HINDU MAINTENANCE-

Chand dhawan v Jawaharlal dhawan- Section 25 of HMA can only be invoked when marital ties have been
disrupted- any decree for ROCR, JS, nullity or divorce, otherwise s 18 of HAMA will apply. Any decree in s25 of
HMA means decree for ROCR, JS etc. by rejecting claim, it makes it appealable but the marriage is not disrupted.
Vinny Parmar v Paramvir Parmar- Maintenance amount tied to lifestyle of the wife, pilot and airhostess case
where wife was forced to resign after marriage, considering the husband’s salary and future prospects the
maintenance was fixed.
Geeta Satish gokarna v Satish shakarrao gokarna – marriage dissolved by mutual consent, agreement to not ask
for maintenance. Held- Firstly, that Section 25 confers a power on the Court “at the time of passing of the decree or
at any time subsequent thereto on an application made” to award alimony or maintenance. This was a jurisdiction to
be exercised by the Court and it was not open to parties to oust the jurisdiction of the Court by agreement. Secondly,
the court held that permanent alimony and maintenance are a larger part of the right to life and so the clause in the
agreement was opposed to public policy. S25 HMA.

UNDER 125 CRPC-

Chaturbhuj v sitabai- test is whether wife is able to maintain herself like she used to when she had the husband.
Crpc 125, “means available to the deserted wife while she was living with her husband and would not take within
itself the efforts made by the wife after desertion to survive somehow.”, reiterates the point to prevent vagrancy,
only because she earns does not mean she is not entitled to maintenance, amount should be sufficient. Requirements
of 125- that she unable to maintain herself, husband has sufficient means and has neglected to maintain her.
Bhagwan dutt v kamla devi- the wife should be in a position to maintain standard of living which is neither
luxurious nor penurious but what is consistent with status of a family. Crpc 125, wife’s capability to maintain herself
will have to be taken into consideration, in this case wife earned more than the husband. The section does not confer
an absolute right on a neglected wife to get an order of maintenance against the husband nor does it impose an
absolute liability on the husband to support her in all circumstances.
Indra Sarma v VKV Sarma- adulterous relationship does not amount to relationships in nature of marriages, hence
maintenance cannot be claimed. In this case, the woman knew that the man was married and still continued to have
relations with him.
MUSLIM MAINTENANCE-
In case of muta marriage, no maintenance under DMMA but under s 125 crpc (secular provision) - divorced wife
has to be maintained even after iddat period, shah bano case- muslim wife has to be maintained even after iddat
period if she has no means to maintain herself. Under muslim personal law, man has to maintain his divorced wife in
the iddat period and not beyond
Zohara Khatoon V. Mohd. Ibrahim- wive was willfully neglected, clause (b) of Explanation to S. 125 envisages
all the three modes, whether a wife is divorced unilaterally by the husband or whether she obtains divorce under the
mode numbers 2 and 3, she continues to be a wife for the purpose of getting maintenance under S. 125 of the 1973
Code. intention of legislature was to provide for wives who were dicorced under personal laws to remove burden of
maintenance. Wives who obtained a decree of divorce are also entitled to maintainence under 125 crpc.
Mohd. Ahmed Khan V Shah Bano Begum- muslim wife entitled to maintenance after divorce if she is unable to
maintain herself, mehr is not amount to be given after divorce but it is to be given in marriage so it cannot operate as
maintenance, Acc. to muslim personal law husband only entitled to maintain in iddat period, but it was not accepted
by the courts as she was not able to maintain herself even after the iddat period. So it was held that husbands will
have to maintain wives even after iddat period if she is unable to maintain herself.
Danial Latifi v. Union of India- Remedy of Crpc cannot be denied to Muslim women. section 3 does not mention
the duration of maintenance, husband is liable to make provision for divorced wife beyond iddat period and during
the iddat period with respect to section 3 of the act. Section 3(a)- within to be read as during or for. Nowhere is it
written that she will not be entitled to maintenance afterwards so provided that she has not married again, she will be
get maintenance for life. This is a constitutional interpretation. 1) a Muslim husband is liable to make reasonable and
fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a
reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat
period in terms of Section 3(1)(a) of the Act 2) Liability of Muslim husband to his divorced wife arising under
Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.

Noor Saba Khatoon v. Mohd. Quasim- section 3(1)(b) there is nothing in section 125 crpc which denies muslim
minor children the right to be maintained, nothing in section 3 can affect this right in case of muslim women, the act
cannot take the right of children to claim maintenance under s125 crpc, he cannot refuse to maintain children on
account of divorce, it is independent right diff from sec 3(1) of the act. Maintenance for the prescribed period
referred to in Clause (b) of Section 3(1) is granted on the claim or the divorced mother on her own behalf for
maintaining the infant/infants for a period of two years from the date of the birth of the child concerned who is/are
living with her and presumably is aimed at providing some extra amount to the mother for her nourishment for
nursing or taking care of the infant/infants up to a period of two years. It has nothing to do with children’s
maintenance under S 125. it would be unreasonable, unfair, inequitable and even preposterous to deny the benefit of
Section 125 Cr. P. C. to the children only on the ground that they are born of Muslim parents.

Shamima Farooquiv. Shahid Khan- (application under 125 crpc) - husband having sufficient means must maintain
his wife, it is an absolute right, only because he has retired does not mean that he would not be required to pay small
amount of maintenance.
FOR WOMEN IN NON MARITAL RELATIONS
Savitaben v state of Gujarat- appellant was second wife, at that time, in this case held that- second wives were
illegitimate and couldn’t claim maintenance, but illegitimate child can claim maintenance. S125- meaning of wife
did not have illegitimate wife.
Chanmuniya v Virendra Kumar- a broad and expansive interpretation should be given to the term “wife” to
include even those cases where a man and woman have been living together as husband and wife for reasonably
long period of time, and strict proof of marriage should not be a pre- condition for maintenance under Section 125 of
the CrPC so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125. He
will be liable to pay a woman he has been living with for maintenance if he deserts her.
Badshah v urmila badshah godse- she was entitled to maintenance as they lived as husband and wife, husband
cannot take advantage of his own wrong. S125 CrPC.
Velusamy v Patchaiamma- The S.C. commented in the course of its judgment that the Indian Parliament while
establishing the two distinct categories viz. ‘relationship of marriage’ and ‘relationship in the nature of marriage’
intended that the enactment should protect and benefit women in both these relationships, not all live in relationships
will be liable for maintenance, not given in this case since conditions not fulfilled.
MAINTENANCE OF PARENTS AND CHILDREN-
Selva Saroja v. Sasinathan- it may be noted that the opening words occurring in Section 125 (1) of Cr.P.C.,
indicate that any 'person' having sufficient means on refusal or neglect can be directed to pay the amount of
maintenance. The word 'person' in the above clause would include a male or a female. Hence, though in Clause (b)
Section 125 (1) Cr.P.C., the word 'his' is used, it cannot mean and relate to only a male. It may be noticed in this
connection that S. 8 of IPC, lays down that the pronoun 'he' and its derivates are used for any person, whether male
or female. In this case, mother was liable to pay maintenance to her sons.
Mahendra Kumar Gaikwad v. Gulabbhai- liable to maintain parents even if they have committed some wrongs.
If there are two or more children parents can seek remedy against any one or all of them- under 125 crpc. The
liability of a son to pay maintenance under the above provision is distinct from and independent of the liability of
the other children in the family to maintain the parents. It cannot, therefore, be accepted, as a proposition of law that
unless all the children are made parties in a claim for maintenance by the parent, the latter would not be entitled for
an order of maintenance.
Vijaya Manohar Arbat vs Kashi Rao Rajaram- daughter would also be liable to pay maintenance to the parents,
if the Court is satisfied that she has sufficient means and has her own income, and that the father or the mother as the
case may be, is unable to maintain himself or herself. Interpretation of word ‘his’
MUSLIM MARRIAGE-
In case of muta marriages, dower has to be fixed and duration to be specified. If dower not specified, then void. If
term not specified, then it operates as a permanent marriage.
Abdul Kadir- muslim marriage is an offer + acceptance. All rights (co-extensive) and obligations arise immediately
and simultaneously, so non-payment of dower cannot be used as a defense. In RCR proceedings, non-payment of
dower cannot be a valid defense if consummation of marriage is done.
Khurshid Ahmed Khan- under A.25 religious faith and not practice is protected. If religious practice runs counter
to public order, health or morality then it cannot be done. Polygamy not part of religion.
Tara Bano v Mohd Iqbal- child marriage, marriage not consummated, option of puberty was exercised when she
turned 15, no Rcr allowed, it is not necessary to obtain decree to exercise khyar ul bulugh, only repudiation should
be confirmed by the court.
Mohd. Nihal v. State- marriage of a girl not attained puberty is valid if her wali has given consent. If father alive
then father, p. gf etc. – marriage of muslim not attained puberty without consent of her wali is void, irr. of consent,
plaintiff not given right to custody.
CHRISTIAN MARRIAGE- there is no concept of a born Christian.
Leelamma v Dilip Kumar- s3- Christian is someone who professes the faith, in absence of statutory law, canon law
governs persons of Syrian catholic community, canon law says that error concerning person renders the marriage
invalid, in this case wife did not know that husband was a convert, ‘quality of person’ means religious affiliation in
CL, further consent to marriage must be free and voluntary but in this case it isn’t. Misrepresentation regarding
religion or community is a vital fact. Marriage is invalid if there is error regarding religious affiliation, marriage held
too be invalid in this case.
Molly Joseph v Jane Augustine- the decision of the Ecclestial tribunal cannot be held to be binding on the district
court or the high court since it cannot exercise powers parallel to them by provisions of the DA. S18 and s3- confers
rights only to DC or HCc and excludes any tribunal or court including church. Church authorities will still be
disabled to perform second marriage if tribunal dissolves the first.
Sujatha v Jose Augustine- petitioner had no free consent for marriage and prayed for it to be declared null and
void. Baptism ceremony is not sufficient to hold that one is a Christian. Only when one believes and professes in
Christianity can they be a christian. Canon law says that a marriage btw baptized Christian and non-baptized
Christian is void. In this case canon law applies to parties because in areas where Christian law has not been made
applicable, canon law applies. There must be intention to receive baptism, adequately instructed in truths of faith
and duties of Ch., tested in Christian life over course of catechumenate- these are req. to be satisfied for an adult to
be considered as baptized and any evidence on record regarding baptism is totally insufficient to hold that pet. Was
admitted to baptism.
Laxmi Sanyal v Sachit Kumar Dhar- age of minority in CMA cannot be applied to parts 1 and 2. Their marriage
was solemnized under part 1 and so it cannot attract sec 19 as it is applicable only to MOR. Such marriages will not
be null and void but would only attract penal provisions. Canon law applies and there is no provision which
prohibits marriage on minor in absence of guardian’s consent. In canon law, marriage btw 16 yo boy and 14 yo girl
is valid. If person has reached age of this capacity, then marriage can be solemnized and lack of consent will not
invalidate the marriage. In case of consanguinity, dispensation can be granted in second degree after which
prohibition doesn’t exist. So sec 19(4) does not apply.
HINDU MARRIAGE- Conversion- Sarla Mudgal, Lily Thomas; Section 7A and bigamy - S. Nagalingam v.
Sivagamy (saptapadi valid marriage only when it was admitted by parties as essential ceremony), Bhaorao
lokhande- married validly, priya bala ghosh- bigamy; Gullipilli- ‘may’ in S5 is mandatory; Ravi Kumar v state-
minority, marriage above 15 below 18 is neither void nor illegal, P Venkataramana v state- child marriage liable
for punishment but not invalid, factum valet, s11 exhaustive, s5 does not include minors marriage, Janaki case- two
years sunset period after majority to repudiate marriage.
SMA- if s5 and s6 are not observed then it would render the registration of the marriage invalid. 24(2)- clauses a-e
are given and for f, the interpretation of courts is required as per the facts of the case. Deepak Krishna- both 15(f)
and 16 are mandatory, since 15(f) depends on 16; Vivian Varghese- S4 of SMA- between any two persons, FMA-
between citizens of india outside india, Sma places no restriction on marriage if one citizen is a foreigner, if both
foreigners want to marry in India then also SMA will apply
FMA- Undre v Undre- 18(1) any marriage solemnized..- means all marriages solemnized at any time in foreign
country. Section 18(4) gives authority to court to grant relief under the act in relation to any marriage not
solemnized under the act. Minoti Anand- 14(2)- conclusive evidence, in this case Hma did not apply since it was
barred by 18(1) so 18(4) did not apply and only FMA was applied since certificate was conclusive evidence of
marriage under the act.
ADOPTIONS-
Juvenile justice act specifically deals with children in conflict with law and children in need of care and protection-
orphaned, abandoned or surrendered children. Inter-country adoption is allowed when no indian adoptive parents are
available within 30 days of child being given up in adoption. Single male is not eligible to adopt a girl child.
Vijaylaxmamma v BT Shankar- in absence of husband’s permission after death, the widow (seniormost) will be
deemed to have his authority and the adoption will be deemed to be member of the family of the deceased husband,
absence of consent of female sapinda will not invalidate the adoption, senior widow can ask younger one but no
obligation as such.
Vinay Pathak and his wife v Unknown- both HAMA and JJA have to be read harmoniously, religious identity of
child and parents not important as JJA is a secular law, can adopt child of same sex even when biological child lives,
however if a child is not orphaned, deserted etc. then the parents are governed by HAMA – section 11 (i) (ii), JJA
will always prevail HAMA.
Shabnam Hashmi v UOI- Islamic law does not recognize adopted child to be at par with biological child, a person
irrespective of religion can be adopted and could adopt. Personal beliefs and faiths cannot dictate the operation of
provisions of an enabling statute.
SURROGACY-
Baby Manji Yamada v UOI- “Commission constituted under CPCRA has right to inquire into complaints or take
action suo motu notice relating to violation of child rights and development of children and provide relief in such
matters with appropriate authorities.”
Jan Balaz v Anand Municipality- The question of nationality of twins born to an Indian surrogate mother with the
help of an unknown Indian donor and the sperms of the father, Jan Balaz. The parents were german nationals. The
High Court concluded that given both the gestational mother and the egg donor were Indian nationals it reinforced
the stand that the twins were born to an Indian national. The SC denied passports but issues exit permits to the
children and recommended emergent legislation on surrogacy laws in India.

HINDU DIVORCE-
S23- connivance- willing consent or passive acquiescence in a course of conduct reasonably leading to the
commission of adultery. Condonation- reinstatement and intention to forgive, revival of the matrimonial offence if
the matrimonial offence if afterwards committed, the condonation ceases to have effect and the offence and the
effect of it is revived. Collusion may consist in an understanding, express or implied, that the court shall be
deceived by misrepresentation, exaggeration or suppression of facts.
In desertion- actual where there is factum of seperation + animus deserendi, constructive where if spouse creates sit.
Where other has to leave then former will be deserter, willful neglect- of basic marital obligations. Terminated by
intercourse, cohabitation, animus revertendi.
IRBM- S13(1-A)
Fault grounds- adultery, cruelty, desertion, non-payment of maintenance, minority, rape, sodomy, bestiality;
Frustration gorunds- S13 (1) 2,3,4,5,6,7
Dastane v. Dastane- cruelty to be ‘satisfied’ on preponderance of probabilities, elements of condonation are
forgiveness and restoration. After cruelty does not mean condonation but sex means condonation, not through
reasonable person standard but subjective effect on aggrieved spouse. To constitute cruelty, the conduct of the
respondent must cause a reasonable apprehension in the mind of the Appellant of harm or injury by living with the
respondent. with condonation, there is an implied condition that no further matrimonial offence shall be committed,
i.e., the condoned act can be revived. condonation implies a complete reconciliation in the sense of reinstating the
offender to conjugal cohabitation or intercourse. Reconciliation is the test of condonation.
Naveen Kohli v. Neelu Kohli- cruelty- whether conduct is such nature to cause reasonable apprehension that it will
be harmful to live with spouse. It should be more than ordinary wear and tear of marriage. What may amount to
cruelty in one case may not in another case. The court has to consider social status, environment, education, physical
and mental conditions, customs and traditions. It may be mental (nature+impact of cruel treatment) or physical or
may itself be illegal.
Dharmendra Kumar v. Usha Kumar- In order to be a ‘wrong’ within the meaning of this clause, the conduct must
be misconduct serious enough to justify denial of relief to which the husband or the wife is otherwise entitled to.
Mere non-compliance with a decree for restitution does not constitute wrong within the meaning of section 23(1)(a)
Hirachand Srinivas v Sunanda- husband continued adulterous relation and did not pay maintenance after JS
decree then filed for dissolution, he cannot take advantage of his own wrong under s 23. Section 13 (1-A) and s23
have to be read together and provisions of latter applicable to former. Living in adultery was a continued
matrimonial offence. JS does not snap matrimonial ties but only suspends some obligations.
T. Srinivasan v. T. Varalakshmi- desertion- husband sent wife away to bring presents, then said that she had
deserted him and did not allow her to come back, after a year of ROCR, he filed for divorce because there had been
no ROCR, courts held he was taking advantage of his own wrong. In granting relief under Section 13(1A) the Court
will and must take into consideration the conduct of the petitioner subsequent to the passing of the decree for
judicial separation or restitution of conjugal rights and not grant relief to a party who is taking advantage of his own
wrong. It was he who deserted the wife.
Bipinchandra Jaisinghbai Shah v. Prabhavati- desertion- ending cohabitation without reasonable cause and
wihout consent, withdrawal from state of things and has the quality of permanence. Essential conditions are- factum
of separation and intention to bring cohab to an end (animus deserendi). The deserted spouse should be willing to
fulfill his/her part of duties. If partner returns and wants to cohabit and other refuses, then he becomes the deserter.
Savitri Pandey v. Prem Chandra Pandey- she herself abandoned the matrimonial home, there is no animus
deserendi on part of husband, in this case, in absence of cohabitation and consummation, appellant will be
disentitled to divorce due to desertion. She is taking advantage of her own wrong.
Sureshta Devi v Om Prakash- mutual consent divorce, there is a 6-18-month period for second motion, mutual
decree is not irrevocable, it can be revoked at any time before the divorce is granted because mutual consent is a sine
qua non for passing divorce decree under s13B. ‘they have not been able to live together’- broken down marriage
Amardeep Singh v Harveen Kaur- the cooling off period of 6-18 months in mutual consent is directory and
mandatory subject to terms and conditions to be observed. Waiver appl. Can be filed after one week of first motion
giving reasons and to waive will be on discretion of the courts.
MUSLIM DIVORCE-
Express- Talaq ul sunnat- approved and revocable talaq- ahsan (single pronouncement during tuhr followed by
sexual absistence during iddat) and hasan (3 declarations during succ. Tuhrs, then is irrevocable)
Implied- where words used are not clear, implied div. when intention is proved
Contingent- when div. on happening of future event
Delegated- absolutely or conditionally, permanent or temporary
Constructive- ila (husband swears not to have sex for 4 months, is revocable on resumption of sex), zihr (unlawful
comparision or aspersion, lian (adultery charge)
Khula- offer from wife to compensate husband if he releases her from marriage. Single irrevocable for husband but
wife can reclaim during iddat period then husband can revoke khula.
Mutual consent- may proceed from either, desire by both parties, once accepted operates as single irrevocable
Itwari v Asgari- taking of second wife means cruelty against the wishes of the 1st, so in this case ROCR was not
granted. Inequitable treatment+ prevailing social conditions have to be taken into account. Even in absence of proof
of cruelty, court cannot grant ROCR if it feels that it will be inequitable to do so.
Abdurrahiman v Khairunessa- section 2 (viii) (f)- does not treat equitably, equal treatment of all wives req. even
in Quran, equitability is the crux, a condition precedent to polygamous marriage is ability of husband to deal justly
with all his wives- includes material and affection and immaterial needs.
Yusuf Rawther v Sowramma- husband failed to maintain her for two years, it was on her own wrong- she left her
matrimonial home, but it was held that wife is entitled to maintenance by dissolution of marriage under s2 (ii) even
if it was her own wrong. This section is meant to protect the weaker section, in this sec. the words “without
reasonable cause” do not occur
Marium v Mohd. Shamsi Alam- talaq in ahsan mode, revocable before period of iddat either expressly or
impliedly eg- through consummation, in this case plaintiff had not irrevocably divorced and had revoked before
completion of iddat period.
Shamim Ara v State of UP- talaq has to be oral or in writing and is effective when pronounced, it must also be for
a reasonable cause preceeded by attempts at reconciliation btw. Husband and wife. If all attempts fail, then only it is
effective. Triple talaq is single revocable talaq
Masroor Ahmed- triple talaq held to be single revocable talaq, reconciliation may take place even after talaq in TT.
talaq may be pronounced in the absence of the wife but it is essential that such pronouncement is to be
communicated to her at the earliest for it to be effective. Pronouncement effected from date of communication, not
effected when given in extreme anger.
RESTITUTION OF CONJUGAL RIGHTS-
Kailashwati v Ayodhia Prakash- parties stayed 80 miles apart, initially lived with husband but went back to
parents’ town. Conjugal right means consortium with comforts of dwelling together and withdrawal means loss of
consortium. It was held that if wife unilaterally withdraws from society against husband’s wishes then she violates
marital obligations.
Garg v Garg- takes a progressive view, both employed at diff. places before marriage and matrimonial home was
not discussed, in this case it was held that no ROCR will be provided since it will be inequitable in modern times to
ask woman to leave her job and there is no principle in law and authority which compels a woman to do so. It would
be difficult to say now that there is any custom which obliges an earning wife to resign her job and join her husband
even though on merits it is she who is better placed to choose the place of the matrimonial home rather than the
husband. Matrimonial home is to be settled by both the parties on balance of circumstances.

T Sareetha v Subbaiah- Held that ROCR is violative of 21 and 14.

Harvinder Kaur v. Harmander Singh- dissents from T Sareetha. There is a diff. btw cohabitation and sexual
intercourse and ROCR does not enforce intercourse. In a marriage, sex is only a small part and it does not entirely
depend on sex. So it is not violative of A 21 or 14.

Saroj Rani v. Sudershan Kumar- adopts harvinder kaur case, held that consent decrees in matrimonial cases are
not collusive ones, courts also held that the marriage has broken down so they can no longer live together.
CUSTODY AND GUARDIANSHIP-
Githa Hariharan v RBI- Petitioners are husband and wife. Writ pertition – 6(a) HGMA and 19(2) GAWA is
violative of 14 and 15. Held that in HGMA sec 4, there is no discrimination btw. Mother and father, only exception
is made in S6. Word ‘after’- in disputes concerning guardianship of minor, after has no effect as the best interest of
child will be seen. It may not necessarily mean after the lifetime of father, but has to be read as absence of care of
prop. Or person of minor or when wife and husband have agreed that wife should be the guardian. There has to be a
harmonious construction between s4 and s6.
ABC v State- appellant contests that child was raised without any assistance from the father. S11 of GAWA
requires notice to be given to parents before the guardian is appointed. Held that for children born outside wedlock,
mother will be the primary guardian. When father has not given any concern for child then legal recognition Cannot
be given to him. It was also held that s11 applies to a situation in which 3rd party wants to be the guardian of the
child and will not apply when one petitioner is one of the maintenance. Also, sec 6 (b) HMGA gives primacy to
mother for illegitimate children. Section 11 is for the welfare of child which has priority over rights of parents.
Thus, both in s6(a) HMGA and s19(b) GWA- it means absence of father. S 11 is procedural.
Akansha Roy v Adwait Anil Dixit- custody battle between parents of minor girl child- 13-year-old. Held that the
welfare of child will always succeed the rights of parents. Given to mother.
Vivek Singh v Romani Singh- section 13 GAWA- welfare word has to be construed liberally and in the widest
sense. Given to mother because she always wanted to keep the child but petitioner obstructed her from doing so.