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Hindu law

Unit - I

Q1 who is Hindu

The word Hindu is extremely popular and famous term. Generally every person is known to it
but the subject of concern is that this term has not been defined till now. A person may be called
as Hindu but every few people knew why they are Hindu.

Radhakrishanan in his book Hindu view life of life at one place said that there was a time when a
person was identified as a Hindu on the basis of region i.e., a person who resided in India was
called as Hindu. At that time, the word Hindu represented the nationality. It originated among
those people who lived outside the Indus valley. But as the Muslims states were funded the
world Hindu remain neither the representatative of nationality nor regionality

A time also came in middle when a person was called Hindu who believed in Hindu religion or
followed it. It is said that though several codified Hindu law were enacted in 1955 and 1956 but
the term Hindu was not defined. Today it can be said broadly, the person who is not Muslims,
Christians, Parsi or Jew shall be Hindu.

The supreme court in the cases of Dr. Ramesh yaswant prabhu v/s Prabhakar kashinath
kunte (A.I.R 1996, S.C. 1113) and Manhor joshi v/s Nitin Bhaushar Patil (A.I.R. 1996 S.L.
776), explained the term Hindustan related to Hindu as the life style and mentality of this
continent.

Now, the term Hindu can be widely defined the person to whom Hindu law applies, shall be
Hindu

Person to whom Hindu law applies- such person can be kept in following categories-

a) Those persons who are Hindu, Jain, Buddhist or Sikh by birth,

b) Those persons who are Hindu, Jain, Buddhist or Sikh by conversion,
c) Those persons who are not Muslim, Christian, Parsi or Jew.

(a) Those person who are Hindu by birth—as person is called Hindu by birth who is he child
of Hindu parents, i.e., whose parents are Hindu. But, such person is also considered Hindu
whose either of the parent is Hindu and has been grownup under Hindu traditions Maya Devi
v/s Uttam (1861) 8 M.I.A. 406 this view was proved.

Devavasam v/s Jaya kumara A.I.R 1991 Kerala 175)-Kerala High court held that male of nadir
caste of Travancore can marry any non Hindu female and a child born out of such marriage is
considered as Hindu.
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Here, it is important that according to ancient dharmshastra, a child born from Hindu parents
only can be called as Hindu, there was no such thing of Hindu by conversion of religion,
therefore it was said that , ‘A Hindu is born not made’

Application of Hindu Law over Schedule Tribes—several times a question aroused that a
codified Hindu Law does apply to those persons which belongs to schedule tribe under Article
366 clause (25) of the constitution Section 2(2) of Hindu Marriage Act, 1955 and the cases of
Dashrath V/S Guru (A.I.R. 1972 Orissa 78) and Kadam V/s Jeetan (A.I.R. 1973 Patna 205)
gave answer to this question. According to them a codified Hindu Law shall apply to such person
only when the central Government notifies in the official gazette by a notification.

Child from Hindu Father and Christian Mother—A question also aroused that whether such
person shall be considered to be Hindu whose father is Hindu and mother is Christian?

Commissioner of Income Tax v/s Sridharan (1976 S.C) A positive answer was given and said
that if either of the Parent is Hindu and Child born out of them is brought up under Hindu
traditions, then that child shall be considered as Hindu. Also in our society the religion of father
applies over the son.

But, the situation will be different, where the child is brought up as a member of Christian
family. Then in that situation the child shall be Christian instead of being Hindu.

Sapna v/s State of Kerala (A.I.R. 1993 Kerala 75) it was held so.

(b) Person who are Hindu by Religion—The Hindu Law also applies to those person who are
not Hindu by birth, but have accepted Hindu religion by conversion.

Abrahim v/s Abrahim (1863 M.L.A. 195) is an important case in this respect. It was held in this
case that the Hindu Law applies not only to those who are Hindu by birth but applies also to
those persons who have become Hindu by conversion

(c) Who are not Mussalman, Parsi, Christian or Jew—In wider sense, Hindu Law applies to
all those person who do not Mussalman, Parsi, Christian or Jew.

Rajkumar v/s Warwara (A.I.R. 1989, Calcutta 165) The Calcutta High Court held that this
category includes all those person who do not believe in any religion.

a) In other words, it can be said that, all persons different from Mussalman, Christian, Parsi
or Jew are Hindu and the Hindu Law applies over them, who-(i) are atheist, or (ii)
believes in all religion, or (iii) believers in religion which is mixture of all.

Application of Enacted Laws

The enacted laws apply over following—

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(i) Who are following of Veer Shav, Lingayat or Brahma Samaj, Prathna Samaj and are
Hindu by religion,
(ii) Who are Jain, Buddhist, Sikh by religion, and
(iii) Who are resident of territory to which enacted law applies and are not Mussalman,
Christian, Parsi or Jew, and has not been proved that in the absence of enactment,
they would not have been governed by Hindu Law or a custom or practice of its part.

The following persons are Hindu, Buddhist or Sikh by religion—

(a) Any child, legitimate or illegitimate, whose both parents are Hindu, Buddhist, Jain or
Sikh by religion
(b) Any child, legitimate or illegitimate, who’s either of parents, is Hindu, Buddhist, Jain or
Sikh by religion and has been bought up a member of that tribe, community or group to
which that parent was or is member.
(c) Any person who has converted or reconverted to Hindu, Buddhist, Jain or Sikh religion.

Qs – Explain the different source of Hindu Law? To what extent custom still continuous to
be an important source of Hindu Law? Illustrate your answer.

Or

Under the Hindu system of law “Clear proof of usage will outweigh the written text of
law.” Comment and state whether custom is still a source of modern Hindu Law.

Ans- the Hindu Law is credited to be most ancient law system. This is apporx 6000 years’ old
law system. The Hindu Law system has seen several up and down with the time and it has
continuously moved towards progress. The sources of Hindu Law can be kept under two
headings-

(1) Ancient or Original sources, and

(2) Modern Sources.

Ancient Sources – the ancient sources of Hindu Law are following-

(i) Shruti,
(ii) Smriti,
(iii) Digest and commentaries, and
(iv) Custom and Usage.

Modern Sources- Modern sources includes following-

(i) Equity, Justice and Good conscience,

(ii) Precedents and
(iii) Legislation
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(1) Shruti- It is most ancient source of Hindu Law. It is believed that the spiritual knowledge
of our saints had reached up to the level that they came in direct contact with the God.
The God gave birth to the Hindu Law and whatever was heard by the saints, was
provided as Shruti’ or Veda’.

Sources of Hindu Law

Ancient or Original Sources Modern Sources

Shruti Smriti Digest and commentaries custom

And Usage

Equity, Justice and Precedent Legislation

Conscience

Meaning of Shruti—‘what is heard’, i.e., the saints codified what they heard from God into
“Shruti and Veda’, and it become the first source of our Hindu Law. Vedas are of four types-
Rig-Veda, Yajurveda, Samveda and Atharvda. These Vedas mention about the life, living style,
traditions, religious beliefs, desires and philosophy of our ancestors Aryas. These do not mention
serial wise the rules of law. The rules of law are to be choosed.

(2) Smriti—It is the second important source of Hindu Law. The literal meaning of ‘Smriti’
is – whatever was remembered. Thus, Smriti were dependent of the remembrance of
saints. The era of creation of Smriti is also known as ‘Golden’, because it is era when
well organized and serial wise development of Hindu Law started. Smriti are divided into
two- Dharamsutras and dharaamshastras. Dharamsutras are famous of Gautam, Budhayan
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Aapstamb, Harit, Vishnu and Vasisth and Dharaamshastras are famous of manu Smriti,
Yagyvalkya Smriti, Narad Smriti etc.

(3)Digest and Commentaries—these are the third source of Hindu Law. The duty of
analyzing the principles of law propounded by Shruti and Smriti presenting them in
organized manner is performed by Digest writers and commentators. Later these digest and
commentaries became the sources of Hindu Law.

Digest are those in which comments have been made regarding particular Smriti and
commentaries are those in which laws are explained regarding several Smriti over any
particular matter. Actually, in view of determination, the digest writers and commentators
have renewed the law.

Atmarao v/s Bajirao [(1935) 62 J.A. 139]—It was said that Digest and commentaries
writers have given the statements of Smriti such meaning which fulfill the present
requirements. This work has been done with such efficiency that Digest came ahead of
Smritis.

Medhatithi, Govindaraj, Kulaks Bhatta, Visvarupa, Vijananeshwara, Aparka, Mitra Mishra,

Jimutawahana, Chandeshwar, Vishweshwar Batt, Mishra Mishra, Raghunandan, Nand
Pandit, Kamalakar Bhatt are some of the famous names of digest and commentators.

(4) Customs and Usages—they are considered an important source of Hindu Law. Narand
says “Customs are powerful” They are above the law.

Collector of Madurai v/s Mottaramlingam [(1868) 2 J.A. 307]—Privy Council held

that,”In Hindu Law the clear proof of customs shall be more relevant then the basic epic of
law.”

Actually Custom and usage are the other name of unanimity in behavior of persons.
Whenever persons considers any act as good, useful and profitable, then they continuously
follow it and with the time the repeatance of behavior takes place of Custom and usage.

Harprasad v/s Shiv Dayal[(1816)3 I.A. 254]—It was said that, “custom is such a rule which
has obtained the force of law among a particular family or particular class or area owing to a
long traditions.”

Thus, custom and usage has an important place as a source of Hindu law. Modern Hindu
personal law considers custom as a part of Hindu Law. Custom on being proved is
recognized and shall be applied, although may be adverse or to divine law. Although,
codified law has given place to custom but it is limited. Codified Hindu Law recognizes
custom only when it has been expressly given a place.

Illustrations—custom under Hindu Marriage Act, 1955 can be applied only over two topics-
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a) Any marriage may be solicited by the customary tradition of either of the parties, and
b) Divorce can be obtained under prevailing custom or usage.

Similarly, married male or female above the age of 15 years can be adopted as the customary
rules.

Essential Conditions of Valid custom—it is important that customs shall be recognized as a

source of Hindu Law only when it shall fulfill following conditions—

a) It is ancient, i.e., is in existence from time beyond remembrance,

b) Is definite,
c) Is logical and reasonable,
d) Is being used continuously and peacefully,
e) Is being followed as a right,
f) Is not immoral or against to public policy,
g) Is not inconsistent to any statute.

Rani Lakshmi v/s Shiv Kali [(1811) 14 M.I.A 585]—It was held that, “custom shall be valid
under Hindu Law only when they are ancient, known continuous and definite, and are not
immoral, unlawful or unreasonable.”

Amit Chandu Bhai Chauhan v/s Ahmedabad Municipal corporation (A.I.R. 2011 Gujarat
145), it has been held by the Gujarat High Court that custom or usage must be proved by clear
and cogent evidence. Any usage cannot be proved by a certificate which is undated, not having
seal and not attached to an oath.

Modern Sources

(1) Equity, Justice and Good conscience—this principle is also that much ancient as are the
Shruti, Smritis and Digest and commentaries. This principle is equivalent to the principle of
Justice and reasonability. According to Gautam—the subject over which there is lack of law,
there the principle of equity, Justice and good conscience should be applied.

Gurnath v/s Kamla Bai [(1951) S.C.R. 1135]—it was held that, “where there is lack of rules of
Hindu Law over any subject, there court should pronounce their decision on the basis of
principle of equity, justice and good conscience, if it is not adverse to the principles of Hindu
Law.”

Actually, Britishers not only established a judicial system in India, but also facilitated through
the High Court charters that wherever there is lack of lawful rules, their the decision should be
on the principle of equity, justice and good conscience.
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(2) Precedent—It is an important source of law. It means the judicial decision over any
disputed matter which shall be guideline for the disposition of future similar disputed matters.
Generally, the decisions of Supreme Court, High Court and Privy Council have the effect of
precedent over the subordinate court.

The importance of Precedent as a source of Hindu Law can be understand from the example that
if we have to look into the impotence of Custom and Usage in Hindu Law, then we shall have to
analyses the case Collector of Madurai v/s Mottoramlingam.

(3) Legislation—The last important source of Hindu Law is the legislation. Their source has
originated after the establishment of English State in India, when English rulers started enacting
several laws. Laws were enacted in accordance to the state, time and circumstances; they were
amended and altered too. Today, most of the subject of Hindu Law has been codified. Some of
the important Acts passed in the respect are—

I. Caste Disabilities Removal Act, 1850

II. Hindu widow Remarriage Act, 1856
III. Hindu Inheritance (Removal of Disabilities) Act, 1928.
IV. Prevention of Child Widow Act, 1929.
V. Hindu Woman’s right to property Act, 1937.
VI. Hindu Women’s right to Separate Residence and Maintenance Act, 1946.
VII. Hindu Marriage Act, 1955.
VIII. Hindu Succession Act, 1956.
IX. Hindu Adoption and Maintenance Act, 1956.
X. Hindu Minority and Guardianship Act, 1956 etc.

Q3. What are the various schools of Hindu Law? Differentiate between Mitakshara and
Dayabhaga Schools.

Or

Discuss the main principles on which Mitakshara and Dayabhaga Schools of Hindu Law
differ from each other.

Ans. As we know that Hindu Law is of two types- Codified and Uncodified Hindu Law. The
codified Hindu Law applies to all Hindu equally but in respect of Uncodified Hindu Law, the
situation is different. The application of Uncodified Hindu Law depends upon the context of
schools; Hindu Law is of two types—

1. Mitakshara School, and

2. Dayabhaga School.

The Mitakshara School has further sub-school-

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i. Banaras or Varanasi Sub-school,

ii. Mithila Sub-school,
iii. Maharashtra or Mumbai Sub-school,
iv. Dravid or Madras Sub-school,
v. Punjab Sub-school.

Schools of Hindu Law

Mitakshara School Dayabhaga

School

Banars Mithila Maharashtra Dravid Punjab

Collector of Madurai v/s Mothoramlingam [(1868)12 M.I.R. 397]—It was said, “ There is
only one remote source among the various schools of Hindu Law, but due to different beliefs of
Digest and Commentaries, several schools and sub-schools of Hindu Law have developed.”

There are mainly two causes to differentiate between several schools of Hindu Law

(i) Different Customs and Usages prevailing in different part of the country, and
(ii) These different areas are governed by the different Digest and Commentaries.

1.Mitakshara School

The name of this school came from the Digest ‘Mitakshara’ Vigyaneshwar. The area of its
application is whole India excluding the Assam and Bengal.

In the case Rohan v/s Laksman (A.I.R 1976, Patna 286) It is believed that the effect of
Mitakshara School is so strong that it also applies to even undescribed subject in Bengal and
Assam.

Features of Mitakshara School—

I. Right of Property arises by birth—The Mitakshara School has recognised the principle
of right by birth of son, son’s son and son’s son’s son in the property of joint family.
According to it , son son’s son and son’s grandson obtains a right in the property of joint
family as soon they are born.
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II. Father has restricted powers of alienation—the Mitakshara School also recognised this
principle that father has restricted powers of alienation. Father, even any coparcener of
joint family cannot transfer the property of joint family because every member of family
has a right on the property by birth.
III. Son has right of Partition—Son, grandson and great grandson can call for partition of
their right in the joint family property or conparcenary property. Here the father is co-
owner of the property along with the son. Just because of every coparcenar has right by
birth in property can call for partition.
IV. Rule of survivorship—According to this principle the devolution of the property of joint
family is not according to succession, but as per the survivorship. On the death of a
coparcenar his interest in the property of joint family shall devolve among other living
coparcenar.
V. Principle of Inheritance is consanguinity (Blood relationship)—
As par the principle of Mitakshara School, a relatives by blood receives succession in the
property. This principle is the basic principle of Hindu succession law. The means of
blood relation ignores its remote relations. This school has mainly two rules of succession
– First, exclusion of women in succession and secondly, Agnates supersedes the cognets.
VI. It’s a commentaries—Mitakshara School is basically a commentaries.
VII. Mitakshara is a orthodox school—Generally Mitakshara is a orthodox school and there
is very less changes according to need of the society.

2.Dayabhaga School

Its name comes from the Digest ‘Dayabhaga’ of Jimuthvahan. The area of its application is
Bengal and Assam. The period of writing of Dayabhaga is considered to be 1090-1130 A.D.
Dayabhaga is mainly on essay on partition and succession. Dayabhaga is Digest and modified
law.

Features of Dayabhaga—

I. Right of property arises by Death—In Mitakshara, the coparcenary evolves with the
birth of a son whereas in Dayabhaga School the coparcenary evolves after the death of
father when the property is received by sons on the basis of succession. In such situation,
sons are coparcenars and property obtained by succession is the coparcenary property. In
Dayabhaga School sons has no right in the property before the death of the father.
II. Father has absolute powers of alienation—As we know in Dayabhaga School right of
property arises by death. That is why father has absolute powers of alienation. He can
transfer all of his property at any time before his death. There is no such restriction over
him. Father is absolute owner of the joint family property.
III. Son cannot claim partition during the lifetime of father—In Dayabhaga school sons
cannot claim partition during the life time of father because they have not any right in the
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property before the death of father. Their coparcenary started after the death of father and
then they can claim partition against their co-parcenar.
IV. Rule of non-survivorship—The rule of survivorship never follow by the Dayabhaga
School. It all depends upon the spiritual efficiency.
V. The principle of Inheritance is spiritual efficiency-- According to spiritual or religious
principle the successor of property is such a person who provides maximum peace and
religious profit for the soul of deceased by performing religious rituals, etc. In other
word, it can be said that the person who provides maximum peace to the soul of deceased
by performing ‘Pindadaan’ shall be entitled to receive the property of that deceased in
succession.
VI. It is a Digest-- Dayabhaga School is generally a Digest. Written by jimutvahan.
VII. Dayabhaga a reformed school—It is reformed school and there is lots changes
according to need of society.

Q.1 Who is a Muslim? Discuss the basic principles of Islam?

Ans. The Mohammedan Law applies upon the Muslims, thus first question arises that, ‘Who is a
Muslim?’ the simplest and universal definition of Muslim is that, “who believes in Islam, he is
Muslim.” In other words, it may be said that such a person is Muslim—

(i) Who belives that there is one God, or who belives that there is no God but Allah, and
(ii) Who acknowledges the Mohammed as prophet of Allah (La Illah Il Lillah,
Mohammed Ur Rasul Allah)

In the case of ‘Queen Empress v/s Ramzaan [(1885) 7 Allahabad 461] also the same definition
of Muslim has been given.

In the case of ‘Abraham v/s Abraham’ [(1863)9 M.I.A. 199] it has been stated that a person
may be a Muslim by birth or by conversion of his religion.

According to Mohammedan Law, if any one of parents is Muslim then child deems to be a
Muslim. Similarly, if the parents become Muslim by conversion of religion later on then also the
child deems to be a Muslim.

In the case of Azim Khan v/s Rajah Sayed Mohammed Sadal Ali Khan (A.I.R 1931 Awadh
177), it has been that if there is a child of Muslim father then that will be deemed of the religion
of father.

A person born as a Muslim continues to be a Muslim until he does not adopt another religion. If
a Muslim adopts little worshipness then it may not be infer from this that he is no more Muslim.
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Principal of Islam

The term ‘Islam means—“Submission to the will of God” means principles of Islam are as
follow:-

God is one—the main and paramount principle of Islam is ‘God is one’ or faith in authority of
one God. Allah is being regarded as one unit. It is based on a monist. It does not believe in
polytheism and image worship. Who believes in more than one God is regarded as anti-Islamic.
It basic principle is—“There is no God but Allah.”

Feeling of Brotherhood—The second important principle of Islam is “Feeling of Brotherhood.”

The feeling of brotherhood has been given a importance in all religion but not as much
importance as accepted as Muslim Law.

They accepted it in their behavior also and not merely a principle. To drink water in same glass,
eating in same utensils etc are some example. Islam believes in justice, equity and Good
conscience. Islam means ‘establishment of peace.’

Most Ancient—Islam says that it is not new tradition but most ancient. Prophet Mohammad said
that Islam is as old or ancient as hills of Arabs. Islam survives as long as world, Islam lives till
the end of universe.

These are main principle of Islam.

Q.2 What are the source of Muslim Law according to Shia and Sunni Laws? Discuss them
briefly.

Ans. The sources of Muslim Law are divided into two categories.

Primary and Secondary

Sources of Muslim Law

Primary sources Secondary

School

The Quran Sunnat and Ahadis Ijmaa Qiyas

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Urf or Custom Legislation Judicial Decisions Principle

of

Equity,
Justice

Good
Conscience

Primary Sources

(1) Quran—word “Quran” is derived from Arabic word “Qurra” – mean to read. Quran is the
most important sources of Muslim Law. Govind dayal v/s Inytullah [(1885) 7, Allahabad 775]
– It was said that the Muslim has so strong relation to Islam that it cannot be severed and since
Islam is mainly based on Quran, therefore it is the Primary source of Muslim Law.

It contains revelation of God to his prophet Mohammad, through angel Gabriel. Quran has not
been codified at one time, rather it is the essence of revelation to prophet from time to time to
time in his last 23 years earlier. It was written on leaves, but later it was given a codified form.
The accloud of codification goes to Abu Baker and Khallifa Usman. Now, it is divided into 30
chapters.

In Quran, Public prayers, Namaaz (Prayer), pilligrimages, fasts etc along with the matters of
marriage, prevention of intoxicating drinks, divorce, succession etc have also been high
lightened. Due to this reason that it being a religious work, is also a book of law. Later on these
were so many commentaries on the Quran amongst them, the commentaries of Tawasi,
Fakkruddin etc are prominent,

The Quran has a paramount and universal authority of Muslim Law. Number of examples is
there of its importance. In the case of Kunhi Mohammed v/s Ayisha Kutty (A.I.R. 2010 NOC
992 Kerala) it has been stated that although under Muslim Law the husband may give divorce to
his wife, at his own, and for this no reason is required to be explained, but according to holy
Quran, it should not be self willed. A reasonable procedure to follow for it, is required. It clears
the importance of Quran.

(2) Sunnat and Ahadis (Traditions)

The second important source of Muslim Law is Sunnat and Ahadis. Ahadis means traditions
whereas Sunnat means the model behavior of the Prophet.

Ahadis and Sunnat are considered important as a source of Muslim Law when Quran is silent on
a subject. When there is a solution to any problem in Quran, then it shall be supreme but when
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any problem has to be solved by Ahadis and Sunnat, then it is kept in mind that it is not adverse
to be basics of Quran.

Thus, those act which is prophet himself did or supported it, they came to be known as Ahadis
and Sunnat.

At the time of death, the prophet said that, “So long as you hold fast to two things which I have
among you will not go astray, God’s book, and his messengers Sunna.”

Sunnat—It has been classified in following 3 classes—

i. Sunnat-ul-fail—Prophet did himself

ii. Sunnat-ul-qual—Things done in his presence
iii. Sunnat-ul-Tuqrir—Things done in his presence without his disapproval. It is also called
Sunnat of Madina.

Ahadis—As Sunnat it has also been classified in following 3 classes—

i. Ahadis-i-muturatir-- Traditions are of public and universal property and held as

absolutely authentic.
ii. Ahadis-I-mashoora—Though known to a majority of people, do not possess the
character of universal propriety.
iii. Ahadis-e-wahid—Which depend on isolated individuals.

Here it is to mention that Ahadis has also called as Ahadis.

(3) Ijmaa (Consensus of Opinion)

The third important source of Muslim Law is Ijmaa. Upto the origin of Ijmaa, although the
Quran, Sunnat and Ahadis had been recognized as a source of law but later on new problems
arised with the growth of society, which could not be solved by Quran, Sunnat and Ahadis, so
these problems were resolved on other grounds. Ijmaa is one of them.

Ijmaa means—a consensus of opinion of the jurists of particular era on a question of law, where
Quran, Sunnat or Ahadis was silent for resolution of a question, that question was resolved with
a consensus of opinion of jurists. Specific important has been given to Ijmaa in Sunni School.
Ijmaa is of three kinds—

I. Ijmaa of companions of the Prophet

II. Ijmaa of Jurists, and
III. Ijmaa of the People.

Ijmaa of companions of the prophet is universal. It has great importance because it is based on
the principles of Quran. Some of the branches of Muslim Law only recognise the Ijmaa of the
companions of the prophet and the successors of them living in Madina. According to Abdul
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Rahim, great weight will be attached to the Ijmaa of the companions of the prophet in as much as
the companions were appointed with the view point of prophet and remaining close to the
prophet they had almost adopted the same way of reasoning as the prophet.

Ijmaa of a group of jurist is accepted as a legal power, although, different contentions are in
vague in different schools. Some give preference to unanimous opinion of jurists whereas some
believe in majority decision. Some people consider it mandatory but not in a manner of impartial
authority. According to Abdul Rahim, the Ijmaa of such jurists can only be considered important
when they are wholly qualified for it and not altering opinion in their life.

Ijmaa of the people is agreeing upon a question by general public. In matter relating to religion,
prayer, fasting etc. the law has been constituted by Ijmaa have been used to solve various
problems of religion, political, constitutional etc. Appointment of Abu Bakar as a Calif (Khallifa)
after the death of Prophet is a good example of it.

(4) The Qiyas—(Analogical deduction)

It originated as source of Muslim Law when any question or problem could not be solve by the
Quran, Sunnat, Ahadis and Ijmaa. In such situation, the problems are being solved by
comparative study of the above sources this was called ‘Qiyas.’

Under Qiyas, the problems are solved on the basis of discrimination, reasoning power and logical
equality. Therefore, it is said that arriving out a solution of two things by having reasoning on
logical equally basis is Qiyas.

It is essential to take care whole solving the problems by Qiyas that it is not in contradiction to
Quran, Sunnat, Ahadis or Ijmaa. Here, it is to mention that Qiyas does not purport to create new
law, but merely to apply old establishment principles to new circumstances.

(1)Urf or Customs—Customs are being considered an important source of Muslim Law since
beginning. Even today the Muslim Law includes many rules of pre-Islamic customary law.
Those customs and usage which were not expressly repealed during the lifetime of the prophet
are held to have been sanctioned by the Law-giver.

According the Hedaya, custom holds the same rank as Ijmaa in the absence of an express text.
However, many customs have now been abolished by the Shariat act.

The requirements of a valid custom are as follow that is a custom should be:

i. Ancient
ii. Prevailing
iii. Reasonable
iv. Logical
v. According to public policy
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Secondary sources

(1) Legislation—Legislation is also an important source of Muslim Law. Various

legislation passed by the parliament or state legislation come under this source. The
following acts are the instances of legislation the Mussalman Wakf validating Act, 1913
and 1930; the Wakf Act, 1954; the Shariat-Act, 1939; the Dissolution of Muslim
Marriage Act, 1939 etc. Modification, enhancements and amendments are being made in
these Acts by the legislation according to country, time period and circumstances.
(2) Judicial Decisions—judicial decisions are also an important source of Muslim law. A
judicial decision pronounced from time to time also constitutes the law. These decisions
are regarded as precedents for future cases. The decisions become an authority for
subsequent cases arising in subordinate courts. Thus, decisions of Supreme Court are
binding upon all the courts of India and decisions of High courts are binding upon the
subordinate courts.
The Supreme Court has held in the case of Pandu Rang Kalu Patil v/s State of
Maharashtra (A.I.R 2002 SC 733) that the decisions of Privy Council are binding upon
High Courts if they are not modified by the Supreme Court.
Ration decidandi has an important role in the following decision of courts. To have a
ratio decidandi after going through the whole decision of each case is expected.
(3) Principles of Equity, Justice and Good conscience—Principles of equity, justice and
good conscience are an important source of Muslim Law. When no law is available on
any subject matter, then judicial decisions are being taken on the basis of principles of
equity, justice and good conscience. These principles are based on the principle of natural
justice.

Q3. What are the different schools of Muslim Law? Distinguish the main point between
Sunni and Shia Law.

Ans. There are 2 main schools of Muslim Law- Sunni and Shia. The majority of the Muslims
are Sunni. The difference between 2 schools lies in political events, rather in law and
jurisprudence.

The division between both originated in the dispute concerning the question of Imamat or
spiritual leadership of Islam which came up for decision and settlement immediately on death
of the prophet in years 632, The Shia advocated that the office should go by right of
appointment and succession and maintained that Imamat was to be confined to the Prophets
family or his nominees.
 16

The Sunnies, on the other hand, uphold the principle of own election by the Jmamat (the
universality of the people) and ultimately chose out their Caliph (Imam) by means of votes.
Thus the difference between the two lies in political events, rather in law or jurisprudence.

Schools of Muslim Law

Sunni School Shia

School

Hanafi Maliki Shafei Hanabli

Athana Asharia or Islamiya

Zaidvas

Imami

Akhbari Usuli Khojras Bohras of Bombay

Sunni School

Sunni School is a majority class of Muslim. 90 percent of the whole population of the world
belongs to that School. Origin of Sunni School is a political event rather in law or jurisprudence.
Actually they want to appoint their Caliph (or Imam) by means of votes or the universality of the
people. There are four sub schools of Sunni School—

1. The Hanafi School—The school was founded by Abu Hanifa. This was based on
opinions of—
I. Abu Hanifa
 17

II. Abu Yusuf

III. Imam Mohammed

The characteristics feature of this school was that it placed littler reliance on mass of
oral traditions (Ahadis) but development a suitable methods of reasoning and analogy
(Qiyas) and clearly defined the principle of Ijmaa

2. Maliki School—Derives its manner from Malik Ibn Ana, who lived and taught in
Madina, where he held the position of Mufti. This school was tradionalistic. Malik
learned towards jurisprudence based on Quran and traditions.
3. Shafei School—The founder of this school is Mohammed Shafei. He relied more upon
traditions then Abu Hanifa but less than his master Malik. He was the founder of doctrine
Qiyas.
4. Hanbali School—Founded by Ahmad-Ibn-Hanbal. This fourth and latest of the jurist,
was a man of saintly character and his teaching was characterised by blend reliance on
Traditions Musnad, is an authority in which Ahmad-Ibn-Hanbal. Collected over 80,000
Ahadis.

Shia School

Shia School is a minority class of Muslim. 10 percent of the whole population of the world
belongs to that School. Origin of Shia School is a political event rather in law or jurisprudence.
Actually The Shia advocated that the office should go by right of appointment and succession
called Imamat, was to be confined by the Prophet family or his nominees. There are three sub
schools of Shia School—

1. Athna Asharia School—The followers of school are largest of the Shia section. They are
called twelvers, which mean followers of 12 Imams. There are sub-divided into 2 sub-
schools.

Akhbari and Usuli

The followers of Akhbari are rigid traditionalists while Usuli allow free scope to human
reason and interpretation of Quran.

2. Islamiya School—the Islamiya regard Ismail as the seventh Imam and do not recognize
Musa as Imam. The followers are called ‘Seveners’ as Ismail was seventh Imam
3. Zaidya School—The Zaid’s descendant were the Zaidi. The important thing about it is
that followers of Zaidya school belief in both Shia and Sunni school. The followers are
not found in India.

Point of difference between the Sunni and Shia Schools—

 18

Marriage—In Sunni School presence of 2 witnesses is necessary at the time of marriage. Sunni
school also recognises list of guardians for marriage. But Shia school does not deem presence of
2 witnesses at the time of marriage as a necessary condition and recognize only father and
grandfather as guardians for marriage. Muta marriage is lawful under Shia school but not in
Sunni school.

Divorce—Sunni requires presence of witnesses is not necessary at the time of divorce while Shia
law requires presence of 2 witnesses at the time of divorce or dissolution of marriage. Under
Sunni law Talaq may be affected orally or by a written document whereas Talaq must be
pronounced orally in the presence of 2 witnesses under Shia law. Talaq-ul-biddat is recognised
by Sunni but not by the Shia law.

Maternity—A child born within 2 years of the termination of marriage is presumed to be

legitimate under Sunni law while child will be legitimate only if born within ten month from the
dissolution of marriage.

Maintenance—In Sunni law the mother is entitled to the custody of boy until the age of 7 years
and girl attain puberty. In Shia law mother is entitled to the custody of boy until he attain the age
of 2 years and a girl until she attain the age of 7 years. The liability to maintain children rest on
father even if mother earning but it’s not obligatory in Shia law if mother is earning.

Gift—The Gift of Mushaa (undivided share) is irregular under Sunni law but valid in Shia law.

Will—A person cannot will anything in favour of an heir except with the consent of other heirs
in Sunni law whereas no consent is necessary if will does not exceed 1/3.

Inheritance—There are three classes of heirs Shares, Residuaries and Distant Kindred in Sunni
School but only 2 classes in Shia school which is heirs by consanguinity and heirs by marriage.

Q3. Nature and concept of Hindu marriage. Essential conditions of a Hindu marriage.
Consequences of violating these conditions and ceremonies of marriage.

Ans. Marriage in Hindu culture is considered to be a sacred ritual. The relation of Husband and
wife is considered as made for from birth to birth or forever. Once person entered into marriage
 19

it cannot then be easily dissolved. After that both have to spend lives with each other. It is
reason that wife is called the second half.

There are several synonyms in Hindu Dharamshastras for Husband and wife. Husband is called
‘Bhartar’ because he maintains his wife. He is called ‘Swami’ because the wife is his
responsibility. He is called the ‘Parameshwar’ because a greatest duty of wife is the service of
Husband. Similarly, wife is called ‘Jaya’ because child is born through her. Wife is called as
‘Lashmi’. Wife is the best friend of Husband; she is the path of dharma, artha, Kama and
moksha.

Thus, Hindu marriage is a sacred relation as par the Dharamshastras. Every person is required to
marry not only for child birth, but also for the performance of religious and spiritual duties and to
release the father from his debt.

Nature of Hindu Marriage—

I. Hindu marriage considered as sacrament

II. The reason of Hindu marriage is for performing all the religious and spiritual duties
of the father by the son
III. It’s a union of next seven world
IV. Marriage cannot be dissolved on ground whatsoever
V. It’s a Internal union
VI. It’s not a contract like a muslim marriage
VII. Wife is considered as Ardhnarishwar (Half of man)

Essential conditions of a Valid Hindu marriage

Section 5 of the Hindu Marriage Act 1955 mentions essential conditions of marriage. According
to it, following conditions are to be fulfilled for a valid marriage.

By virtue of section 5 of the Hindu Marriage Act 1955, a marriage will be valid only if both the
parties to the marriage are Hindus. If one of the parties to the marriage is a Christian or Muslim,
the marriage will not be a valid Hindu marriage

“A marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled, namely:-

1. Either of the parities at the time of marriage, shall not have a living husband or wife or
Monogamy (Sec 5 Clause (1))

This provision Prohibits bigamy .The marriage should be monogamous. Under the Hindu Law a
person can validly marry if he or she is either unmarried or divorced or a widow or a widower. If
at the time of the performance of the marriage either party has a spouse living or the earlier
 20

marriage had not already been set aside, the later marriage is void. A bigamous marriage is null
and void and is made punishable.

Devi Ramma v/s Gangava (A.I.R. 2006 NOC 535 Karnataka) Marriage of ‘C’ happened with
a deceased Sammoshin. Later on, ‘C’ married to defended that the marriage is legally valid,
because the plaintiff accepted ‘Sanyas’ (ascetic) by renouncing the world. But court has not
considered it a legally valid marriage because the previous marriage was not dissolved legally.

Dr. Surah Moni v/s Durga Charan A.I.R. 2001 SC 938

The Court held that as per the customs and Usage, polygamy is recognisable in schedule tribes
then under such circumstances, the customs and Usage will supersede.

2. Mental Capacity (Sec 5 Clause (2))

The parties to the marriage should not suffer from unsoundness of mind, mental disorder or
insanity. In all the cases given in sec 5 clause (2) the party is regarded as not having the mental
capacity to solemnize the marriage. So if a party who solemnize the marriage is suffer from
unsoundness of mind, mental disorder or insanity, the marriage is voidable at the opinion of the
other party.

It is to be noted that Sec 5(2) (c) of the Hindu Marriage Act 1955 has been amended by the
Marriage Laws (Amendment) Act 1999 and the word ‘epilepsy’ is omitted. The result is that at
present even if a party to the marriage is subject to recurrent attacks of epilepsy, the marriage is
valid and the other party cannot seek for nullity of marriage.

3. Age to the parties (Sec 5 Clause (3))

At the time of marriage the bridegroom has completed the age of 21 years and the bride the age
of 18 years .If a marriage is solemnized in contravention of this condition is neither void nor
voidable.

Punishment:- By Section 18 of the Act ,anyone who procures a marriage in violation of the
condition is liable to be punished with simple imprisonment which may extent up to 15 days or
with fine which may extend up to Rs. 1000/- or with both.

4. Degrees of Prohibited relationship (Sec 5 Clause (4))

The parties to the marriage should not come within the degrees of prohibited relationship. Two
persons are said to be within the degrees of prohibited relationship

i) if one is a lineal ascendant of the other; or

ii) if one was the wife or husband of lineal ascendant or descendant of the other; or
 21

iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfathers
or grandmothers brother of the other; or
iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and
sister or of two brothers or of two sisters.

A marriage between two persons who come within the degrees of prohibited relationship shall be
void. However, if there is a valid custom or usage governing both the parties allows they can
marry even though they come within the degrees of prohibited relationship. All over India, there
are such custom which validate marriage between persons who come within the degrees of
prohibited relationship.

For instance, marriage between the children of brother and sister is common among the
marumakathayam of Kerala. In some parts of Tamil Nadu, Marriage between a person and his
eldest sister’s daughter is common. Here the parties though come within the degrees of
prohibited relationship they can validly marry by virtue of custom or usage. It is essential that the
custom or usage should be certain, reasonable and not opposed to public policy.

Punishment:-According to Sec.18(b) A marriage solemnized between the parties within the

degrees of prohibited relationship is null and void and the parties of such marriage are liable to
be punished with simple imprisonment for a period of one month of fine or Rs. 10000/- or with
both.

5. Sapinda Relationship (Sec 5 Clause (5))

The parties to the marriage should not be related to each other as Sapindas. A marriage between
Sapindas is void.

Under Section 3(f) (i) “Sapindas relationship” with reference to any person extends as far as the
third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in
the line of ascent through the father, the line being traced upwards in each case from the person
concerned, who is to be counted as the first generation.
(ii) Two persons are said to be “Sapindas” of each other if one is a lineal ascendant of the other
within the limits of "sapinda" relationship, or if they have a common lineal ascendant who is
within the limits of "sapinda" relationship with reference to each of them.

No marriage is valid if it is made between parties who are related to each other as ‘Sapindas’
unless such marriage is sanctioned by usage or custom governing both parties. The custom which
permits of a marriage between persons who are Sapindas of each other must fulfill the
requirements of a valid custom. The custom must be certain, reasonable and should not be
opposed to public policy.
 22

Punishment: - A marriage in contravention of this clause is void. Under Sec 18(b) A person
contravening this provision are liable to be punished with simple imprisonment which may be
extend to Rs. 1000/- or with both.

Ceremonies of a Hindu Marriage

Section 7 of the Hindu Marriage Act 1955 recognizes the ceremonies and customs of marriage.
A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of
either party to the marriage .The parties to the marriage fulfill the conditions prescribed as
follows:

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies
of either party thereto.

(2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by
the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and
binding when the seventh step is taken.

Ceremonies vary according to custom. The presentation of a pair of cloth by the bridegroom to
the bride (pudava koda) is an important customary rite among the Nair caste in Kerala. Tying of
a sacred thread around the neck of the bride (Mangalya Sutra or Tali ) is another rite. Exchange
of rings or garlands also is common. A marriage will be valid only if the ceremony through
which it is solemnized is sanctioned by the religion of either party as customary ceremony.

Registration of Hindu marriage

The Supreme Court of India has ordered the compulsory registration of all marriages in India,
irrespective of the religion. In India a marriage can be registered under either of the two
marriages Act:

The Hindu Marriage Act, 1955

The Special Marriage Act, 1954

The Hindu Marriage Act is applicable only to the Hindus, The Hindu Marriage Act provides for
registration of an already solemnized marriage. It does not provide for solemnization of marriage
by the Registrar. For facilitating the proof of Hindu marriages, the state government may make
rules for the registration of marriages. Section 8 of the Hindu Marriage Act, 1955 provides for
the registration of Marriage. All rules made in this section may be laid before the state
legislature.

A Hindu marriage, which has already been solemnized in accordance with the religious customs
and rituals, can be registered under the Hindu Marriage Act, 1955. The Hindu Marriage Act is
 23

applicable in cases where both husband and wife are Hindus, Buddhists, Jains or Sikhs or where
they have converted into any of these religions. The parties to the marriage have to apply to the
concerned authority in whose Jurisdiction the marriage is solemnized or either party to the
marriage has been residing. Along with the application form they have to attach two photographs
of the marriage ceremonies, invitation card of marriage, age and address proof of both parties,
affidavit of Notary/Executive Magistrate to prove that the couple is married under Hindu
Marriage Act 1955, fit mental condition, non relationship between the parties within the degree
of prohibition.

Both the parties have to appear before the Registrar along with their parents or guardians or
other witnesses within one month from the date of marriage. Marriage is registered before a
marriage registrar/tahsildar of the district, wherever the parties got married. The registration
under the Hindu marriage Act does not require any notice. It can be done on the same day of the
filing of application or a few days of moving the application for marriage. The parties will
receive a marriage certificate within few days, which is a proof of registration of marriage.

Qs. Void and Voidable marriage under Hindu law

Marriage is the voluntary union of one man with one woman to the exclusion of all others,
satisfied by the solemnisation of the marriage. The Hindu Marriage Act, 1955 provides for three
types of marriages:

1. Valid
2. Void and
3. Voidable.

The difference between these three relates to the pre-marriage impediments to marriage which
are clearly enunciated in Section 5 of the Act. If there exist, absolute disablements or
impairments, a marriage is void ab initio. Section 11 deals with void marriages. If relative
disablements or impairments exist, a marriage is voidable. Section 12 deals with voidable
marriages. All other marriages which are not covered by these two Sections are valid.

VOID MARRIAGE

Section 5 of the Hindu Marriage Act 1955 includes essential conditions of a valid marriage. It
contains such conditions which if violated shall result in a void marriage. Section 11 of the Act
had considered following marriage to be void:-

I. Where at the time of marriage any party has a living husband or wife i.e., bigamous
marriage is void
II. Where parties to the marriage fall within sapinda relationship i.e., same blood. A person
cannot marry in the same family i.e., to a person from A. Five generation from the
paternal side, B. Three generations from the maternal side, C. The parties are within the
 24

prohibited degree of relationship.

III. Where parties to the marriage come with degrees of prohibited relationship.

In the case of Rampyari v. Dharamdas AIR 1984, it was said by Allahabad High Court that an
application for declaring a marriage void is not required to be presented by the victim only.

In another case of Leela v. Lakshmi AIR 1968, it was held that void marriage does not require
even the decree of a court.

In M.M. Malhotra v. UOI, the Apex Court observed that the marriages covered by Section 11
are void ipso jure, that is, void from the very inception and have to be ignored as not existing in
law at all if and when such a question arises. Although the Section permits a formal declaration
to be made on the presentation of the petition, it is not essential to obtain in advance such a
formal declaration from a court in a proceeding commenced for the purpose. If one withdraws
from the society of the other, the other party has no right to the restitution of conjugal rights. If
one of them marries again, he or she is not guilty of bigamy and the validity of later marriage is
not affected because of the first so called marriage.

In Uma Shanker v. Radha Devi, the Patna High Court ruled that the first wife could obtain a
perpetual injunction to prevent the second marriage of her husband under Section 9 of the Civil
Procedure Code and Section 54 of the Specific Relief Act.

Consequences of a void marriage

I. The parties have no status of wife and husband

II. Children of a void marriage are illegitimate (this is subject to the provision of section 16
of Hindu Marriage Act 1955).
III. Avoid marriage doesn’t give rise to mutual rights and obligations.

VOIDABLE MARRIAGE

A marriage which can be annulled or avoided at the option of one or both the parties is known as
a voidable marriage. Section 12 of Hindu Marriage Act contains relevant provisions of Voidable
Marriage. According to it, in the case of marriage being voidable, the court may declare it Null
under following conditions:-

I. Where marital cohabitation has not occurred due to the impotency of the respondent.
II. Where at the time of marriage any party failed to give valid consent due to unsoundness
or has been affected by mental retardedness to such extent that he is incapable to
marriage and giving birth to a child, or suffers from frequent insanity or is insane.
III. Where the consent of guardian is necessary for the marriage and such consent has been
obtained by force or by fraud as to nature of rituals or any actual facts or circumstances
as to the respondents.
IV. Where the respondent is pregnant at the time of marriage from a person other than the
 25

applicant.

GROUNDS OF DECLARING A MARRIAGE VOIDABLE

A marriage is voidable on the ground of consent obtained by fraud as force, then such marriage
shall be declared null only when:-

(a) The applicant is presented within one year from the date of knowledge of fraud as the force
used.

(b) The parties have not lived as husband and wife after the knowledge of force used or fraud.

Similarly, if the marriage is voidable due to the pregnancy of wife then such marriage shall
be declared null only when the court is satisfied that:-

(a) The applicant was unaware of the pregnancy of the wife at the time of marriage.

(b) If the marriage has been solemnized before this Act came into force, then the application
shall be presented within one year from the date of enforcement of the Act or if the marriage has
been solemnized after the act came into force then the application shall be presented within one
year from such marriage.

(c) The applicant has not voluntarily cohabitated after the knowledge of pregnancy of wife.

(d) Wife had been pregnant from a person other than the applicant.

(e) She was pregnant before the marriage.

C L. Rangbhattar v/s C. Choodamami AIR 1992 Andara Pradesh 103 It was Pregnancy
before marriage can become a ground for nullness of marriage when the husband was knowing
this fact at the time of marriage and after knowing it husband has not cohabited with wife.

Surjeet v/s Rajkumari AIR 1967 Punjab 172 It was held that pregnancy before marriage is a
ground of voidable marriage but not the unchasteness. Thus unchaste before marriage cannot be
ground for declaring a marriage under section 12 as null.

Ratanshwri v/s Bhagwati AIR 1950 it was held that soundness, insanity or lunacy for the
perpose of marriage means the incompetency of any party to marriage to understand the rituals
of marriage.

Example of fraud or force

I. Concealment of caste, religion

II. Misrepresenting a mother as a virgin
 26

III. False praising

IV. Concealment prior marriage

Qs Nature and scope of Muslim marriage, Essential conditions of a valid marriage,

prohibitions/ disabilities; classification of marriage and effects of valid, irregular and void
marriage.

Ans. Introduction

In the pre-Islam Arabia, the laws were favorable towards males and discriminatory against the
women. Polygamy had to be accounted for in a very few blood relationships like in marriage
with one’s real mother or sister. Marriages were of different kinds and divorce was simple and
easy for the man. With absolute rights vested in men and no checks led to men denying the
women their basic rights.

Islam brought with it a due status for women and regarded them as dignified members of the
society. ‘Nikah’ literally means ‘to tie up together’ and referred to the Islamic marriage. It is a
matrimonial contract as well as an institution that gives the women a particular and high status in
the society. Nikah was to ensure stability in a married life as it bound both the partners together
for an indefinite period and also required the woman to be honored with the mahr.

Islam allows limited polygamy, i.e. four wives at a time. This was allowed as during the
numerous wars during the Prophet’s time in Arabia, many Muslim men lost their lives. Thus, the
women outnumbered the men. The war-widows and orphans became destitute as they had no
standing in the society and lead miserable lives. In order to prevent injustice, Quran allows
limited polygamy through the following Ayat: “marry of the women, who seem good to you, two
or three or four, if you fear that you cannot do justice to so many, then one.”

Justice refers to equal love and affection as well as boarding and lodging. The Quran has another
Ayat that “you will not be able to deal equally between your wives however much you wish to
do so”. Thus, it can be safely inferred that though Islam permits four wives at a time it is actually
in favour of monogamy. The Motazila Muslims follow monogamy strictly. But Muslims all over
the globe follow the traditions of the Prophet and practise polygamy.

As per the statistics, Indian Muslims seem to prefer monogamy. Though they are allowed to have
four wives as per the law, the Muslim government servants require the government’s permission
before contracting the second marriage. Muslim countries like Turkey and Tunisia have laws for
monogamy. Pakistan has discouraged polygamy by implementing laws that makes it difficult to
marry two or more times.

DEFINITION

Hedaya says that “Marriage implies a particular contract used for the purpose of legalising
children.
 27

Justice Mahmood has defined the Muslim marriage as “a purely civil contract”.

NATURE AND CONCEPT OF MARRIAGE

The object of a Muslim marriage is to legalise children and to a large extent to regulate and
validate the sexual relations. Apart from being a civil contract, it is also a social and religious
institution.

LEGAL ASPECT

Legally speaking a Muslim marriage is a contract for it has a few elements of a contract. The
parties have to be competent and offer, acceptance and free consent form an important part.
Within a limit, the parties can decide the terms of the marriage and in case of breach; there are
provisions for the rights and obligations of the parties. It can be safely said that marriage is very
similar to a contract.

SOCIAL ASPECT

Marriage is a social institution and a social method to give an equal status to women. The dower,
which is essential for a Muslim marriage, provides a security net for the woman in case of need.
Limited polygamy helps raise the woman’s standing and dignity in the society. By placing
prohibitions on the marriage, the relationships of families can be regulated and the ill effects of
in breeding are avoided.

RELIGIOUS ASPECT

Marriage is the tradition of the prophet as well as present in the words of Quran. Thus, a person
who marries gets religious benefits and the abstainer would have committed a sin. In ANIS
BEGAM v MOHD. ISTAFA (1933)55 All, 743, it has been held to be a religious sacrament.

ESSENTIAL OF A VALID MARRIAGE

A marriage is a valid marriage or Sahih only if it is recognised by the courts to be lawful.

I) COMPETENCE OF THE PARTIES

a) Age of Puberty

For marriage, dower and divorce, the age of majority under the Muslim law is the age of puberty
and not 18 years of age. Though Hedaya says the minimum age of puberty for a boy is 12 years
and for a girl it is 9 years; it has been fixed at 15 years of age by the Privy Council in the year
1916. Thus, a boy or a girl of 15 years of age will be presumed to have attained the age of
puberty unless the contrary is proved.

Minor’s Marriage
 28

Under Muslim law, a person under 15 years of age is presumed to be a minor and has no capacity
to give consent for marriage. Unless and until the guardian’s consent is not obtained the marriage
will be void. Guardians for marriage are different from guardians appointed by the court. The
order of the priority is as follows:

i) Father;

ii) Paternal Grandfather, however high;

iii) Brother or other male members of the father’s family;

iv) Mother; and

v) Maternal uncle, aunt or other maternal relatives.

A remoter guardian for marriage cannot get the minor married off without actually following the
prescribed order and such a marriage will be void.

Shia Law says that only the father or the paternal grand-father however high can be the guardians
for marriage.

The Child Marriage Restraint Act, 1929 provides that a child marriage exists and will be valid
but the guardians and others who conduct it can be punished. A child marriage can be prevented
by an injunction.

Option of Puberty (Khyar-ul-Bulugh)

Under Muslim marriage, a minor on attaining the age of puberty can exercise the option of
puberty wherein the minor can approve or disapprove the marriage contracted by the guardian
who is not the father or the grandfather. If he disapproves, the marriage will dissolve with
immediate effect. If the minor says nothing, it will be presumed that he has approved the
marriage. As per the Shia law, a minor has to approve his marriage upon attaining the age of
puberty.

If the father or the grandfather has contracted marriage fraudulently or negligently, the minor can
repudiate the marriage on attaining the age of puberty. A wife can exercise the right even if the
marriage was contracted by her father or her grandfather. There can be no unreasonable delay in
the exercise of the option of puberty. The husband will lose his right to the option of puberty if
the marriage has been consummated. The wife will also lose her right unless the consummation
has taken place when the wife was still a minor and against her consent.

b) Soundness of Mind
 29

Lunatics can get married during the lucid intervals for they can understand the consequences.
Idiots on the other hand cannot do so. Idiocy refers to an abnormal state of the mind wherein the
person cannot understand the consequences of their actions.

Marriage of insane persons

A person can contract a lawful marriage through a guardian. On recovering reason the said
person can repudiate the marriage.

c) Religion of the parties

The parties can marry any Muslim irrespective of sects or sub sects.

Inter-Religion Marriage

Under Sunni law, a male can marry a Muslim girl of any sect/ sub sect or even a Kitabia girl. A
Kitabia female is one who belongs to a community that originated in a book revealed by the
heavens. Thus, the Jews and the Christians can be wed to a Sunni male. A marriage with a non-
Muslim or non-Kitabia female, the marriage is merely irregular. Under Shia law, a marriage with
a non-Muslim or a Kitabia woman is not permitted. However, a Muta marriage may be
contracted with a Kitabia or Parsi female.

Marriage of a Muslim Female with a non-Muslim male

A Muslim female has no right to contract a marriage with a non-Muslim even if he is a Kitabia
or Parsi. Such a marriage will be void.

The Special Marriage Act, 1954 allows any man or woman to get married to each other whether
a Muslim or a non-Muslim. The succession will be governed under the Indian Succession Act,
1925.

II) FREE CONSENT OF THE PARTIES

If the parties are sane and adults, they can give consent on their own and the marriage will be a
valid one. If the parties or one of them is either a minor or insane, the consent has to be obtained
by the guardian. The consent will be deemed free when it is made at will and given voluntarily
and not under any coercion or fraud.

Coercion is when the party is made to consent under the threat of harm to self or a loved one. All
sects and schools render a marriage under coercion to be void. The Hanafi School is the only
exception. It is believed in the school that three things can not be undone ever even if committed
as a joke. The three things are marriage, divorce and taking back.
 30

Fraud refers to a dishonest concealment of facts or presentation of false facts or statements to

obtain consent. The moment the party whose consent was obtained by fraud comes to know of
such fraud, he or she may accept the marriage as a legal one or altogether reject it.

Mistake of Fact is when the parties agree but not on the same thing. Consent refers to the
meeting of the minds on the same issue. Where the identity of the bride to be, for example, is
mistaken, the marriage will be void.

III) FORMALITIES IN THE MARRIAGE

Under Muslim law, religious ceremonies are not essential for validating a marriage. The only
essential formalities are that of offer and acceptance.

Offer and Acceptance

Offer or Ijab signifies the willingness of a party to contract marriage with another. The offer
comes in form of a declaration from the boy or his guardian. This offer has to be accepted by the
girl or her guardian. This is referred to as acceptance or Qubool. Though no specific form exists,
the words must show the unequivocal intention of the parties orthe guardians to marry the
parties. It may be oral or written. When written down, it is referred to ass the Kabinnamah.

It is essential that the offer and acceptance occur at the same sitting. Thus, simultaneous actions
must become a joint whole. For example, the groom to be has to send the offer through another.
The bride must accept it in presence of others and then the marriage will be a valid one.

Reciprocity is another important aspect. The acceptance has to be for the proposal word to word,
as it is and without any variations.

Conditional or Contingent Marriage is void even if the event that they are made dependent upon
does in fact occur.

Presence of Witnesses is not essential under the Shia law. Under the Sunni law, the offer and
acceptance needs to two competent witnesses. A Muslim male who is of sound mind and has
attained the age of puberty is a competent single witness. Two sane Muslim females who have
reached the age of puberty can also be treated as competent witnesses. Thus, two Muslim women
along with a competent Muslim male witness will be regarded as competent witnesses for the
marriage. Four females will not be regarded as competent witness. The term ‘witnesses’ does not
refer to any one specifically asked or invited for this purpose only.

Registration under Muslim law is not essential for the validity of the marriage. But certain
enactments provide for registration in the matters of marriage as well as divorces. The acts do so
because then there exists a proof of the marriage. But even then the registration is optional only
and not mandatory. It has also been held in a few cases that if the community custom requires
registration, even if it is in a different format, the marriage has to be registered then. Under the
 31

Indian Christian Marriages Act, 1872, the registration of marriage will be essential if the
marriage is between a Muslim and a Christian.

IV) ABSENCE OF PROHIBITION

Prohibition refers to the impediments or restrictions placed on a person with respect to another
person or an action. The Muslim law provides that the marriage should not be a marriage against
Islam or have any other impediments to it. Absence of prohibition refers to the freedom to marry
a person for they do not stand in a particular relationship to each other. For example, a father
cannot marry his own daughter.

Absolute Prohibitions

They are mandatory and have to be followed or else the marriage will be void. If a person is
within the prohibited relationship of the other party, the marriage cannot take place.

Whether a person is within the prohibited relationship or not can be decided on the following
basis:

a) Consanguinity is relationship by Blood.

A Muslim cannot marry one’s own descendant, however high or descendents of one’ father or
mother no matter how low. Similarly brothers and sisters of one’s ascendants howsoever high
can not be married to. However, there is no prohibition in the marriage of cousin brothers or
sisters.

b) Affinity refers to relation by marriage.

A Muslim cannot marry the ascendant or descendant of one’s spouse or the spouse of one’s
ascendant or descendant.

c) Fosterage

Refers to the relationship of nurture and feeding. A child is breast fed during its infancy. If the
person providing the feeds is someone other than the biological mother, the infant or child will
still stand in a prohibited relationship with her.

Relative Prohibitions

Where the compliance is not mandatory but non-compliance will be frowned upon. Any
marriage in violation will be only irregular and not void. As per Shia law, the marriage will be
either perfectly valid or void and not irregular.

a) Unlawful Conjunctions
 32

A Muslim cannot have two wives at the same time if the wives are related to each other in a way
that would have made their marriage void if they had been of opposite sex. As per the Sunni law,
a marriage against this condition is irregular. The Shia law will treat violation as a void marriage.
The only exception will be if the marriage is with the wife’s consent.

b) Marriage with the fifth wife

If a Muslim man has more than five wives, it is merely irregular with respect to the fifth wife. If
he divorces a wife or a wife dies, the irregularity will be removed with respect to the fifth wife.

c) Marriage with a non-Muslim has been discussed early on in the chapter.

d) Marriage without witnesses is irregular as per Sunni law.

e) Marriage during Iddat is irregular as per the Sunni law and void as per the Shia law.

KINDS OF MARRIAGE

Valid Marriage or the Sahih Marriage

Under all schools of Muslim law, the basic requirements have to be fulfilled, i.e. the parties are
competent, the consent of the parties is free consent and the offer and acceptance has been duly
made.

Legal Effect of a Valid Marriage

I. The co habitation of the parties becomes lawful and not immoral;

II. The children born to a lawfully wedded couple are legitimate and can inherit accordingly;
III. For the couple itself, mutual rights of inheritance arise;
IV. The wife can claim dower and has a right to maintenance and simultaneously the
obligation to observe Iddat is bestowed upon her;
V. Prohibited relations are created due to the marriage;
VI. The legal identity or status of a Muslim woman does not blend in with her husband’s
identity after marriage; and
VII. The parties have rights to regulate the movements of each other but they cannot refrain
each other from maintaining a relationship with their respective families or visits to then.

Void Marriage or the Batil Marriage

It is an illegal union that exists not in law. Thus, a marriage in violation of absolute prohibitions
or polyandry is a void marriage. Shia law provides a few additional grounds like marriage during
a pilgrimage or marriage with a non-Muslim or a woman observing Iddat.

Legal Effects of a Void Marriage

 33

No mutual rights or obligations are created for the parties in this union. The children born to such
a couple are deemed illegitimate and the wife has no rights to dower or maintenance. The parties
can actually marry any one they wish for this marriage does not exist in law or in fact.

Irregular Marriage or Fasid Marriage

An incomplete marriage where the deviation from procedure or a flaw can be removed, it is
called an irregular marriage. For example, the marriage with the fifth wife or with a woman
observing Iddat will be treated as an irregular marriage.

Legal Effects of an irregular Marriage

The cohabitation is lawful and the children are legitimate and can inherit the properties of their
parents. Mutual rights of inheritance do not arise. After consummation only, can the wife claim
dower. The wife does not have to observe Iddat if the marriage is not consummated.

Temporary marriage or Muta Marriage

It is a unique form of marriage recognised only under the Ithna Asharia School. It is a union for a
particular time only with consideration as a pre-requisite. The roots can be

Traced back to the early Arabia, where men had to travel long and far. To confer legitimacy on
the offspring produced during the travels, the Prophet allowed this Muta or enjoyment marriage
for some time. Later, he prohibited it absolutely.

It is essential that the parties must be competent to contract marriage because the guardians
cannot contract for a Muta marriage. The Muslim male can contract Muta marriage with a
Muslim,

Kitabia or Parsi woman but the Muslim woman can contract the same only with Muslim men.
Any number of Muta wives can be contracted with.

The formalities of free consent, offer and acceptance as well as absence of prohibition have to be
followed. The dower must be specified at the time of marriage otherwise the marriage will be
deemed void. The duration of the Muta marriage must be specified or else it will be deemed as a
permanent marriage.

Legal Effects of Temporary Marriage

The cohabitation between parties becomes lawful and consequently even the children are
legitimate children. There will be no mutual rights of inheritance between the husband and wife.
The husband has to pay the whole dower amount if he leaves without finishing the duration of
the marriage. If the wife were to leave before the expiry of the specified time, the husband can
deduct a proportionate amount from her dower.
 34

Maintenance is not available to the wife as a right. There is no divorce in Muta marriages. It ends
on the prescribed time or departure of one of the parties. Iddat has to be observed for two months
if the marriage has been consummated, else it is not needed. If the marriage dissolved due to
death, 4 months and 10 days is the iddat period.

Marriage Agreements are allowed under Muslim law. Even subsequent to the marriage, a couple
can enter into an agreement for regulation of their relationship. If the guardians have made such
agreements when the parties are not competent to do so, the agreement will be binding on them.
Any agreement working against Islam is void. For example a marriage agreement wherein the
wife is not allowed to claim her dower or the couple can stay separately without any reasonable
cause would be illegal.

Marriage agreements are binding on the parties as long as they are legal. For example an
agreement wherein the husband cannot contract another marriage during the subsistence of the
first is a valid agreement. Similarly, an agreement stating that the husband shall not stop the wife
from receiving her relatives at his house at any time is also valid.

Breach of a Marriage Agreement if the agreement was a valid one gives rise to rights of refusal
for restitution, dower related rights and in extreme scenarios, dissolution of the marriage.

Qs. Definition, nature and classification of dower, endorsement of dower including widow’s
right to retention.

In pre Islamic Arabia, when the institution of marriage as we know it today was not developed,
many forms of sexual relationships existed. Some were hardly better than prostitution. Men, after
despoiling their wives, often turned them out, helpless and without any means. Under this
background, Islam tried to provide a just treatment for wives. In Muslim Law, a husband can
divorce his wife at his whim and to ensure that the woman is not left helpless and without any
means, the concept of Mahr was brought in. It forces the husband to pay a certain amount to the
wife either at the time of marriage or at the time of dissolution of marriage. This amount acts as a
security to the wife in case she is turned out by the husband or in her old age.

Definition – According to Tyabji, “Mahr is a sum that becomes payable by the husband to the
wife on marriage either by agreement between the parties or by operation of law. It may either be
prompt (Mu ajjal) or deferred (Mu wajjal)”.

According to Amir Ali, “Mahr is a consideration which belongs absolutely to the wife”.

In Saburunnessa vs Sabdu Sheikh AIR 1934, Cal. HC held that Muslim marriage is like a
contract where wife is the property and Mahr is the price or consideration. However, it is also
true that non-payment of Mahr does not void the marriage, so Mahr is not purely a consideration.
 35

Importance of Mahr

Marriage in Muslim Law provides an absolute power to the husband to divorce his wife. It also
allows the husband to have multiple wives. This often results in a desperate situation for women
because they are left with no means to support themselves. Mahr mitigates this issue to certain
extent. Therefore, Mahr is very important for balancing the rights of the husband and wife. Mahr
is an absolute requirement of a Muslim marriage and so, even if Mahr is not specified at the time
of marriage, the law will presume it by virtue of the contract of marriage itself. Even if a woman
stipulates to forgo the Mahr, her declaration will be invalid.

In Abdul Kadir vs Salima AIR 1980, J Mahmood has observed that the marriage contract is
easily dissoluble and the freedom of divorce and of polygamy to a husband place the power in
the hands of the husband, which the Muslim law intends to restrain by the mechanism of Mahr.
Thus, right of wife to her Mahr is a fundamental feature of the marriage contract.
Thus, Mahr serves the following purposes –

I. to impose an obligation of husband as a mark of respect to wife.

II. to place a check on the power of husband to divorce and polygamy.
III. to provide for subsistence of wife in the event she is divorced by the husband.

Nature of Mahr

Mahr is an essential requirement of a muslim marriage. Thus, it is obligatory for the husband to
pay Mahr to wife upon marriage. A wife has an unrestricted right to demand Mahr from husband.

In Abdul Kadir vs Salima AIR 1980, J Mahmood observed that Mahr may be regarded as a
consideration for concubial intercourse by way of analogy to the contract for sale. It provides the
woman with the right to resist the husband until Mahr is paid. This right is akin to the right of
lien of a vendor upon sold goods while they remain in his possession and so long as the price for
the goods has not been paid.

In Smt Nasra Begum vs Rizwan Ali AIR 1980, it was held that right to dower precedes
cohabitation. Thus, a wife can refuse consummation of marriage until Mahr is paid.

The right of wife to her dower puts her in a similar position as that of other creditors. Just like
other creditors, she must be paid out of the property of the husband. Thus, it can be said that
Mahr is a kind of debt upon the husband incurred in marriage. However, at the same time,
payment of Mahr is not a charge upon the estate of the husband, unless an agreement is made to
that effect. The interest that a wife has over the property of her husband in lieu of dower debt is
limited to existing lawful possession towards her self enjoyment only. It does not give her the
right to alienate the property. After the death of the husband, she can sue the heirs for the dower
but heirs are not personally liable for it. They are liable only to the extent of their share in the
inherited property. A dower can also be secured by an agreement just like any other debt.
 36

In Syed Sabir Hussain vs Farzand Hussain, a father stood surety for payment of dower by his
minor son. After his death, his estate was held liable for the payment of his son's dower.

I. Legal Consequences of Mahr (Rights of wife in case of nonpayment of Mahr)

Dower is like a debt and the husband is liable to pay it to the wife before the
consummation of marriage. Until it is paid, the wife has a right to resist cohabitation with
the husband.
II. If the wife is in possession of husband's property, she has a right to retain it until dower is
paid. She does not get a title to the property and does not get a right to alienate it.
III. Wife can sue heirs of the husband for payment of dower.
IV. If the dower is deferred, the wife is entitled to it upon dissolution of marriage either due
to divorce or due to death.
V. Dower is a vested right and not a contingent right. Thus, even after the death of the wife,
her heirs can demand it.
VI. If dower has not been agreed upon at the time of marriage, courts can decide the amount
of dower by taking financial status of the husband, age of wife, cost of living, property of
wife, into consideration.

Right of wife over husband's property

I. Dower ranks as debt and the wife is entitled, along with other creditors, to have it
satisfied on the death of husband out of his estate.
II. Her debt, however, is no greater than any other unsecured creditor except that if she is
lawfully in possession of the husband's property,
III. she is entitled to that possession until she is able to satisfy her debt by the rents or issues
accruing out of the property.
IV. She is also entitled to the possession against the heirs of the husband until her dower is
satisfied.

Limitations on right of retention–

I. This right arises only after the death of the husband or after divorce.
II. During the course of marriage, a wife does not have any right to retain the property. She
should have obtained the possession lawfully.
 37

III. Right to retention is not analogous to mortgage. Thus, she does not get title to the
property in case dower is not paid. Further, if the property is mortgaged, the wife cannot
retain possession against the mortgagee. Wife cannot alienate the property. She has to
satisfy the dower only though the rents or other issues accruing from the property.

In a leading case of Maina Bibi vs Chaudhary Vakil Ahmad 1924, one Moinuddin died
leaving his widow Miana Bibi and some property. The respondents instituted a suit against the
widow for immediate possession of the property. However, the widow claimed that she had the
right to possession until her dower was paid. It was held that the respondents could have the
possession of their share of the property after paying the dower to the widow. The respondents
did not pay and the widow continued possession. Later, the widow sold the property. The deed
showed that the widow tried to convey an absolute title to the property. The respondents again
filed the suit claiming that the widow did not have the right to transfer property because she only
had a right to retain and did not have any right to title for herself. It was held by the Privy
Council that a widow has the right to retain the possession of the property acquired peacefully
and lawfully, until she is paid her dower. Further, she has no right to alienate the property by
sale, mortgage, gift, or otherwise.

Who can change Mahr

I. A husband can increase the amount of debt at any time, though he cannot decrease it.
II. A wife can remit the dower wholly or partially. The remission of Mahr by wife is called
Hibe e Mahr.
III. However, she should have attained puberty to do so. She does not have to be a major to
relinquish Mahr, only attaining puberty is sufficient.
IV. The remission made by the wife should be with free consent. Thus, in Shah Bano vs
Iftikhar Mohammad 1956 Karachi HC, when a wife she was being ignored by husband
and thought that only way to win him back was to waive Mahr, her remission of Mahr
was considered without her consent and was not binding on her.

Kinds of Mahr

I. Mahr is of two kinds - Specified (Mahr i Musamma) and

II. Customary or Proper (Mahr i Misl)

I. Specified Dower

Specified dower means the dower that has been agreed upon by the parties at the time of
marriage. Such a dower can be settled before marriage, at the time of marriage, or even after the
marriage. In case of a minor or a lunatic, the guardian can fix the amount of dower. Dower fixed
by the guardian is binding upon the boy and after attaining puberty or majority, he cannot take
the plea that he was not a party to it.
 38

A husband can settle any amount as dower to his wife, even if that leaves nothing to the heirs but
he cannot settle for less that 10 dhirams in Sunni Law. Shia law has no minimum. For those
Muslims who are so poor that they cannot even pay 10 dhirams, they can teach the wife Quran in
lieu of paying Mahr. Specified dower can further be divided into two categories –

A. Prompt (Mu Ajjal) and

B. Deferred (Mu Wajjal).

A. Mu Ajjal - As the names suggest, Mu ajjal dower means that the dower is payable
immediately upon the marriage. The wife has a right to refuse cohabitation with the husband
until she is paid the dower. If the wife is a minor, the guardian can refuse to allow the wife to be
sent to the husband until dower is paid.

Only after the payment of dower, the husband is able to enforce the conjugal rights. However, if
the marriage is consummated, the wife cannot refuse cohabitation after that.

Prompt dower does not become deferred after consummation and the wife has the right to
demand and sue for it any time.

The period of limitation starts after demand and refusal and it is of three years.

B. Mu Wajjal - It means that the dower is payable upon dissolution of marriage either by
divorce or by death of husband.

I. Even though it is deferred, an agreement to pay be before is valid and binding.

II. A wife does not have a right to claim dower but a husband can treat it as prompt and
transfer property as payment.
III. A widow can relinquish her claim to dower at the time of the funeral of the husband by
reciting a formula, but her relinquishment must be a voluntary act.
IV. The interest of wife in deferred dower is a vested one and her heirs can claim it after her
death.

II. Customary or Proper Mahr (Mahr i Misl)

When the amount of dower is not fixed in the marriage contract or even if the marriage has been
contracted on the condition that she will not claim any Mahr, the wife is entitled to Proper
Dower. The amount is to be arrived upon after taking into consideration the amount of dower
settled for other female members of the father's family. It is also regulated with reference to the
following factors –

I. Age, beauty, fortune, understanding and virtue of wife.

II. Social position of the father
III. Dower given to her female paternal relations.
IV. Economic condition of the husband.
 39

V. Circumstances of the time.

UNIT- III

Matrimonial Remedies

Qs Non-judicial resolution of marital conflict problem; unilateral divorce; divorce by

mutual consent and other modes of dissolution of marriage under Muslim law.

Ans. The Prophet declared that among the things which have been permitted by law, divorce is
the worst . Divorce being an evil, it must be avoided as far as possible.But in some occasions this
evil becomes a necessity, because when it is impossible for the parties to the marriage to carry on
their union with mutual affection and love then it is better to allow them to get separated than
compel them to live together in an atmosphere of hatred and disaffection. The basis of divorce in
Islamic law is the inability of the spouses to live together rather than any specific cause (or guilt
of a party) on account of which the parties cannot live together. A divorce may be either by the
act of the husband or by the act of the wife. There are several modes of divorce under the
Muslim law, which will be discussed hereafter.

Meaning of Talaaq

Talaaq in its primitive sense means dismission. In its literal meaning, it means “setting free”,
“letting loose”, or taking off any “ties or restraint”. In Muslim Law it means freedom from the
bondage of marriage and not from any other bondage. In legal sense it means dissolution of
marriage by husband using appropriate words. In other words talaaq is repudiation of marriage
by the husband in accordance with the procedure laid down by the law.

Conditions for a valid talaaq:

1) Capacity:

Every Muslim husband of sound mind, who has attained the age of puberty, is competent to
pronounce talaaq. It is not necessary for him to give any reason for his pronouncement. A
husband who is minor or of unsound mind cannot pronounce it. Talaaq by a minor or of a person
of unsound mind is void and ineffective. However, if a husband is lunatic then talaaq pronounced
by him during “lucid interval” is valid. The guardian cannot pronounce talaaq on behalf of a
minor husband. When insane husband has no guardian, the Qazi or a judge has the right to
dissolve the marriage in the interest of such a husband.

2) Free Consent:

Except under Hanafi law, the consent of the husband in pronouncing Talaq must be a free
consent. Under Hanafi law, a Talaq, pronounced under compulsion, coercion, undue influence,
fraud and voluntary intoxication etc., is valid and dissolves the marriage.
 40

Involuntary intoxication: Talaq pronounced under forced or involuntary intoxication is void even
under the Hanafi law.

Shia law:

Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced under
compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and ineffective.

3) Formalities:

According to Sunni law, a talaaq, may be oral or in writing. It may be simply uttered by the
husband or he may write a Talaaqnama. No specific formula or use of any particular word is
required to constitute a valid talaaq. Any expression which clearly indicates the husband’s desire
to break the marriage is sufficient. It need not be made in the presence of the witnesses.

According to Shias, talaaq, must be pronounced orally, except where the husband is unable to
speak. If the husband can speak but gives it in writing, the talaaq, is void under Shia law. Here
talaaq must be pronounced in the presence of two witnesses.

4) Express words:

The words of talaaq must clearly indicate the husband’s intention to dissolve the marriage. If the
pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the
husband clearly intends to dissolve the marriage.

Modes of Divorce:

A husband may divorce his wife by repudiating the marriage without giving any reason.
Pronouncement of such words which signify his intention to disown the wife is sufficient.
Generally this done by talaaq. But he may also divorce by Ila, and Zihar which differ from talaaq
only in form, not in substance. A wife cannot divorce her husband of her own accord. She can
divorce the husband only when the husband has delegated such a right to her or under an
agreement. Under an agreement the wife may divorce her husband either by Khula or Mubarat.
Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of
adultery, insanity or impotency of the husband. But the Dissolution of Muslim Marriages Act
1939 lays down several other grounds on the basis of which a Muslim wife may get her divorce
decree passed by the order of the court.

Under muslim law a marriage can be dissolved by any of the following-

1. By husband- Talaq, ila and zihar.

 41

2. By wife- talaq-i-tafweez, lian and Talaq under dissolution of muslim marriage act 1939
3. By mutual agreement- khula and mubarat.

Classification of dissolution of Marriage

By Husbnad By Mutual consent By wife

1. Talaq (Sunnat and Biddat) 1. Khula 1.

Delegated divorce

2. Ila 2. Mubarat
2. Lian

3. Zihar
3. Dissolution of

Muslim marriage

Act 1939 sec 2

1. By husband

When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is
express. The express Talaq, falls into two categories

I. Talaq-i-sunnat,
II. Talaq-i-biddat.

I. Talaq-i-sunnat

It was means that talaq which is based on the traditions propounded by the prophet. It can be to
two types-

a. Talaq-i-ahasan (Most approved)

 42

b. Talaq-i-hasan (Less approved)

Talaq-i-sunnat is considered to be in accordance with the dictats of Prophet Mohammad.

A. Talaq-i-ahasan (Most approved)

The ahasan Talaq: consists of a single pronouncement of divorce made in the period of tuhr
(purity, between two menstruations), or at any time, if the wife is free from menstruation. It
considered as best form of talaq.

condition of divorce

I. There should be abstinence from sexual intercourse during the period if iddat.
II. The pronouncement be made during a period of tuhr applies only to oral divorce and does
not apply to Talaq in writing.
III. This requirement is not applicable when the wife has passed the age of menstruation or
the parties have been away from each other for a long time, or when the marriage has not
been consummated.
VI. The advantage of this form is that divorce can revoked at any time before the completion
of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation
may effected expressly or impliedly.

Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says I
have retained thee” the divorce is revoked. Resumption of sexual intercourse before the
completion of period of iddat also results in the revocation of divorce.

B. Talaq-i-hasan (Less approved)

Talaq-I-hasan means- good. A talaq pronounced in hasan form is of lessor worth then the one
pronounced in ahsan form.

In this the husband is required to pronounce the formula of talaq three times during three
successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be
made after the interval of a month or thirty days between the successive pronouncements. When
the last pronouncement is made, the talaq, becomes final and irrevocable. It is necessary that
each of the three pronouncements should be made at a time when no intercourse has taken place
during the period of tuhr. Example: W, a wife, is having her period of purity and no sexual
intercourse has taken place. At this time, her husband, H, pronounces talaaq, on her. This is the
first pronouncement by express words. Then again, when she enters the next period of purity,
and before he indulges in sexual intercourse, he makes the second pronouncement. He again
revokes it. Again when the wife enters her third period of purity and before any intercourse takes
place H pronounces the third pronouncement. The moment H makes this third pronouncement,
the marriage stands dissolved irrevocably, irrespective of iddat. So
 43

i. Pronouncement of divorce three times.

ii. In the case of menstruating wife the first pronouncement should be made during a
period of tuhr, the second during the next tuhr and the third during the succeeding
tuhr.
iii. In the case of non-menstruating wife the pronouncement should be made during the
successive intervals of 30 days.
iv. No sexual intercourse should take place during these three periods of tuhr.

If during this period husband cohabits with wife then it revokes talaq and if there is o
cohabitation then divorce become irrevocable

II. Talaq-i-Biddat: (Disapproved mode of talaq)

It came into vogue during the second century of Islam. It has sinful form of talaq. The triple
declaration of talaq made in a period of purity, either in one sentence or in three. On such
pronouncement talaq becomes irrevocable.

This type of talaq is not recognized by the Shias. This form of divorce is condemned. It is
considered heretical, because of its irrevocability.

Ila:

Besides talaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and
Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have sexual
intercourse with his wife. Followed by this oath, there is no consummation for a period of four
months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the
husband resumes cohabitation within four months, Ila is cancelled and the marriage does not
dissolve. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the
court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial
divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for
restitution of conjugal rights against the husband.

Zihar:

In this mode the husband compares his wife with a woman within his prohibited relationship e.g.,
mother or sister etc. The husband would say that from today the wife is like his mother or sister.
After such a comparison the husband does not cohabit with his wife for a period of four months.
Upon the expiry of the said period Zihar is complete.

After the expiry of fourth month the wife has following rights:
i. She may go to the court to get a decree of judicial divorce

ii. She may ask the court to grant the decree of restitution of conjugal rights.
 44

Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the
wife cannot seek judicial divorce. It can be revoked if:

(i) The husband observes fast for a period of two months, or,
(ii) He provides food at least sixty people, or,
(iii) He frees a slave.

According to Shia law Zihar must be performed in the presence of two witnesses.

2. By mutual agreement- khula and mubarat.

Khula (Redemption)

With the consent and instance of wife in which she gives or give a consideration to husband on
her release from marriage. In lieu of consideration she may leave the amount of Mehr. It is
complete an irrevocable. It literally means the right of divorce is purchased by wife in lieu of
compensation paid to husband.

Mubarat (Mutual Separation)

Literally means release. It is affected by mutual consent. No consideration passes from wife to
husband. Both parties desire separation. It becomes complete and irrevocable.

The Khula and Mubarat have following differences-

i. In Khula the offer is made by the wife and its acceptance is made by the husband,
whereas in mubarat any of the two can make an offer and the other accept it.
ii. In Khula the divorce is on the initiative of the wife whereas Mubarat is mutual
consent
iii. In Khula a consideration passes from wife to the husband, whereas in Mubarat the
question of consideration does not arise.

3. By wife-

I. talaq-i-tafweez
II. lian and
III. Talaq under dissolution of muslim marriage act 1939 section 2

I. talaq-i-tafweez (Delegation of Powers of divorce)

Talaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The
Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other
 45

person. He may delegate the power absolutely or conditionally, temporarily or permanently. A

permanent delegation of power is revocable but a temporary delegation of power is not. This
delegation must be made distinctly in favour of the person to whom the power is delegated, and
the purpose of delegation must be clearly stated. The power of talaq may be delegated to his wife
and as Faizee observes, “this form of delegated divorce is perhaps the most potent weapon in the
hands of a Muslim wife to obtain freedom without the intervention of any court and is now
beginning to be fairly common in India”.

In the case of Meharam Ali v/s Aisa Khatoon 1915 it has been held that if the husband
delegates the powers to wife subject to the condition that if he marries with another female
without consent of her wife then she may utilise the powers of talaq, such delegated powers are
recognised.

II. Lian

If the husband levels false charges of unchastely or adultery against his wife then this amounts to
character assassination and the wife has got the right to ask for divorce on these grounds. Such a
mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery
made by the husband which, if false, would entitle the wife to get the wife to get the decree of
divorce on the ground of Lian.

III. Dissolution of Muslim Marriages Act 1939:

Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on
17th April 1936. It however became law on 17th March 1939 and thus stood the Dissolution of
Muslim Marriages Act 1939.

Section 2 of the Act runs thereunder:

A woman married under Muslim law shall be entitled to obtain a decree for divorce for the
dissolution of her marriage on any one or more of the following grounds, namely:-

That the whereabouts of the husband have not been known for a period of four years:

If the husband is missing for a period of four years the wife may file a petition for the dissolution
of her marriage. The husband is deemed to be missing if the wife or any such person, who is
expected to have knowledge of the husband, is unable to locate the husband. Section 3 provides
that where a wife files petition for divorce under this ground, she is required to give the names
and addresses of all such persons who would have been the legal heirs of the husband upon his
death. The court issues notices to all such persons appear before it and to state if they have any
 46

knowledge about the missing husband. If nobody knows then the court passes a decree to this
effect which becomes effective only after the expiry of six months. If before the expiry, the
husband reappears, the court shall set aside the decree and the marriage is not dissolved.

That the husband has neglected or has failed to provide for her maintenance for a period of
two years:

It is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife
may seek divorce on this ground. A husband may not maintain his wife either because he
neglects her or because he has no means to provide her maintenance. In both the cases the result
would be the same. The husband’s obligation to maintain his wife is subject to wife’s own
performance of matrimonial obligations. Therefore, if the wife lives separately without any
reasonable excuse, she is not entitled to get a judicial divorce on the ground of husband’s failure
to maintain her because her own conduct disentitles her from maintenance under Muslim law.

That the husband has been sentenced to imprisonment for a period of seven years or
upwards:

The wife’s right of judicial divorce on this ground begins from the date on which the sentence
becomes final. Therefore, the decree can be passed in her favour only after the expiry of the date
for appeal by the husband or after the appeal by the husband has been dismissed by the final
court.

That the husband has failed to perform, without reasonable cause, his marital obligations
for a period of three years:

The Act does define ‘marital obligations of the husband’. There are several marital obligations of
the husband under Muslim law. But for the purpose of this clause husband’s failure to perform
only those conjugal obligations may be taken into account which are not included in any of the
clauses of Section 2 of this Act.

That the husband was impotent at the time of the marriage and continues to be so:

For getting a decree of divorce on this ground, the wife has to prove that the husband was
impotent at the time of the marriage and continues to be impotent till the filing of the suit. Before
passing a decree of divorce of divorce on this ground, the court is bound to give to the husband
one year to improve his potency provided he makes an application for it. If the husband does not
give such application, the court shall pass the decree without delay. In Gul Mohd. Khan v.
Hasina the wife filed a suit for dissolution of marriage on the ground of impotency. The husband
made an application before the court seeking an order for proving his potency. The court allowed
him to prove his potency.
 47

If the husband has been insane for a period of two years or is suffering from leprosy or a
virulent veneral disease:

The husband’s insanity must be for two or more years immediately preceding the presentation of
the suit. But this act does not specify that the unsoundness of mind must be curable or incurable.
Leprosy may be white or black or cause the skin to wither away. It may be curable or incurable.
Veneral disease is a disease of the sex organs. The Act provides that this disease must be of
incurable nature. It may be of any duration. Moreover even if this disease has been infected to
the husband by the wife herself, she is entitled to get divorce on this ground.

Age of puberty

If any girl has been given in marriage by her father or other guardian before she attained the age
of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that
the marriage has not been consummated;

That the husband treats her with cruelty

that is to say-

I. Habitually assaults her or makes her life miserable by cruelty of conduct even if such
conduct does not amount to physical ill-treatment, or
II. Associates with women of ill-repute or leads an infamous life, or
III. Attempts to force her to lead an immoral life, or
IV. Disposes of her property or prevents her exercising her legal rights over it, or
V. Obstructs her in the observance of her religious profession or practice,or
VI. If he has more than one wives, does not treat her equitably in accordance with the
injunctions of the Holy Quran.

In Syed Ziauddin v. Parvez Sultana, Parvez Sultana was a science graduate and she wanted to
take admission in a college for medical studies. She needed money for her studies. Syed
Ziaudddin promised to give her money provided she married him. She did. Later she filed for
divorce for non-fulfillment of promise on the part of the husband. The court granted her divorce
on the ground of cruelty. Thus we see the court’s attitude of attributing a wider meaning to the
expression cruelty.

In Aboobacker v. Mamu koya, the husband used to compel his wife to put on a sari and see
pictures in cinema. The wife refused to do so because according to her beliefs this was against
the Islamic way of life. She sought divorce on the ground of mental cruelty. The Kerela High
Court held that the conduct of the husband cannot be regarded as cruelty because mere departure
from the standards of suffocating orthodoxy does not constitute un-Islamic behaviour.

In Itwari v. Asghari, the Allahabad High Court observed that Indian Law does not recognize
various types of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on, and that the test of
 48

cruelty is based on universal and humanitarian standards; that is to say, conduct of the husband
which would cause such bodily or mental pain as to endanger the wife’s safety or health.

Qs. A general perspective of matrimonial fault theory and the principles of irretrievable
breakdown of marriage.

Introduction

Prior to the Hindu Marriage Act, 1955 marriage was regarded as indissoluble union of husband
and wife. Manu has declared that a wife cannot be released from her husband either by sale or by
abandonment, implying that the marital tie cannot be severed in any way. Therefore, the ancient
Hindu Law does not recognise divorce.

The present Act i.e., has introduced vital and dynamic changes in the Hindu Law of Marriage
and divorce. It has laid down clear provisions regarding Divorce under certain circumstances.
Divorce is laid down under sections 13, 13-B, 14 and 15 of the Act. Section 13 deals with the
circumstances in which the right to divorce accrues. Section 14 limits the right to obtain a
divorce by laying down that divorce petition may not be made within one year of the date of
marriage except when the case is of exceptional hardship to the petitioner or of exceptional
depravity on the part of the respondent. Section 15 lays down the limitations on the right of
divorced persons to marry again

THEORIES OF DIVORCE

1. Divorce at Will theory

2. Frustration of Marriage Theory
3. Offence or Guilt or Fault Theory
4. Mutual Consent Theory
5. Irretrievable Breakdown Theory

1. Offence or Guilt or Fault theory

Guilt theory of divorce is one of the theory which is taken in consideration by the court in
deciding divorce cases under Hindu Marriage Act. According to this theory a marriage can be
dissolved only if one of the parties to the marriage committed any matrimonial offence which is
recognized as a ground of divorce under section 13 of the Hindu Marriage Act.
 49

This guilt theory of divorce differentiates the parties on the ground of guilt and innocence.
Innocent party has right to get divorce on the ground that other party has committed a
matrimonial offence or a guilty party.

This theory was taken very far in English law, so much so that if both the parties independent of
each other, committed matrimonial offence, the marriage could not be dissolved. So when both
parties are guilty then divorce could not be granted, there must be one guilty party and one
innocent party.

Section 13 of the Hindu marriage Act is based on guilt theory. Some grounds of divorce is based
on the guilt of respondent. Section 23 of the Hindu marriage Act laid down that
the petitioner will not be allowed to take advantage of his or her own wrong or disability in
divorce petition.

Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511

the Supreme Court has opined that law of divorce based mainly on fault is inadequate to deal
with a broken marriage. But under the fault theory or guilt theory, as accepted under section 13
of the Hindu marriage act, guilt has to be proved for divorce.

Darshan Gupta v. Radhika Gupta, (2013) 9 SCC 1

The Supreme Court reiterated that A perusal of the grounds on which divorce can be sought
under Section 13(1) of the Hindu Marriage Act, 1955, would reveal that the same are grounds
based on the “fault” of the party against whom dissolution of marriage is sought. In matrimonial
jurisprudence, such provisions are founded on the “matrimonial offence theory” or the “fault
theory”.

Further said that under this jurisprudential principle, it is only on the ground of an opponent’s
fault, that a party may approach a court for seeking annulment of his/her matrimonial alliance. In
other words, if either of the parties is guilty of committing a matrimonial offence, the aggrieved
party alone is entitled to divorce.

Irretrievable Breakdown of Marriage

This means the couple can no longer live together as man and wife. Both partners, and one
partner, must prove to the court that the marriage broke down so badly that there is no reasonable
chance of getting back together.

Till date, the prevailing laws in India regarding the issue of divorce have not recognized a
situation where the spouses are facing a situation that despite the fact that they live under the
same roof, their marriage is equivalent to a separation. That is, there is still no codified law for
irretrievable breakdown of marriage. The Hindu Marriage Act recognize few grounds for
dissolution of marriage in Section 13.But with the change in the social mores and in view of the
 50

changing nature of marriage in the society, the supreme court has shown special concern over the
matter of making irretrievable breakdown of marriage as a ground for divorce. The Supreme
Court has with a view to do complete justice and shorten agony of the parties engaged in long
drawn battle, directed dissolution of marriage. Indeed, these were exceptional cases, as the law
does not specifically provides for the dissolution of marriage on the grounds other then those
given in Hindu Marriage Act, 1955. Irretrievable breakdown of marriage is not a ground for
divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for
covering a large number of cases where the marriages are virtually dead and unless this concept
is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature
whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our
considered opinion the Legislature must consider irretrievable breakdown of marriage as a
ground for grant of divorce under the Hindu Marriage Act, 1955.

Examples of the kind of evidence the court will accept as proof of irretrievable breakdown:

I. The couple has not lived together like husband and wife for a period of time.
II. One partner had sexual intercourse with somebody else and because of this the other
partner finds it impossible to continue living together as husband and wife.
III. One partner is in prison after being declared an 'habitual criminal'. (This means he or she
keeps committing crimes, and because of this was sentenced to 10-15 years in prison.)
IV. One partner deserted the other.
V. One partner abused the other, for example the husband keeps assaulting the wife.
VI. One partner is an alcoholic or a drug addict.
VII. The partners no longer love each other - they may be too different, or they married when
they were too young. - One of the partners finds it impossible to live together as husband
and wife for any other reason.

Merits of the theory

The only merit of the theory as has been propounded by the jurists is that a marriage, which in
practice is considered to be sacramental institution, should be based on ground on which a sound
marriage is based that is tolerance, adjustment and respecting each other. If any of the party to
marriage is not ready to live with the other party the relationship will not be a happy relationship.
Stretching such a relationship will do no good, rather will develop hatred and frustration among
the parties for each other. Therefore to protect the sanctity of marriage, to reduce the number of
unhappy marriages and to prevent from getting wasted the precious years of life of the spouses, it
is necessary to dissolve such a marriage.

However here the point to be noted is that the parties to marriage do not get separated out of their
own free volition but on the basis of court coming to conclusion that marriage is beyond repair or
cannot be saved by any means.

Demerits of the theory

 51

The Law Commission Of India in chapter 4 of the 71st report has dealt in detail the demerits of
the irretrievable breakdown theory. The two main oppositions discussed in the report are as
follows:

I. It will make divorce easy. It will allow the spouses or even to any one of the spouse to dissolve
the marriage out of their own pleasure.

II. It will allow the guilty spouse to take the advantage of his own fault by getting separated and
dissolving the marriage.

Status under Indian Law

Irretrievable breakdown of marriage is not a special ground for divorce under Hindu Marriage
Act, 1955 unlike the other three theories of divorce. However an attempt has been made to
introduce the concept in section (13) (1A) which states that:

Either party to marriage, whether solemnized before or after the commencement of this act may
also present a petition for the dissolution of the marriage by a decree of divorce on the ground-

(i) That there has been no resumption of cohabitation as between the parties to marriage for a
period of [one year] or upward after the passing of decree for judicial separation in a proceeding
to which they were parties; or

(ii) There has been no restitution of conjugal rights as between the parties to the marriage for a
period of [one year] or upward after the passing of the decree for restitution of conjugal rights in
a proceeding to which they were parties.

In either case if the parties are not able to resume cohabitation for one year, any of the party to
marriage can obtain a decree for divorce. Thus the common feature is the condition of living
separately for a reasonably longer period of time.

However the judiciary in India has started raising the demand of such a special ground under the
present law in force. The Supreme Court of India in a recent case of Naveen Kohli v Neelu
Kohli even asked the parliament to seriously consider the matter and bring an amendment in the
present law.

Qs. Restitution of conjugal rights

Ans. Marriage under Hindu law has been considered to be a holy concept. It is the duty of both
husband and wife to live together and provide cohabitation to each other. It any party to marriage
prevents without any reason other party from the cohabitation then the other party has right to
initiate legal proceedings to bind the first party to live with him. This is called Restitution of
conjugal rights.
 52

Section 9 of Hindu marriage act 1955 provides for restitution of conjugal rights. According
to it

“where husband or wife had separated himself from the cohabitation of another without any
reasonable cause, then the aggrieved party shall be able to present a application before the
district court for the restitution of conjugal right and the court shall satisfy regarding the
truthness of statement made in application and regarding the fact that there is no valid ground the
why the application shall not be rejected, and on being satisfied shall pass a decree for the
restitution of conjugal rights”.

Above system provides following three points which are required to be fulfilled for the
decree of restitution of conjugal rights—

i. That the respondent has devoided the applicant from cohabitation without any
reasonable cause.
ii. The court is satisfied regarding the truthness of the alleged statement in application.
iii. There is no valid ground that the relief of restitution of conjugal rights cannot be
accepted.
iv. The burden of proof to show that the applicant was devoided of cohabitation by
applicant shall be over the applicant.
v. Application should be filled in district court.

Briefly two points are required for the decree of Restitution of conjugal right—

a. Applicant intentionally devoided from cohabitation by the respondent and

b. There is no reasonable cause for it.

Devoid from Cohabitation—

Firstly the thing required for the decree of restitution of conjugal rights is that respondent
intentionally devoids applicant from the cohabitation. If any party remains out of matrimonial
home for sometime or has to live separately for sometime due to circumstances then it shall not
be considered to be devoiding from cohabitation.

Mirchu v/s Devi (A.I.R 1977) Rajesthan high court held that the decre of restitution of conjugal
rights require if respondent have intentionally devoid applicant from cohabitation.

Without Reasonable Cause—the second essential condition for the decree of restitution of
conjugal right is that cohabitation has been devoided without any reasonable cause.

Gurudev v/s Sarwan (A.I.R. 1959 Punjab) it was said that the fact to determine which is a
reasonable or not shall depend upon the circumstances of every matter. It should be made
applicable in consideration of changing social conditions in present.
 53

Madan v/s Sarla (1966) A good thing was that the behaviour of applicant shall be considered to
be reasonable cause it if bounds the respondent to live separately from applicant.

Following matter can be consider reasonable cause –

i. Severe misconduct
ii. Wife spending too much while not considering the financial status of husband
iii. Drinking alcohol to such extent that it becomes unable to perform its duties.
iv. Falsely charging with unnatural sexual intercourse against the respondent.
v. Refusing cohabitations without any reason.
vi. Apprehension of injury due to unsoundness.
vii. Behave with cruelty
viii. Charging wife with unchastely etc.

But following were not considered reasonable—

I. Wife compelling husband to live in a good house inspite of bad financial status of
husband.
II. Wife husband like husband.
III. Wife refusing to live with the parents of husband without any reason

Wife living away for service

The question whether wife living separately for service is to devoid husband from cohabitation
was positively answered. It was said that wife cannot live separately for service without the
consent of husband. It he does so, it will be deemed that she is devoiding husband from
cohabitation.

But this belief changed with the time and a new direction was provided by the concept of equal
opportunity of employment. Now Shanti v/s Ramesh 1972 it was held that the wife living away
from husband for job, does not devoid of wife is not to devoid husband from cohabitation.
Actually is such cases the intention of wife is not to devoid husband from cohabitation.

Qs Judicial separation and Grounds for divorce under Hindu Law

Ans. Judicial separation and dissolution of marriage are two important matrimonial remedies.
Any party to a marriage can present an application for judicial separation and dissolution of
marriage. Both these have been mentioned in section 10 and 13 of Hindu Marriage Act, 1955.

Here it shall b expedient to mention that although the ground of judicial separation and
dissolution of marriage may be same but there are some basic differences between them.
Dissolution of marriage terminates the marriages. No marital relationship exists between the
husband and wife. Their matrimonial rights and duties also cease. They can remarry also. But it
 54

does not happen in judicial separation. Neither marriage terminates nor matrimonial relationship
ceases in judicial separation. Only the relations get suspended.

Judicial Separation under Hindu Marriage Act 1955

Judicial Separation is an instrument devised under law to afford some time for introspection to
both the parties of a troubled marriage. Law allows an opportunity to both the husband and the
wife to think about the continuance of their relationship while at the same time directing them to
live separate, thus allowing them the much needed space and independence to choose their path.
It is the last recourse available to both the spouses before the actual legal breakup of marriage
i.e., divorce. It is basically a temporary suspension of marital rights between the spouses as a
result of decree passed by the Court on any one of the grounds mentioned in the Section.

Section 10(1) provides that either party to Marriage may present a petition praying for a decree
of judicial separation on any of the grounds specified in Section 13(1). Further this section also
provides additional grounds to wife besides the above ground as mentioned in Section 13(2) of
the Act. Thus, it is clear that the judicial separation can be seeked on the grounds mentioned for
divorce.

Ground of Judicial Separation and dissolution of marriage

The grounds of judicial separation and dissolution of marriage are similar. Section 10 of the act
provides for judicial separation and section 13 provides for dissolution of marriage (Divorce).
Erlier, their grounds were different but Hindu Law (Amendment) Act, 1976 made the grounds of
both as same.

Divorce is a bigger remedy while judicial separation is smaller remedy.

Grounds—

Section 13 of Hindu Marriage Act 1955 mentions the grounds for judicial separation and divorce
these ground can be divided into three like—

1. Grounds available to both husband and wife (Section 13(1)

2. Grounds available to wife only (section 13(2) and
3. Grounds of mutual consent (section 13B)

Grounds available to both husband and wife (Section 13(1)

Section 13(1) of the act mentions these grounds on which either husband or wife can present an
application for divorce. These grounds are following—

1. Adultery
 55

As per Section 13 (1), either party to the marriage can present the petition for divorce on the
ground of adultery of the other party. If the other party, after the solemnization of marriage had
sexual intercourse with any person other than his or her spouse is said to have committed
adultery. Adultery means extramarital sexual intercourse or extra marital means outside the
wedlock

Commission of adultery is a valid ground for divorce. Even a single act of indulging in a sexual
relationship with another person shall be enough under this section.

Where husband and wife has sexual relationship with any person other then husband and wife. In
India adultery is a criminal offence under section 497of IPC

In the case of Smt. Indu Mishra v/s Kovind kumar (A.I.R 2006 rajesthan)

Wife was alleged for desertion and adultery by the husband. It was said by husband that wife was
living with another person and she has illegal relation with him. The wife while alleging husband
for adultery has also said that he has illegal relations with brother’s wife but she failed to prove
it. Decree for divorce was passed in favour of husband by the Rajasthan high court considering
wife a defaulter for desertion and adultery.

It has been stated by Allahabad High Court in the case of Rajesh Kumar Singh v/s Smt. Rekha
Singh (AIR 2005 Allahabad) that rape does not fall in the category of adultery. Where a women
is raped in intoxication state and woman is not recognizing rapist and no proof of illegal relation
with the rapist, there the decree of divorce cannot be passed on the grounds of adultery.

2. Cruelty

After the Marriage Law (Amendment) Act, 1976, cruelty has been made a ground for divorce as
well as judicial separation. Prior to this amendment, it was a ground for judicial separation only
and not for divorce. As per Section 13 (1)(a), if after the solemnization of marriage, the
petitioner has been treated with cruelty, mental or physical, is dangerous for his/her life, limb or
health then a petition for divorce can be filed. The acts of cruelty may include denial of food,
continuous ill behavior or maltreatment, the continuous demand of dowry etc.

Vinod Bismal v/s Tikli ufr Pandmini biswal (AIR 2002 Orissa)

Husband along with his parents used to regularly beat the wife. Father-in-law physically
misconduct with her. Husband never went to bring back wife nor made any attempt towards it.
Court held this behaviour of husband to be cruelty, because such circumstances arose that it
became difficult for wite to live with the husband.

Cruelty may be of two type—

1. Physical Cruelty
2. Mental Cruelty
 56

Type of physical cruelty

i. To beat husband or wife

ii. Unnatural sexual intercourse
iii. Any bodly injuries to the spouse

Type of mental cruelty

i. False allegation of adultery

ii. False criminal complaint
iii. Refused to have child
iv. Demand of dowry
v. Threat to commit suicide
vi. Abnormal behaviours any spouse

3. Desertion

Desertion as a ground for divorce has been added to Section 13 of the Hindu Marriage Act by the
Marriage Laws (Amendment) Act, 1976. Previously it was a ground for judicial separation and
not divorce. Now, after the amendment, it is a ground for both judicial separation and divorce. If
any one of the spouses has deserted the other for a period not less than 2 years, and the desertion
of the petitioner by the respondent was without a reasonable cause and absence of consent or
against the wishes of the former then the other partner can file a petition for divorce on the
ground of desertion.

Desertion is mainly of two type—

1. Actual desertion
2. Constructive desertion

1. Actual desertion—

Actual desertion consists of following elements-

a. Fact of desertion
b. Intention of desertion
c. Desertion without any reasonable cause
d. Desertion without the consent of applicant
e. Desertion continues for two years

Vishawnath Das v/s Maya Bala Das (AIR 1994) it was held that desertion does not require
merely the abandonment of matrimonial home but also requires the intention of desertion.

Constructive Desertion
 57

As we have seen above desertion does not mean abandonment of place rather is abandonment of
situation. It is constructive desertion In other words it can be said that desertion means not
abandoning the place rather is ignoring the cohabitation. If any party to marriage devoids the
other party from cohabitation even with living in one house, it shall be desertion.

The desertion may terminate in following three situation

i. Resume marital life.

ii. Resume cohabitation
iii. Express willingness to return back to home.

4. Conversion to another religion

As per Section 13(ii) of the Hindu Marriage Act, if any one of the partners converts his or her
religion and has ceased to be a Hindu then the other partner can file a divorce based on this
ground of conversion.

5. Unsound mind of person

When the other is of incurable unsound mind or is frequently or regularly and up to such limit,
affected by mental regardless that the applicant cannot reasonably be believed to live with the
respondent.

6. Virulent and Incurable Leprosy –

One of the grounds for Judicial separation is that the respondent has been suffering from a
virulent and incurable form of leprosy. The expression ‘Virulent’ has been interpreted as
malignant or Venomous.

7. Venereal Disease –

Judicial separation is obtainable if the respondent has been suffering from venereal disease in a
communicable form.

8. Renunciation of World –

Under Hindu law renouncing from the worldly affairs by entering any religious order amounts to
civil death and it may amount to desertion of the petitioner.

9. Presumed death (Missing Spouse) –

A person may present a petition for judicial separation on the ground that the other party to the
marriage has not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of him or she had that other party been alive.

Grounds available to wife only (section 13(2)

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Bigamy–

In the case of a marriage solemnized before the commencement of this Act, a wife is entitled to
present a petition for judicial separation on the ground (a) that the respondent husband had
married again before the commencement of the Act or (b) that any other wife of the respondent
husband to whom he was married before such commencement was alive at the time of the
solemnization of the marriage of the petitioner with the respondent. A petition by a wife for
judicial separation will lie on either of these grounds provided that the other wife is alive at the
time of the presentation of the petition.

Rape, Sodomy or Bestiality –

A wife can seek judicial separation on the ground that since the solemnization of the marriage
the husband has been guilty of rape, sodomy or bestiality.

Non-resumption of Cohabitation after decree or Order of Maintenance,

A wife can seek judicial separation where a suit under Section 18, HINDU ADOPTION AND
MAINTENANCE ACT or in a proceeding under Section 125 Cr.P.C., a decree or order, as the
case may be, has been passed against the husband awarding maintenance to the wife and that
since the passing of such decree or order, cohabitation between the parties has not been resumed
for one year or upwards.

An option of Puberty (Repudiation of the Marriage) –

If a girl is married before she completes the age of 15 years she is given an option to repudiate
that marriage after completing the age of 15 years. This option must be exercised before attaining
the age of 18 years. The Act provides no particular form of repudiation. It may be by, filing a
petition or by an overt act. If she has exercised this option to repudiate her marriage she can
petition for judicial separation or divorce on this ground after completing 18 years of age.

Grounds of mutual consent (section 13B)

The requirements which have to be met to seek divorce under Hindu Marriage Act are as
follows:

I. The parties have been living separately for a period of at least one year
II. They have not been able to live together, and
III. They have mutually agreed that marriage should be resolved.

The first requirement is that the parties should be living separately for a period of at least one
year before filing the divorce petition. It is necessary to understand what does the term “living
separately’ means.
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Qs Establishment, powers and functions of Family courts

Introduction

Marriage is an institution which is considered as sacred in India. But with the changing times
marriage has become a subject of great judicial scrutiny. Before 1984 all family matters were
seen by ordinary civil court judges who used to deal with matters like recovery of money or
property. In 1984 the Government of India after the recommendation of the Law Commission in
their 59th Report the family courts were created by a Gazette notification of the Central
Government. This Act was known as ‘The Family Courts Act, 1984’.

Jurisdiction

Civil matters

The family courts exercise the entire jurisdiction which is exercised by any District Court or
any subordinate civil court in the following matters-

I. Matrimonial causes
II. Maintenance and alimony of spouses
III. Custody and guardianship of children
IV. Settlement of spousal property

Criminal matters

The judge is vested with the power exercisable by the Magistrate of First Class under Chapter IX
of Code of Criminal Procedure which is Order for maintenance of wives, children and parents.

Powers of Family Court

The family court has the power to make their own procedure.

I. They are not required to record the oral statement of the witness at length.
II. The appeal from family courts lies directly to the High Court.
III. The Family Court can receive any document or statement even if it is not admissible
under Indian Evidence Act 1872.

Procedure to be followed by family court

I. Section 9 provides that the family court should try to resolve the matter
through conciliation and settlement.
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II. If there is possibility of settlement of dispute the court should adjourn the proceedings
until such settlement is arrived at.
III. The parties of the proceeding are not required to hire a legal practitioner; however they
are entitled to appoint an ‘amicus curie’ to assist the parties in the settlement proceedings.
IV. In camera proceedings can be ordered if the parties desire. (In camera proceedings means
that the public is not allowed to see the proceedings)
V. Judgment should be concise with the statement of the case, determination of the decision
and the reason for the decision.
VI. Provisions of Code of Civil Procedure, 1908 are applied in the enforcement of the order
or the judgement.
VII. The Court can take assistance of medical and welfare experts.

Appeal

I. Appeal from judgment or order of Family Court can be made to the High Court within 30
days of passing the order or the judgement.
II. The appeal can be on both question of law and question of fact.
III. The appeal should be heard by a High Court bench of two or more judges.
IV. No appeal lies against an order which is passed with the consent of the parties.

Steps to follow for registering a suit in a Family Court

I. If a person wants to register a suit in the family court then he needs to describe all the
details clearly on a watermarked paper and submitted along with the court fees.
II. Along with the suit papers the petitioner should attach an affidavit that all the facts stated
in the plaint is true.
III. The papers are submitted to the registrar of the Family Court who verifies all the relevant
documents.
IV. These files are presented to the Principal Judge of the Family Court. After verification of
each file and hearing the petitioners, the Principal Judge decides whether the suit is fit for
registration.
V. The applicant files the summons form and gets the next date for hearing.

Challenges

Inadequate number of conciliators-

In many Courts it has been observed that they don’t have counsellors or the counsellors are inapt.
A major problem is the counsellors keep changing frequently.

Attitude of Family Court Judges-

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The judges appointed to the family court do not have any special expertise in dealing with family
matters, nor do they have any special expertise in settling disputes through conciliation. The
appointment of women judge in Family Court is still a dream to be achieved.

Lack of Uniformity in Rules and Procedures-

The procedure established in different High Courts have laid down different rules of procedure.
This causes confusion during the proceedings. There are still many High Courts who have not
yet established Family Courts.

Permitting Lawyers-

Though the act has provided that the proceedings should be conducted without a legal
practitioner, the system did not create any alternative system of simplified rules. The litigants are
at the mercy of court clerks and peons to advise them on the rules followed.

Poor state of infrastructure-

The Family Court suffers from lack of basic infrastructure. In maximum Family courts there is
absence of drinking water, canteen, typist, notary.This lack of basic requirements creates
hardship. The working conditions are basically unhygienic and poor.

Conclusion

So far in India 153 family courts have been established. Yet many of them lack basic
infrastructure and proper rules and procedure. There are many states that still don’t have family
courts like Haryana, Arunachal Pradesh, and Mizoram.

However, the court has proved to be one of the most efficient mechanisms for solving family
disputes. Many marriages have been saved, many women were given their basic rights and many
family disputes have been resolved.

Though the record of Family courts have been pretty much mixed, formulating of certain
remedies such as uniform procedure, stricter laws and improvement in the infrastructure can
improve the functioning of the court.

Unit-VI

Alimony and Maintenance

Qs.Maintenance of neglected wives, divorced wives, minor children, disabled children and
parents who are unable to support themselves under the Code of Criminal Procedure,
1973.
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Ans. Introduction

Section 125 of the Code of Criminal Procedure serves as an essential economic umbrella to the
weaker sections of the society who the lack of means to support their survival and to maintain
themselves. The main objective of this section is to alleviate the status and economic condition
of the neglected wives and the divorcees who are discarded.

This section serves as a guardian to the Wives, Children and Parents who benefit the maximum
from this section. To enforce the social duty of preventing the vagrancy and destitution, that in
most severe cases often lead to crimes. Section 125 ensures that maintenance is granted
irrespective of the Personal laws of the Hindus (Section 24 of the Hindu Marriage Act, 1955),
Muslim (Women (Protection Of- Rights On Divorce) Act, 1986) and Parsis (The Parsi Marriage
and Divorce Act, 1936).

Though there are separate personal laws governing marriage in every marriage, but Section 125
works on the secular realm. There is no conflict between the two provisions as the provisions
relating to maintenance are distinct and separate.

Cancellation of Order of Maintenance of wife

Section 125 also lays down certain provisions in which the spouse is not eligible to the
maintenance amount. The provisions are as follows:

I. If the wife is living in adultery

II. If the wife refuses to live with her husband without sufficient means
III. If by mutual consent they have decided to live separately
IV. If the competent Civil court announces a decision
V. If the wife remarries to another man after the divorce, then the maintenance amount is
cancelled with effect from the date of marriage.

Failure to comply with the order

Section 125 (3) specifies the action that can be taken by the Magistrate on failure on compliance
with the order which is as follows:

I. For every breach of the contract a warrant is issued for levying the amount
II. The imprisonment of one month is a last resort when recourse to attachment and sale fail.

Examination of the Maintenance Amount

As per the Section 125 provisions the Maintenance amount is calculated after taking many
factors into consideration which are as follows:
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I. The income that is earned by the spouses is the main factor.

II. The second factor which helps in determining the maintenance amount is the standard of
living that is followed by the couple and the society to which they belong.
III. The third major factor is the status of the couple in financial terms.

Apart from the above three factors there are some more factors which are also considered as well
like:

I. Another important deciding factor is the number of years the couple has been married.
II. More people more money, so the number of children is also taken into consideration.

The kind of personal bond, affection and emotional attachment that is shared by the couple.

Definition of wife

The term ‘wife’ is not clearly defined under this section, but some reference is given to this term.
It states that a women who has already obtained divorce from her husband and has not yet
remarried. So basically it includes

I. Legally wedded wife

II. A wife who is divorced but not yet remarried.

Even in personal law if she has not initiated any proceeding, then the wife is entitled to the
maintenance amount.

This subject has always remained under controversy because of the conflict of the Personal laws.
There have been several instances in Indian Judiciary which has resulted in landmark judgements
between the Muslim Personal laws and Section 125.

Minor Children and daughter

Male and female children, irrespective of whether they are born inside or outside the legally
valid marriage of the father and mother, can claim maintenance. They must be minors to claim
maintenance. They may be married or unmarried.

Adult children can claim maintenance from their parents only if they have a physical or mental
abnormality that makes them unable to maintain themselves. An adult unmarried daughter can
claim maintenance from her parents.

Married minor girls can claim maintenance from their parents till they turn 18 if their husbands
do not have sufficient means to maintain them. However, married adult girls cannot claim
maintenance from the parents.
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In the case of vishambhar v/s Dhanya (AIR 2005 Keral) it has been held by the Kerala high
court that the daughter even becoming adult is entitled to maintenance from her parents subject
to the condition that-

a. She has not been married, or

b. There is no resource with her for livelihood.

Mother and Father

Both the mother and the father, whether natural or adoptive, can claim maintenance from any
one or more of their children. Daughters are also liable to pay maintenance to the mother and the
father. A step-mother can claim maintenance only if she is a widow and does not have natural-
born sons or daughters.

Morli v/s Chhote (AIR 1983 Allahabad)

Allahabad high court held that it is also the liability of a married daughter to maintain her aged or
infirm parents.

Jagjit Bhatia v/s Balbir Singh Bhatia (AIR 2003 Dehli)

It was been stated that maintenance of aged parents is personal liability of sons, irrespective of
matter that they got any property or not. The right to maintenance of aged and infirm parents
continuous to their life time.

Maintenance of Pendente lite

Section 24 of the Hindu Marriage Act, 1955 provides for maintenance Pendente lite. Whereas it
appears to court during the pending proceedings under this act that there is no independent
source of income for the husband or wife, it can order for such party maintenance during suit and
expenses for the proceedings actually, it’s main purpose is to provide relief to party during the
pending of proceedings from financial crisis.

Smt. Padmawati v/s C. Lakshminarayan (AIR 2002 Karnataka)

It was held that while determining the maintenance pendente lite, the court shall consider the
position of parties, income of the opposition, and number of person dependent over the
opposition, requirements of applicant, etc.

In the case of Mandeep v/s Kiran AIR 2002 Jammu and Kashmir it was said that
maintenance pendente lite also include maintenance of such child along with wife which is living
with wife.

Permanent Alimony
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Section 25 of the Hindu Marriage Act 1955 provides for permanent alimony. The order of
permanent alimony could be made anytime while passing the decree or afterwards. But, it cannot
be made on dismissal of petition.

An order of permanent alimony is made even when the applicant does not have sufficient means
of income.

The court shall consider following points while determining the amount of permanent alimony-

a. Position of both the parties

b. Their income
c. Their conduct
d. Special circumstances in any

Qs. Maintenance of divorced Muslim Women under the Muslim Women (Protection of
Rights on Divorce Act, 1986: A critical review

Ans. The Muslim Women (Protection of Rights on Divorce) Act was enacted by govt to dilute
the effect of Supreme Court Judgment in the famous Shah Bano case (1985). In that case the SC
held that every divorced woman has right to maintenance under section 125 of CrPC irrespective
to her caste, religion or creed if she is unable to maintain herself after divorce. The some feature
of Islam religion such as Polygamy, Triple Talaq and Right to divorce by Men are in violation of
the Human rights and position of woman in Islamic society is downgraded in course which is

now a debatable issue from many decades.

Definitions (Section 2)

Iddat period in case of a divorced woman, Iddat Period means a) 3 menstruation cycles or
courses if subject to mensuration , b) 3 lunar months after date of divorce if not subject to
mensuration and c) theperiod b/w divorce and delivery of child or termination of her pregnancy
whichever is earlier.

Mahr (Dower) – The mandatory amount of money paid by man to woman at time of marriage.

Magistrate – a magistrate of first class exercising jurisdiction in area where divorced woman
resides.

Compensation

Section 3

The divorced woman shall be entitled to:-

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I. An amount equal to sum of Mahr or dower paid at time of marriage;

II. All properties or money given to her relatives/friends/husband/husband relatives before
or after marriage or at time of marriage;
III. A fair and reasonable compensation by her husband within Iddat period;
IV. A reasonable compensation for maintenance of children born to her before or after
marriage for period of 2yrs from date of birth of child.
V. If husband refused to pay above compensation on divorce then aggrieved divorced
woman can file an application to Magistrate for above entitlements.
VI. The Magistrate can pass an order within 30 days of application to husband to pay/deliver
such amount of compensation for maintenance or property to divorced woman as
considered necessary with regards to standard of living of woman at time of marriage if
satisfied that husband of divorced woman has not paid compensation according to
provisions of act.
VII. If any person fails to comply with the orders of magistrate shall be liable for
punishment of penalties as defined in CrPC and imprisonment up to 1yr or until payment
of compensation if sooner made.

Section 4-5

I. The Magistrate if satisfied that the divorced woman has not re-married and is not able to
maintain herself after Iddat period then he can make a order to her relatives (who are
nominee of property of divorced woman after death according to Muslim Law) to pay fair
and reasonable maintenance as determined by magistrate having regards to standard of
living of woman during period of marriage.
II. Provided that if such woman has children then magistrate shall order only children to pay
maintenance charges to her and if children unable to pay then her parents shall pay such
maintenance charges or relatives as above described.
III. If any of parents or relatives or children unable to pay or divorced woman has no
relatives to pay maintenance charges then magistrate shall pass an order to State Wakf
Board to pay such maintenance charges in such periods as may be specified in the order.
IV. Section 5 – If on date of First Hearing, a divorced woman or her former husband declares
either jointly or separately that they would prefer to be governed by Section 125 and 127
of CrPC (1973) then Magistrate shall dispose of such application accordingly.

Section 6-7

I. The Central Govt has power to make rules to carry provisions of this act with prior
approval of both houses of Parliament.
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II. Every pending application by a divorced woman , under section 125 and 127 of CrPC
(1973), shall be subjected to section 5 of this act on commencement of this act and
dispose by Magistrate in accordance with provisions of this act.

Qs Alimony and Maintenance: (i) as an independent remedy, a review under different

personal laws; (ii) as ancillary relief: Alimony pendent elite and permanent maintenance.

Ans. We have already studied the system of maintenance under Hindu law and Muslim law so
will discuss:-

Maintenance under Christian law

A Christian woman can claim maintenance from her spouse through criminal proceeding or/and
civil proceeding. Interested parties may pursue both criminal and civil proceedings,
simultaneously, as there is no legal bar to it. In criminal proceedings, the religion of the parties
does not matter at all, unlike in civil proceedings.

If a divorced Christian wife cannot support her in the post divorce period she need not worry as a
remedy is in store for her in law.

Under S.37 of the Indian Divorce Act, 1869, she can apply for alimony/ maintenance in a civil
court or High Court and, husband will be liable to pay her alimony such sum, as the court may
order, till her lifetime. The Indian Divorce Act, 1869 which is only applicable to those persons
who practice the Christianity religion inter alia governs maintenance rights of a Christian wife.
The provisions are the same as those under the Parsi law and the same considerations are applied
in granting maintenance, both alimony pendente lite and permanent maintenance. The provisions
of THE INDIAN DIVORCE ACT, 1869 are produced herein covered under part IX -s.36-s.38

Alimony
S.36. Alimony pendente lite. -In any suit under this Act, whether it be instituted by a husband or
a wife, and whether or not she has obtained an order of protection the wife may present a petition
for alimony pending the suit.

Such petition shall be served on the husband; and the Court, on being satisfied of the truth of the
statements therein contained, may make such order on the husband for payment to the wife of
alimony pending the suit as it may deem just:

Provided that alimony pending the suit shall in no case exceed one fifth of the husband's average
net income for the three years next preceding the date of the order, and shall continue, in case of
a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or
is confirmed, as the case may be.
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37. Power to order permanent alimony -The High Court may, if it thinks fit, on any decree
absolute declaring a marriage to be dissolved, or on any decree of judicial separation obtained by
the wife, and the District judge may, if he thinks fit, on the confirmation of any decree of his
declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife,

Order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of
money, or such annual sum of money for any term not exceeding her own life, as, having regard
to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks
reasonable; and for that purpose may cause a proper instrument to be executed by all necessary
parties.

Power to order monthly or weekly payments. -In every such case, the Court may make an
order on the husband for payment to the wife of such monthly or weekly sums for her
maintenance and support as the Court may think reasonable:

Provided that if the husband afterwards from any cause becomes unable to make such payments,
it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the
same as to the whole or any part of the money so ordered to be paid, and again to revive the same
order wholly or in part as to the Court seems fit.

38. Court may direct payment of alimony to wife or to her trustee.-

In all cases in which the Court makes any decree or order for alimony, it may direct the same to
be paid either to the wife herself, or to any trustee on her behalf to be approved by the Court, and
may impose any terms or restrictions which to the Court seem expedient, and may from time to
time appoint a new trustee, if it appears to the Court expedient so to do.

Maintenance under Parsi Law:

Parsi can claim maintenance from the spouse through criminal proceedings or/ and civil
proceedings. Interested parties may pursue both criminal and civil proceedings, simultaneously
as there is no legal bar to it. In the criminal proceedings the religion of the parties doesn't matter
at all unlike the civil proceedings. If the Husband refuses to pay maintenance,wife can inform the
court that the Husband is refusing to pay maintenance even after the order of the court. The court
can then sentence the Husband to imprisonment unless he agrees to pay. The Husband can be
detained in the jail so long as he does not pay. The Parsi Marriage and Divorce Act, 1936
recognizes the right of wife to maintenance-both alimony pendente lite and permanent alimony.
The maximum amount that can be decreed by court as alimony during the time a matrimonial
suit is pending in court is one-fifth of the husband's net income. In fixing the quantum as
permanent maintenance, the court will determine what is just, bearing in mind the ability of
husband to pay, wife's own assets and conduct of the parties. The order will remain in force as
long as wife remains chaste and unmarried.
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S.40. Permanent alimony and maintenance

(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at
any time subsequent thereto, on an application made to it for the purpose by either the wife or the
husband, order that the defendant shall pay to the plaintiff for her or his maintenance and
support, such gross sum or such monthly or periodical sum, for a term not exceeding the life of
the plaintiff as having regard to the defendants own income and other property, if any, the
income and other property of the plaintiff, the conduct of the parties and other circumstances of
the case, it may seem to the Court to be just, and any such payment may be secured, if necessary,
by a charge on the movable or immovable property of the defendant.

(2) The Court if it is satisfied that there is change in the circumstances of either party at any time
after it has made an order under sub-section (1), it may, at the instance of either party, vary,
modify or rescind any such order in such manner as the Court may deem just.

(3) The Court if it is satisfied that the partly in whose favour, an order has been made under this
section has remarried or, if such party is the wife, that she has not remained chaste, or, if such
party is the husband, that he had sexual intercourse with any woman outside wedlock, it may, at
the instance of the other party, vary, modify or rescind any such order in such manner as the
Court may deem just.

Qs. Uniform Civil Code

Meaning

Uniform civil code is a proposal to have common set of governing laws for every citizen without
taking consideration the religion of people.

Directive principle of state under article 44 envisages uniform civil code

Present status

Recently Supreme Court of India again called for the UCC. Earlier also in 1985, SC directed the
parliament to frame a UCC in Shah Bano Case. T he debate still goes on and India right now has
not UCC.

Arguments in favor and Arguments against

Arguments in favor

1. Will pave the way for national integration and secularism

2. Will promote gender equality and welfare of women (e.g practice of triple talak.)
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3. Will simplify the cumbersome legal matters governed by personal laws (in the absence of
common laws, judges interpret personal laws like maintenance according to their
prejudices and opinion.
4. Can promote equality and justice
5. Art. 25 gives powers to state to interfere in matter of religion
6. Will remove loopholes in personal law system.
7. With common criminal law there can be common civil law as well

Arguments Against

1. Not good in India as India is a multicultural society with so many religions.

2. It’s looked upon by Muslims as threat to their identity because the code in itself seems to
be favoring the majority Hindu population.
3. Constitution guarantees minorities the right to follow their own religion, culture and
customs so UCC can be voilative of this.
4. Voilative of Article 25 and 26 which gives freedom of conscience.

Suggestion

1. UCC should be brought gradually not forcefully

2. The implementation of UCC should not disturb the fabric of diversity in Indian society
3. Any change to come should come from within the society and not to be imposed by the
state.