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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.
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?
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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—
(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.
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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
(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
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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 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-
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—
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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.
(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.
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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-
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.
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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.
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 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
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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.
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.’
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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

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.
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(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 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 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
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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
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.
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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.

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
 13

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
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—
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.
 14

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 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:-
 15

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 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
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.
 16

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.
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
 17

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 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
 18

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 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 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:-
 19

(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
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.
 20

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.
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
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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
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
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
 22

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.
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.
 23

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 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.
 24

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
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
 25

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.
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.
 26

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.

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.
 27

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.
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.
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II. During the course of marriage, a wife does not have any right to retain the property. She should have
obtained the possession lawfully.

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.
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).
 29

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.
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
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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.
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
 31

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.
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. DMR Act 1939

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)
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.
 32

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
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
 33

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.
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 person. He may delegate the power
 34

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 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.
 35

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.

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.
 36

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 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.
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.
 37

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 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.
 38

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
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
 39

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.
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.
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
 40

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 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.
 41

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
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.
 42

Cruelty may be of two type—

1. Physical Cruelty
2. Mental Cruelty
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
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.
 43

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)
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,
 44

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.

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
 45

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.
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.
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
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(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:
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.
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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.
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:-
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.
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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.
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.
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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.
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.
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
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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.)
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.
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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.