INTRODUCTION

India is a secular country. The Constitution of India provides religious freedom to the citizens
of India whereby the people of India have been given a right to choose and profess the religion
of their choice.
In this context, there are different religious personal laws governing various aspects related to the
matrimonial and family relationships in India. Although laws governing various areas of personal
relationships have developed consistently. However, customary and traditional practices still
prevail in governing various aspects of personal laws. For this reason, Family Law is one of
the most dynamic and vibrant subjects taught in all the law schools.
NATURE OF PERSONAL LAWS
Personal laws are on the basis of religions. However, we call ourselves a secular country, so how
do we have the provisions of personal laws? This is because our country is multi-religious.
Different laws regulate rules about different religions. Almost all laws (TOPA, Banking) have
general application but this cannot be possible for all religions in a country like India.
- It is a branch of civil law which regulates and closely affects the individuals in a
community; marriage, divorce, adoption, guardianship etc. are topics under these laws.
- Relates to the personal life of a person and his near and dear ones, within certain limits.
- They do not have general and universal application because of practical issues.
UCC
- Personal laws uniformly codified, common to all.
- Article 44 of the COI provides that the State is responsible for the same.
- In Shahbano case too, the Court emphasised on the need for a UCC in India.
- Sarla Mudgal v. UOI (1995)- reiterated the need for a UCC.
- There are so many inconsistencies and complexities within the personal laws.
- Eg- difference between guardianship and adoption, different marriage laws under the
Muslim Personal Laws.
- Rights have been given to the Muslim women, under which they can dissolve the
marriage. However, they are personal and only to the Muslim women.
- The concept of Waqf- a charitable institute formed by Trust. However, there are
differences between the two.
- Trust- A trustee is always appointed to manage the affairs. He becomes the legal owner
of the property. However, he cannot use it for himself. He can only use it for a third
party, i.e., the beneficiary.
- Waqf- Permanent detention of property. Sunni. These are not for general application, but
only applied to family matters and issues.
The Indian Society is multi-religious:
1. Hindus (largest majority)
2. Muslims (largest minority)
3. Other minority communities such as Jains, Sikhs, Buddhists, Parsis and
Christians
Note: Sikhs, Jains, Buddhists, are considered to fall under the Hindu Law. They are considered
indu by religion, in all its forms- Buddhists, Sikhs, Jain. Thus, Hindu Law applies to all these
religions. However, s. 25 treats them as separate religions. Reason?
REGULATORY REGIME
Hindus
- Hindu Marriage Act, 1955
- Hindu Adoption and Maintenance Act, 1956
- The Hindu Minority and Guardianship Act, 1956.
Muslims
- The Muslim Personal Law (Shariat) Application Act, 1937.
- The Dissolution of Muslim Marriage Act, 1939.
- Muslim Women (Protection of Rights on Divorce) Act, 1986.
- Owing to the Shah Bano Case: The Muslim Women (Protection of Rights on Marriage)
Act, 2019.
Christians
- The Indian Christian Marriage Act, 1872.
- The Indian Divorce Act, 1869.
Parsis
- The Parsi Marriage and Divorce Act, 1936.
[Project note: WHEN YOU MAKE A PROJECT, MAKE THE PROJECT IN THE
OUTLINE IN FAMILY LAW-I. PEOPLE OFTEN CHOOSE FAM LAW II AND SHE
SAID MARKING BECOMES AN ISSUE THEN]
SOURCES OF HINDU LAW-
1. Ancient
2. Modern
Ancient
1. Shrutis
- Nothing but vedas and Upanishads
- Derived from the word “shru” which is to hear. This is primary and paramount source.
It is in essence divine origin which contains the words of God which came down to us
through the seers and sages. Primary and ancient source of HL.
- Four vedas: Rigveda, Samveda, Yajurveda, Atharvaveda and the Upanishads which are
the concluding portions of the vedas.
- Every other source is based on the shrutis and hence they are not questioned. Act as
guiding principles for traditions and practices.
- Not very important in the current development of Hindu law.
 2. Smritis
- Manusmriti, Yagnavalkya, etc. are part and parcel of the same.
- This is the recollection of what the rishis handed down to us. This has a human origin
and is based on human recollection handed down to us. They are based on Vedas only
but also include prevailing customs and usages and are therefore more diverse.
- Dharma sutras (Prose) and dharma shastras (poetry) are included here.
- Rishis used to teach these to their students and they were passed down from generation
to generation.
- More imp these days because they are of human origins and they include the human
customs and practices. They are region based at times and hence more extensive and
applicable only in a particular locality/community.

3. Commentaries
- They are the commentaries on smritis which give detailed explanations and interpretation
of these smritis.
- They are written on particular smritis but differ from region to region.
- They have the author’s own inputs and experiences.

4. Digests
- Records of traditional customs. More like a compilation.
- Commentaries and digests are more relevant for development of HL given the adaptive
nature and inclusive nature.

5. Customs:
- What is custom? Sec 3(a) of the HMA: …. continuous and uniform for a long time,
obtaining the force of law.
- Like in jurisprudence, earlier there was no distinction between law and custom and earlier
HL was only customary law.
- Why important? Customs was a fundamental concept in deciding issues which govern
various aspects of an individual. What is important is what is practiced and accepted by
people and that has to be given preference over that which is ordained by smriti/law.
Customs and their importance has been incorporated in almost all the sources above.
- Suppression of custom can give rise to resentment.
- Later, as it became difficult to keep a track, HL was codified. Codified aspects prevail
over customs in Hindu Law, unless specified otherwise. (Example: Section 4(a) of
HMA gives the overriding effect of act over customs but Section 7 gives custom
preference [saptapadhi]).
- In ❖ Earlier there were a lot many practices being used in various aspects of HL when it
❖ HMA defines customs in

Modern
1. Judicial Decisions
- Overall development is largely based on decisions.
- Shah Bano, Sara Mugdal etc.
 2. Legislations
3. Equity and good conscience
- Good law has to be dynamic and law cannot be static if society is progressing and if law
doesn’t adapt it will no longer be a good law. Equity and good conscience embodied in
the law itself. (Refer to MULLA for cases on equity and good conscience case examples).
- Example: Cruelty, live – in relationships.
SCHOOLS OF HINDU LAW
Mitakshara
Mitakshara is one of the most important schools of Hindu law (11th century). It is a running
commentary of the Smriti written by Vijneshwara. This school is applicable in the whole part of
India except in West Bengal and Assam. The Mitakshara has a very wide jurisdiction.
However different parts of the country practice law differently because of the different
customary rules followed by them.
Mitakshara is further divided into five sub-schools namely
- Benaras Hindu law school
- Mithila law school
- Maharashtra law school
- Punjab law school
- Dravida or madras law school
Dayabhaga
Dayabhaga school predominantly prevailed in Assam and West Bengal. It is written by
Jimutavahana. This is also one of the most important schools of hindu laws. It is considered to
be a digest for the leading smritis. Its primary focus was to deal with partition, inheritance and
joint family. According to Kane, it was incorporated in between 1090-1130 A.D.
Dayabhaga school was formulated with a view to eradicating all the other absurd and artificial
principles of inheritance. The immediate benefit of this new digest is that it tends to
remove all the shortcomings and limitations of the previously established principles and
inclusion of many cognates in the list of heirs, which was restricted by the Mitakshara
school.
Differences

Right in ancestral property: Under Mitakshara school right to ancestral property arises by birth.
Hence the son becomes the co-owner of the property sharing similar rights as of fathers. While in
Dayabhaga school the right to ancestral property is only given after the death of the last owner. It
does not recognise the birth right of any individual over an ancestral property.

Alienation: Under the Mitakshara school the members can’t dispose of their share of property
while undivided while in daya bhaga the members of the family enjoys absolute right dispose off
their property.
Survivorship: Under Mitakshara school the survivorship rule is prevalent. In case of the death of
any member in the joint family, his interest shall pass to other members of the family. While in
case of Dayabhaga school the interest of the member on their death shall pass on to their heirs
like widow, son, daughters.

(Sections 1 to 4)

NATURE OF MARRIAGE IN ANCIENT HINDU LAW

- In Traditional Hindu law, marriage is considered a sacrament and there is a religious

component to it. It is considered a permanent union which could not be dissolved.
- Besides being permanent, it is an eternal union which extends to the series of births (saat
janam). Manu supported this too and labelled marriage as an inseparable relationship which
cannot be broken by any means.
- It is a holy union as there are certain rituals which a person cannot perform without being
married. This point is valid even today.

NATURE OF MARRIAGE UNDER MODERN HINDU LAW (HINDU MARRIAGE ACT,1955)

- Sacrament: This notion is still valid to an extent, however it is getting blurred as there are
certain contractual aspects.
- For instance in cases of Minority- Sec 11 of Indian Contracts Act, if minor parties enter
into a contract, it is void ab initio. Under Hindu Marriage Act r/w Child Marriage
Prohibition Act, child marriage is voidable. There are certain statutory mandates imposed
by Hindu Marriage Act, failure to fulfil the same will lead to casting doubts on the validity
of marriage.
- Thus, Hindu Marriage is not purely contractual but there are similar elements.
- Even consent as under (s. 5 and 12) is required or the marriage is voidable.
- Thus, Hindu Marriage is becoming a contract, but not in totality.

 Tikait Munmohiniti v Basantkumar, 1901 ILR 28 Cal 751

 Gopal Kishan v Dr. Mithilesh Kumari, AIR 1979 All 316
 Bhagwati Saran Singh v Parmeshwari Manohar Singh, 1942 ILR All 518
 Muthuswami Mudaliar v Masilamani (1909) 20 M.L.J 49: Separation, dissolution, etc have
been provided because of which not pure sacrament.

Permanent Union: Section 32 of Hindu Marriage Act allows dissolution of marriage on grounds
of cruelty, desertion etc. Further, under section 13 B of Hindu Marriage Act. Thus. It is not
permanent anymore.

Eternal Union: Section 15 of Hindu Marriage Act allows for remarriage, thus Hindu marriage
need not be eternal anymore.

Section 5
Conditions for a Hindu marriage.—A marriage may be solemnized between any two Hindus,
if the following conditions are fulfilled, namely:—

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party—

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a
kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity

(iii) the bridegroom has completed the age of 21 and the bride, the age of 18 at the time of the
marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage
governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them
permits of a marriage between the two;

‘may’
Two interpretations:
1. It means that it is not necessary that both parties have to be Hindus. Taking the word to
mean in its literal sense.
2. May implies that for a valid marriage the fulfilment of conditions is compulsory and not
optional. The word “may” has to be read after taking into consideration the essence of
Section 5 as a whole. Not just read it merely by the opening line. Valid marriage can be
solemnised if the requirements are fulfilled only if they are Hindu. May is thus, to be read as
obligatory.
Gullipilli Sowria Rai vs Bhandaru Pavani, AIR 2009 SC 1085: Interpretation of ‘May’ in light of
marriage between a Roman Catholic and Hindu. Court read it in consonance with the Preamble.
Conditions of Hindu Marriage
1. Monogamy
- The whole purpose of S. 5 read with S. 12. The marriage is void and bigamy is not
permitted.
- S.5 provides the rule of monogamy and prohibits polygamy and polyandry. It specifies
that a Hindu can have only one marriage subsisting at a time.
- In the event of breach of this condition, the erring party would fall within the ambit of s.
494 of the IPC and S. 17 of the Act.
 - If at the time of the performance of the marriage, one or the other of the parties had a
spouse living and the earlier marriage had not been set aside by the Court, the later
marriage IS NO MARRIAGE AT ALL.
- A party to the bigamous marriage could be punished only upon the proof of the prior
marriage having been solemnised according to religious ceremonies and customs.
Essentials:
1. Validity of First marriage
- In order to bring a case under “Bigamy”, the validity of the first marriage must be proved
beyond any reasonable doubt.
- The Court will scrutinise whether the first marriage is valid or not.
- If the first marriage is void, then the second cannot be said to fall under the ambit of
“Bigamy”.
- The first marriage should have been performed very specifically, adhering to all the
essential ceremonies and rituals.
2. Validity of Second marriage
Anurag Mittal vs Shaily Mittal, 2018 SCC OnLine SC 1136
- Though the husband was not initially agreeing to get the marriage dissolved and so he
filed an appeal, after the settlement an amicable solution was reached. He had decided to
withdraw his appeal and dissolve the marriage. Once he has filed for the withdrawal of
an appeal, it is clear that he is agreeing with regard to the decision of the Court, i.e. the
dissolution of the marriage. This is the essence of s. 15.
- The Court decided that the second marriage is not VOID. It took the essence of the
section into application and held that the interpretation should be done in regards to the
purpose of the section.
Sarla Mudgal vs Union of India, AIR 1995 SC 1531
- The husband converted himself into a Muslim, then married another wife.
- For a Hindu, the second marriage will be void and the person can be punished under s.
494 of the IPC. The amount can be decided by the Court. The IPC is a secular
legislation, takes into account all personal laws.
- The SC held that under any personal law, Marriage is believed to be a very “Sacred
institution which has to be preserved”. Therefore, religion is not a commodity to be
exploited, it is a matter of faith. This was in context to the conversion of religions for the
sake of having a second marriage without dissolving the first one. This will hamper the
sanctity of this sacred institution.
- The Court emphasised on the need for a Uniform Civil Code (UCC) in India and the
responsibility of the Government to follow the mandate under Article 44 of the
Constitution of India.
- “Until the first marriage is dissolved as per the Act, none of the spouses can contract a
second marriage. The Court laid that conversion to Islam and marrying again does not
 dissolve the Hindu marriage by itself. Therefore, the second marriage by a convert would
be in violation of the Hindu Marriage Act and would attract s. 494 IPC.”
II. Mental disorder
- The relevant time when the person is not having capacity for the marriage under this
clause is at the time of the marriage. If the incapacity arises subsequent to the marriage,
the petition of nullity cannot be allowed.
- To be read with s. 12 and 13(1)(iii)
Alka Sharma vs Abhinesh Sharma: Court said, if they go by the interpretation of the wife it
will be difficult for them to do justice since coexisting would impair full justice. If she was
impaired to such an extent that she didn’t understand the repercussions of marriage then just
because she is fit for procreation, does not prohibit annulment of marriage. She can give birth
but cannot bring up, nourish and handle the child and it would be absurd to hold that a spouse is
mentally ill, although fit for procreation she/he can be disqualified from marriage. The way to
read sec 5(2)(b) read it as “AND/OR” in the interest of the greater public. Thus existence of
disjunctive and not conjunctive interpretation given.
Ram Narain Gupta v Rameshwari Gupta: Proof of lunacy or idiocy lies on him who makes a
petition to annul the marriage. Presumption is in favour of the validity of marriage and in favour
of mental capacity of the person against whom lunacy or idiocy is claimed.
III. Age (consent)
Per the provisions of HMA and Prohibition of CMA, not per Indian Majority Act.
Prohibition of Child Marriage Act, 2006
- It is more comprehensive and has provisions to consider the marriage voidable, and even
void ab initio.
- It is a secular legislation. Section 13(4) talks about repudiation of marriage by females as a
ground of dissolution of marriage before she reaches the age of majority. It was tabled
and discussed by various Commissions like NCW and NCPCR. The object was not only
to restrain, but prohibit as well as punish the act. The nature of child marriage is voidable
and void ab initio in special circumstances.
I. Who is a Child?
Definition clause defines and gives an age limit to define a child.
2(a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a
female, has not completed eighteen years of age;
II. What is Child marriage?
Not in light of the majority act, but given under this Act.
(b) “child marriage” means a marriage to which either of the contracting parties is a child;
IV. When is the marriage void ab initio?
Any marriage solemnised in contravention/breach of an injunction order, the marriage is void ab
initio (Section 14).
Section 13
It gives the Courts the power to issue injunction against a child marriage on complaint of the
prohibition officers. Suo motto action on the basis of reliable information is also possible when
there is an apprehension that child marriage is possible. Especially cases where mass marriages
take place. This power ensures that if a complaint has been filed or there exists reliable
information, an injunction can be enforced.
The purpose of the Act is enshrined in Section 3- Voidable at the option of the
contracting party being a child.

The provisions in this Act can be classified into three broad categories (Prohibition can be done
through the following)-
A. Prevention-
Section 15- The offence is cognizable and non-bailable offence
Section 13- Power of Court to issue injunctions
Section 16- Appointment of child marriage prohibition officers, Marriage to be void ab intio in
breach of injunction order
Section 12- Circumstances when the marriage is null and void
Section 10 and 11- Prosecution for the pandits, guardians and others who were part of the
solemnization of marriage
B. Protection-
Giving choice to children to seek annulment, i.e. they are voidable
Maintenance and Residence of female contracting party by the male contracting party or his
guardian through a suitable order
Section 6- Giving legal and legitimate status to kids born out of child marriage
The officers have been empowered to provide necessary aid, care and protection to the victims
C. Prosecution-
Section 9- Punishment to adult males (above 18)
Punishment for those aiding and abetting the child marriage, to those promoting it (can be
associations and individuals).
Section 3
- Declared the nature of child marriage as voidable
- Petition to be filed in Family Court, and if not there in the District Court.
 - If the petitioner is a minor, it is to be filed by his/her guardian.
- Only the child who is a minor at the time of marriage, can file the petition for annulment.
- Sub clause (3) Limitation Period: Can be filed at any time, except before he/she reaches
two years past their age of majority, ie., 20 for girls and 23 for boys.
Section 4: Provision of maintenance and residence of the female contracting party. The factors
affecting her lifestyle, the nature of the lifestyle etc. will be taken into consideration while
deciding the amount of maintenance.
Section 5: Custody and maintenance of the child. It makes a clear provision that in case a child
is born out of the marriage, the court can make appropriate order.
Section 6: All children, born from the marriage, before or after nullity of decree, shall be
legitimate.
Section 7: It deals with powers of the Court to modify orders.
Section 8: Jurisdiction as to territory.
Section 9: Punishment
Hardev Singh vs Harpreer Kaur (2019)
Facts: The marriage was entered between the lady who was a major, above 18 and the boy was
17 years old. The HC made an error and prosecuted him under section 9 of the PCMA Act. The
court had to then decide what is the correct understanding of this section.
Held: The Court said that in cases where the boy is under 18, the order under section 9 cannot
be made applicable, they will be null and void. The act expressly says that the punishment is only
for male ADULT. There is also no provision to punish adult females who are able to marry a
younger boy.
The Court also observed that even if the boy child is between 18-21, in such a case, and the
woman was an adult, section 9 STILL CANNOT BE APPLICABLE. In the legislation, there is
no provision for punishing a female adult, and it cannot thus be made applicable through
interpretation.
(Critically read the legislation)
IV. Prohibited Relationships
Why not allowed?
- It may lead to physical degeneracy to race when marriage happens to near relationships.
- It may lead to moral degeneracy as in Hindus, joint families have existed for a long time.
- Allowing close relationships like marriage within the family, can be immoral.
- It is a restriction that is expressly given under every law on marriages. It is not a unique
feature. Every personal law has certain restrictions, in spite of being secular. Under
HMA, Sapinda is a unique feature.
Consequence: Section 11 read w/ Section 18
Section 7 and 8