohanty v Dilip Kumnar Patnaik,78 a husband

sught to wTiggle out of the marriage by alleging absence of due ceremonies for a valid
arage. He denied that he was married. There was a registered agreement known as
et. havin
Bivaha Bandhana Agreement, wherein the husband had admitted the marriage.
Canioi
T.nnal
Ording to husband, however, this was a fraudulent document. The trial court did not
the
WIn hi t his argument, but disbelieved the wife's assertion that the marriage between
in
edo was solemnised strictly in consonance with the rites and customs stipulated
Marri
mdulaw. It, therefore, held that the defendant is not the legally wedded wife of the
I2rour
a n On appeal against this by the wife, the court discussed the issue as to whether
Hindu Marriage Act,
w a s solemnised in accordance with section 7 of the
Wtadr

95, Hindu marriage. Under

Stipulates the ceremonies to be performed for
ECLIOn/
a
rites with the customary
n d u marriage may be solemnised in accordance
n i e s of either party thereto; saptapadi is not a mandatory ceremony for evety
laTT1age. It was in evidence
< that the marriage had been consunmmated, and the parties
were f
written by
hush nusband and wife to the knowledge of the society. Some letters
nd to the wife also proved the factum of marriage. The court accordingly held
tiat
there is "a
in favour of valid marriage and the pertormance ot
ssay presumption
ary ceremonies.
a

The doctrine of factumn valet has no application where parties are incompetent to
arry by reason
of their being within prohibited degrees,
or lack of capacity to marry
SUstan any other legal
ne doctrine disability.
in contravention of
applied marriages pertormed
Conditions fora
, 1955, ng,
a
in a

valid ma
way,
valid marriage as
to

laid down in section 5

d o n as regards mental incapacity of certain kinds, and minimum
of the Hindu Marriage

1arnie BadrBhari athPrasad

a Mathavv R
Vijaya 2010 (6) SCALE 53.
Renganatr AIR 2010 SC 2685
jaya Renganathan,
yayani Am rector Consolidation, AIR 1987 SC 1557
:

(1978) 3 SCC 527; see also CM

akshmamma PTV
Vanita Patnaik alais
Aamlamma,
Narayanan Nair, 1998 AIHC 31(Kant).
AIR 2001 Kant 120.
3 Femi-Juris CC 97 (Ori).
Obanty v Dilip Kumar Patnaik, (2001)
 448
Chapter 10-Miscellaneous
age requirement. Such marriage is not
however, the doctrine of factum valet willinvalid.
For breach of
ne f
the
) when either
not
apply, viz: lowing condition
party had a
spouse living at the time of marriage:
(ii) when the marriage was
performed within
by custom;
a
prohibited relationshiip unless alowe
(iii) when marriagehas been pertormed
between two
persons who sani
other, unless custom permits the same. are
sapindas ot an
10.11 Muslim Law
Under the Muslim law, in the absence of direct proot, a
marriage will be oresum.
under the following circumstances:79 Sumed
)prolonged and continuous cohabitation berween the parties as husbandandwie
wite,
(i) when a man acknowledges the paternity of a child born to the woman or
(ii) when he acknowledges the woman as his wife.
The presumption of marriage, however, would not apply if the conduct of the paris is
inconsistent with the relation of husband and wife, or where there is a legal prohibiton
also where the woman was admittedly a prostitute before she came to the man's house
(E) Customary Law
law. Under the Hindu law specially,
customs
have
Custom is a n important s o u r c e of Hindu Marriage u
o u t that the
and it is pertinent to point
played a signiticant role, and divorce from the operato
c u s t o m s regarding marriage
1955, specifically s a v e s attention has
"while much scholarly
the Act.8 As rightly observed by Menski,82 1955 and the new groun
of the Hindu Marriage Act,
section
lavished o n section 13 law und
w e see that in
social reality the customary from this section.
divorce among Hindus, law. Apart narriage
statute
as the n e w
29(2) is at least as important other sections
also. I hus, w hio is
of c u s t o m s in various or i tch
finds references to saving
relationship permit .
prohibited
a r e within
the degrees of the partics h has
b e t w e e n parties who which govern
the c u s t o m s
has been made if under a custom 4 Similark
barred, a n exception pertorme
been performed
where a marriage has rires. under
of religious addp t e d
marriage83 and further, insistence o n
pertormance
be i tc u s t o m
o f 15
can
there c a n be n o
the force of law, below the age ot
while only a child M a i n t e n a n c e Act, 1920
in the case of adoptions, and
Hindu Adoptions
Act, 1955
a.n d
be valid
the provisions of the this age, it will
of a person above
permits the adoption under the
Hindu Marr5
have been defined
C u s t o m " and "usage"
follows:
195686 as medan
M a i n t e n a n c e Act,
Hindu Adoptions and of-Outlines
268; Fyzee,
fyze
263-264, para
263-264, p ara
1972,
, PP
pp
Mohammedan Law,
79. Mulla,
Principles of
114-115.
Law, 1974, pp 46
at
80. Ibid 29. (2003) t*
1955, section andModernity",
Act,
81. Hindu Marriage "Hindu Law: Beyond
Tradition
. 3 ( a
F Menski,
82. W e r n e r sec
and (v). 765.
section 5(iv) AIR 1985 SC
1956,
83. 1biad, Bhikam Choudhary, section 10(iv). nance
Act,
84. Sunita
Devi v
and Maintenance
Act, 1956, Adoptions and Mantenat
Adoptions Hindu
85. Hindu section 3(a);
Act, 1955,
H i n d u Marriage
86.
 Family Law Lectures 449
sion "cu
The expression "custom" and "usage signify any rule which having been continuously
for a long time, has obtained the force of law among Hindus in any
uniformly observed for
and
localarca, tribibe, community, group or
family
n d d that the
rule is certain and not unreasonable or opposed to public policy; and
ovided
not been
n.ded that in the case of a rule applicable only to a family it has
further
Pr
discontimued by the family.
are:
essentials of a valid
custom
Thus, the
be ancient or of long standings
it should end;
use; once it is discontinued, it comes to an
it should
be in contin
clear and unambiguous;
G)it should be
reasonable;
(v) it should be to public
be oPposed to public policy;
a custom which is opposed
) it should not
be enforced;
policy will not
forbidden by any law.
not be expressly
(i) it should
it is essential that the party
HMA protects customary divorce,
While section 29 of the all the essential
existence of such custom qualifying
must prove the
relying on c u s t o m s the evidence adduced by
mentioned. Thus, where after going through
ingredients above that there w a s no divorce,
the marriage cannot
the parties, the court was of the opinion at one place and
the
because the wife w a s living
be said to have been dissolved simply
second wife.87
husband at another with the alleged
issue was whether under
in Surajmani Stella Kujar v Durga
Charan Hansdah,88 the
w a s an offence
or
the parties to the marriage, bigamy
uE
CUstomary law which governed admittedly, tribals professing
follows. The parties were,
h e facts, in brief were as out of the purview
of Hindu Marriage Act,
1955 in
The
, but their marriage being was governed by their
Santhal c u s t o m s and usage.
Of section 2(2) of the Act89 respondent husband had solemnised a second marriage
ant wite's case was that the marriage with her, and the second marriagesection being
the subsistence of the first the offence of bigamy punishable
under
to be prosecuted for Act, 1955 s a v e s
494 able 29 of the Hindu Marriage
tev indian Penal Code, 1860. Section the
of the Act, which may
c o m m e n c e m e n t
alidity of a marriagage
solemnised prior to
The wife relied upon
a n alleged
custom
otherwis after the passing of
the Act.
nowhere in the complaint,
ofthe rinvalid
tribe, wnich mandates monogamy
rule. However,
as a
which prohibits the
aid she having the force of law, that for a
reter to any
y alleged
custom
It is signiticant
to note
isation of second marriage by the respondent. that the party relying it on must
CuSTom o the force of law,
it is necessary to public
prove that usage to have and opposed
reasonable;
not
certain and
such custom IS ancient, was dismissed, and
metropolitan magistrate
Pollcy. The wife's before the chief Court. Dismissing
also her app complaint
her peal, the
nplaint
Court. Hence,
her appeal to the Apex monogamy is not
t o the High pleading of
a custom
enjoining
COurt held that mere
oUIri Devi vManorma Bai, AIR 1998 MP 114. l Femi-Juris
CC 96 (SC).
in this
contained
Hansdah, (2001) nothing
bection 2(2 Durga Charan
anything
contained in sub-section (1),
of clause (25) of
Article 366
shall states, "Norwithst
votwithstanding Tribe within the meaning in the ofticial
Gazette,
ihe apply to the nembers Scheduled notification
her stituti members of any Central
OIndia unless the
Government, by
directs
 Chapter 10-Miscellaneous
450
enough unless, it is further established that the second marriaoes void
having taken place during the subsistence
of an carli
rlier In rderby reason
marriage.
der
the second marriage was void, the complainant is under an obligati
an
existence of a custom which made such marriage null, ineffectual, havin to
sho obligation prove thar
or binding effect. incapable of being enforcedin law or non-est. The orce
marriage being void is a sine qua non for the applicability of section 494, of sen
Code, 1860. It is settled position of law that for fastening the criminal Indian Penal
prosecution or the complainant is obliged to prove the existence of all the
constituting the crime, which is normally and usually defined bv
iability, the
edients
complainant could not prove any such custom. It was accordingly heldte. the
The
2 of
absence of notification in terms ofsub-section
section 2 of the Act (ie n
of Central Government in the Official Gazette ending the
members of the scheduled tribes) no case for prosecution for the offence of c t to
application ofnotificatio
the
made out against the respondent, because the alleged second marriage cannor termed
wi
to be void under the Act or under any alleged custom having the force of law
MGovindaraju Munisami Gounder, is a
v K
significant judgment of the SuDrem
Court, which recognised the caste custom to determine the validity of a
marriage ad
legitimacy of a child born out of the relationship. This was a case by the petitioner wiha
was denied his share in the
joint Hindu tamily property owned by his father, on the
ground that when he was begotten there was no valid marriage subsisting between his
mother and father. The facts, briefly stated, were thus: The
parties belonged to he
shudra caste, who are governed by their customs in matters of marriage and divorce. The
wife had walked out of her marriage earlier, and the break was irreversible, as neither of
them approached each other for reconciliation. The wife then started living with another
man (present husband), and a child was born from that alliance. Paternity of the child
was
acknowledged and he was treated as the son of his father. The Madras High Cout
however, branded him as an
illegitimate child of his parents, and so not entitled to Caim
partition of join family property. On appeal, the Supreme Court pointed out that te
High Court had overlooked the caste factor, which was very significant. Under e
Custom ot the caste to which the parties belonged, if a woman is turned out or ieavco
the house and is not brought back as wife, it is treated as divorce and the
spou Was
re
thereafter free to
re-arrange their life with another partner. In this case, since
no reconciliation with p
the first husband, and the woman entered into a
WIth another man, the divorce re heldm
tu
be
was complete and the subsequent marriage w was
valid.The order of the High Court
holding
the as
appellant illegitu
consequently set aside.
a valid
In Gurdit
Singh Angrez Kaur,1
v
the Supreme Court held that there Cat m, the
divorce where custom allows
dissolution and on dissolution of a marriag pOus.
parry can enter into second marriage during the life-time of the first divorceds
tn Kenuadl
divorce obtained
by "farkati nama" was recognised as valid
a
Kumar v Pawna Devi92 When undc Custom
divorce has been obtained by a legally recognis divorceon
applicable to the
parties, it is not
necessary for them to court to
btain
to go oe
90. M
Govindaraju v KMunisami Gounder, AIR 1997 SC 10: (1996) 5 SC
S m g hv C u p
91. Gurdit Singh v
Angrez Kaur, AIR 1968 SC 142 : 40
Kaur, AlR 1985 Del 14; Rita Rani v (1967) 3 SCR 789; see
also Chain Sg
Ramesh Kumar, (1995) 2 HLR 358
Kavita, (2006) 3 Shim LC 206. r
92. Kewal Kumar v Pawna Devi, AIR 2011 HP
58.
 Family Law Lectures 451
aonised custom; it is open to the parties to dissolve the marriage out of
g o u n d so
in
ance with the custom.3 In Germanthangi v F Rokunga,4 the issue
a c c o r d a n c e
vurt,
around a
izo custom amongst the Mizos of "abandonment," known as
Mi2
Tlansan"in Mizo language. Recognising
this custom as established
rvoved
Nupt amongst
r t held that "abandonment" is not divorce, but just running the
away and
MiRTamily to their fate. In such case, the custom
properties, is explicit that the
lavinld and children go to wife. Subramani v Chandralekhas was a property dispute,
house was alleged
that the deceased husband had divorced his wife
ere it by
eed. The wife (widow) averred that under the Vellala Gounder
riage dissolution deec
executingga
nari
communityoto which
which the parties belonged, no such custom prevailed. After going
facts and law, the court held that in the absence of proof of custom which
rhrough the
ins divorce in the manner alleged in the present case, the marriage cannot be deemed
n have been dissolved by a dissolution deed. Similarly, in Ramesh Chandra R Dagav
Pamchwari RC Daga,% a plea alleging that the earlier marriage of the wife had been
iswolved under a custom on the basis of a registered document of chhor chithi, was not
2EDted by the court. The alleged custom had not been proved, so the second marriage
as held to be void. A husband tearing a piece from his turban was held not to be a valid
uSTom to prove divorce.7
In Yamanagi H Jadhar v Nirmala,8 a husband allegedly obtained a customary divorce
i consent with wife's signatures on the divorce deed. The wife filed a suit for
dncdaration that the divorce deed was obtained by the husband by coercion, and
tieretore, for cancellation of the same. Husband denied allegation of fraud and coercion,
and stated that she had willingly signed the divorce deed. The trial court and the
agpelate court ruled in favour of the husband, but the High Court reversed the same,
ad held that there was no divorce. Hence, the husband's appeal. Dismissing the appeal,
e upreme Court held that Hindu law does not recognise divorce except when the
1 5 allowed by custom. In this case, there was neither material on record nor
Ping of parties showing prevalence of any such customary divorce in the community
o n which the divorce document was obtained. The court observed:
that, if at all,
policy, good morals and the interests ofsociety require and
ensure
Tance should be allowed only in the manner and for reasons or cause specified in law.
law of divorce ought to have been
specificall.tm being an exception to the general Since such
CuSt by the party propounding such custom.
Ppleaded and established
will be a practice opposed to
the policy. to the law of land and which if not proved
the public contrary
The cas consequently remanded to trial court to ascertain existence ot alleged
GLStOm.
Vhile the secth it is essential that the party relying on
Stom must POVe
prove
o protects customary divorce,
the existence of such custom, and that it IS ancient, certain,
3.Jasbir Singh v Inderjit Kaur. Padmanabban, AlR 2001
Mad 350. Ino aur, AIR 2003 P&H 317; see also Mariamonia v
eTmanthangi F Rokunga,
v
AIR 2004 Gau 42 (Aizawal Bench).
Al 2005 SC 485:
mesh Chandralekha, AIR (2005) 9 SCC 407.
2 SCC 637.
. andi
andi raR Daga Rameshwari RC AIR 2005 SC 422: (2002)
Devi
Yamanagi v Raja. Ram, AIR
v
Daga,
bid, p972 HJadhar v Nirmala, 1973 Raj 94.SC 971: (2002) 2 SCC 637.
Jadhar AIR 2002
 452
Chapter 10-Miscellaneous

reasonable and not opposed to public policy. Thus, where, af

evidence adduced by the parties, the court was of the opinion thas. going
the marriage cannot be said to have been dissolved simply because tl there was hrnoongh fhe
the
one place and the husband at another with the alleged second wife. 100 wife was divotce
An agreement for dissolution of marriage stating that the narr Ivwing a
parties had dis
marriage under prevailing customs is not recognised by law unless
prove the existence of a custom which pernmits such divorce.1o es are
Ssolved théer
berween the parties cannot be accepted as a decree of divorce 102tlemenr
divorce based on an agreement where the wife was
given certain lands, ikewise, aledeg
allegedly given consent to the husband to marry again as she could nor.
stating that the marriage had been dissolved as per any custom prevailine nceive, wihouhad
of Hissar, (where the parties belonged to) the court refused to n the
recognise the same 0 istict
A divorce approved by a Khap panchayat does not have any legal sanci
be a
ground for any family court to grant legal separation to an estrangeddcanat
Upholding an Allahabad High Court judgment, the Supreme Court quashed
court order that granted divorce
to the petitioner husband from his wife on the
that their separation was approved by a Khap panchayat. The fact that
the ne
approached the court for a formal divorce decree indicates that even he was awar loner
the Khap panchayat's order was not legal that
and so he wanted a court decree. Dismisig
the petition the Supreme Court bench held:104 SSing
The High Court has rightly held that dissolution of
marriage through panchayat as per
custom prevailing in that area and in that community cannot be a ground for graning
divorce under section 13 of the Act. [Hindu Marriage Act, 1955).

Dissolution of marriage through panchayat as per custom is no for granting

divorce under section 13. In Mahendra Nath Yadarw v Sheela Devi,ground105 a panchayat ws
convened and marriage dissolved on the husband
order to give legal effect to the
paying Rupees 30,000/- to the wite. lh
panchayat divorce the husband tried to the
to get a divorce by mutual consent from the family court. On her refusal to do so, t persuade wit
filed a divorce perition under section 13 on ground of desertion and cruelty and the wir
filed for restitution under section 9. The family court granted divorce on the grou
that the
marriage had been dissolved through panchayat
and
wiltes
dismseu
peition for restitution. On appeal, the High Court reversed the
Court upheld the same. It held that order and u e
case the appellant husband wanted ucl
in
Dasis or customary dissolution of marriage through panchayat, he would not navth
peution under section 13 of the HMA. Filing such petition itself means that none a of
parties believed that divorce granted by the was legal. Similarly
Panchayat was
panchayat divorce of earlier marriage of a husband legal, s u c ha l l e g e u

who remarried a Court observet

divorce, was dismissed in Sukhbir
Singhv Mandeep Kumar.06 The co
100. Savitri Devi
v Manorama
101. Jatina Samir Shah v
Bai, AIR 1998 MP 114.
102. Vishnu Kumar v State
Samir Mohit Shah, AIR 2009 (NOC) 2149 (Bom). v
Parveen, A
2010 P&H 65.
of UP, 2006 (65) ALR 888 (All); see also Mohan La a r m a

103. Sunder Devi v State

104. "Khap of Haryana,
AIR 2014 P&H
139
Panchayat
105. Mahendra Nath
can't grant divorce: SC"
Hindustan Times,
t 27 August 2010.
Yadav v Sheela Devi, Kashibai v
Yamun
(3) Bom LR 42: 2016 (2) ABR (2010) II DMC 487 (SC); See also
also
106. Sukhbir 755.
Singh v
Mandeep Kumar, (2016) 184 PLR 392.
 Family Law Lectures 453

am has
has been
been recognised by court, it passes into the law and proof becomes
custom

when
a ion 57(1) of the Evidence Act. However, recognition of custom
1nder section

s based on cogent material on record and it cannot be presumed on vague

unnecessary

aurtsdd evidence." Wife's petition for annulment of marriage on ground of

was allowed.
nnd's earlier subsisting marriage
ther Swapananjali Sandeep Patil
in Sandeep Ananda Patil,107 where a husband
v
DE to So also, ivorce of his.first wife under a custom and remarried the petitioner,
ied to prove annulment of marriage under section 24 read with section 4(a) of the
erition for was allowed
lleged Marriage Act (marriage is void if an earlier marriage is subsisting)
special
bythe wife.
Tthou the Khasis of
be made ot some customary forms of divorce amongst
diStnic Areference may
also play an important role in settling disputes. According
to
103
Mochalaya,108 where elders five cowries (shells) in their hands. The wife
iCneform, the husband and wite both take
She
hands over cowries to the gives these, along with his, to the wife.even
husband who then
COUpE Sometimes it is
urns them to the
husband and he throws them on the ground.
tamir This signified divorce. After
simpler-a betel leaf is torn in two before some witnesses.
ground A crier, Unong-pyrata, makes a
thse ceremonies there is a public declaration.
etit
the Garos0 of Meghalaya also,
podamation to that effect, by beat of drums. Amongst
elders and is known as bolsekidena. The
Ware L

ISTnL drorce generally takes place before the village Mane, the Earth, to
dust in their hands and swear
by
tuband and the wife take some
takes a sword or spear and strikes a
ie no
dealings with each other. The priest then a witness to the oath
taken by
2s par
i WTth it and calls upon it (as a son of the Earth) to be
antin wo. The weapon is provided by the husband.
and
pointed out that these customs
exist only in the interiors of Meghalaya
org r a n be the parties marry under the
Christian
Out. In the bigger towns and cities,
M ng Act and their matrimonial disputes
are decided
or the
the wieb
dnct
ader those Acts
Special Marriage
only.
2 dt
eh e
wt

In decided by the
O do so be made of a c a s e
the context of reference may
Madhya Pradesh High adoption,
a
and
the
w
n,
Padmavati.110 The claim
of an adopted
ourt in Uma Prasad v inter alia, that the boy
to th on grounds,
e
properties was souought to be challenged w a s not valid.
above th hence, the adoption
h ew i

15 when he w a s adopted, and that they e r e governed

the Suypen
of
parties who succeeded in proving
w

C7 darr an were rawals by

Agrar caste, of boys
which permitted adoption
ancient
and and
e age of 15.well-establis
lished usage,
c u s t o m
held to be
v Gupta
valid. In Saryaa son
The adopti
option was consequently of after
Prakash howe
ver, where custom w a s pleaded
in support of adoption
was
insutficient and
the evidence produced not discharged. It is
SUCI ous, da ceremony, but of proving the
it was was
custom

held that the burden c u s t o m o n which he

Oumbent
Aus. It must on a
party to allege and prove the
c a n n o t be
Setting setting
up a
up custom

by a priori
methods. Custom

Thatter of be established induc

uctively and
not
one
of fact and
c a n n o t be
custom

cory but must always be a matter

Swapeananjal SC 1500:
2019 (2) ALT 189.

fuusum hd PM B
v Sandeep Ananda
atil
Patil, AlR 2019
in the Tribal Areas
Megbalaya, (1982)
of
at 89.

stomary Law and Justice

na Prasadv Padmavalt
ya Gupta v Vati, 1999 AIHC 3494 (MP).
rakash, 2001 AlHC 1276 (Al)
 Chapter 10-Miscellaneous
454
deduced from another. Thus, in Salekh Chand v Satya Guptal12 whos
is a custom in the community. to was deposed
an adoption that there
but the of
support same was not established, the court refused to accept the a l a siste
valid.
alleged adoption
In Khagembam Sadhu v Khagembam 1bohal Singh,|13 the plea thar s
15 vears and Manipuri custom did not permit such adoption was he ld was above
sustainable as the alleged Manipuri custom against such adoption was
not proved. The
valid.
adoption was accordingly held to be
Note: Please refer to sections on "Marriage, "Matrimonial Relicf"and
for more cases on customary law. doption"
(F) Foreign Marriages Act, 1969
In view of the fact that a large number of Indians are going abroad and
married there, it was thought necessary to provide for a law governing their mari. geting
relationship. The Foreign Marriage Act, 1969 was the outcome of a study of t
problem of foreign marriages, made by the Law Commission.l4 The Act is modeled on
the Special Marriage Act, 1954, and the English and Australian legislations on the
subject of foreign marriages, subject to certain important modifications rendered
necessary by the peculiar conditions prevailing in our country.
The salient features of the Act are:
(1) It provides for an enabling form of marriage more or less on the same lines as the
Special Marriage Act, 1954, which can be availed of outside India, where one of
the parties to the marriage is an Indian citizen, the form of marriage thus
provided being not in supersession of, but only in addition to or as an alternatve
to any other form which might be permissible to the parties.
i) It lays down certain rules in respect of capacity of parties and conditons
Similar
validity of marriage, and also provides for registration of marriage on lines
to those in the Special Marriage Act, 1954.
relicts
1i) The provisions of the Special Marriage Act, 1954, in regard to matrimona
are
applicable, with suitable modifications, not only to marriages sole
registered under the Act, but also to other marriages solemnised abroad
hid
a citizen of India is a
party.
A reference may be made of a few cases
under the Act.
both Indian
In Abdur Rahim v Padma,15 and lindu wife, The
a Muslim husband a
Hin larriages.
t r a r of
Catizens, got in
married
London in 1966 in the office of the Registrar
narriage was pertormed under the British Marriage Act, 1949. In 190
t h e parues
rerurned to India, and according to the husband, the wife underwent nilateraltdlui
Islam and a nikah was performed. In 1978, the husban divorced her by declaration

that
in her absence due her
the
she
to
extremely cruel behaviour, and then
soug. m entering
was no
longer his wife and an injunction restraining nc *
112. Salekh Chand v
Satya Gupta, (2008) 5 MLJ 117 SC.
113. Khagembam Sadhu v
114. Khagembam Ibohal Singh, AIR 2001 Gau 95.
"Twenty-third Report on the Law of Foreign
Rahim v Padma, AIR 1982 Bom 341. Marriages",
1963.
115. Abdur
 Family Law Lectures 455
2
where it
ity, to was deposel
nd's
The husbane contention was that the Muslim law governed their
embraced Islam by conversion; that their marriage was a
t adopt nial n wife had
the a marriage that t h e
was pertormed in the presence of two witnesses of
the
alleged sister's
adoptin
m u c h as it
much
faith, and that under the Muslim law, he could pronounce talaq
in
as
ibahfasa the other hand, it was argued that the marriage was a civil
a
that the Mahon.
For the
wife, o n
the Foreign
tion child pertormed un under the British Marriage Act, 1949 and governed by
held was b
unilaterally
was secular in nature, and that simply by
was monogamous and
tion was not to be marna 1969, that it
of personal law, a secular marriage could not be converted
proved. The he formalities
roducing t h e f ormalit
that the Foreign Marriage Act, 1969
religiousmarriage. The e husband's contention
in 1966 was negatived.
I
Reliefs" ,
and "Adopie ntoa
quldnot be applied
retrospectively to a marriage performed
word solemnised in section 18(1) of the Act, clearly
refers to
ng to the court, the after the Act. The court examined the history
of the
e performed before or The of
the Law Commission's Twenty-third Report.
purpose
ation and referred to one of the parties is an
Indian
marriage where at least
going abroad and
getin
Act is to protect a toreign fact whether the
or registered under
marriage was performed
the
governing their mamis ETEn, irrespective of a which is
c a n n o t be
initially monogamous by
statute,
ot studr afthe Act or not. Thus, marriage divorce and the
that there was no
come nikah. "The court thus, held
a
114 The Act is
modliei merged in a subsequent subsisted.
husband and wife
tralian legislations on thdationship of the parties were married
t modifications renderi in Joyce Sumathi v Robert Dickson Brodie,'16 also, deserted
Similarly, Bahrain. After years, the
husband some
under Foreign Marriage Act, 1969, at over five years, and hence,
she
is wife and she did not know his whereabouts for even
Act, 1954 on
section 27 of the Special Marriage
tiled a petition for divorce under
the linesa same The trial court dismissed
her petition, holding that the marriage
of desertion. not be
grDund
Act, 1969, and so could
ess on
outside India,
whereone registered under section 17 of Foreign Marriage
mariage
as not attract the provisions of
the Special Marriage
form of 2s a
marriage under the Act so as to in
he ed under section 18 of the Act, parties
In appeal, however, it was held that
altema
to oras
an
94. Act, 1969 and in "relation
under the Foreign Marriage
lition
arties. t a marriage solemnised of whom at least
foreign country between parties Act, 1954. The
Ener marriage solemnised in
parties and condiuoe
a
relief under the Special Marriage
Czen of India, may obrtain
lines
on
wle
was, accordingly, given reliet.
marriage
of
between two Hindus
was performed
In Minoti Ana
Subhash Anand,17 a marriage registered under the
e g a r dt o matrimonial
v
to marriagessolemns Japan a 1 n d
nJapan according to Japanese rites and c u s t o m s . The
s a m e was got
fell o u t the husband
w foteign later when the parties
w
Solemnised
abroad
ght Marriages
relief
Act.
Thirty one yearsHindu Marriage Act,
1955. While the Family
ourt in Bomunder the provIS
provisions of the
on appeal by
the wite, the Bombay High
Ourt Day entertained the petition,
held that a i under the Foreign Marriage
Act matrimonial
would be deemed
o be registered the same,
a dmarriage vide section 18 of
Registr o f
Maniaga wite,

both
marr1age
eiefs would
be
solemnised under that Act andunder the provisions
of the Special Marriage
Hindu
the
a2 har, 1954 an available to the parties only
part 1955. Act,
a not the Hindu Marriage USA. The wife filed
1 9 6 9 ,
married in the
u n d e r w e n ta conre
In
1949. uniae
Linda
Suit for nullity v
Ashley Josep
were
Joseph,1l8 the partiesalternative, she sought a divorce on
the
o r in the it was not vested
h e r

by
enen d of cruelry.
wxhrequisite jur: h e trial City court, the case on the ground
that
of n o t
court dismissed lndia tor a period
d e c h
in
residing
a
orced
sougtht
from was not
uiction, as the petitioner
C n her
16. Joyce Sumo
N g
.MinotiDumathi vRobert Dickson Brodie, AIR 1982 AP 389.
8,
Maria Anand
and Subhash
vv Bom 65.
Linda Su and, AlR 2009
vAshley seph, AIR 1993 Bom 110.
v i