END-TERM EXAMINATION

Course Name : Family Law I

Course Code : L-CT-0010
Programme : BBA. LLB/BA LLB/LLB
Session : Spring 2021
Maximum Marks : 50
 PART A

ANSWER 2

Facts

The authentic network of the inquiry is sure about the parts of control of every one of the

gatherings, and the sexual orientation jobs they satisfy in their family. Rakesh (respondent) is a

legal counselor. Sarita (appellant) is a teacher who handles the family (cooking, cleaning,

washing) and deals with their six-year-old girl, Sara, with no assistance from the respondent.

The appellant has petitioned for legal separation on the grounds of pitilessness executed against

her by the respondent, under area 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred

to as HMA). The appellant has also sought custody of Sara under section 26 of HMA.

The question has also stated, briefly, arguments of both the parties, which shall be discussed in

the “analysis” section of this answer.

Issues

Consideration upon issues in regards to mercilessness in instances of separation/legal partition is

frequently required on account of the absence of a meaning of "savagery" in the HMA. This

need, notwithstanding, effectively broadens the apparent definition, and keeping away from

premature delivery of equity that may happen because of an exacting and elite definition.

The issues that emerge for the current situation are:

(I) Whether the appellant was exposed to actual pitilessness

(ii) Whether the appellant was exposed to mental mercilessness

(iii) Custodial privileges of the youngster

Rule

The guidelines in regards to separate with regards to Hindu relationships are expressed in the

HMA itself. Areas 11 through to 18 arrangement with Nullity of Marriage and Divorce. For the

current situation, the separation has been recorded under S.13(1)(ia) which accommodates a

separation order if the candidate has been treated with brutality.

Given the shortfall of a meaning of cold-bloodedness and any further clarification of this sub-

proviso, a levelheaded and sensible comprehension of mercilessness, alongside applicable points

of reference as decisions would help in arriving at a resolution in regards to the issues expressed

before.

Analysis

Thinking about current realities of the case, think about that the whole weight of keeping up with

the family, as far as cleaning and washing was on the appellant. Further, the prosperity of the

relative multitude of individuals from the family, as far as giving prepared dinners, was likewise

reliant upon the sole exhibition of the appellant. It is likewise expressed that the homegrown

assistance quit coming, saving a sporadically bigger arrangement of obligations and duties unto

the appellant.

The contentions whereupon the appellant has based the execution of cold-bloodedness are:

(I) the withdrawal of the respondent from housework and childcare through a time of 70-days,

causing her to feel inconsistent

(ii) the taking of conceded of the appellant's administrations by the respondent

The Supreme Court chose, on account of Maya Devi v. Jagdish Prasad, that "cold-bloodedness

can be physical or mental." From a plenty of cases, it is clear that psychological remorselessness

is settled on an individual-casualty premise, since it's anything but as unmistakable as its actual

partner. It was likewise said by Justice B.P. Jeevan Reddy on account of V. Bhagat v. D. Bhagat

that "psychological pitilessness in Section 13(1)(ia) can comprehensively be characterized as that

direct which incurs upon the other party such mental torment and enduring as would make it's

anything but feasible for that gathering to live with the other." This emotional norm of brutality

should be considered in setting of the "customary mileage of day to day life."

In the current case, the dispute of the appellant is a blend of physical and mental mercilessness –

actual work, and the (psychological) sensation of being inconsistent. The inquiry to be handled is

whether oversight from support in family errands and caretaking (for a time of 70 days as the

realities state) can be viewed as curse of actual remorselessness as depicted by Justice B.P.

Reddy.

With regards to the current case, it should be perceived that this 70-day lockdown was forced

under upsetting and uncommon conditions. The abrupt shift of weight is effectively possible, as

are the issues that go with this shift.

Issue (i)

As the subject of actual brutality emerges: there was no intense burden of the family assignments

upon the appealing party, and a simple oversight from aiding, by the respondent in this sense

can't be viewed as punishment of actual pitilessness. The IPC, through area 498A, endeavors to

characterize pitilessness comprehensively, with subclause (a) expressing it should be "any wilful

lead".
When taking a gander at the conflicts of the litigant in regards to the respondent's absence of

commitment in the family work, the respondent's contention of his work being more requesting

must likewise be noted. He has said that his work guarantees all his time and energy. This isn't

simply a contention made for getting away from responsibility, since it is additionally essential

for the noticed realities that the respondent burned through a large portion of his waking hours

working – on his PC or through work-calls. Subsequently, by the righteousness of genuine

oversight and no wilful lead, it should be perceived that there was no actual brutality exacted

upon the appealing party.

Issue (ii)

Mental pitilessness, then again, is a considerably more abstract matter. The respondent

purportedly underestimated the litigant's work and commitment for allowed and caused her to

feel inconsistent. While the facts really confirm that there should be equivalent organization and

support in a family (and marriage) – from both, good and pragmatic viewpoints – this association

can take various types of interest. Given that there is no dispute of disappointment from before

the period this somewhat phenomenal 70-day lockdown, it's anything but an implausible

agreement that the new difficulties have been an immediate impact of the lockdown, and a

normal slip by in smooth working. While the appealing party's inclination of being inconsistent

is more than reasonable, it can't be understood as mental remorselessness since it's anything but

something totally in the possession of the either the litigant or the respondent.

Issue (iii)
The conflicts of the appealing party in regards to the withdrew idea of the respondent toward

their kid emerge simply because of the unforeseen idea of the lockdown as it is plainly expressed

in her contentions that the respondent's conduct "during the lockdown" is plentiful confirmation

of his being an unsuitable dad – the court accepts this to be unacceptable verification, since the

earlier six years of the youngster's life appear to hold no other evidence of the respondent's

supposed carelessness.

The respondent's conflicts against the litigant's vacillating mental state are unwarranted, in light

of the fact that despite the fact that the court discovers no legitimacy in her bids, the court

concedes to the sensibility of her disputes – the uncommon idea of the lockdown would

predictably arouse people.

It is, nonetheless, significant for a kid to have its dad's consideration and care, particularly during

difficult stretches like these, and henceforth, the respondent should set aside a few minutes for

aiding around the house and dealing with the kid since the association discussed before is

obviously no even.

Conclusion

Remembering the obligation of the family court as expressed in segment 9 of the Family Courts

Act, 1984, this court should make all sensible endeavors to help compromise between the

gatherings. The court doesn't discover acceptable explanation enough to give a declaration of

separation over lopsidedness in organization during a lockdown of 70-days. The allure made

under area 13(1)(ia) of the HMA is excused on the grounds that the court discovers no occasions

of savagery being executed against the litigant or the youngster.

For their youngster and to keep away from steep choices in regards to their future together, both

the gatherings should pursue arriving at a supportable equilibrium.

PART B

ANSWER 1

(i) The talaq articulated for this situation, by Yusuf, is alluded to as the Talaq-ul-Biddat. It is

conversationally known as the triple talaq proclamation. The manner by which this talaq

capacities is altogether reliant upon the spouse, since it's anything but a kind of profession just

the husband can make. Its execution is immediate – this is to say that the talaq is successful from

the second the third proclamation is made. Since it's anything but an extrajudicial type of divorce

simply accessible to the Husband, it has no composed sculptures, and depends on the convictions

of certain Fiqh schools.

This talaq has three pre-conditions to it:

(I) The gatherings to the talaq should be Sunnis Muslims – it's anything but distinguished as a

talaq in Shia law.

(ii) There should be three declarations of talaq at a time.

(iii) Performance of Halala is needed in the event of remarriage between the divorced gatherings

In the given case, the people concerned are the two Sunnis Muslims. This fulfills the principal

precondition for the legitimacy of Talaq-ul-Biddat.

As per current realities, the three declarations of talaq were done in a solitary sitting by Yusuf on

10 November, 2011. The mufti, when drawn nearer by the group of the spouse, gave a fatwa
(warning choice) authenticating the legitimacy of the divorce by three proclamations, and said

Halala should be acted to remarry Yusuf.

I. Validity of the talaq pronounced by Yusuf:

Taking a gander at a case with a fairly comparable verifiable grid, Masroor Ahmed v. State

(NCT of Delhi) where the spouse articulated talaq multiple times, the High Court of Delhi

concluded that a garbage talaq declaration would not be viewed as a Talaq-ul-Biddat, rather, it

would be viewed as equivalent to the Talaq-e-Sunnat (Ahsan) – in which a solitary, revocable

profession during a time of Tuhr is made with restraint for the time of Iddat. The thinking behind

this choice lay in the objection (not to be mistaken for legitimacy) of Talaq-ul-Biddat by each

school of faith in the Fiqh schools. It is useful to take note of that "Biddat" signifies advancement

or blasphemy, and isn't a training set up in the precepts of Islam. The Shia school objects and

discredits Talaq-ul-Biddat, and just supports the two kinds of Talaq-e-Sunnat.

It was likewise settled by the court that "if a talaq is articulated in outrageous annoyance where

the spouse has failed to keep a grip on himself it would not be compelling or legitimate." In the

current case, it is realized that Yusuf got unsettled and in a condition of outrageous displeasure,

articulated talaq multiple times. Taking a gander at the previously mentioned case, the talaq

would not be viewed as a Talaq-ul-Biddat, and would not be considered substantial by any

means, not regardless of whether it was viewed as Talaq-e-Sunnat. In any case, it is likewise

expressed in the realities that "He [Yusuf] later refered to the obstinate and inflexible nature of

Zehra as the justification articulating talaq" which recommends that it was anything but a choice

made in the it of outrageous annoyance, yet a choice that Yusuf held on sometime in the future

with a sensible mentality. This would imply that the talaq articulated by Yusuf would be
considered a talaq of the talaq-e-sunnat (Ahsan) type, which is perceived to be a solitary

proclamation made during tuhr, and revocable during iddat.

II. Reconciliation and restarting married life:

Since the talaq articulated by Yusuf is viewed as talaq-e-sunnat (ahsan), it is revocable during the

time of iddat, yet irreversible past the time of iddat. The time of iddat is 3 months in length as on

account of a divorce. It begins from the day of declaration and finished correspondence of

divorce.

In the current case, the divorce was articulated on the tenth of November, 2011 and the

correspondence was finished on the twelfth of November, 2011. Along these lines, the iddat

period would last work 12 February 2012. It is likewise said that on 17 January, 2012 (inside the

iddat period) Yusuf put forth attempts to reconvene with Zehra however fizzled, and four months

after this occurrence (well after the termination of iddat) Zehra petitioned for support. This

reveals to us that the iddat period lapsed and the divorce got irreversible. Be that as it may, Yusuf

and Zehra can in any case restart their life as a couple through another nikah with new mehr,

with no prerequisite of halala.

(ii) In 2017, the Supreme Court of India arbitrated the Shayara Bano situation where it was

chosen by a 3:2 larger part that the act of triple talaq is illegal by ideals of being violative of the

essential rights under article 14. It was likewise found by the court that "what is awful in

religious philosophy is awful in law also."

The Muslim Woman (Protection of Rights on Marriage) Act, 2019 (MWA) likewise states in S.3

that "talaq" (which is characterized as talaq-ul-biddat in S.2(c)) by a Muslim spouse upon his
better half by words, either spoken or composed, will be void and illicit. Further, S.4 sets out a

discipline by detainment for a term as long as three years with fine.

Considering this, the current case would have not quite recently prompted a fruitless endeavor of

divorce by Yusuf, yet possible detainment, in the event that he had articulated triple talaq in

2021.

(iii) The realities express that after the time of iddat had passed, Zehra petitioned for support for

herself and their minor child, from Yusuf, under area 125 of CrPC.

Segment 125 of CrPC gives that a justice may arrange any individual who has been careless in

giving upkeep to their spouses (incorporates divorcees), youngsters, or guardians is obliged to

pay a month to month stipend to them as support. This part empowers divorced spouses to

guarantee support from their exes, outside of the limits of individual laws.

Zehra can guarantee mehr and support from Yusuf under S.125 of CrPC. As an issue of right,

Zehar has the option to guarantee brief and conceded mehr from Yusuf – during marriage

endless supply of marriage individually. Aside from this, the MWA accommodates the right of a

divorced muslim lady to get mahr (dower) at the hour of divorce, inside the iddat. This iddat

period, nonetheless, isn't a restriction period that demonstrations to the inconvenience of the lady

if the dower isn't given. Such a position was taken on account of Mohd. Ahmed Khan v. Shah

Bano Begum in which Shah Bano had petitioned for support under S.125 of CrPC after the

termination of iddat. The peak court held that the appropriateness and degree of S.125 did no rely

upon the religion of one or the other companion. It was additionally held that the spouse should

keep up with the wife he divorced during the time of iddat, yet on the off chance that she can't

keep up with herself post the lapse of such period, she can seek after plan of action under S.125.
Along these lines, Zehra's case for dower for herself and Rizwan is viable, and stretch out till the

time she can keep up with herself, or gets remarried.

Answer 2

(A)

Facts:

Since the talaq articulated by Yusuf is viewed as talaq-e-sunnat (ahsan), it is revocable during the

time of iddat, yet unavoidable past the time of iddat. The time of iddat is 3 months in length as

on account of a divorce. It begins from the day of declaration and finished correspondence of

divorce.

In the current case, the divorce was articulated on the tenth of November, 2011 and the

correspondence was finished on the twelfth of November, 2011. Thus, the iddat period would

last work 12 February 2012. It is likewise said that on 17 January, 2012 (inside the iddat period)

Yusuf put forth attempts to reconvene with Zehra yet fizzled, and four months after this

occurrence (well after the lapse of iddat) Zehra petitioned for upkeep. This discloses to us that

the iddat period terminated and the divorce got permanent. Be that as it may, Yusuf and Zehra

can in any case restart their life as husband and spouse through another nikah with new mehr,

with no necessity of halala.

(ii) In 2017, the Supreme Court of India arbitrated the Shayara Bano situation where it was

chosen by a 3:2 larger part that the practice of triple talaq is unlawful by prudence of being

violative of the crucial rights under article 14. It was additionally found by the court that "what is

terrible in philosophy is awful in law too."

The Muslim Woman (Protection of Rights on Marriage) Act, 2019 (MWA) likewise states in S.3

that "talaq" (which is characterized as talaq-ul-biddat in S.2(c)) by a Muslim husband upon his

better half by words, either spoken or composed, will be void and illicit. Further, S.4 sets out a

discipline by detainment for a term as long as three years with fine.

Considering this, the current case would have not recently prompted a fruitless endeavor of

divorce by Yusuf, however likely detainment, on the off chance that he had articulated triple

talaq in 2021.

(iii) The facts express that after the time of iddat had slipped by, Zehra petitioned for support for

herself and their minor child, from Yusuf, under segment 125 of CrPC.

Area 125 of CrPC gives that a judge may arrange any individual who has been careless in giving

support to their spouses (incorporates divorcees), youngsters, or guardians is obliged to pay a

month to month stipend to them as upkeep. This segment empowers divorced spouses to

guarantee upkeep from their exes, outside of the restrictions of individual laws.

Zehra can guarantee mehr and support from Yusuf under S.125 of CrPC. As an issue of right,

Zehar has the option to guarantee brief and conceded mehr from Yusuf – during marriage

endless supply of marriage individually. Aside from this, the MWA accommodates the right of a

divorced muslim lady to get mahr (dower) at the hour of divorce, inside the iddat. This iddat

period, in any case, isn't a restriction period that acts to the burden of the lady if the dower isn't

given. Such a position was taken on account of Mohd. Ahmed Khan v. Shah Bano Begum in

which Shah Bano had petitioned for upkeep under S.125 of CrPC after the termination of iddat.

The summit court held that the relevance and degree of S.125 did no rely upon the religion of

one or the other life partner. It was likewise held that the husband should keep up with the
spouse he divorced during the time of iddat, however on the off chance that she can't keep up

with herself post the termination of such period, she can seek after plan of action under S.125.

Hence, Zehra's case for dower for herself and Rizwan is viable, and reach out till the time she

can keep up with herself, or gets remarried.

(B)

(I)

The facts of the case state that the couple are a Hindu couple who have been married for 10 years

and have a 10-year-old daughter.

The couple made an adoption under the Juvenile Justice Act, 2015 (JJ Act). To check the validity

of this adoption, a few things must be looked at (Issues):

(i) Why was the JJ Act resorted to instead of the Hindu Adoption and Maintenance Act, 1956

(HAMA)?

(ii) Were the provisions under the various sections of the JJ Act abided by?

Analysis

Issue (i)

The kid being referred to is viewed as a minor under the two acts, but on the other hand is

viewed as an abandoned youngster as under S.2(1) of the JJ Act. The materialness of the JJ Act

is chiefly as to kids claimed or discovered to be in struggle with law, and youngsters needing

care and assurance. The situation of an abandoned kid goes under the subsequent class, and isn't

managed by HAMA. Further, S.58(1) of the JJ Act proposes that any "imminent new parent", as

characterized by S.2(49), living in India, regardless of their religion may apply for the reception
of a vagrant, abandoned or gave up kid. This proposes that despite the fact that the couple being

referred to are Hindu, their right of reception through the JJ Act remains unrestraind.

Further, Section 56(3) says that nothing in the JJ Act will apply to the reception of any youngster

made under HAMA. This implies that these acts are elite of one another – thus, the appropriation

of an abandoned kid as in the current case, has legitimately been made under the JJ Act.

However in an alternate factual framework, the subject of a reception under the JJ Act while

being Hindu guardians of a living natural girl being against the HAMA was chosen by the

Bombay High Court in 2009 on account of Vinay Pathan and His Wife v. Obscure that the

arrangements of the JJ Act are mainstream in nature, and the point which should be kept in sharp

thought is that the condition stranded, abandoned or gave up which triggers the advantages of the

arrangements in the JJ Act. It was likewise held that the strict character of the kid or of the

guardians was not a precondition to the materialness of the law. The court additionally

commented that on the off chance that the kid didn't fall under the domain of the JJ Act, the

HAMA would be appropriate.

Issue (ii)

As talked about over the youngster goes under the domain of the JJ Act by ethicalness of being

abandoned (S.2(1)).

Section 38 of the JJ Act mandates the Child Welfare Committee to put forth all attempts for

following the guardians/guardians of the abandoned kid, and proclaiming the aftereffects of such

endeavors inside 2-4 months relying upon the kid's age. In the current case, the youngster was

younger than two, so the board was obliged to give a record of their discoveries inside 2 months

of the kid being delivered.

Section 57(2) states that if there should be an occurrence of appropriation by a couple, the assent

of both the companions is required. In the current case, it is given that the couple had by and

large chose to embrace the kid.

Section 61(1) states that the court should be fulfilled of the kid's government assistance and of no

installment/reward being made as thought for the selection

Conclusion:

Given the absence of facts, it very well may be accepted endless supply of these fundamental

arrangements for the selection of an abandoned kid, the appropriation of Sitara made by

Aradhana and Raghav is legitimate.

(II)

The facts of significance, here, are

- Raghav's transformation to Christianity in 2019 (before the selection)

- Adoption of child kid by Aradhana in December 2020.

- Lack of assent from Raghav.

Since the reception was made in 2020, HAMA (post 2010 change).

HAMA, in section 6 sets out the basics for a reception to be legitimate:

(a) individual receiving should have limit and right to make reception.

(b) individual enabling in reception should need to do as such (unimportant in the current case)
(c) individual received is equipped for being embraced. (inconsequential in the current case)

(d) Adoption is made in consistence with different arrangements (for the current case, the huge

arrangements are those of S.8, S.11)

Section 8 mandates the female Hindu embracing to be of the period of greater part and of sound

psyche. It additionally expresses that the assent of the living Husband should be looked for

except if he has "(… ) stopped to be Hindu". Consequently, in the current case, Aradhana would

not really need the assent of Raghav, since he changed over to Christianity in 2019 (preceding

the reception).

Section 11(i) of HAMA endorses that on the off chance that the appropriation is of a child, the

receptive parent(s) should not have a living child, or's child, or's child using any and all means

(real or selection). S.11(iv) additionally expresses that the receptive mother should be something

like 21 years more seasoned than the child she embraces.

Given that Aradhana and Raghav couldn't consider and have no child, these conditions are

fulfilled.

Thus, under HAMA, the selection by Aradhana would be legitimate.