FAMILY LAW- I

26. 07. 2022, Tuesday

Hindu law Muslim Law bare act. 2018 and 2020
Kusum on family law I
Family law is different from personal law?
Group of people united together by the bond of marriage(conjugality), blood(consanguinity)
and adoption.
Burgess and Locke- Family is a group of persons united by ties of marriage, blood or
adoption constituting a single household interacting and intercommunicating with each other
in their respective social roles of husband and wife, father and mother, son and daughter,
brother and sister creating a common cultute.
Characteristic of family-
1. Common name or ancestry
2. Common household
3. Limited in size
4. Dependent emotional and economic or social
5. Common property
6. Have roles assigned
7. It is a universal unit
Types of family-
1. Based on birth- A. Based on orientation (In which you are born), B. family based on
procreation (which you give birth to).
2. Based on marriage- monogamous, polygamous
3. Based on ancestry- matrilineal and patrilineal
4. Based on relation- conjugal, consanguine
5. Based on authority- patriarchal and matriarchal
6. Based on residence- patri local and matri local
7. Based on size- nuclear (2 generations) joint (3 or more generations) and extended.

28.07.2022, Thursday, Day-4

Joint family is only existing for the Hindu Community and hence it is called a Hindu Joint
Family. The legal notion of joint family is only available in Hindu Joint family. In other laws
like the tax laws, it is called as a Hindu undivided Family.
First question that is concerned with family law:
1. Religion- in order to find by what law are they governed.
2. Age of the parties concerned- in order to find out the competency and majority.
3. Sex of the person concerned- for example if the issue revolves arounds custody of
child it should be taken into consideration if the person is the mother or father. Also
 as there are different age of marriage for the male and female, it is important to find
out the validity of the marriage.
4. Marital Status.
5. Place of residence/ citizenship- or for example it is regarding it is matter of marriage,
it is important to know where was the marriage solemnized. Because there are certain
places in India like Pondicherry where the French civil code is still applicable or goa
where Portuguese civil code still applicable. This is called lex loci celebrationis.

Agnates- if a person is related to you through an entire male line the relation is agnate. Eg.
fathers brothers son’s daughter, the person is your agnatic relative.
Cognates- if there is any female in the chain of relation the person is your cognatic relative.
Eg. Fathers Mothers Brother Son. Even one female is enough to do so.
HINDU PERSONAL LAW-
Sources of Hindu Law:
1. Shrutis- something that is heard. The religion is so old that, the writing was not
emerged. These shrutis are also called “Vedas”. It believed that the hrishi during
meditation had communication with god and heard what they said and hence shruti.
They two categories of vedas- Samhita and Bramha. Samhita has all the theoretical
part, and Bramha has the reasoning behind these theories of why should one pray to
god.
Not a single shruti use the word Hindu they rathe ruse the word “Dharma”. Every
house has a person called Grihapati who would lay down rules for the whole family
and the one who fulfills his responsibility. This method did not stay intact for a long
time.
And so social rules emerged as people came into contact with the society.
Social rules were divided as-
a) Griha-Spiritual and Personal
b) Dramhasutras- Civil and Administrative in nature, and hence the king emerged
here.
All these social rules were followed in conformity to the prevalent customs. Customs
in fact gave a long life to these social laws or rules.
Not a single shruti or veda state about any one’s right. It just talks about duty and
obligation of the king as well as the common individual.

2. Smritis- All these rishis after hearing the rules taught them to their disciples. And
they were remembered and hence smritis. These people who leant them are Smritikas
who were considered as philosophers.
Both the Shrutis and Smritis are in unwritten form.
For Example
- Manu smruti- by then the brahmnical order was in place. The feature of this smriti
was that is relegated women and slaves and animals to a very low level and all of
them were at the equal level. It did explain about inheritance laws, contracts,
property laws, civil and criminal side of the society.
 - Yagnavalkya Smruti- lived during the period after buddha. He treated women
much better than manu, and gave her the right to hold property during her lifetime.
Shudras were also treated slightly better. It was elaborative upon different laws.
- Narada Smruti- 400 to 500 AD. Nepali saint. And hence found a lot of importance
in parts of Nepal, Jharkhand, Bihar, etc. it laid down judicial procedures.
All of these smrutis were codified much later. And by the time it was codified and
passed through generations, had passed to several changes and hence a lot of
distortions took place. Every smruti has been accommodated with the regional
customs of a particular place.
Date- 29.07.2022, Friday
SOURCES OF HINDU LAW
1. Shrutis which led to the formation of vedas
a. Samhita- chanting the vedas
b. Brahma- theological explanation of vedas
2. Smriti
a. Manusmriti
i. Lived during the Brahminic period.
ii. Difference between agnates and cognates originated in this era.
iii. Detailed set of laws.
iv. Gave a lot of authority to the King. The king can go to extent to extract
discipline from his subjects.
b. Yajnavalkyasmriti
i. Existed between the periods of buddha and vikramaditya
ii. Entitled women to owning immovable property
iii. Many civil and some criminal matters were touched upon
c. Naradasmriti
i. Compiled between 400-500AD
ii. Gave many rights to women
3. Commentaries and digests
a. Commentaries
i. Mitakshara-
1. Written by Vijnaneshwra
2. A brief compendium
3. Commentary on Yajnavalkyasmriti
4. Schools and sub schools of Mitakshara (versions of mitakshara)
a. Benares sub-school
b. Mithila sub-school
c. Bombay sub-school
d. Dravida sub-school
e. Bengal sub-school
b. Digests
i. Dayabhaga-
1. Written by Jimtuvahana
2. Subject matter- inheritance/succession
3. Contradicted with Mitakshara
 Sr.No MITAKSHARA DAYABHAGA
.

1. The basis for the law of inheritance is the Based on the principle of
principle of propinquity, i.e., nearness in religious efficacy or spiritual
blood relationships. benefits and therefore, those
people who confer more religious
EXCEPTIONS: benefits on the deceased is
1. Exclusion of females preferred to those confer who
2. Preference of agnates over confer less religious benefit
cognates
Religious benefits mean offering
of oblations or pind-daan.

2. Wrt joint family, under mitakshara, the The son, grandson or great-
son, grandson and great grandson have a grandson has no such right till the
right by birth in the joint family property, father is alive, i.e., the right to
having an equal interest with the father. property triggers on death.

3. The coparceners have ‘community of The coparceners have specified

interest’ and ‘unity of possession’ and ascertained shares in the JFP
(fluctuating interest)

4. Under the mitakshara system, the No such doctrine applies

doctrine of survivorship applies

4. Customs
a. It is encouraged that laws make some space for customs to breathe.
b. In order for a custom to receive protection/essential features:
i. Custom must be ancient
ii. Reasonable
iii. Certain
iv. Uniform
v. Obligatory
vi. Observed continuously w/o interruption
vii. Should not be immoral or opposed to public policy
c. Community custom/family customs both are valid and can get judicial
recognition.

5. Judicial decisions (modern source)

a.
6. Legislations
 a. Caste Disabilities Removal Act, 1850-
i. Repealed in 2019
ii. A committee was formed by BN Rao to draft the Hindu Code Bill
iii. This code was received with furor and conflict as the draft constituted
many progressive concepts like absolute property rights and divorce,
etc.
iv. But it could not be passed owing to the constant revolt.
v. Hence 4 smaller piece meal legislations were passed-
1. Hindu Marriage Act, 1955
2. Hindu Succession Act, 1956
3. Hindu Minority and Guardianship Act, 1956
4. Hindu Adoption and Maintenance Act, 1956
 Code is an exhaustive document on a subject matter which can have an overriding
effect on the other existing laws on the same subject.
 Common connecting link- gave space for customary practices

Date- 1. 08. 2022, Monday

Case disabilities Removal Act, 1850- to ensure that if any person is converting to any other
religion, he won’t be deprived of his right over the property of his family. Primarily towards
Hindu and Muslims. Repealed in 2019, but that does not make any change, because it has
been amalgamated into different personal law legislation.
Committee constituted under the chairmanship of Sir Benegal Narsing Rao, to build a bill
that would govern the Hindu personal laws. There was disagreement amongst the members
when the time of execution came. It was a progressive document that talked about divorce,
and also absolute property rights to women, mitakshara coparcenary that gave daughters the
right in property. It did not pass. And so 4 small legislations were passed, in around 6
months.
1. Hindu Marriage Act, 1955.
2. Hindu Succession Act, 1956.
3. Hindu Minority and Guardianship Act, 1956
4. The Hindu Adoption and Maintenance Act, 1956
UNIFORM CIVIL CODE (UCC)-
Part 4 provision.
Difference between code and act? Code is a exhaustive document on a subject matter and no
other version of that law can exist. It can have a overriding effect over the other existing laws
on the subject. Anything that is codified is a code. All acts are code.
Sec. 4, Hindu Marriage Act- this act shall override or dominate over any custom, usage,
interpretations, texts etc.
Sankar Appa v. Basamma- In this case the court held that, sec. 9 of the CPC and relevant
provisions of the specific relief act entitles a married person to institute a suit in order to
restrain the other spouse from marrying again. In such situations, sec. 4 of the HMA, does not
stand in her way.
Shashank Shekar Basu v. Deepika Roy- the court noted here that a Hindu female can file a
suit under sec. 9 of the CPC for a declaration that the marriage of her husband is a void
marriage.
HINDU MARRIAGE ACT-
Who is Hindu?
- Born as a Hindu- even if you are an atheist, the Hindu personal law will be
applicable because both the parents are Hindu.
- Converted
- Reconvert
- brought up as a Hindu- if one of the parents is a Hindu and the child is brought up
a Hindu, the child can be a Hindu. If one of them is non-Hindu, it is a necessity to
show that the child is brought up as a Hindu.
WHO IS NOT A HINDU?
Origin of the word “Hindu”- no religious texts have a mention of this word, the word actually
was sanatan dharma. When the Persians came to India, they did not have the sound of “sh”
and hence they called the people living beside the Sindhu or Indus River as Hindu.
1. The religions that have not originated in India are non- Hindu: Christians, Parsi,
Muslim, Jews.
2. Apostates- Narrower concept to conversion. An Outward movement towards some
other religion. It is exit from one religion to other. The first religion will consider you
an apostate. There are two exemptions to this –
i) Pre-conversion civil obligation- Hindu personal laws will still be applicable, ex. If
a man who is a hind and already married converts to Islam and marries two
Muslim women, he still has the obligation towards his Hindu wife and his other
two marriages will be void and the man will still be governed by the Hindu laws
because he is already married under the Hindu laws.
ii) Caste disabilities removal act, 1850- even after conversion, you will still get the
property of you family. Though it has been repealed, this is being applicable
through some or other ways.
Sarla Mudgal v. Union of India- The Supreme Court stated that a Hindu Marriage shall
continue to subsist even after of the spouses converted to Islam. There will not be any
automatic dissolution of the first Hindu marriage.
3. Scheduled Tribes which are not notified- Application of Hindu laws only on those
who have been notified. The central govt. notifies a list a tribe to whom Hindu Law is
applicable.
Madhu Kishwar v. State of Bihar- The Supreme Court noted that, the Hindu
Succession Act is not applicable to the Ho Tribe of Bihar, as no notification was made
by the central government for its application to this tribe. [HW- Read this case]
4. Reno cants- (Pondicherry) A person who chooses between two kinds of laws, one of
which will be applicable on him. The treaty had allowed people to choose between
French civil code and Hindu laws. For one to be a renocants you have to be a
domicile.
 5. Hindus married under Special Marriage Act- If two Hindus marry under the SMA,
then as per sec. 21A they will still be governed by the Hindu Succession Act (not all
Hindu laws) and not the Indian Succession Act, this is an exception brought through
the amendment of 1976. But this exception is not applicable to non- Hindus.
Maneka Gandhi v. Indira Gandhi- Delhi High Court decided the case. Indira
Gandhi was a Hindu; her husband was a Parsi. Maneka Gandhi was Sikh. Sanjay
Gandhi was married to Maneka through Sikh ceremony. After Sanjay Gandhi’s death,
the question was about property, according to ISA, the property goes to wife and
children, and according to HSA, the property goes to mother, wife and children.
Indira contended that Sanjay was brought up as a Hindu though his father was not.
Indira Gandhi won the case because he was brought up as a Hindu. This was how the
amendment came.

Date- 02.08.2022, Tuesday

Who are Hindus?
Sec 2 of HMA- applies to a person who is Hindu.
Sec. 3- Definition clause
S. 4- Overriding effect
S.5 – S.8- Under Hindu Marriage
Sec. 5- Conditions for a Hindu Marriage: (even if all of the ceremonies are not followed, it
cannot be said that the marriage is invalid? This section shall be read with 11, 12, 7, sec. 11
and 12 has to be read with 17 and 18 which has to be read with 494 and 495
Solemnized- performance of an act with the requirement ceremony.
It shall be between any two Hindus, that are included in Sec. 2. There is no mention about the
sexual orientation about the individuals. But after the reading of the whole act, it hints to a
heterosexual type of marriage, due to the usage of the words, husband wife, etc.
S. 5 (i)- Neither party shall have a spouse living at the time of marriage. Monogamy. This
provision is gender neutral a it talks about ‘neither party’. Also, someone may have a spouse
but it has to be dead.
Sec. 11- Void marriage. Only the both parties can go to the court. The first wife or husband
can go to the court only through the Specific relief act. A void marriage is a civil
consequence, that your contract does not have a validity. This section does not apply to
marriages that have been done before the commencement of this act. Whereas sec. 12 is
applicable before and after as well.
Sec. 17- Punishment of bigamy. This section links the HMA with IPC, as it provides for a
punishment. Here there is a difference between HMA and IPC, that IPC is secular or religion
neutral. If any section of an act, takes into consideration of some other Act, this is called as
referential legislation.
Example- In IPC the punishment for bigamy in 1860 is 7 yrs, in HMA which came in 1955,
in 1999, there was amendment in IPC and it was increased for 10 yrs. Now though there is an
amendment, the punishment under HMA will still remain 7 yrs, because sec. 17 clearly says,
IPC (45 of 1860). So, unless and until there is an amendment in HMA, there will be no
change in the punishment though the offence is same. (This is just an example, there has not
been any such amendment in 1999, it is still the same)

Bhaurao Shankar Lokhande v. State of Maharashtra AIR 1965 SC 1564-

Bhaurao was married Indubai in 1952, later he married Kamlabai in 1962. When indubai got
to know about this she went to the court, the Bombay HC stated that it is a case of Bigamy.
He again appealed to the SC against this decision. He contends that it has to be the first
marriage that has to be a valid marriage, the second marriage also has to be a valid marriage,
he says that the second marriage is not solemnized as all the ceremonies are not done. So
according to Sec. 2 it is required that only one community’s essential ceremony has to be
followed. The court said as the second marriage did not have saptapadi which is an essential
ceremony of that particular community and hence the second marriage was void, due to
which it was not a bigamy.
The court noted that the expression “whoever marries” under Sec. 494 of IPC means whoever
marries validly. If the marriage is not a valid marriage, it is no marriage in the eyes of law,
hence the appellant cannot be held, to have committed the offence under Sec. 494 of the IPC.
Date- 04.08.2022, Thursday
The subject matter of marriage falls in the concurrent list.
Sec. 5(1) there are certain interlinking provisions- s. 7
- S. 11, 17, 494 (IPC)
S. Nagalingam v. Sivagami- this person was married to sivagami and then in the subsistence
of this marriage he married kasturi. They did not take saptapadi but tied thali around her
neck. Sivagami says that the marriage wasn’t valid hence. Nagalingam comes before the SC.
Court says that you cannot come up with a blanket thing about s.7, as it also gives place to
other customs. The state has already added certain customs to s. 7 under concurrent list which
includes thali. And hence the second marriage is valid as well, hence there is bigamy. To
invoke s. 494 of IPC it is essential, that the parties enter into a form of marriage which is
recognised in their communities and which makes such marriage a void marriage,
Bhaurao’s case was not held here because, in his marriage saptapadi was a necessity, which
was not in the case of nagalingam.
APOSTATE AND REMARRIAGE-
Sarla Mudgal v. Union of India, AIR 1995 SC 1531-
The court in this case said that whether a Hindu husband married under the Hindu law, by
embracing Islam can solemnize a second marriage? Whether such apostate husband would be
guilty of an offence under s. 494 of the IPC? These are the questions before the court.
The court noted that, the second marriage on an apostate would be an illegal marriage in
relation to the wife, who married him under HMA and continues to be a Hindu. The court
further said that the second marriage would remain invalid unless and until the first marriage
is dissolved by a decree of divorce under the HMA.
5 years later a review petition was filed- Lily Thomas v. UOI, AIR 2000 SC 1650-
The petition was taken under Art. 32 of the Constitution. Jamat-e-ulema-e-hind, a party in it
was putting a lot of pressure. They said that it is a violation of art. 14 of why are Muslim men
allowed and Hindu men not allowed. Also, that the freedom of religion is violated. And the
third thing is that Sarla Mudgal shall be implement only to those who are marrying after the
case that is after 1995.
Issues- 1. Where a non-Muslim gets converted to the Muslim faith, merely with a view to
avoid an earlier marriage, or to enter a second marriage, whether the marriage entered into
him after conversion would be valid?
2. in order to avoid the clutches of s. 17 HMA, if a person renounces his Hindu religion and
marries a second wife what would be the effect on his criminal liability.
The court here said that, if you are converting with only this purpose as you are mocking a
religion. Also, if art. 14 is to be consideration, why are you comparing with men of Islam and
why not with women. The court did not pay heed to the right to freedom of religion. as after
even conversion you still identify as Hindu, then what freedom of religion is violated. Sarla
Mudgal did not lay down anything, it just stated a law of 1955, so ignorance of law won’t be
an excuse.
The statement of case for all the three issues are as follows:
- The court says that, “a person who mockingly adopts another religion where
plurality of marriage is permitted so as to renounce the previous marriage, and
desert the wife, cannot be permitted to take advantage of his own wrong as
religion is not a commodity to be exploited.”
- There is a reasonable classification for the muslim men vis-à-vis the men of the
other communities and there is a clear state policy of compulsory monogamy
which is implemented for men and women of all the other communities. So art. 14
is not violated.
- The court said that Sarla Mudgal case did not lay down a fresh piece of law, it
only expounded upon an already existing law since 1955.
Additionally, the court concluded that, “All such cases will be brought within the purview of
sec. 494 of the IPC.”
Keep in mind the year 1955, 1964, 1976 (HMA’ structure was changed), 1999, 2010- these
are crucial years for the HMA.
S. 5 (1) – Monogamy rule
S. 5 (2)- Mental Illness provision- then marriage is voidable as mention in S. 12.
A voidable marriage, is one can go to the court to get it nullified, it is at the option of one
party. It is valid until nullified. Hence section 5 only says conditions and not ‘valid
conditions.
S.5 (2) – if neither party is not able give consent for the fact that you were of unsound mind
and not for any other reason. The person has been suffering a mental disorder of such a kind
and extent as to render you unfit for marriage as well as procreation. The person has been
subject to recurrent attack of insanity. This marriage remains a valid marriage unless and
until someone goes to the court to get a decree of nullity.
Sec. 5(2) has been inserted in 1976. In 1955 it was as lunatic or idiot. But the words were
changed in 1976. 9

Date- 08.08.2022, Monday

S. 5 (2)-
This provision was redrafted in 1976
a) Unsoundness of mined – it should have diluted or vitiated the consent of the
person at the time of marriage.
b) Though the person is capable of giving a valid consent but suffers from a
mental disorder of such a kind or such an extent which renders the person unfit
for two purposes only- marriage and procreation (one of them is sufficient).
S. 13 gives the definition of mental disorder. (This was added in 1976 as well)
c) The person has been subject to recurrent attacks of insanity. (The word
epilepsy is removed in 1999) At least one attack of insanity must have
happened before the marriage and one after the marriage, if there was no
attack before marriage, then the marriage cannot be nullified, it must be
recurrent, it may be possible that the person is getting married at a lucid
interval.
R. Laxmi Narayan v. Santhi AIR 2001 SC 2110-
It was 25 days marriage, the husband realised that the wife is weird and did not look normal,
and hence approached the court to seek a decree of nullity. The court asked for the instances
that show that she is not normal. She would stare without blinking, she refused cohabitation,
when she is asked to serve food, she at it all. The court asked him to bring some more
instances.
The court noted here that, in order to draw an inference of mental disorder merely from the
fact that there was no cohabitation for about a month is neither reasonable nor permissible, to
brand the wife as unfit or abnormal the party has to bring about adequate or a strict standard
of proof.
J. Sudhakar Shenoy v. Vrinda Shenoy AIR 2001 Kar 1
The husband said that the wife is peculiar, applies castor oil thrice a day, she baths thrice a
day, she won’t eat at times, she drank the entire milk.
The court said that, no minor aberrations like applying castor oil on hair, soiling clothes while
eating, not applying sindur cannot amount to mental disorder as envisaged under S. 5(2).
S. 5 (4)- the parties are not within the degrees of prohibited relationship unless the custom or
usage governing each of them permits of a marriage between the two.
S.11 renders a marriage void if clause 4 is contravened.
If clause or 4 or 5 is contrived there is imprisonment of 1 month and a fine which is
mentioned in S. 18
S. 3 (g)- degree of prohibited relationships.
Date- 12.08.2022, Friday
Age of Marriage- S.5 (iii)
S. 13 (2)- A woman can take divorce, if she gets married as a minor, the divorce can be taken
even if she is above 15 yrs but before 18 yrs.
A marriage may be void ab initio- S. 11
A marriage may be voidable- S. 12
A marriage may be divorced- S. 13
A marriage may be valid
S. 18(a)- Punishment for contravention of certain conditions for a Hindu Marriage- these
conditions also include S. 5 (iii). There was a an amendment to this in 2007 which increased
the fine and imprisonment. In 2007 the Prohibition of Child Marriages Act was brought.
Why is child marriage not void? According to the Indian Majority Act, a child is a person
below 18 years of age. Age of consent is related to sexual intercourse.
CEDAW- India has only reserved this upon two grounds
i) Marriage Registration- as it is not mandatory in any other act except the SMA
ii) Child Marriage-
Barring these two, the entire CEDAW has been accepted by India.
P. Venkataraman v. State 1977 AP HC- The groom was 13 and the bride was 9 at the time
solemnization of marriage. Without putting an end to this marriage, he solemnized a second
marriage, the case under S. 494 IPC was registered against him, the AP HC laid down the 5
points of how HMA looks at Child Marriage:
 i) on scrutinising S.5, it can be noted that S. 5(1), (2), (4) and (5) all have a civil
consequence provided under the HMA, S.5 (3) does not have a civil consequence,
and therefore by deductive reasoning it amounts to a valid marriage.
ii) The HMA saw recent amendments last year (1976), wherein S. 13(2)(iv) was
inserted which provides for an exclusive ground for divorce to a minor wife. The
court further said that, it shows the legislative intent that child marriage is still
valid under the HMA.
iii) The court noted that, a Hindu Marriage can be validly solemnized with the
consent of the guardians under S. 6 (now repealed), if the marriage was
solemnized with the consent of lawful guardians.
iv) Court said that looking into S.4 of HMA, it can be said that since the HMA does
not clearly prohibit Child Marriages, the Hindu Sanskars may be continued to be
followed in the lack of a clear statutory provision.
v) The Doctrine of Factum Valet is a well-recognised rule under Hindu law, which
means that the fact cannot be altered by a thousand texts to the contrary. The fact
that this marriage has been solemnized cannot be denied, hence the first marriage
was a valid marriage.
PROHIBITION OF CHILD MARRIAGES ACT, 2006-
- This Act makes child marriages voidable at the option of the minor. This option of
getting the marriage nullified can be exercised only within 2yrs from attaining the
age of majority, which means for a girl it will be before 20yrs of age and for boy it
will be 23 years of age.
- Age of Marriage- for girls 18 and boys 21.
- Child Marriage is void only in four instances in S.4.
- No female or bride even if major is punished.
- An adult male may be punished if he contracts a child marriage.
- For age of majority Indian Majority Act, 1875 will apply, and according to which
adult is a person who is 18 and above. But for marriage, this PCMA says that for
girls is 18 and boys is 21. So, it is considered age of adult while giving
punishment. So, if the boy is of below 21 years of age but above 18, that person
being considered an adult can be punished, which is a major discrepancy in this
Act.

Date- 16. 08.2022, Tuesday

PCMS, 2006:
- Child Marriages are voidable at the option of the minor. So even the parents
cannot ask the court to declare the marriage void.
T. Sivakumar v. Inspector of Police, Tiruvallur town police station. Madras HC, 2012-
17 yr. old girl eloped with a boy who was an adult boy and married on her own volition
without informing her parents. The parents filed for the custody of the girl as well as asked
the court to declare the marriage null and void. The girl stood by her husband. The court
asked that send the girl to a Nari Niketan. The husband asked the custody of the wife. The
court noted the following four issues:
 i) whether a marriage contracted by a person with a female of less than 18 years of
age could be said to be a valid marriage, and the custody of the said girl to be
given to the husband?
ii) whether a minor can be said to have reached the age of discretion and thereby
walk away from the lawful guardian ship of her parents?
iii) Whether in view of the JJ Act the court has the power to entrust the custody of the
minor girl to a person who contracted the marriage with the minor girl and thereby
committed an offence punishable under both PCMA and HMA?
iv) Whether the principles of Guardians and Wards Act (GWA) and the Hindu
minority and guardianship act (HMGA) be imported in case of a minor girl
married in contravention to HMA?
Court- said that PCMA makes a child marriage expressly voidable that can be annulled by
the aggrieved party only. Nobody else is competent to pray for such annulment. The court
further noted that HMGA and HMA are statutes in pari materia therefore expression and
terms like, ‘Husband’, ‘Wife’, or ‘Contracting Party’ must be understood in the same
sense in both the legislations. Finally, the court noted that the legal status of a natural
guardian under S. 6(c) shall not arise with respect to the husband unless and until the
marriage acquires a complete validity. (All the child marriage contracted after 10 th Jan
2007 this principle will be applicable)

Independent thought v. UOI, 2017 10 SCC 800-

Court- said that sexual intercourse with a wife who is below 18 yrs of age would amount to
rape under IPC. Secondly, marital rape is an exception under S. 375 of IPC but for a wife
below 18 yrs this exception does not hold validity any more.

S. 5 v- Sapinda marriage- pinda means body, and sa means parts of the same body, so if one
belongs to the same family they cannot get married.
S. 3(f)- defines sapinda relationship-
(i) “sapinda 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
Date- 18.08.2022, Thursday
Difference between prohibited relationship and sapinda relations.
In prohibited relationships they are relationships by affinity as well as marriage, but in
sapinda relationships its only by blood or adoption, that is consanguine.
The second difference is that in prohibited relationships there is no limit or no. but there is a
limit of 3 and 5 in sapinda relationships.
Frog-leap sapinda ship.

Sec. 8- Registration of Hindu Marriages:

Seema v. Ashwini Kumar- Petition before SC, decided in 2006. The court gave detailed
directions to all state govt. to draft marriage registration rules and make it compulsory. The
court also said, that marriage registration has a lot of benefits, like protection of child
marriages, mostly these NRI marriages don’t have a spousal certificate but now it is
mandatory.
NULLITY-
This concept emerged in India. This idea is closely related with capacity. There is an inverse
relationship between capacity and nullity. Capacity was later changes to impediments. These
impediments are of two types: absolute and conditional. In case of Conditional impediments
the marriage cannot be rendered void after the death of the other party. For example
unsoundness of mind is a conditional impediment. So you cannot get it nullified after the
death of the party. Here is where the term voidable marriage comes.
S.11- Void Marriage
- Prospective effect
- Either party can file petition against each other
- decree of the court is not mandatory, the marriage is anyways void
- is strictly connected to S.5, that is if certain grounds of S 5 are not complied with the
marriage is void
- the second marriage during the subsistence of the first void marriage, the second marriage is
valid, as the first marriage is void.
- in void marriage, it doesn’t make a difference if the party dies, as it is also void.
S.12- Voidable Marriage
- Prospective as well as retrospective effect
- it is silent upon who can file the petition, which may also lead to a third party filing a
petition.
- until the decree is not given by the court the marriage is valid.
- it involves S. 5 as well as other provisions, there are many grounds for a marriage to be
voidable.
- if the second marriage during the subsistence of a first voidable marriage is void. There is a
bigamy in this case.
- here if the party dies, the court won’t be giving any decree, and the marriage will be valid.
Date- 25. 08. 2022, Thursday
S. 12-
Grounds for nullity under (1)-
- (a) Cannot be consummated due to impotency
- (b) Contravention to S. 5(ii)
- (c) Consent is vitiated owing to force or fraud
- (d) The respondent was at the time of marriage pregnant by some person other
than a petitioner.
S. 12 (2) (a)- the case under S. 12(1) (c) shall be entertained only when-
- there is a limitational period of 1 year in relation to Clause (c) of 12(1)
- if the person continues to live with the partner even after discovering the fraud, the person
cannot file a petition after one year
S. 12 (2) (b)-the case under S. 12(1) (d) will be entertained only in the below given
conditions-
- the petitioner has to prove that he was ignorant of the pregnancy
- the case has to be filed within 1 year of the commencement of this act, and in case the
marriage is after the commencement of act, it shall be done within one year of the marriage.
- once he has discovered the existence of pregnancy, he shall stop cohabiting with the
woman, and refrain from sexual intercourse.
S. 12 (1) (a)- the marriage has not been consummated owing to the impotence of the
respondent.
From 1955- 76- it was that- the respondent was impotent at the time of marriage and
continued till the petition was filed.
It had to be proved that it was only due to impotency that the marriage was not consummated.
This provision couldn’t be invoked if the respondent is impotent after the marriage is
consummated.
Impotence here means some malfunction in the genital organs, the other can be that the
person has certain disease which creates a defect in the genital organ.
It is not required to establish that the person was impotent at the time of marriage after the
1976 amendment, not the only thing to be proved is that the marriage couldn’t be
consummated due to the impotency.
There is no limitation period with regard to this section.

In the case of Samar v. Snigdha- the court noted that curability of impotence is not a
relevant factor for seeking nullity under S. 12(1)(a).

It cannot be nullified if the marriage has been consummated and after that the person
becomes impotent. If a party to a marriage becomes impotent after consummation there is no
relief of nullity under S. 12(1)(a). the person may seek for divorce but not nullity in this
section.

Shevanti v. Bhaurao- MP HC- Where the respondent had under developed ovaries because
of which she could not procreate and was considered as medically barren. The court noted
that sterility or barrenness is not equated to impotence as the parties were able to consummate
the marriage.

In several other cases the court noted that the burden of proof of impotence is upon the
petitioner.

The SC in Yuvraj Digvijay Singhji v. Yuvrani Pratap Kumari has noted that impotence
may be categorised as following:

- Physical or mental- mental can be that the person has a trauma attached with sex
or is mentally not prepared to go through this act of sexual intercourse. It may also
be pathological.
- Impotence may be general or particular. Particular could be relative or specific,
for example the case of homosexual if the person is married to a heterosexual.
- Artificial insemination and assisted reproductive techniques- if the wife conceives
using artificial means as the husband was sterile, but the husband is not able to
perform sexual intercourse the marriage will still be considered as non-
consummated.

S. 12(1)(b)- the marriage is in contravention of S. 5(ii)-

Gurnaam Singh v. Chand Kaur- the court stated that the wife was not suffering from a
mental disorder of such a kind and such an extent which will render the marriage and
procreation an impossibility as she already had a daughter in this marriage.

S. 12(1)(c)- consent vitiated due to force or fraud- gone through certain changes with the
onset of PCMA. Fraud can be in respect to the nature of the ceremony or any material facts
and circumstances. For force there are no criteria defined.

Babui Panmato Kuer v. Ram Agya Singh AIR 1968 Pat HC- The legal issue is- does the
misrepresentation about the particulars of a bride groom made by the father to mother of the
bride and overheard by the bride, amount to fraud so as to giving to the bride, a ground to
seek annulment based on false representation. the court noted that, the impression that was
created in the mind of the petitioner had continued even at the time of solemnization of
marriage. The father in this case had a duty towards babui of making true disclosure of facts
particularly with regard to the age of the proposed bridegroom. In fact, the father had resorted
to the active concealment of a fact which was within his knowledge or belief. The section in
the HMA, does not require that fraud must have happened “at the time of marriage” or “by
the respondent on the petitioner”. Therefore, it is not necessary to prove that the consent was
obtained fraudulently at the time of marriage or actively made by the respondent towards the
petitioner. Fraud consists of the following two elements: 1. Suggestion of falsehood
(suggestio falsi), and 2) suppression of truth (suppression veri).

59th law commission report, 1974- flimsy grounds cannot be considered as grounds for fraud.

Asha Qureshi v. Afaq Qureshi- the marriage was nullified. The court noted that the wife did
supress a material fact which is the details of her earlier marriage. the suppression of material
fact would amount to fraud, it would be so even under S. 17(4) of the ICA, 1872. However
the court noted that it is expected of the partied to do a brief research during marriage and the
principle of caveat emptor to apply.

S. 12(1)(d)- The respondent was pregnant by another person than the petitioner. Pre-marriage
pregnancy of the wife which the petitioner was ignorant about. This provision cannot be
invoked if the wife was pregnant before marriage and had aborted the child (this can go under
fraud but not under this section).

Date- 26.08.2022, Friday

P v. K (Bombay HC)- The court noted that second grade prolapse of uterus does amount to
a shocking revelation for the husband and concealment of such details makes for a case of
nullity under the HMA.

Voidable marriages do not held validity from day 1 which is similar to void marriage. the
children born out of such marriage are legitimate.

MUSLIM PERSONAL LAWS-

Source- Quran

Qayamat- Day of Judgement

Akhirat- life after death

Prior to 7th Century AD- Pre-Islamic Arabia- region was divided into small tribal parts- the
tribal chief would decide the disputes- there was a lot of violence. This period was called
Aiyyam-ul-Jahalia- absolute lawlessness. Hence people were ready to welcome change. Islam
abrogated a lot of things like Female infanticide, limited polygamy, gave women rights, etc.

The Prophet Mohammed was born in Mecca in 571 AD. he was a posthumous child, as a few
days before his birth his father died in medina while returning form Syria. He married a
women called kadija- had 6 children from marriage- 4 daughters and 2 sons- sons died in
infancy. Once while he was meditating, he got a message from an angel called Gabriel- the
message he received was called wehi. Only four people believed him- his wife, a blind
scholar- waraqa, Abu baqr, and Ali. The first message he heard was at the age of 40. he died
at the age of 63 and the last message he received was a few days before his death. Couple of
months later, two more people believed him- Umar and Usman. He was met with severe
opposition. He moved from Mecca to Medina in 622 AD, this move is called era of Hijirat-
advent of the new muslim era. He became a political leader as well. A lot of battles happened,
prophet established his army and then islam was established. The small tribes existing also
came in the fold of islam. When he was severely ill, it was believed that he would not
survive, now who would be the caliph after him. Two groups were formed- one asking for
election (Sunni) and the other saying that the nearest blood relation will be the next caliph
(Shia).

They moved ahead with an election- Abu Baqr was elected as the next caliph- Shia’s did not
believe of him. Shia nominated a person, Ali. Ali submitted to Abu Baqr. Abu Baqr was
assassinated after two years. The sunni’s again elected Umar. He remained the caliph for 10
years, after that he was assassinated. Next in line is Usman- for 12 years- later assassinated.
Finally, Ali became the caliph- the sunni’s also voted him. The shia’s don’t consider the
earlier one’s the caliph’s but usurpers. He compiled a lot of practices which were continuing
at the time. Ali had two sons- Hasan and Hussain. Even Ali was assassinated. Naturally
Hasan was elected and taken over as the next caliph- he was murdered by Mouvia. Later
Hussain took over- he was killed by Mouvia’ son- Yazid- battle of Karbala- Moharram.
Sunni was the majority. the Prophets paternal side was killed in a bomb blast in Baghdad. In
1924- caliphate was formally abolished in turkey as well as Angora (Ankara).

SOURCES OF MUSLIM LAW- (it has a hierarchy):

1) The Quran- Supreme authority. Arabic meaning of it is Quarra which means to read.
It was revealed over a period of time. 200 chapters dealing with legal principles and
6000 verses. It did not abolish everything, it retained certain thing, made amendment
to practices which may allowed. It is the first document to make a aspect of divorce. It
is a amending code. During prophet’s lifetime- it wasn’t documented. His followers
wrote it on leaves or animal skin after his dictation, it was passed on. Abu Baqr took a
way of documentation, he arranged its according to his size, he did not do it as the
sequence by prophet. Hence it was not understandable. During Usman’s time he
ordered for a fresh systematic compilation. In order to ensure authority, he order for
the burning of the earlier copies. It has remained unchanged till date.
2) The Sunnat/ Hadis- they are the model behaviour or traditions of the prophet. The
Sunnat means Sunna which is the model behaviour of the prophet and what the
prophet said or allowed actively or tacitly is called the Hadis or traditions. The Quran
says that, “whatever the prophet said, accepted and whatever he forbids you abstain
from that (verse 49).”
Ul- Qual (Word spoken)
Fail (Conduct)
Tahrir (Silent or tacit Approval)
It was compiled even later than the Quran because they did not have any official copy
of Quran for a long time. So, a proper systematic version of Quran took a long time
and hence compilation of Sunnat took a longer time. Another reason is that, people for
a long time thought that as a lot of things are verbally passed there was no reason for a
compilation, but once Quran was compiled, they also thought of compiling Sunnat as
well.

Date- 30.08.2022, Tuesday

 3) Ijma- Consensus of the companions of the prophets. When the Quran and the Sunnat
could not supply any rule of law for a fresh problem, the jurists unanimously gave
their decision and such a decision was termed as Ijma. Not every muslim can
constitute an Ijma, you have to a very well read and noted individual. Three kinds of
Ijma:
i) Ijma of Companions: companions of the prophet- Lived when prophet
Mohammad was alive. This is the highest form of Ijma
ii) Ijma of Jurists- other than the companions.
iii) Ijma of People or masses- this is not widely accepted. In India this type is not
accepted.
In the first type Ijma has to be unanimous, there has to be a consensus, whereas in the
second it is about the majority opinion.
Ijma can deal with a fresh piece of law, something which is not dealt with earlier. It
also interprets the things in the first two sources, and try not to overrule it and make a
fresh piece of law. It cannot amend the Quran or the earlier two sources and cannot
disturb the structure. Even the Ijma of Jurists cannot overrule the Ijma of
Companions.

4) Qiyas (Analogical Deductions)- Only Sunnis recognise this, Shia’s don’t. It means
accord and measurement. If the matters which has not been specifically covered by
the first three sources, the law may be deduced from what has been already laid down
by the three authorities by the process of analogy. Qiyas is the discovery of law, it
already exists.

SUNNIS: Four Sub-schools;

i) Hanafi (majority overall)
ii) Maliki
iii) Shaffei
iv) Hanabali
SHIAS: Three Sub-school:
i) Ithana Ashari (Majority in Shia)
ii) Ismailis
iii) Zaidy

Other sources/ Modern Sources are: LANDMARK CASES- Abdul Kadir v. Salima- (Upon
Muslim marriages) (land mark case), JUSTICE, EQUITY AND GOOD-CONSCIENCE and
LEGISLATIONS

NATURE AND CONCEPT OF MARRIAGE:

It is known as the Nikah.

It was in the case of Abdul Kadir v. Salima, that the Judge said that, “The Mohameddan
Jurists, regard the institution of marriage as part taking both of the nature of ibaddat or a
devotional act and Muamalat or dealing among men.”
Marriage (Nikah) is defined to be a contract which has for its object the procreation and the
legalising of children.

 Fundamentals of an Islamic Marriage:

- There must be a proposal or offer of marriage (Ijab)
- There must be an acceptance (Qubool)
- The Ijab and Qubool must happen at the same time.
- There must be two witnesses at the time of marriage (two adult male sane muslim
witnesses, or one adult male sane muslim witness plus two muslim women sane
witnesses). For Shia’s witnesses are not required. For Sunni they are a
requirement. Absence of Witnesses will make Sunni marriage Fasid or irregular.
- Consideration- Mehar- Given to the muslim bride at the time of marriage, coming
from the husband’s marriage.

Date- 05.09.2022, Monday

 Capacity:
- Sound Mind (Rashid)
- Age of Marriage- The person must have hit puberty (Baligh), In absence of
evidence puberty is assumed for both boys and girls at 15 years of age.
- Number of wives- A muslim man may have as many as four wives at the same
time, if he marries a fifth wife, when he already has four, the marriage is not wife
but merely irregular. For Shia it would be void.
The number of husbands for a muslim woman- it is not lawful to have more than
one husband at the same time, violation of this requirement, renders the muslim
woman’s marriage a void marriage and she may be prosecuted for S. 494
(Bigamy) of IPC.
- Marriage with a woman undergoing iddat: If you marry a woman undergoing
iddat it will amount to an irregular marriage for Sunni, and void marriage for Shia.
- Religion- A muslim man may contract a valid marriage not only with a muslim
woman but also with a kitabia (a woman who belongs to a religion which has been
revealed in a book, ex. Jewish, Christianity), but cannot marry an idol or fire
worshipper. Violation of this rule, renders the marriage as irregular. For Shia it
will be void. A Mohameddan woman cannot marry even a Kitabia, she can only
marry a muslim man. Marriage between sects, i.e., Shia and Sunni are valid. For a
Shia muslim man he can marry only a Muslim woman, he cannot marry even a
Kitabia Woman. Marrying to a kitabia woman is allowed only for a Sunni man.
 Consequences of Marriage:
- Sahih (Valid):
i) The wife has a right to meher, maintenance and residence in his husband’s
house
ii) Sexual intercourse with the husband is lawful
iii) Creates reciprocal rights of inheritance (both husband and wife can inherit
each other’s property)
iv) Wife has to observe iddat
v) Children are legitimate
vi) All the prohibited degrees mentioned below are generated
 - Batil (Void):
It would be exactly the opposite of what happens in a Sahih marriage.
- Fasid (Irregular) This is not for Shia.:
i) May be terminated by either party, either before or after consummation. If
the marriage has ended before consummation no legal rights emerge. If
however consummation takes place the following are the effects:
a) the wife is entitled to meher/ dower (proper or specified, whichever is
less)
b) The wife is supposed to observe iddat but the duration of iddat both on
death as well divorce is three courses (months).
c) The children born of such marriages are legitimate and are entitled to
inherit the property of the father as well as the mother but husband and
wife won’t have mutual inherited rights between them.

 Prohibitions:
i) Absolute Prohibition:
- Consanguinity
- Affinity
- Fosterage
If any of these three are violated the marriage is a batil marriage.
ii) Conditional Prohibition
- Unlawful Conjunction: A man may not have at the same time two wives who are
so related to each other by consanguinity, affinity or fosterage, that if either of
them had been a male, they could not have lawfully intermarried.
iii) Miscellaneous Prohibition
- Rule of Pilgrimage- If you are marrying someone while being in a pilgrim dress,
or in the premises or kabba, or in the pilgrimage, it would be a void marriage for
Sunni. For Shia though they don’t allow it, it is not considered void though.
- Rule of Equality- Rule of Al-qafat- you are supposed to marry in the same
economic and social position, both husband and wife. There are no consequences
of such an incidence.

Prohibition on the ground of consanguinity:

- A man is prohibited from marrying his mother or grandmother how high so ever
- to his daughter or granddaughter how low so ever.
- His sister whether full, half or uterine
- His niece or great niece how low so ever
- His aunt or great aunt, either paternal or maternal, how high so ever.
A marriage in all these is void ab initio or Batil

Prohibition on the ground of Affinity:

- Wife’s mother or grandmother, how high so ever
- Wife’s daughter or granddaughter, how low so ever
- The wife of his father or paternal grandfather, how high so ever
- The wife of his son or grandson, how low so ever

Prohibition on the ground of Fosterage:

Whoever is prohibited by consanguinity or affinity is also prohibited by reason of fosterage if
the foster mother is a woman who has lactated the muslim person in his childhood. So, all the
above mention relationship are under fosterage relationship as well. In this case for Sunni, it
would be irregular and for Shia it would be batil.

Date- 06.09.2022, Tuesday

IDDAT: Its actual meaning is counting. It may be described as a period during which it is
incumbent upon a woman whose marriage has been dissolved by divorce or death to remain
in seclusion, and to abstain from marrying another husband. It is a period of continence
which a woman has to observe when her marriage gets dissolved either by death or divorce.

i) Iddat of Divorce: the periods are 3 lunar months or three menstrual cycles.
- When a valid marriage is dissolved by divorce and consummation has taken place,
the duration of iddat is three monthly courses. If the woman is not subject to
menstruation, then it is for a period of three lunar months.
- If the marriage has not been consummated, the woman does not have to observe
any iddat.
- If the woman is pregnant at the time of divorce, the iddat extends till delivery of
the child or abortion.
ii) Iddat of Death: if the marriage comes to an end by the death of the husband.
- Where a valid marriage dissolved by the death of the husband, the duration of
iddat is four months and ten days. If she is pregnant at the time of husband’s
death, iddat continues till the delivery of the child or four months ten days, which
ever is longer.
- After the death of the husband an iddat of four months 10 days must be observed
by the widow even if the marriage was not consummated.

Death of husband during divorce iddat- If the woman is observing divorce iddat and her
former husband dies before the completion of three months she will have to start afresh the
death iddat, the period of which is four months 10 days.

Commencement of Iddat- The period of iddat begins from the date of the divorce or death of
the husband and not from the date on which the woman gets the information of her divorce or
the death of her husband.

DOCTRINE OF VALID RETIREMENT- Khilwat-us-Sahiha- under the Sunni law if the

husband and the wife are together for some time in absolute privacy and there is no social,
moral or legal restriction in their intercourse they are said to be in valid retirement (Khilwat-
us-sahiha). It is only recognised amongst the Sunni and not Shia. Valid retirement is treated
as equivalent to the actual consummation for the purposes of dower, paternity of the child, for
ascertaining prohibited degrees etc. and also for the observance of iddat.

Chand Patel v. Bismillah Begum- Married for 8 yrs- had daughter- dispute- husband asked
wife to leave home- she asks for maintenance for herself and daughter under S. 125 CrPC.
The husband says that she is his second wife, and also the sister of his first wife and hence the
marriage is not valid. She contends that she had married him with her sister’s consent. Both
of them are Sunni muslim. The court noted hat marriage of a Sunni Muslim male with his
wife’s sister during the subsistence of the earlier marriage is only an irregular marriage and
not void under the Muslim personal law and it continues to subsists till terminated in
accordance with law. Therefore, the wife and children of such marriage are entitled to
maintenance under S. 125 CrPC.

Khyar-ul-bulugh (Option of Puberty)- Where a muslim minor has been contracted in

marriage by the guardians, the muslim minor has the option of repudiating the marriage on
attaining puberty provided the marriage has not been consummated.

 Muslim Minor Boy

- they are still governed by the uncodified Muslim personal law
- They may exercise this option only if they have married off by guardians who
are not the rightful ones but for the girls there is no distinction between the
rightful or the wrongful guardians.
- There is no age ceiling for boys, after 15 yrs any time but before
consummation.
 Muslim Minor girl
- governed by Section 2 (vii), DMMA, 1939.
- They can exercise this option even if they are married by a lawful guardian.
- There is this age ceiling between 15 to 18 yrs and also before consummation.

Date- 08.09.2022, Thursday

Mohd. Nihal v. State: A girl was married before 15 by her brother-in-law to Nihal. She
always stayed at her parent’s home. After puberty she says that she would stay her itself as
her consent was not taken, and also the guardian was not rightful. The court for a minor
muslim girls marriage observed the following:

i) A muslim Nikah mandatorily requires the consent of the parties to the marriage, in
this particular case no such consent was taken.
ii) For a minor Muslim’s marriage, the marriage must be done by a competent wali
(Guardian) and if it is performed by an incompetent wali the same would be
declared as void ab intio.

So is Khyar-ul-bulugh contradicting with PCMA, 2006

Three rules are to be kept in mind to decide this:

1) Later Law shall prevail over earlier law.

2) Special law prevails over general law.
3) Special law prevails over general law even if special law is an earlier one.
Applying first rule- PCMA will prevail
Abdul Kadir v. K Pechiammal: The issue was can muslim seek exemption from the
application of PCMA, a secular legislation which is applicable to all Indians. This girl
married at the age of 16 on her own volition. The girl said that muslim personal law she has a
special legislation and hence PCMA is not applicable. The court said that both these are
special laws. so, rule 2 and 3 won’t apply, but applying 1 st rule PCMA shall prevail. The
court said:
i) The PCMA intends to protect the interest and health of children and serve the
larger constitutional purpose. It applies to the whole of India.
ii) Both the PCMA and the Shariat act are special enactment and in case of a conflict
the PCMA would prevail applying the first rule
iii) However, in this situation there does not seem to be an apparent conflict between
both these legislations.
The court stated that in the interest of the cherish values of the constitution the court will
prefer the construction which advances the object and provides a remedy which is an
alignment with the parliamentary intent.

MEHR (DOWER):
 Meaning, Concept and Purpose: It was started to show respect towards the wife. Later
it was said that it can help the woman in her financial crisis, or death of husband.
Also, as husband has right to divorce, to keep a check on this was done. In the case of
Abdul Kadir, it was defined as Dower under the Mohameddan law is a sum of money
or other property promised by the husband to be paid or deliver to the wife in
consideration of the marriage and even where no dower is expressly fixed, the law
confers the right of dower upon the wife as necessary effect of marriage. It serves the
three following purposes:
i) To impose an obligation on husband as a mark of respect.
ii) To place a check on the capricious practice of divorce.
iii) To support the woman through financial crisis.

 Types of Dowers:
i) Specified Dower (Mahr-i-Musamma)- Specified at the time of Marriage.
Which can be divided as:
a) Prompt- That part of specified dower which the husband must pay it to the
wife on her demand, promptly.
b) Deferred- normally when the marriage is dissolved this deferred can be
paid. Or it can be also mentioned in the Nikah Nama ex. That after 5 yrs of
marriage deferred amount will be paid
In case of a specified dower when segregation between Prompt and deferred
has not happened, for the Sunni Muslims in such cases 50 percent is treated a
prompt and 50 percent is treated as deferred. For Shia Muslims, all the amount
or the entire amount will be treated as Prompt. If the prompt dower is not paid
on demand she has following recourse, if the marriage has not been
consummated the wife may refuse to cohabit with the husband and in a suit for
restitution of conjugal rights by the husband the wife has a complete defence.
 ii) Unspecified Dower (Proper dower or customary dower) (Mahr-i-Misl)
 Rights of the woman/ widow