Q- What are the sources of Hindu law?

Ans:

Who is a Hindu?

The Hindu marriage act,1955, the term “Hindu” has been defined in a wide manner. It includes in its ambit:

1. All those persons who are Hindus, Sikhs, Jains and Buddhists by religion. In this category are also included
converts and reconverts to Hinduism, Sikhism, Jainism or Buddhism.

2. All those persons who are born of Hindu, Sikh, Jain or Buddhist parents. However, if only one parent is
Hindu, then he must be brought up as a Hindu. In this category, both legitimate and illegitimate children
are included.

3. All those persons who are not Muslims, Christians, Parsi or Jews, who are domiciled in India and no other
law applies to them. This clause is a kind of residual clause.

There are four sources under ancient source. They are:

1. Shruti

2. Smriti

3. Digests and commentaries

4. Custom

1. Shruti

Shruti is the primary and paramount source of Hindu Law. The word Shruti is derived from the root “Shru” which means ‘to
hear’. Shruti is the word that means that which has been listening to (or) heard. Shruti is believed to be the language of the
divine revelation through sages.

The Shruti is comprised of 4 Vedas, 6 Vedangas, 18 Upanishads. The four Vedas are: Rig Veda, Yajurva Veda, Sama Veda and
Atharva Veda.

 Rig Veda – Rig Veda is an ancient Indian collection of Vedic Sanskrit hymns.

 Yajurva Veda – Yajurva Veda is the Veda primarily of prose mantras for worship rituals.

 Sama Veda – Sama Veda is a Veda of chants. It is an ancient Vedic Sanskrit text, and part of the scriptures
of the Hinduism.

 Atharva Veda – Atharva Veda is the knowledge storehouse of atharvanas, the procedures for everyday
life.

It is believed that Munis and Rishis had reached the height of spirituality where they revealed Vedas’ knowledge. Vedas
primarily contain theories about rituals and customs. Since Vedas had a divine origin, the society was governed as per the
theories given in them and they considered to be fundamental source of Hindu Vedangas.

The Upanishads are known as the Vedantas. Vedas refer to certain rights and duties, forms of marriage, exclusion of the
women from an inheritance, and a son’s requirement, but these are not very clear-cut laws.

Auxiliary works called vedangas are six in number:

1) Siksha; the science of pronunciation
2) Chhandas; prosody
3) Vyakran; Grammar
4) Nirukta; Etymological definitions of words
5) Jyotishya; Astrology
6) Kalpa; ritual ceremonies

2. Smriti:

The word Smriti is derived from the root of “Smri”; which means ‘to remember’. Smriti contains the portions of the shrutis,
which those portions are forgotten in their original form and written in their own language with the help of their memory.

The rules laid down in Smritis can be divided into three categories

 Achar – Relating to the morality

 Vyavahar – signifying procedural and substantive rules which the King or the State applied for settling
disputes in the adjudication of justice

 Prayaschit – signifying the penal provision for the commission of a wrong

There are two kinds of Smritis. Those are:

1. Dharma sutras (Early smritis)

2. Dharma shastras (Later smritis)

Dharma Sutras (Early Smritis)

Dharma sutras are written in the prose, in short maxims which are called as Sutras. The Dharma sutras are written from 800 to
200 BC. It is clear that they are meant to be training manuals of sages for teaching students.

They incorporate the teachings of the Vedas with in local customs. Some of the important sages whose Dharma sutras are
known are: Gautama, Baudhayan, Vashistha, Harita, Apastamba, and Vishnu.

 Gautama – He belongs to the SamVeda school. He deals exclusively with religious and legal matters. He
talks about partition, stridhan and inheritance.

 Baudhayan – He belonged to Krishna Yajurveda school and he was from Andhra Pradesh. He talks about
sonship, inheritance, and marriage.

 Apastamba –He also belongs to the Krishna Yajurveda school from Andhra Pradesh. His language was very
clear and forceful. He rejected Prajapatya’s marriage.

 Vashistha – He was from the North part of India and followed RigVeda school. He recognized the
remarriage of virgin widows.

Dharma Shastras (Later Smritis)

Dharmashastras are composed in a poetry manner which is called Shlokas. Dharmashastras are mostly metrical verses and
were based on the Dharmasutras. These are more systematic and clearer. Occasionally, we found Sutras in the Dharmashastras
and Shlokas in Dharmasutras

“Smriti” means “what is remembered”. With Smritis, the systematic study and teaching of the Vedas have started. Many sages
have written down the concepts given in the Vedas. So, it can be said that Smritis are a written memoir of knowledge of the
sages.
The fact which becomes obvious is; Vedas were divine laws, and the Smritis were more of secular laws dealing with religion
and morality. The laws laid down in the Smritis included the law on morality, substantive rules applied in the adjudication of
disputes, and the penal provisions meted out as a punishment on wrongdoers.

3. Custom

It was superior to the written law. Custom is regarded as the third source of Hindu law. From the earliest period custom was
regarded as highest ‘Dharma’. Foremost of the Hindu law is based on the customs and practices followed by people all across
the country. And also smritis have given importance to the customs. They have held the customs as transcendent law.

Customs are of four types:

1. Local Customs: These are the customs that are followed in the geographical area or local locality.

2. Family Customs: These are the customs that are followed within family for a very long time. These
customs are applicable to the families where ever they live.

3. Caste and Community Customs: These are the customs which are followed by a particular caste or
community. This is one of the foremost important sources of laws.

4. Guild Customs: These are the customs which are followed by the traders.

Essentials of Custom

 A custom is valid if the custom has been followed for hundreds of years. 40 years has been determined to
be ancient enough.

 It was important that custom is being followed continuously and has not been abandoned. Thus, a custom
has been 400 years old but once abandoned, it can’t be revived.

 There should be fairness and reasonableness in the custom.

 It must be morally correct.

 The custom has to be clearly defined, and should not be confusing.

 If the custom is against any statutory law, it is invalid.

 There must be consistency between customs. Two customs that have opposing viewpoints then are
invalid.

4) Digests & Commentaries

Digests (Nibandhs) and Commentaries (Tika) covered a period over thousand years from the 7th century to 1800 A.D. At first,
most of the commentaries were written on the Smritis; but later, the works were within the nature of digests containing a
synthesis of the varied contradictions.

The work which is finished to elucidate the actual smriti is termed as commentary. A number of the commentaries were
Mitakshara, Manubhashya, and Manutika. The foremost important digest is that the Jimutvahan’s Dayabhaga which is
applicable within the areas of Bengal and Orissa.

“Mitakshara” means “New Word” and is a superior source of law altogether across India. It’s also considered important in
Orissa and Bengal where it relents only where it differs from Dayabhaga. The Mitakshara and Dayabhaga are two major schools
of the Hindu law. The Mitakshara relies on commentaries written by Vijnaneswar on the Code of Yajnavalkya and therefore the
Dayabhaga School of law is predicated on commentaries of the Jimutvahana.
Modern Sources
Justice, Equity and Good Conscience
Another significant source of Hindu law in India is the principle of justice, equity, and good conscience. This principle is based
on the concept of natural justice and is often invoked by courts in cases where there is no specific provision in the ancient
texts, customs, or statutory laws to address a particular issue.

The principle of justice, equity, and good conscience allows courts to exercise their discretion and interpret and apply Hindu
law in a fair and just manner, considering the facts and circumstances of each case. This principle is particularly relevant in
cases where existing laws may not adequately address modern social, economic, or cultural changes.

For example, in cases where there is no clear guidance on matters such as maintenance for divorced wives, property rights of
illegitimate children, or the adoption of a child born out of wedlock, courts have relied on the principle of justice, equity, and
good conscience to arrive at decisions that are fair and just.

It is important to note that the principle of justice, equity, and good conscience is not a standalone source of Hindu law, but
rather a guiding principle that complements and supplements the other sources mentioned earlier. It is often used as a fallback
option when other sources are silent or inadequate in addressing a particular legal issue.

Legislative Enactments: Statutory Laws

Legislative enactments, or statutory laws, are another important source of Hindu law in India. The Indian Parliament and state
legislatures have enacted various laws that govern different aspects of Hindu personal law. These laws are based on
constitutional principles, social policies, and contemporary needs, and they provide a comprehensive legal framework for
Hindus in India.
Some of the important statutory laws that are sources of Hindu law include:
 Hindu Marriage Act, 1955: The Hindu Marriage Act is a central legislation that governs the solemnisation,
registration, and dissolution of marriages among Hindus, Buddhists, Jains, and Sikhs. It provides for the
conditions for a valid Hindu marriage, the rights and duties of spouses, and the grounds for divorce
and judicial separation. The Act also deals with issues such as maintenance, custody of children, and
property rights of married couples.
 Hindu Succession Act, 1956: The Hindu Succession Act is a central legislation that governs the inheritance
and succession of property among Hindus, Buddhists, Jains, and Sikhs. It provides for the rules of intestate
succession, i.e., succession in case of death without a valid will, and testamentary succession, i.e.,
succession based on a valid will. The Act also provides for the rights of female heirs, coparcenary rights,
and rules related to joint family property.
 Hindu Minority and Guardianship Act, 1956: The Hindu Minority and Guardianship Act is a central
legislation that deals with the minority and guardianship of Hindu minors. It provides for the rights and
liabilities of minors, the appointment and powers of guardians, and the duties and responsibilities of
guardians towards the minors’ welfare and property.
 Hindu Adoption and Maintenance Act, 1956: The Hindu Adoption and Maintenance Act is a central
legislation that governs the adoption and maintenance of Hindus. It provides for the rules and procedures
for adoption, the rights and duties of adopted children and adoptive parents, and the maintenance rights
of Hindu women, children, and aged parents.
 Customary Laws: In certain regions of India, Hindus also follow customary laws that have been codified
and recognized by local legislation. For example, in some states like Goa, the Goa Family Law, which is
based on Portuguese civil law, applies to Hindus for matters related to marriage, divorce, inheritance, and
succession.
Judicial Precedents: Case Laws and Judicial Interpretation
Judicial precedents, also known as case laws, are another important source of Hindu law in India. Judicial precedents are the
decisions of courts in cases involving Hindu law, which are considered as authoritative interpretations of the law. The decisions
of higher courts, such as the Supreme Court of India, have a binding effect on lower courts, and they are considered as
precedents that are to be followed in similar cases. Judicial precedents play a significant role in the development and evolution
of Hindu law, as they provide interpretations and clarifications on legal principles and practices.

Over the years, the Indian judiciary has delivered numerous landmark judgments on various aspects of Hindu law, including
marriage, divorce, property rights, inheritance, adoption, and religious practices.
These judgments are considered as important sources of Hindu law and have shaped the legal framework for Hindus in India.

For example, the Supreme Court of India clarified the rights of a Hindu woman as a coparcener in a joint Hindu family property.
Another example can be, in the case of Mohd. Ahmed Khan v. Shah Bano Begum the court established the rights of Muslim
women to maintain under Hindu law.

Judicial precedents are based on legal principles, statutes, and customs, and they provide guidance on the interpretation and
application of Hindu law in contemporary times. They help in filling the gaps in the legal framework and adapting the law to
changing societal needs and values. Judicial precedents are cited and relied upon by courts in subsequent cases to ensure
consistency and uniformity in the application of Hindu law.

Q- Discuss in detail conditions of a valid, void, and voidable marriages under Hindu and Christian
laws?

Ans:

(HINDU)

VALID 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 5 of Hindu Marriages Act says, A marriage may be solemnized between any two Hindus, if the following conditions are
fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or
to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the
marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them
permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage
between the two;

Section 7. Ceremonies for a Hindu marriage. -

(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 saptapadi (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.

VOID MARRIAGE
Section 11 (Nullity of marriage and divorce- Void marriages) of the Act had considered following marriage to be void: - Any
marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either
party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified
in clauses (i), (iv) and (v), Section 5.

It means...
1. Where at the time of marriage any party has a living husband or wife i.e., bigamous marriage is void
2. 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
 Five generation from the paternal side,
 Three generations from the maternal side

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

According to Sec 3(g) "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) (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or
(III) (iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's or
grandmother's brother or the other; or
(IV) (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.

VOIDABLE MARRIAGE

The grounds on which a party can file a petition for nullity of marriage under this section are:

1) The party to a marriage was incapable of giving consent due to unsoundness of mind.
2) That the respondent was at the time of the marriage pregnant by some person other than the petitioner.
3) The consent of either party has been obtained by fraud or force.
4) The parties at the time of marriage were under-aged.
5) The party has been suffering from mental disorder which makes her unfit for procreation of children.
6) The party has been having recurrent attacks of insanity.

A petition for nullity shall not be entertained if:

1) The petition shall be filed within one year of practice of force and fraud and discovery of the same.
2) The petitioner at the time of marriage did not have knowledge of the fact alleged in the petition.
3) The petition shall be fined within one year from the time when parties got the knowledge of the fact alleged.
4) The parties had not been sexually involved with each other since the fact alleged has been discovered.
(CHRISTIAN)

VOIDABLE MARRIAGE

Not Recognized

VOID MARRIAGE

1) Respondent was impotent at the time of marriage and at the time of filing suit.
2) Prohibited degree of consanguity or affinity
3) Either party was lunatic or idiot at the time of marriage.
4) If either party has spouse living at the time of marriage and marriage is in force.
5) If the consent was by force or fraud.

VALID MARRIAGE

Conditions for Valid Christian Marriage:

The conditions for a valid Christian Marriage are as follows:

One of the parties to the marriage must be Christian:

According to Section 4 of the Act, every marriage between persons, one or both of whom is or are a Christian, or Christians,
shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized
otherwise than in accordance with such provisions shall be void.

Marriageable Age:

According to Section 60(1) of the Indian Christian Marriage Act, 1872, the age of the bride and groom, just like other marriage
laws, has been set as eighteen and twenty-one respectively within the Act.

Authorities to Solemnize Christian Marriage:

According to Section 60(3) of the Act, the marriage under the Act becomes valid only when it is solemnized by the licensed
person/authority under the Act.

According to Section 5 of the Indian Christian Marriage Act, 1872, a Christian Marriage can be solemnized by any person

o who has received episcopal ordination. And it should be solemnized according to the rules of the Church
of which he is a minister.

o by any Clergyman (a male priest especially in a church) of the Church of Scotland given that such a
marriage is solemnized according to the rules, rites, ceremonies, and customs of the Church of Scotland

o can be solemnized by a Minister of Religion licensed under this Act. The minister of Church is any person
who have received Episcopal Ordination of the Church of which he is a Minister.

o can be solemnized in the presence of a Marriage Registrar appointed under this Act

o by any person licensed under this Act to grant certificates of marriage between Indian Christians

Time of Marriage:

According to Section 10 of the Indian Christian Marriage Act, 1872, all the marriages under this Act shall be solemnized
between the stretch of 6 am in the morning and 7 pm in the evening.

Place of Marriage:
According to Section 11 of the Indian Christian Marriage Act, 1872, no Clergyman of the Church of England shall solemnize a
marriage in any place other than a church unless there is no church within five miles distance by the shortest road from such
place OR unless he has received a special license that authorizes him to do so under the hand and seal of the Anglican Bishop
of the Diocese or his Commissary.

Free Consent to Marriage:

The agreement between the two parties must be free and voluntary and without compulsion, undue influence, or threat of
violence.

No Living Spouse:

According to Section 60(2) of the Act, neither of the persons intending to be married shall have a wife or husband still living.
Bigamy is not permitted under the Act.

Witnesses:

According to Section 60(3) of the Act, the presence of at least two credible witnesses other than person who is solemnizing the
marriage is mandatory.

Q- What is meant by judicial separation under Hindu Marriage Act 1955? State the grounds that
are required for judicial separation?
Ans:

Judicial Separation under Hindu Law is a legal procedure designed to give troubled couples some time to reflect on their
marriage. It allows both the husband and wife to reconsider their relationship while living apart. This legal process provides
them with the freedom and space to think about their future and represents their final option for a legal separation.

Under Section 10 of the Hindu Marriage Act, 1955, couples married under this act can seek Judicial Separation by filing a
petition. Once the court grants the order for Judicial Separation, they are not required to live together as a married couple.

What is Judicial Separation in Hindu Law?

In Hindu Law, Judicial Separation is a legal remedy that allows a married couple to live apart without officially dissolving their
marriage. It is distinct from divorce and serves as a potential precursor to it. Judicial separation is granted by the court based
on specific grounds, such as adultery, cruelty, desertion or other valid reasons recognised by the law.

During a judicial separation in Hindu Law, the spouses retain their marital status, but their legal duties and obligations toward
each other are suspended. This arrangement provides an opportunity for the couple to assess their relationship, possibly
reconcile or eventually move towards divorce. It offers a structured and legally recognised means for couples facing significant
marital challenges to obtain a formal separation while remaining legally married.

Section 10 of Hindu Marriage Act and Judicial Separation in India

Judicial separation under Hindu Law is dealt in Section 10 of the Hindu Marriage Act, which states that;

(1) Either party to a marriage, whether solemnised before or after the commencement of this Act, may present a petition
praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13 and in the case of a
wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been
presented.

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with
the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the
statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
Petition for Judicial Separation: Either party in a Hindu marriage, regardless of whether it was solemnised before or after the
enactment of the Act, can file a petition seeking a decree for judicial separation. This petition can be based on the grounds
specified in Section 13(1) for both parties and on the grounds mentioned in Section 13(2) in the case of a wife. These grounds
are the same as those on which a divorce petition could have been filed.

Effect of Judicial Separation: Once a decree for judicial separation is granted, it is no longer mandatory for the petitioner and
the respondent to live together as a married couple. They can live separately. However, the court has the authority to rescind
the decree upon the application of either party if it finds that doing so is just and reasonable.

This legal provision provides a structured process for obtaining judicial separation in Hindu marriages and allows for flexibility if
circumstances change

Filing Petition for Judicial Separation in India

If one spouse has been harmed by the other, they can initiate a Judicial Separation under Hindu Law petition in a District Court
under Section 10 of the Hindu Marriage Act, 1955. To do so, the following conditions should be met:

 The marriage between the husband and wife must have been legally solemnised under the Hindu
Marriage Act.

 The respondent, the spouse against whom the petition is filed, should reside within the jurisdiction of the
court where the petitioner submits the petition.

 The husband and wife must have lived together for a specific period before the petition is filed.

Every petition should, in accordance with Order VII Rule 1 of the Civil Procedure Code, 1908 contain the following information:

 The date and place of the marriage.

 An affidavit confirming that the person is a Hindu.

 Names, status and addresses of both parties.

 Names, dates of birth and genders of any children.

 Details of any prior legal actions filed before seeking a judicial separation or divorce.

For judicial separation under Hindu Law, evidence must be provided to substantiate the grounds for the separation.

Grounds of Judicial Separation in India

Grounds of Judicial Separation under Hindu Law refer to the legal reasons or circumstances under which a married couple can
seek a formal separation recognised by the law without proceeding to a full divorce. Judicial separation allows couples to live
apart while still legally married. In this section, we will explore various grounds for judicial separation in Hindu Law, examining
the situations and criteria that enable either spouse to petition for this legal remedy.

Adultery

Adultery refers to when one spouse in a marriage engages in voluntary sexual intercourse with another person outside of the
marriage. In the case of Dr. H.T. Vira Reddi v. Kistamma (1968), the Court granted judicial separation under Hindu Law to the
husband because the wife had engaged in sexual intercourse with someone else. The Court emphasised that even a single act
of infidelity by one spouse is sufficient grounds for obtaining legal separation.
Cruelty

The term ‘cruelty’ in the context of marriage doesn’t have the same meaning as in everyday language. ‘Legal cruelty’ has a
different definition. In the case of G.V.N. Kaeswara Rao v. G. Jalli (2002), the Supreme Court attempted to define ‘cruelty’
within the context of marriage.

The Court stated that an act is considered cruel if its intent is to cause suffering to the other spouse. It doesn’t necessarily have
to create fear in the spouse that it’s dangerous to live with the other. When the spouse treats his/her partner with cruelty or
inflicts any mental or physical pain after the marriage. The sufferer can file a petition on the grounds of cruelty.

Case- Shyamsundar Vs. Santadevi – in this case after the marriage, the wife was badly harmed by her husband’s relatives and
the husband also stood lazily, taking no steps to protect his wife.

The Court held that the intentional neglect to protect one’s own wife amounts to cruelty on the husband’s part.

Desertion

Desertion, for a continuous period of two years, can be a basis for seeking judicial separation under Hindu Law. It means one
spouse completely abandoning their marital responsibilities without a valid reason and without the consent of the other
spouse. There are three types of desertion:

Actual desertion: When one spouse physically abandons the other without explanation. For instance, in the case of Meena v.
Lachman (1959), the wife left for her parent’s home without informing her husband and made false promises of return but
didn’t come back for two years. The Bombay High Court recognised this as desertion and granted judicial separation in Hindu
Law.

Constructive Desertion: Constructive desertion occurs when one spouse creates an environment that compels the other
spouse to leave. In the case of Jyotish Chandra Guha v. Meera Guha (1969), the husband’s persistent disinterest and cold, rude
behaviour towards his wife led to her enduring mental and physical suffering. She was eventually forced to file a divorce
petition. The court deemed this as desertion at the hands of the husband.

Wilful Neglect

Wilful neglect happens when one spouse intentionally neglects their marital duties towards the other without physically
leaving. This may involve a refusal to cohabit or a failure to fulfil various marital responsibilities.

Conversion

If one spouse converts to another religion, ceasing to be a Hindu, the other party can seek judicial separation under Hindu Law.
In the case of Vilayat Raj v. Smt. Sunila (1983), where the husband converted to Islam and sought to dissolve the marriage, the
court established that a conversion alone does not automatically end the marriage but serves as a ground for its dissolution.
However, the court also noted that a party cannot benefit from a situation they created to the detriment of the other spouse.

Unsound Mind or Mental Disorder

If one spouse is of unsound mind or suffers from an incurable mental illness or disorder that makes it difficult for the other
spouse to live with them, an appeal for judicial separation in India can be filed. In the case of Anima Roy v. Proboth Mohan Roy
(1968), the husband sought nullity of the marriage, claiming his wife had schizophrenia at the time of their marriage. However,
his petition was not allowed by the court due to an unwarranted delay of three years in filing the petition from the date he
claimed to have learned about his wife’s condition. Additionally, the evidence presented was not satisfactory.
Venereal Communicable Diseases

If one spouse suffers from a communicable and incurable venereal disease such as HIV/AIDS, HPV or syphilis, the other spouse
can seek judicial separation under Hindu Law. In the case of Madhusudan v. Smt. Chandrika (1975), the husband filed a
petition seeking annulment of the marriage or judicial separation due to his wife’s syphilis. The court rejected his appeal
because he couldn’t prove that his wife had syphilis for three years before the petition and the incurable nature of the disease
was not established.

Renunciation

Renunciation occurs when a person forsakes worldly pleasures to lead a spiritual life and seek enlightenment. This is one of the
grounds on which a party to a marriage can request judicial separation. In the case of Teesta Chattoraj vs. Union of India
(2012), ‘renounce the world’ was defined as withdrawing from worldly interests to lead a spiritual life. It involves formally
consenting to abandon or surrender material possessions and worldly claims.

Presumption of Not Being Alive

If one spouse goes missing for a minimum of seven years and there is no information about their status and their family and
friends are unaware of their whereabouts, it is presumed that the missing spouse may have passed away. In such cases, the
other spouse can request judicial separation on these grounds.

Grounds of Judicial Separation Available to the Wife

Bigamy

Bigamy refers to marrying another person when one is already legally married to someone else. Prior to the commencement of
the Act, if a husband remarried another woman while his wife was still alive, the wife could file a petition for judicial separation
under Hindu Law. In the case of Harmohan Senapati v. Smt. Kamala Kumari (1978), the wife filed a suit for judicial separation
because the husband married another woman and lived with her without dissolving their earlier marriage.

Guilty of Rape, Sodomy or Bestiality

If the husband, after marriage, is found guilty of rape, sodomy or bestiality, the wife has the right to file a petition for judicial
separation on these grounds. For example, if ‘A’ and ‘B’ are husband and wife and ‘A’ is convicted of rape of another woman, ‘B’
can file a petition for judicial separation under Hindu Law.

Non-Resumption of Cohabitation After an Order of Maintenance

If a decree or order has been passed against the husband to provide maintenance to the wife under various acts like the Hindu
Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure, 1973 and no cohabitation
between the husband and wife has resumed for a period of one year or more, the wife can file a petition for judicial
separation.

Repudiation of Marriage After the Age of 15 and Before the Age of 18

If a girl’s marriage happened before attending 15 years of age, then, she has a right to claim judicial separation.

Effect of Judicial Separation in Hindu Law

The effect of judicial separation in Hindu Law is a formal legal recognition of a married couple living apart without dissolving
the marriage. During a judicial separation, both parties retain their marital status, but their legal obligations to each other are
suspended. They are no longer required to cohabit and the court may even decide on issues like financial support and child
custody. While the marriage still exists in name, the couple can essentially lead separate lives.
This arrangement offers the opportunity for the couple to evaluate their relationship, potentially reconcile or eventually seek a
divorce. The effect of judicial separation under Hindu Law provides a structured and legally recognised means for couples

facing insurmountable marital challenges to obtain a formal separation while maintaining their legal marriage status

 JUDICIAL SEPARATION  DIVORCE

 Application for judicial separation can be filed  Application for divorce under Section 13
under Section 10 of HMA 1955 any time after of HMA 1955 can be filed only after at
marriage. least 1 year of marriage.

 Judicial separation under HMA is a temporary  Divorce is the permanent end of the
suspension of marriage. institution of marriage.

 The parties can remarry once the divorce

 The parties are not allowed to remarry upon passing
is granted and the time for appeal elapse
of the decree of Judicial Separation.
or the appeal is dismissed.

 Decree of judicial separation can be rescinded

 Decree of divorce cannot be rescinded bu
through application by either party if court is
can be appealed against.
satisfied.

Conclusion
 Before 1955, there was no provision for separation or divorce. Reforms introduced in
the Hindu Law by way of legislation and amendments is a welcome step.
 Judicial separation is a legal break in marriage granted by the court which later may
convert into a patch up. The objective of the court to grant relief of judicial separation
to the aggrieved party is to think about their relationship and give it another chance
before divorce.

Q- Discuss the provisions for adoption under various family laws and state the CARA guidelines
for adoption?
Ans:

The Guardian And Ward Act, 1980

The personal laws in India like Muslim Law, Christian Law, Parsi Law, do not acknowledge a complete adoption. The Non-Hindus
in India do not have any authorized law to adopt a child legally; they can only take a ‘guardianship’ under the Guardian and
Ward Act, 1980.

However, guardianship does not give the same status as a biological child. Unlike, as mentioned before, under the Hindu
Adoption and Maintenance Act, 1956, an adopted child does not have any legal right of inheritance of the property. This Act
only recognizes a guardian-ward relationship, which exists only until the ward reaches 21 years of age.

Adoption – Muslim Law

Under Islam, there is nothing as adoption; it is not recognized by Muslim Law. In the landmark case, Mohammed Allahabad
Khan v. Mohammad Ismail, it was mentioned that there is nothing in the Muslim Law that is adoption or similar to adoption as
recognized by the Hindu System.

The nearest approach to adoption under Muslim Law is ‘Acknowledgement of Paternity’. The difference between the two can
be stated that in adoption, the adoptee is the known son of another person, while one of the essentials of acknowledgement is
that the acknowledgee must not be known son of another.

However, under the Guardian and Ward Act, 1980, an adoption from an orphanage is permissible by the courts.

Adoption In Parsi And Christian Law

Similar to Muslim Law, Parsis in India do not acknowledge adoption, and they too can adopt a child from an orphanage with
the permission of the concerned court under the Guardian and Ward Act, 1980.

In Christianity, there is also no acknowledgement of adoption. Adoption is a subject matter of personal law since it is a legal
affiliation of a child. Similar to Muslims and Parsis, Christians also can adopt a child from an orphanage with the permission of
the concerned court under the Guardian and Ward Act, 1980. Under the Act, a Christian can only take a child for foster care.
Once the child is 21 years of age, he/she is free to choose to live with the guardian or to break all the connections. Also, such a
child does not have any legal right to inheritance of the property.

Uniform Civil Code for Adoption

If we talk about Personal Laws in Indian, all are codified to bring social justice, equality among classes and uniformity. This
personal law is simple easy and it attempts to make personal faith. It applies to the particular religion. In the case of Uniform
Civil Code is also called UCC is a personal lawmaking system that creates a system for adoption for different religions with
different rules and regulations. It makes the process of adoption uniform and easy. If we talk about the past situation of the
adoption our forefathers do not know UCC but in the present situation, there is a choice to include the provision for UCC to
help the future government to implement the law for adoption under UCC.