Family law

SUBMITED BY Mehul Rojh

COURSE BA LLB
SECTION B (2nd year)
ENROLMENT ID 19FLICDDN02101

SUBMITED TO Mr. Ashish Kumar Singhal

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 Index

1. Acknowledgements....................................................... ..............................................3
2. Dissolution of marriage … ........................................... ………………............…….4
Theories of dissolution of marriage......................................................................4
Grounds For Divorce Under Hindu Marriage Act.............................................4
Irretrievable Breakdown Of Marriage..................................................................5
Grounds for Divorce under the Special Marriage Act, 1954......................6

3. Evolution of Family courts..... .......................... ........................................ ….........7

Family courts........................................... ........................................... .................7

Jurisdiction of family court........................................... ..............................7
Procedures of family court........................................... ......................................7
Exclusion of lawyer........................................... ....................................................8
Support of auxiliary services in family
court..................................................8

Bibliography……………………………………...........………………………………..9

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 1. Acknowledgement

I am very grateful to my teacher Dr. Ashish Kumar Singhal for giving me such a wonderful case to
research upon. This assignment really opened up a new horizon of knowledge about a sector of
people and ideas I previously had not knowledge of. It taught many thing to me about law of torts and
help me to understand the concept. Also, I learned much on how to research and obtain data. While
writing the research, I realized some of my mistakes and how to improve my writing skills .

All these experiences and lessons and improvements I won’t have got if not for this project.

So I Thank again for getting this eye opener topic.

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 2. Dissolution of Marriage:-

Dissolution is the formal, legal ending of a marriage by a court, commonly called a divorce. A
dissolution of marriage completely ends your legal relationship as spouses and ends your
marriage. To obtain a dissolution or marriage divorce, one spouse must file a divorce petition,
also called a petition for dissolution of marriage. The dissolution of marriage form varies by state
and can be found on your state court website.

Theories of dissolution of marriage:-

 Fault Or Guilt theory:-                                                                       

In this theory If one of the parties has committed a sin or a matrimonial offence such as
adultery, cruelty, rape, desertion, bestiality, refusal to obey the court order for
maintenance, marrying an underage person then that marriage can be dissolved on the
basis of these grounds. The various grounds for divorce based on this theory are
Adultery, Cruelty, Desertion, Rape, Bestiality, and Maintenance to wife .

 Frustration theory :-

In this theory the concept of divorce is a relief from frustration. The feeling of deep
anguish, disappointment, and frustration in one spouse caused by the conduct of other for
a long time may lead to mental cruelty. According to this theory either of the spouse can
put an end to the marriage on the basis of mental disorder, any physical ailment,
conversion of religion, renunciation of world, and unheard for a very long period of time.

 Mutual consent theory:-

In this theory divorce is obtained by the spouses for their own good. According to this
theory the spouses by mutual consent can put an end to the marriage without any
arguments. The husband and wife can jointly file a petition for divorce. They can move
out of the marriage in free will. The essential ground for divorce under this theory is
mutual consent to dissolve the marriage, that is free consent of both parties without any
compulsion is needed.

Grounds For Divorce Under Hindu Marriage Act:-

It is conceded in all jurisdictions that public policy, good morals & the interests of society
require that marital relationship should be surrounded with every safeguard and its severance be
allowed only in the manner and for the cause specified by law. Divorce is not favoured or
encouraged and is permitted only for grave reasons.

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In modern Hindu law, all the three theories of divorce are recognized & divorce can be obtained
on the basis of any one of them. The Hindu Marriage Act, 1955 originally, based divorce on the
fault theory, and enshrined nine fault grounds in Section 13(1) on which either the husband or
wife could sue for divorce, and two fault grounds in Section 13(2) on which wife alone could
seek the divorce.

The various grounds on which a decree of divorce can be obtained are as follows-

1. Adultery 2. Cruelty. 3. Desertion. 4. Conversion 5. Insanity

6. Leprosy. 7. Venereal diseases 8. Renunciation 9. Presumption Of Death

Wife’s Special Grounds For Divorce:- 1. Pre-Act Polygamous Marriage

2. Rape, Sodomy Or Bestiality

Dastane v Dastane Case (1975) - The Supreme Court had examined the concept of legal cruelty
while granted divorce to the husband.
The SC held that the wife threatening to end her life, and verbally abusing the husband, among
other acts, amounted to mental cruelty.
It observed that the inquiry has to be whether the conduct charged as cruelty is of such a
character as to cause in the mind of the petitioner a reasonable worry that it will be harmful to
live with the respondent.

Irretrievable Breakdown Of Marriage:-

Irrespective of the three remedies available to parties that is: restitution of conjugal rights,
judicial separation, and divorce, the judiciary in India is demanding irretrievable breakdown of
marriage as a special ground for divorce, as sometimes courts face some difficulties in granting
the decree of divorce due to some of the technical loopholes in the existing theories of divorce.

Both the Supreme Court and Law Committee consider the implementation of such a theory as a
boon to parties who for one or the other reasons are unable to seek the decree of divorce.
Therefore in the opinion of the Supreme Court and Law Commission of India, it is very essential
to make it a special and separate ground mission that introduction of irretrievable breakdown of
marriage, as a special ground will do any public good.

V bhagat v. D bhagat (AIR 1994 SC 710):-

 The husband filed a petition for divorce on the ground of adultery by the wife. After
having her first child, the respondent started working again in the year 1972. The
petitioner husband began suspecting the respondent wife of infidelity somewhere
around 1978-79. According to the petitioner, when he questioned the respondent of

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 her adulterous actions, she admitted the same and asked to be pardoned. The
respondent denies this.
 The petitioner husband tried to get a divorce by mutual consent but the respondent
was not willing. He filed for a petition for divorce on the ground of adultery by the
wife.
 The respondent wife filed a written statement denying all the allegations of the
petitioner and attributed the allegations to lack of mental equilibrium of the husband.
 The husband then amended his petition; he alleged a new ground for divorce on
mental cruelty. According to him, the allegations made in the written statement
constitute cruelty which entitles him to a divorce without going into the original
allegation of adultery.

Grounds for Divorce under the Special Marriage Act, 1954:-

This is a submission on the options thus given to a party frustrated by his/her marriage under the
Special Marriage Act, 1954:-

A. Nullity of marriage B. Void marriage. C. Voidable marriage

D. Fraud or force E. Pre marriage pregnancy

F. Impotency (Physical or Psychological)

In Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675, the Supreme Court recommended to the Union
of India to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate
irretrievable breakdown of marriage as a ground for divorce in the following words:

"Before we part with this case, on the consideration of the totality of facts, this Court would like
to recommend the Union of India to seriously consider bringing an amendment in the Hindu
Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the
grant of divorce. A copy of this judgment be sent to the Secretary, Ministry of Law & Justice,
Department of Legal Affairs, Government of India for taking appropriate steps" AIR 2006 SC
1675, 

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 3. Evolution of Family courts:-
Family courts:-
Family court was originally created to be a Court of Equity convened to decide matters and make orders
in relation to family law, such as custody of children and could disregard certain legal requirements as
long as the petitioner/plaintiff came into court with “clean hands” and the request was reasonable,
“quantum meruit”. Changes in laws and rules have made this distinction superfluous. Family courts hear
all cases that relate to familial and domestic relationships. Each state and each country has a different
system utilized to address family law cases including decisions regarding divorce cases

Family Court in India was established by the act Family Court act,1984.

Jurisdiction of family court:-

A Family court has jurisdiction in both civil and criminal matters under the act. Under civil
matters, it can deal with any suit and proceeding related to matrimonial issues, spousal property,
the legitimacy of any person, maintenance, guardianship of the person or custody of or access to
any minor. Under criminal matters, it has jurisdiction over orders related to maintenance of wife,
children and parents described under Chapter IX of Criminal Procedure Code (Cr. P. C.).

Any suit or proceeding of the above-mentioned nature should necessarily be heard by family
court excluding the jurisdiction of the district court or any other subordinate court or any
magistrate. Also, any such suit or proceeding which is already pending before any other court or
magistrate should be immediately transferred to the family court.

Procedures of family court:-

The concept of family court essentially implies that we should do away with the traditional
adversarial processor. This means that the different rules or processor are to be divide. Does the
rule of procedure should be worded simply and should indicate the whole range of processors
from the commencement of an action to its conclusion, including means to enforce judgments
and orders; procedure should be flexible so that diverse at times complex programmes or familial
conflict are covered; the standard forms to meet all situations should be drafted playing should
stay away from the traditional adversary or fault oriented approach, pre trial processes should be
laid down.
The family called, it seems opts for less formal processor. Although section 10 makes the
procedure laid down under the Civil Procedure code applicable to the family court, it is let down
there the family court has power to evolve its own rules or processor which will override the
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rules of procedure laid down in the Civil Procedure code and the criminal procedure code
whenever made applicable.

Exclusion of lawyer:-

It is now accepted in most countries as well as India that matrimonial proceedings should be in
camera and the confidentiality of the court record should be maintained

In some countries, there is a strong opinion for the exclusion of lawyer service from the family
court and “do it yourself” divorce is being propagated. In undefended cases and in cases where
the parties are in a mood to settle issue the services of a qualified lawyer will hardly be needed
but in complicated and hotly contested cases dispensations of lawyer's Service will undermine
the rights of the parties an may harm them. Most people are so upset in a crisis particularly in
marriage crisis as to not be able to file any papers methodically. Section 13 of the act favours
dispensation of the service of the lawyer, though the family court may seek the assistance of a
legal expert as amicus Curie whenever it considered to do so is necessary in the interest of
justice.

Support of auxiliary services in family court:-

No family court system can succeed unless it is avail organised support service available to help
parties at reconciliation, consolation end to lessen the adversial atmosphere. A support service
should include family counselling and reconciliation service, an investigational service, legal aid
service, an enforcement service.

The family court act does visualise some support service, the details of which are to be laid
down in the rules to be framed. It can templates the Association with the family called system of
institutions and organisations engaged in social welfare.

Decree of family court- Civil courts jurisdiction – a civil suit to declare the
degree of family court is null and voice is not maintainable. Family courts jurisdiction will
help precedents over our matrimonial and family law statutes.

Scope of interference in appeal in order of family court – no specific procedure

have been prescribed by statute to be followed by family for deciding application for custody
of minor child. The only thing to be considered by court is whether the procedure adopted by
family court was natural justice.

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 Bibliography:-

1. Family law book by paras divan

2. Www.lawoctopus.com
3. Www.indiankanoon.org
4. Www.legalserviceindia.com
5. Www.indiacode.nic.in