COURSE MANUAL

FAMILY LAW I

Spring 2023
(AY 2022-23)

Course Instructors:

Alliya Anjum
S. Mercy Deborah
Ruchika Rao
Prama Mukhopadhyay
Tooba Shahzad

Office Hours: To be Confirmed

1
Table of Contents

PART I : GENERAL INFORMATION......................................................................................................... 3

PART II: COURSE DESCRIPTION, AIMS AND GRADING SCHEME............................................................. 3

A. COURSE DESCRIPTION.........................................................................................................................3
B. COURSE AIMS...................................................................................................................................9
C. TEACHING METHODOLOGY...................................................................................................................9
E. GRADING OF STUDENT ACHIEVEMENT...................................................................................................10

PART III: POLICIES............................................................................................................................... 12

PART IV: RECOMMENDED MATERIALS................................................................................................14

A. READING MATERIALS........................................................................................................................14
B. BARE ACT POLICY............................................................................................................................14
C. RECOMMENDED MEDIA:...................................................................................................................15
D. KEYWORDS FOR THE SYLLABUS...........................................................................................................15
E. WEEKLY COURSE OUTLINE.................................................................................................................16

PART V: RELEVANT READINGS............................................................................................................ 17

MODULE I: INTRODUCTION AND FAMILY ADJUDICATORY FORUMS IN INDIA.......................................................17

WEEK 1: INTRODUCTION TO THE COURSE AND THE CONCEPT OF FAMILY..................................................................17
WEEK 2: FAMILY ADJUDICATORY FORUMS IN INDIA: FAMILY COURTS AND RELIGIOUS COURTS....................................17
MODULE II: MARRIAGE UNDER HINDU AND MUSLIM PERSONAL LAW..............................................................18
WEEKS 3 AND 4: MARRIAGE UNDER THE HINDU MARRIAGE ACT, 1955 AND PROHIBITION OF CHILD MARRIAGE ACT, 2006
..................................................................................................................................................................18
WEEK 5: MUSLIM MARRIAGE: ESSENTIALS AND VALIDITY.....................................................................................20
MODULE III: CHRISTIAN MARRIAGE AND SPECIAL MARRIAGE LAWS..................................................................20
WEEK 6: CHRISTIAN MARRIAGE AND DIVORCE LAWS, AND LAW APPLICABLE TO SPECIAL MARRIAGES...........................20
MODULE IV: MATRIMONIAL RELIEFS..........................................................................................................21
WEEK 7: RESTITUTION OF CONJUGAL RIGHTS UNDER PERSONAL LAWS....................................................................21
WEEK 8: DIVORCE UNDER MUSLIM LAW............................................................................................................22
WEEKS 9 & 10: DIVORCE UNDER HMA AND SMA..............................................................................................23
MODULE V: CUSTODY, GUARDIANSHIP AND ADOPTION..................................................................................25
WEEK 11: CUSTODY AND GUARDIANSHIP...........................................................................................................25
WEEK 12: ADOPTION.....................................................................................................................................25
MODULE VI: MAINTENANCE.....................................................................................................................26
WEEK 13: MAINTENANCE UNDER HINDU AND MUSLIM LAW, AND UNDER THE DOMESTIC VIOLENCE ACT, 2005.........26
WEEK 14: MAINTENANCE IN NON-MARITAL INTIMATE PARTNERSHIPS....................................................................27
MODULE VII: THE UNIFORM CIVIL CODE DEBATE..........................................................................................27
WEEK 15: UCC DEBATES................................................................................................................................27

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 Part I : General Information

General Information on, FAMILY LAW I, offered by Jindal Global Law School

of the AY 2021-22

The information provided herein is by the Course Coordinator. The following information
contains the official record of the details of the course.

This information shall form part of the University database and may be uploaded to the
KOHA Library system and catalogued and may be distributed amongst ____ year Law
students for B.A.LL.B. (Hons), B.B.A.LL.B. (Hons); B.Com. LL.B. (Hons), B.A. (Hons)
Legal Studies, B.A. (Hons) Criminology and Criminal Justice; LL.B.; and LL.M. courses if
necessary.

Course Title: Family Law I

Course Code: L-CT-0010
Course Duration: One Semester (15 Weeks)
No. of Credit Units: 4 credits
Level: BA LLB/ BBA LLB/LLB
Medium of Instruction: English

Part II: Course Description, Aims and Grading Scheme

a. Course Description

‘Family’ in India suffuses both the private and public aspects of our daily lives. Family is not
only who we spend our lives with, and an important anchor of our identities, but is also how we
conduct our politics1 and the way we do our business.2 It is how we practice and produce law3,
1
Why Indian politics is a badly run family business, FIRSTPOST (Jul. 24, 2012), http://www.firstpost.com/blogs/why-
indian-politics-is-a-badly-run-family-business-388859.html.
2
India reportedly “has the highest percentage share of family businesses in Asia, accounting for 67 per cent of total
listed companies with market capitalisation of more than $50 million” “India Has Highest Share Of Family
Businesses In Asia,” INDIAN EXPRESS, Nov. 4, 2011, http://www.indianexpress.com/news/-india-has-highest-share-
of-family-businesses-in-asia-/870534/.
3
Shyamlal Yadav, It’s All In The Family: 146 MPs Employ Relatives As Their Personal Assistants, INDIAN
EXPRESS, May 15, 2013, http://www.indianexpress.com/news/its-all-in-the-family-146-mps-employ-relatives-as-
their-personal-assistants/1115983/; Saurabh Malik, Punjab & Haryana High Court:Relatives Of 9 Judges Appointed
Law Officers, THE TRIBUNE, Jul. 7, 2013, http://www.tribuneindia.com/2013/20130708/main5.htm.

3
and is a key determinant in the distribution of resources in any society. In every way, ‘family’ is
the primary vehicle through which we reproduce our society, not simply inter-generationally, but
on a daily basis. Quite naturally, then, the law is deeply invested in defining, and governing the
space called family. Family law, whether narrowly construed to mean only the laws that
determine on what terms ‘families’ may be forged, continued and dismantled – marriage,
guardianship, inheritance and divorce law – or taken its widest sense to mean the protean body of
all laws structuring and governing families – including within its sweep aspects of criminal law,
procedural law, banking and insurance law, taxation laws, service laws and constitutional law -
forms an important bulwark upon which the edifice of the law stands today. No branch of law
that one may study in law school, or take up as a career – from labour law, to corporate law,
taxation law and even intellectual property – is ever too remote from the question of family.

Given its importance, the study of Family law is a key foundational course taught at all law
schools across the world and is a compulsory subject prescribed by the Bar Council of India and
the UGC for earning a degree in law in India. Family Law at JGLS follows the bifurcated model
prescribed by the Bar Council and is divided into two courses spanning two semesters. Family
Law I concerns itself with the laws of marriage, matrimonial reliefs, spousal maintenance, the
custody of children, guardianship and adoption. This is followed by Family Law II which
concerns itself with laws of testamentary and intestate succession.

Why Study Family Law I?

There are several factors that make the study of Family law interesting and topical:
1) Family Law as the lone reminder of Pluralism in law schools: India is a diverse,
multi-cultural, multi-ethnic, polyglot, multi religious country. This is a quotidian fact,
evident to anyone who has spent even a minute on any Indian street, yet it is something
that could easily escape notice in any of India’s modern law schools. This is because the
study of law in India, particularly in any of the 5 year law schools, is given largely to the
austere study of ‘secular’ law such as torts, contracts, property, corporate law, taxation
etc. which take as their basic unit the de-racialized, casteless, de-gendered, liberal
subject. Against this context, Family Law in India is possibly one of the only courses
where the gender and the religion (sometimes even the caste) of the parties is enquired
into. Family Law has for good measure escaped the de-devinification of laws that has
been under way in India for the past 150 years. Hindus still marry under the Hindu
Marriage Act, Christians under the Indian Christian Marriage Act, Muslims under
uncodified Muslim Law, and Parsis under the Parsi Marriage and Divorce Act. To study
Family Law is thus in some senses to be transported back to the Indian streets, where the
manners, customs, dress of people make it impossible to ignore that we are, invoking
Amartya Sen’s vocabulary, diversely different4. Family Law ‘normalizes’ and even
celebrates this difference so that it does not appear, as it might from certain
fundamentalist viewpoints, as a source of anxiety, but as a source of vitality. 5 Family Law
is a ready resource in the pedagogy of legal polyvalence which will prepare students for
the complexity of issues such as equality, non-discrimination, gender justice, freedom of
4
Sen, Amartya, Identity and Violence: The Illusion of Destiny (Issues of Our Time),
5
We are not unmindful of the perils of romanticizing non-state law. Moving through this course, one is necessarily
reminded at every bend of Baxi’s caveat that “Pluralist social reality is, it appears, overwhelmingly oppressive of
women”.

4
 (religious) expression, cultural rights of communities and fraternity that they will
encounter as they embark on a study of constitutional law in their subsequent career
through law school.

2) Family Law as the Vanguard of Modern Law in India: Family law is the most ancient
of India’s ‘modern’ laws. Following the Regulating Act of 1773, the nascent colonial
state in India undertook to administer ‘personal’ laws in the governance of its subjects –
accordingly, the laws of the Koran would come to be applied to Muslims and the
‘Shastras’ would be administered to the ‘Gentoos’ (Hindus). In the century following this
innocuous legislation, a frenetic period of discovery of these personal laws was unleashed
in India. By the middle of the 19th century, Hindus and Muslims each had their own
discrete Procedural law, rules of Evidence, contract law, property law, and of course,
their own marriage and succession laws. With the wave of codification that commenced
in the 1860s, however much of this law came to be replaced by uniform, ‘secular’ laws
such as the Evidence Act, the Contract Act etc. Little today remains of the personal laws
discovered in the period, other than Family law which continues to be based on the
religion of the parties themselves. So to study Family law is therefore to undertake a
variety of legal time-travel – it is to journey back to the very roots of modern law in India
to a time when the personal was indeed political in every way 6. It is a retracing of the
pathways by which Indian law arrived at where we now stand.

3) Family Law as an Excursion into the Sociology of Law: Because of its antiquity, the
archive of Family Law offers students an encyclopedia of social change in India. Cases
on family law foreground questions of religious faith, norms of kinship, perceptions of
marital ties and obligations and norms of dispute resolution, which are recurrent themes
in sociology. When viewed over the span of nearly two centuries, these cases offer
students an incomparable ringside view of how the law has accommodated or fallen
behind social change. Nor is this merely a historical survey, since the terrain of family
law is constantly shifting and is almost every day in the news. In recent years, courts in
India have made the following pronouncements, reported in the media, which suggest
that the meaning and content of the ‘family’ is undergoing constant renegotiation:
a. In February 2009, the Delhi High Court held that “kissing in public by a married
couple was not obscene”.7
b. In July 2011, a court in Gurgaon ordered police protection to a runaway lesbian
couple conceding their claim that they had “married each other by signing an
affidavit before a public notary in Gurgaon.”8.

6
This phrase is used both in the immediately playful sense that, in India, till the 1860s, personal law was the
prevailing law that was applied in all political arenas including contract law, evidence etc; and was also in the more
specialized sense developed within the feminist movement in a manner in which gender structures operating within
the ‘personal’ family space had enormous bearing on everything outside that space – the public ‘political’ sphere.
7
Abhinav Garg, Kissing In Public By Married Couple Not Obscene: HC, TIMES OF INDIA, Feb. 2, 2009,
http://articles.timesofindia.indiatimes.com/2009-02-02/delhi/28022269_1_police-station-obscenity-metro-pillar.
8
Dipak Kumar Dash & Sanjay yadav, In A First, Gurgaon Court Recognizes Lesbian Marriage, TIMES OF INDIA,
Jul. 29, 2011, http://articles.timesofindia.indiatimes.com/2011-07-29/gurgaon/29828761_1_gurgaon-court-lesbian-
marriage-legal-marriage.

5
 c. In December 2018, the Supreme Court of India declared that consensual sex by
homosexual couples cannot be prosecuted under Section 377 of the Indian Penal
Code.9
d. In June 2013, in a decision that generated a lot of media debate, the Madras High
Court held that a couple engaging in pre-marital sex could be considered as
married for the purposes of law. 10 In May 2012, the Karnataka High Court held
that girls under 21 would need their parents’ consent for marriage. 11 In June 2012,
the Delhi High Court held that a Muslim girl could marry at 15 if she attained
puberty.12
e. In September 2012, the Bombay High Court “refused to allow a plea of a man for
a live-in relationship with his cousin as their marriage could not materialize in
view of prohibited degree of relationship under Hindu Marriage Act.” 13 In May
2012, a court in Mysore asked a woman to prove that her marriage to her cousin
was barred by custom and ordered her to live with her husband.14
f. In April 2012, the Karnataka High Court held that “Denying sex to husband
without any specific reason is cruelty and ground for divorce”. 15 In January 2013,
the Kerala High Court ruled that “a man's refusal to have children amounted to
cruelty” entitling his wife to a divorce.16
g. In October 2013 a family court in Mumbai ruled that a “Woman not doing chores
amounts to cruelty”.17 In July 2012, the Supreme Court granted divorce to a
woman for inter alia, “Crumpling the husband’s ironed clothes or hiding his
motorcycle keys to prevent him from going to office”. 18 In November 2008, the
Mumbai High Court granted a man’s divorce petition on the grounds that “he was
"traumatized" during his honeymoon by the spurt of acne vulgaris on his new
wife's face”.19

9
Navtej Singh Johar v Union of India and Others, Writ Petition (Criminal) 76 of 2016, SC.
10
Couples Who Have Premarital Sex To Be Considered “married,” Says HC, THE HINDU, Jun. 17, 2013,
http://www.thehindu.com/news/national/tamil-nadu/couples-who-have-premarital-sex-to-be-considered-married-
says-hc/article4824017.ece.
11
Girl Under 21 Must Get Parents’ Consent For Marriage, DECCAN HERALD, May 12, 2012,
http://www.deccanherald.com/content/160931/girl-21-must-get-parents.html.
12
Muslim Girl Can Marry At 15 If She Attains Puberty: Delhi High Court, TIMES OF INDIA, Jun. 5, 2012,
http://articles.timesofindia.indiatimes.com/2012-06-05/india/32055325_1_muslim-girl-mohammedan-law-minor-
daughter.
13
Court Says No To Man’s Live-In Relationship Plea With Cousin, NDTV.COM, Sep. 14, 2010,
http://www.ndtv.com/article/cities/court-says-no-to-man-s-live-in-relationship-plea-with-cousin-52023.
14
Hetal Vyas, Prove Marriage To Cousin Is Custom-Barred: HC, TIMES OF INDIA, May 16, 2012,
http://articles.timesofindia.indiatimes.com/2012-05-16/bangalore/31725556_1_hindu-marriage-act-cousins-family-
court.
15
Hetal Vyas, Denying Sex A Ground For Divorce: Karnataka HC, TIMES OF INDIA, Apr. 20, 2012,
http://articles.timesofindia.indiatimes.com/2012-04-20/india/31373128_1_family-court-share-bed-hindu-marriage-
act.
16
Mahir Haneef, No Children, No Marriage, Rules High Court, TIMES OF INDIA, Jan. 8, 2013,
http://articles.timesofindia.indiatimes.com/2013-01-08/kochi/36215465_1_mental-cruelty-allegation-high-court.
17
Woman Not Doing Chores Amounts To Cruelty: Court, DNA INDIA, Oct. 6, 2013,
http://www.dnaindia.com/mumbai/report-woman-not-doing-chores-amounts-to-cruelty-court-1899073.
18
J. Venkatesan, Supreme Court Grants Man Divorce From Wife Who Crumpled His Dress, And Life Too, THE
HINDU, Jul. 5, 2012, http://www.thehindu.com/news/national/supreme-court-grants-man-divorce-from-wife-who-
crumpled-his-dress-and-life-too/article3606800.ece.

6
 h. In February 2012, the Bombay High Court barred a divorced wife from using her
husband’s name and surname. 20
i. In December 2013, the Madhya Pradesh High Court ordered a Dalit man to
construct a toilet in his house as a condition of rejecting his wife’s divorce
petition.21
j. India has become home to one of the most thriving “surrogate” baby production
businesses – reportedly amounting to USD 2 billion. 22 In October 2013, the
Ministry of Home Affairs stopped issuing “tourist” visas for foreigners intending
to visit India for surrogacy. Henceforth, visitors intending to adopt surrogate
children would only be issued “medical” visas upon their compliance with
conditions including, inter alia that they had to be legally married for at least two
years and that they produce a “duly notarised agreement between the applicant
couple and the prospective Indian surrogate mother.” 23 This notwithstanding the
fact that India does not, thus far, have any law permitting the contractual creation
of parental rights (unless both parties are Hindu 24 and even in such cases prohibits
the exchange of any consideration between the contracting parents).
k. In November 2013, a trial court in New Delhi refused to grant maintenance to a
woman on the ground that “she was professionally more qualified than her
estranged husband”.25
l. In 2016, the Supreme Court granted divorce to a man on the ground of “cruelty,”
when his wife refused to live with her in-laws. The court observed that the desire
of a woman to leave her in-laws was inspired by “western culture” and violated
traditional values.26
What is discernible from this scattered compilation of news reports, is that despite being
amongst the oldest laws in India, Family Law simultaneously strikes one as a law that has
been freshly minted, made only yesterday. These are exciting times to be studying Family
Law as it has been laid down over generations, but with an eye to the directions it seems
to be heading.
4) Family Law as Site for Investigation into Patriarchy and Gender Justice: Although
its name holds out the promise that this course deals with the aggregated ‘family’, most

19
C. Unnikrishnan, Man Complains Wife Has Pimples, Gets Divorce, THE TIMES OF INDIA, Nov. 4, 2008,
http://articles.timesofindia.indiatimes.com/2008-11-04/mumbai/27901355_1_family-court-pimples-acne.
20
Swati Deshpande, Divorced Woman Can’t Use Ex’s Name, Rules HC, THE TIMES OF INDIA, Feb. 19, 2010,
http://articles.timesofindia.indiatimes.com/2010-02-19/india/28133848_1_family-court-divorce-fight-justice-roshan-
dalvi.
21
Anuraag Singh, In Madhya Pradesh, Dalit Man Building Loo To Save His Marriage, THE TIMES OF INDIA, Jan. 6,
2014, http://articles.timesofindia.indiatimes.com/2014-01-06/india/45917758_1_devi-lal-toilet-savita.
22
Himanshi Dhawan, Unregulated surrogacy industry worth over $2bn thrives without legal framework, THE TIMES
OF INDIA, Jul 18, 2013, http://timesofindia.indiatimes.com/india/Unregulated-surrogacy-industry-worth-over-2bn-
thrives-without-legal-framework/articleshow/21131823.cms
23
Bureau of Immigration, Surrogacy, Ministry of Home Affairs, Government of India,
http://boi.gov.in/content/surrogacy
24
See The Hindu Adoption and Maintenance Act, 1956.
25
Wife “More Qualified”, Court Rejects Alimony Plea, THE TIMES OF INDIA, Nov. 9, 2013,
http://articles.timesofindia.indiatimes.com/2013-11-09/delhi/43854262_1_alimony-plea-interim-maintenance-mp-
high-court.
26
Vidhi Doshi, India grants divorce to man whose wife refused to live with in-laws, THE GUARDIAN, Oct 8, 2016,
https://www.theguardian.com/world/2016/oct/08/india-divorce-man-cruelty-western-thought-in-laws

7
 frequently the cases that we deal with in this course pertain to the justice claims of
women seeking, as widows, wives, daughters, mothers, redress against the manifold
pathologies of the patriarchal families they have been incorporated into. It would be no
exaggeration to say that it is the fluctuating fortunes of women in courts of law over the
past 150 years that have given Family Law its current content. This is entirely
unsurprising since, to speak of women tends, in most cases, to be a metonym for speaking
broadly about the family, in a way that speaking about men is not. 27

Although this amplified focus on women has not consistently yielded them ‘justice’ in
the cases we read, the spotlighting of women in Family Law serves a vital function of
foregrounding the historical role of women as active agents of opposition to patriarchy
through the ages, rather than merely being regarded as passive subjects. This is
particularly important in the context of a Law School, where the presence of women in
most other areas of study – contract law, tort law, corporate law or property law tends to
be overlooked as merely incidental to the rational development of the law. The function
of these various laws in establishing and maintaining patriarchy is rarely, if ever directly
interrogated in these courses.28 Against this context, in its expectation that women
perform household chores29, bear primary responsibility for child-rearing 30, reside
ordinarily with the husband31, Family Law is a field that is ripe for fledgling feminist
interrogations by students into patriarchy and gender justice.

5) Family Law as a Theatre of Entertainment: Family Law bears out the truth of Leo
Tolstoy’s famous opening words from Anna Karenina: Happy families are all alike;
27
Many studies underscore the fact that the standard of living of families, especially among the poor, is linked
directly to the welfare of the woman. To provide for the woman is thus to provide for the entire household in ways
that providing for a man is not. See BINA AGARWAL, A FIELD OF ONE’S OWN GENDER AND LAND RIGHTS IN
SOUTH ASIA (Cambridge South Asian studies, Cambridge [U.K.] ; New York, Cambridge University Press 1994).
28
As Linda Mulcahy notes in relation to contract law, an insight which could be easily applied to other traditional
areas taught at law schools, “the emphasis placed on self-regarding, autonomous and competitive contractors by
classical and neo-classsical scholars has led to calls that the law.. is phallocentric and centrally located in a
suppression of feminist voice and feminist values” LINDA MULCAHY & SALLY WHEELER, FEMINIST PERSPECTIVES
ON CONTRACT LAW 1 (Psychology Press 2005).
29
Woman Not Doing Chores Amounts To Cruelty: Court, supra note 14.
30
In a number of cases, courts have held that the custody of minor children should remain with the mother. Although
these are welcome rulings in the particular contexts in which they arise (typically the abduction of children by the
father), they do enjoin a particular role of domesticity and care-giving upon women as a whole that may impede the
advancement of women’s rights in other domains. Child’s Custody Should Be With Mother Even If She Has A
job:HC, INDIAN EXPRESS, Jun. 22, 2011, http://archive.indianexpress.com/news/childs-custody-should-be-with-
mother-even-if-she-has-a-jobhc/807126/0.
31
Courts in India have vacillated on this point although a more recent trend is for courts to permit women who are
employed to live apart from their husbands without being susceptible to charges of desertion. Perhaps the most
regressive amongst the rulings on this point is the Punjab and Haryana High Court decision in Kailash Wati v.
Avodhia Parkash (1977) 79 Punj LR 216 in which it the court held that a wife’s refusal to give up her job and join
her husband would amount to desertion. A review petition against this judgment was declined by a three judge
bench of the same court in 1984 in Pritam Kaur v. Surjit Singh AIR 1984 P&H 113. A more recent affirmation of
this prejudice amongst judges is in a recent Bombay High Court decision where the court observed that a “wife
should be like goddess Sita who left everything and followed her husband Lord Rama to a forest and stayed there for
14 years” implying that the ordinary residence of a woman should be wherever her husband chooses to live. PTI, A
Wife Should Be Like Goddess Sita, THE TIMES OF INDIA, May 8, 2012,
http://articles.timesofindia.indiatimes.com/2012-05-08/mumbai/31625421_1_bombay-hc-wife-shot-bombay-high-
court-today.

8
 every unhappy family is unhappy in its own way. Intimate family histories are laid bare
for public speculation in the archive of family law cases. Each individual case offers us a
microscopic view into an Indian family and, taken together, the archive can be read as a
magisterial catalogue of everything that could possibly go wrong in an unhappy Indian
family. But this is in fact a resource that makes teaching Family law a lot easier, because
for better or for worse, Family Law is a voyeur’s delight, and we are all expert voyeurs in
this country where ‘family drama’ has historically been the predominant theme of
entertainment. From the epics, the Mahabharata and the Ramayana, to Indian cinema and
‘Saas Bahu’ soap operas which have mass regional audiences, law students come to
Family Law with a whetted appetite for consuming the pathologies of Indian families.
While one must take care to not treat this archive with insensitivity, it is impossible not to
co-opt this schadenfreude as a pedagogic resource. Family Law is thus a subject which
harnesses students’ immersion in media, as well as their own experiences within their
own families. In Family Law, not only is gossip not disapproved, but is almost a weekly
course requirement.

b. Course Aims

The course aims at providing students with an in-depth overview of the laws of marriage,
divorce, maintenance, adoption and guardianship in India. Additionally, it seeks to initiate
students into feminist debates about gender justice within the family.

c. Teaching Methodology

The course will be taught through a combination of methods including lectures, class exercises,
tutorials, quizzes etc. Students will be assessed on the basis of their ability to read and critically
evaluate the essential readings set out in this manual. Students are expected to review the course
materials in advance of each class and may be called-on to participate in the class without prior
notice. Thorough preparation, active participation and contribution of students in the class will
be monitored by the course instructors on a continuous basis throughout the semester.

d. Intended Learning Outcomes

Course Intended Learning Weigh Teaching and Assessment Tasks/

Outcomes t Learning Activities Activities

 Demonstrate knowledge, 100 % Reading of relevant

understanding, and an cases, statutes, and • End Term Examination
ability to critically other legal materials. (50%)
analyze the relevant Students are expected
statutes, and other to read and critically • Internal Assessment: Mid-
prescribed reading analyze the wide Semester Examination/
materials relating to range of materials Presentation/Class

9
 Course Intended Learning Weigh Teaching and Assessment Tasks/
Outcomes t Learning Activities Activities

Family Law I. included in the participation/Assignments

Course Manual or in (50%)
• Apply the legal rules of handouts. These
Family Law I to solve legal materials include
problems by: select text-book
- developing strong legal excerpts, edited case
methodologies, including but reports, unabridged
not limited to, methods of cases, journal articles
statutory interpretation and and selected
case analysis. legislations.
- researching issues of
Family Law
• Communicating their
solutions orally and in
writing -clearly, coherently
and accurately in their own
words and in plain language.
 Students will develop
an understanding of the
interaction between families;
law and society through a
variety of primary and
secondary materials, both
legal and sociological
literature and class
discussions. Students will
acquire a basic
understanding of importance
of law in creating and
reinforcing social values.
They will be able to
critically explore ideas for
legal reforms through this
understanding. Further,
students will also learn to
comprehend legal issues and
apply legal rules to a given
situation/case through
background readings and
case-law analysis. Students’
ability to examine the
readings in the socio-cultural
context and their ability to

10
 Course Intended Learning Weigh Teaching and Assessment Tasks/
Outcomes t Learning Activities Activities

solve legal problem, will be

evaluated through various
forms of assessments.

e. Grading of Student Achievement

To pass this course, students must obtain a minimum of 40% in the cumulative aspects of
coursework, e.g., moot, and final examination. End of semester exam will carry 50 marks out of
which students have to obtain a minimum of 15 marks to fulfil the requirement of passing the
course.

The details of the grades as well as the criteria for awarding such grades are provided below.

Letter Percentage Grade Definitions

Grade Of marks
O 80% and above Outstanding Outstanding work
with strong
evidence of
knowledge of the
subject matter,
excellent
organizational
capacity, ability to
synthesize and
critically analyse
and originality in
thinking and
presentation.
A+ 75 to 79.75% Excellent Sound knowledge
of the subject
matter, thorough
understanding of
issues; ability to
synthesize
critically and
analyse
A 70 to 74.75% Good Good
understanding of
the subject matter,
ability to identify

11
 issues and provide
balanced solutions
to problems and
good critical and
analytical skills.
A- 65 to 69.75% Adequate Adequate
knowledge of the
subject matter to
go to the next level
of study and
reasonable critical
and analytical
skills.
B+ 60 to 64.75% Marginal Limited knowledge
of the subject
matter, irrelevant
use of materials
and poor critical
and analytical
skills.
B 55 to 59.75% Poor Poor
comprehension of
the subject matter;
poor critical and
analytical skills
and marginal use
of the relevant
materials.
B- 50 to 54.75% Pass “Pass” in a pass-
fail course. “P”
indicative of at
least the basic
understanding of
the subject matter.

NEW COURSE LETTER GRADES AND THEIR INTERPRETATION

Letter Percentage Grade
Interpretation
Grade of Marks Points
Pass 1: Pass with Basic understanding of the
P1 45 - 49 2
subject matter.
Pass 2: Pass with Rudimentary
P2 40 - 44 1
understanding of the subject matter.
F Below 40 0 Fail: Poor comprehension of the subject
matter; poor critical and analytical skills and
marginal use of the relevant materials. Will

12
 NEW COURSE LETTER GRADES AND THEIR INTERPRETATION
Letter Percentage Grade
Interpretation
Grade of Marks Points
require repeating the course.
Extenuating circumstances preventing the
student from completing coursework
assessment, or taking the examination; or
where the Assessment Panel at its discretion
I Incomplete
assigns this grade. If an "I" grade is assigned,
the Assessment Panel will suggest a schedule
for the completion of work, or a
supplementary examination.

Part III: Policies

Course/Class Policies

Cell Phones, Laptops and Similar Gadgets: Subject to the discretion of respective Instructors.

Academic Integrity and Honesty

Learning and knowledge production of any kind is a collaborative process. Collaboration

demands an ethical responsibility to acknowledge who we have learnt from, what we have
learned, and how reading and learning from others have helped us shape our own ideas. Even our
own ideas demand an acknowledgement of the sources and processes through which those ideas
have emerged. Thus, all ideas must be supported by citations. All ideas borrowed from articles,
books, journals, magazines, case laws, statutes, photographs, films, paintings, etc., in print or
online, must be credited with the original source. If the source or inspiration of your idea is a
friend, a casual chat, something that you overheard, or heard being discussed at a conference or
in class, even they must be duly credited. If you paraphrase or directly quote from a web source
in the examination, presentation or essays, the source must be acknowledged. The university has
a framework to deal with cases of plagiarism. All form of plagiarism will be taken seriously by
the University and prescribed sanctions will be imposed on those who commit plagiarism.

Disability Support and Accommodation Requirements

JGU endeavours to make all its courses accessible to students. The Disability Support
Committee (DSC) has identified conditions that could hinder a student’s overall well-being.
These include physical and mobility related difficulties, visual impairment, hearing impairment,
mental health conditions and intellectual/learning difficulties e.g., dyslexia and dyscalculia.
Students with any known disability needing academic and other support are required to register
with the Disability Support Committee (DSC) by following the procedure specified at
https://jgu.edu.in/disability-support-committee/

13
Students who need support may register any time during the semester up until a month before the
end semester exam begins. Those students who wish to continue receiving support from the
previous semester, must re-register within the first month of a semester. Last minute registrations
and support might not be possible as sufficient time is required to make the arrangements for
support.

The DSC maintains strict confidentiality about the identity of the student and the nature of their
disability and the same is requested from faculty members and staff as well. The DSC takes a
strong stance against in-class and out-of-class references made about a student’s disability
without their consent and disrespectful comments referring to a student’s disability.

All general queries are to be addressed to disabilitysupportcommittee@jgu.edu.in

Safe Space Pledge

This course may discuss a range of issues and events that might result in distress for some
students. Discussions in the course might also provoke strong emotional responses. To make sure
that all students collectively benefit from the course, and do not feel disturbed due to either the
content of the course or the conduct of the discussions. Therefore, it is incumbent upon all within
the classroom to pledge to maintain respect towards our peers. This does not mean that you need
to feel restrained about what you feel and what you want to say. Conversely, this is about
creating a safe space where everyone can speak and learn without inhibitions and fear. This
responsibility lies not only with students, but also with the instructor.

P.S. The course instructor, as part of introducing the course manual, will discuss the scope of the
Safe Space Pledge with the class.

Part IV: Recommended Materials

a. Reading Materials

The list of relevant Readings is provided in the weekly course plan in Part V below

Recommended Books:

1. Mulla, D.F., Mulla: Hindu Law. Satyajeet A. Desai, ed, 21st ed., New Delhi: Lexis
Nexis Butterworths, 2013. (23rd Edition) is also permitted.
2. Mulla, D.F., Mulla: Principles of Mahomedan Law. 20th ed., Cambridge: Harvard
University Press, 2014.
3. Mayne, John Dawson, Treatise on Hindu Law and Usage, 17th ed., Cambridge: Harvard
University Press, 2014.
4. Halsbury’s Laws of India, Family law I - Vol. 19 and 20, (2nd ed., 2014)

14
 5. Agnes, Flavia, Family law II: Marriage, Divorce, and Matrimonial Litigation. New
Delhi: Oxford University Press, 2011.
6. Mahmood, Tahir (ed.), A.A. Fyzee’s Outlines of Muhammedan Law, 3rd ed. New Delhi:
Oxford University Press, 2008.
7. Tahir Mahmood and Saif Mahmood, Introduction to Muslim Law, 2nd Edition, Gurgaon:
Lexis Nexis Publications, 2018.
8. Rajkotia, Malavika, Intimacy Undone: Marriage, Divorce and Family Law in India, New
Delhi: Speaking Tiger Books, 2017.

b. Bare Act Policy

As per policy shared by the Examinations Office, Bare Acts from only these publications
are permitted:

1. Professional Book Publishers (without short comments/notes)

2. Law and Justice Publishing Co. (without short comments)
3. Commercial Publishers (without short comments)
4. Lawmann’s (without short comments)
5. Law Literature Publications (without short comments)
6. Taxmann Publications (with short comments).
7. Universal Publications (with short comments).

Please note that Universal’s Manual of Marriage and Divorce Laws (with short
comments) is permitted. Some statutes that are part of the course may not be included in
this manual. Separate Bare Acts will have to be purchased for those.

Statutes that are part of the course are listed below:

The Family Courts Act, 1986

Hindu Marriage Act, 1955
Prohibition of Child Marriage Act, 2006
The Shariat Application Act, 1937
The Indian Christian Marriage, 1872
Indian (Christian) Divorce Act, 1869
The Special Marriage Act, 1954
Muslim Women (Protection of Rights on Marriage) Act, 2019
Hindu Minority and Guardianship Act, 1956
Guardians and Wards Act, 1890
Hindu Adoptions and Maintenance Act, 1956
Juvenile Justice Act, 2015
The Protection of Women from Domestic Violence Act, 2005
The Muslim Women (Protection of Rights on Divorce) Act, 1986
125 – 128 Cr.P.C

15
 c. Recommended Media:

1. Mr. and Mrs. 55(1955)

2. Water (2005)
3. The Burning Bed (1984)
4. Blue Valentine (2010)
5. War of the Roses (1989)
6. Provoked (2006)
7. The Good Mother (1988)
8. I am Sam (2001)
9. Immediate Family (1989)
10. Hollow Reed (1996)
11. Intolerable Cruelty (2003)
12. The Kids are All Right (2010)
13. Not Without my Daughter (1991)
14. A Separation (2011)
15. Nikah (1982)
16. The Marriage Story (2019)
17. Indian Matchmaking – Netflix (2020)
18. The Betty Broederick Story – Netflix (2020)
19. The Great Indian Kitchen (2021)

d. Keywords for the Syllabus

Meaning of family, Hindu Marriage Act – Who is a Hindu; Conditions of a valid

marriage, Void and Voidable Marriages; Restitution of Conjugal Rights, Judicial
Separation, Divorce, Maintenance; Muslim Personal Law - Sources of Mohammedan
law, Conditions of a valid marriage, Option of Puberty, Mahr; Special Marriage Act -
Procedure for solemnizing a marriage under the Act, conditions for a valid marriage, void
and voidable marriages; Christian Marriage Law – Procedure for solemnizing a valid
marriage, void and voidable marriages; Divorce in Hindu and Muslim Laws, triple talaq,
iddat; Maintenance – Under Cr.P.C, Hindu and Muslim personal laws, shah bano
judgment; Domestic Violence Act – rights of women in a relationship in the nature of
marriage or live-in relationships; The Hindu Adoptions and Maintenance Act, Adoption,
Custody and Guardianship under Hindu, Muslim and Christian Personal Laws; Uniform
Civil Code.

e. Weekly Course Outline

Week 1 Introduction to the Course

Week 2 Family Adjudicatory Forums in India: Family Courts & Religious

16
 Courts
Week 3 Marriage under Hindu Marriage Act, 1955 & Prohibition of Child
Marriage Act, 2006
Week 4 Marriage under Hindu Marriage Act, 1955 & Prohibition of Child
Marriage Act, 2006
Week 5 Muslim Marriages: Essentials & Validity
Week 6 Christian Marriage and Divorce Laws, and Law Applicable to Special
Marriages
Week 7 Restitution of Conjugal Rights under Personal Laws
Week 8 Divorce under Muslim Law
Week 9 Divorce under Hindu Marriage Act, 1955 & Special Marriage Act,
1954
Week 10 Divorce under Hindu Marriage Act, 1955 & Special Marriage Act,
1954
Week 11 Custody & Guardianship
Week 12 Adoption
Week 13 Maintenance under Hindu & Muslim Personal Law, Domestic
Violence Act, 2006
Week 14 Maintenance in Non-Marital Relationships
Week 15 Uniform Civil Code

Part V: Relevant Readings

MODULE I: Introduction and Family Adjudicatory Forums in India

Week 1: Introduction to the Course and the Concept of Family

This week will introduce the course aims, course structure and assessment methods. We will
foreground discussions of various thematic areas of family law, by exploring ongoing debates
surrounding the meaning of “family,” while pivoting them in domestic legal developments.

17
Essential Readings:

 Arijeet Ghosh and Diksha Sanyal, “How can Families be Imagined Beyond Kinship and
Marriage,” Economic and Political Weekly 54, no. 45 (2019),
https://www.epw.in/engage/article/how-can-families-be-imagined-beyond-kinship-and-
marriage

Further Readings:

 “Transgender Bill 2019 is About Disciplining Minorities and Upholding a Patriarchal

Family Structure,” EPW Engage, December 10, 2019,
https://www.epw.in/engage/article/transgender-bill-2019-about-patriarchy-family-
disciplining
 “Centre opposes plea before Delhi HC assailing provisions of surrogacy law,” The Print,
November 07, 2022, https://theprint.in/india/centre-opposes-plea-before-delhi-hc-assailing-
provisions-of-surrogacy-law/1202414/
 Martha Fineman, “Intimacy Outside the Natural Family: The Limits of Privacy,”
Connecticut Law Review 23 (1991): 955
 Martha Fineman, Sexual Family in “Feminist and Queer Legal Theory: Intimate Encounters,
Uncomfortable Conversations” Martha Fineman, Jack E Jackson and Adam P. Romero,
Ashgate Publishing Ltd (2009)
 Jonathan Herring, Family Law and Caring (Chapter 6, pp 187-232) in “Caring and the
Law”, Hart Publishing (2013).

Week 2: Family Adjudicatory Forums in India: Family Courts and Religious Courts

This week will examine and critically analyze state and non-state forums for adjudicating family
law in India including Family Courts and Informal judicial forums. The background to the
establishment of Family Courts in India, their jurisdiction, procedural innovations, and the
legality of informal forums like Sharia “Courts” will be explored.

Essential Readings:

 The Family Courts Act, 1986 – Chapters II, III, IV.

 Sonia Kunwar Singh Bedi v. Kunwar Singh Bedi, Civil Application No. 448 of 2014 in
Family Court Appeal No. 142 of 2014
 Vishwa Lochan Madan v Union of India (2014) 7 SCC 707.

Further Readings:

18
 Deepti Kapur vs Kunal Julka, Delhi High Court, 30 June, 2020.
 Santhini v Vijaya Venketesh, 2017 SC 1140. Especially Justice DY Chandrachud’s
dissenting opinion.
 Flavia Agnes, “Family Courts and Gender Justice,” In Family Law II: Marriage, Divorce
and Matrimonial Litigation, New Delhi: Oxford University Press, 2011, Chapter 3.
 Sylvia Vatuk, The “Women's Court” in India: An Alternative Dispute Resolution Body for
Women in Distress, The Journal of Legal Pluralism and Unofficial Law 45: 1(2013): 76-103.
 Mengia Hong Tschalaer, “Muslim Women’s Quest for Justice: Gender, Law and Activism in
India,” New Delhi: Cambridge University Press,” 2017. Excerpts
 NoorJehan Safia Niaz, “Women’s Shariah Court, Muslim Women’s Quest for Justice: An
Alternative Dispute Resolution Forum for and by Muslim Women,” Chennai: Notion Press,
2016.
 Srimati Basu. “Judges of Normality: Mediating Marriage in the High Court of Kolkata,
India.” Signs Vol. 37, No. 2, Unfinished Revolutions: A Special Issue edited by Phillip
Rothwell (January 2012), pp. 469-492. Excerpts

MODULE II: Marriage under Hindu and Muslim Personal Law

Weeks 3 and 4: Marriage under the Hindu Marriage Act, 1955 and Prohibition of Child
Marriage Act, 2006

This week will discuss questions such as forms of marriage recognized under the Hindu
Marriage Act, 1955 (HMA) and also explore related issues, such as, who is considered a Hindu
for the purposes, the position of custom and culture in statute and jurisprudence. Conditions for a
valid Hindu marriage such as monogamy, age, prohibited degrees of relationship, Sapinda
relations and the requirement of a valid ceremony will be studied highlighting the diversity of
marriage practices among Indian Hindus. Relatedly, void and voidable marriages under the Act,
and the effect of religious conversion on the validity of marriage will be examined.

Essential Readings:

 Flavia Agnes, “Hindu Men, Monogamy and Uniform Civil Code,” Economic and Political
Weekly 30, no.50 (1995): pp. 3238-3244.
Statutes/ Provisions:
1. Sections 2, 5, 7, 11, 12, 17, 18 of the HMA.
2. The Prohibition of Child Marriage Act, 2006.

Cases:
1. Sondur Gopal v Sondur Rajini, Civil Appeal No.4629 Of 2005, SC, 2013
2. Gullipilli Sowria Raj v Bandaru Pavani, AIR 2009 SC 1085
3. Arunkumar and Sreeja v. Inspector General of Registration and Others, WP(MD)No.4125 of
2019
4. Ram Prasad v. State of UP, AIR 1961 All 334
5. Bhaurao Lokhande v. State of Maharashtra AIR 1965 SC 1564

19
6. S. Nagalingam v Sivagami, AIR 2001 SC 3576
7. Sarla Mudgal v Union of India, AIR 1995 SC 1531; 1995 SCC (3) 635
8. Lily Thomas V Union of India, AIR 2000 SC 1650
9. Navalkar v Meena Arun Navalkar, AIR 2006 Bom 342
10. P. Venkataramana v State, AIR 1977 AP 43

Further Readings:

 S. 375 IPC, Protection of Children from Sexual Offences Act, 2016 – Secs 2 (d), 2(k), 5 (a)
and (n), 6.
 Independent Thought v Union of India, AIR 2017 SC 4904
 Ravi Kumar v The State, 124 (2005) DLT 1
 Seema v Ashwani Kumar, (2006) 2 SCC 578
 Nupur Thapliyal, “Delhi High Court Passes Split Verdict on Criminalizing Marital Rape
Justice Rajiv Shakdher Holds Exception 2 Of Section 375 IPC Unconstitutional,” Live Law,
May 11, 2022, https://www.livelaw.in/top-stories/delhi-high-court-passes-split-verdict-on-
criminalizing-marital-rapejustice-rajiv-shakdher-holds-exception-2-of-section-375ipc-
unconstitutional-198832?from-login=741031
 Madhu Kishwar, “Codified Hindu Law: Myth and Reality”, Economic and Political Weekly,
Vol. 29(33): 1994, pp 2145-2161
 Tejas Harad, “Rites and Wrongs: How Satyashodhak weddings resist Brahmanical rituals,”
The Caravan, July 01, 2021, https://caravanmagazine.in/communities/satyashodhak-
marriages-resist-brahminical-rituals
 Esha Roy, “Raising legal age of marriage for women: the law, the reasons and the criticism,”
The Indian Express, December 16, 2021, https://indianexpress.com/article/explained/raising-
legal-age-for-marriage-for-women-law-reasons-criticism-7675447/
 Jhuma Sen, “Righting Sarla Mudgal v Union of India and Others,” Jindal Global Law
Review, April 2016, Vol 7, Issue 1, pp 97-112
 Preventing Bigamy via Conversion to Islam – A Proposal for Giving Statutory Effect to
Supreme Court Rulings, Law Commission Report No. 227, August 2009.
 J. Duncan M. Derrett, “Statutory Amendments of the Personal Law of Hindu Since Indian
Independence,” The American Journal Of Comparative Law Vol. 7, No. 3 (Summer, 1958),
pp. 380-393.
 Proposal to Amend the Prohibition of Child Marriage Act, 2006 and Other Allied Laws, Law
Commission Report 205, February 2008.
 Ruth Vanita, Love’s Rites: Same Sex Marriage and Its Antecedents in India and the US.
Basingstoke: Palgrave Macmillan, 2005.

Week 5: Muslim Marriage: Essentials and Validity

This week will elaborate upon the key sources of Muslim law and the conditions necessary for a
valid Muslim marriage, including, age, consent, dower and witnesses. The principle of “Option
of Puberty” and the conditions for its operation will be discussed.

20
Essential Readings:

 The Shariat Application Act, 1937, Especially Section 2.

 Asaf Fyzee: Outlines of Muhammadan Law, p. 69-116.

Cases:
1. Abdul Kadir v. Salima And Anr, (1886) ILR 8 All 149
2. Mohd. Nihal v. State, W.P. (CRL.) 591/2008, Delhi High Court, July 8, 2008.
3. Khursheed Ahmad Khan v. State of U.P., SC, Civil Appeal No.1662 Of 2015

Further Readings:

 David Pearl, “Who is a Muslim?”, Journal of the Indian Law Institute, Vol. 17, No. 2 (April-
June 1975), pp. 272-280
 Lucy Carroll, “The Right to Avoid an arranged Marriage Contracted During Minority,”
Journal of Indian Law Institute 23 (1981): 149-80.
 Michael Anderson, Islamic Law and the Colonial Encounter in British India, WLUML
Occasional Paper No. 7 - June 1996.
 Hirbae and Others v. Sonabae. (The Kojahs and Memons case)
 Tara Bano v Iqbal Mohd , Second Appeal No. 434/2007, Rajasthan High Court, 2009
 Sylvia Vatuk, “What Can Divorce Stories Tell Us about Muslim Marriage in India?” In S.
Basu and L. Ramberg, eds., Conjugality Unbound: Sexual Economies, State Regulation and
the Marital Form in India, pp. 190-216. Delhi: Women Unlimited, 2015.

Module III: Christian Marriage and Special Marriage Laws

Week 6: Christian Marriage and Divorce Laws, and Law Applicable to Special Marriages.

This week discusses conditions of a valid, void and voidable marriages and modes of
solemnization of marriages under The Indian Christian Marriage, 1872; The Special Marriage
Act, 1954 (SMA); Various critical issues emerging from the procedural requirements under the
SMA will be highlighted.

Essential Readings:

 Sections 4, 5 and 10 of the Indian Christian Marriage Act, 1872.

 Indian (Christian) Divorce Act, 1869 (Especially Chapters III and IV)
 The Special Marriage Act, 1954.

Cases:

Christian Marriage and Divorce Laws

21
1. Lakshmi Sanyal v. Sachit Kumar Dhar, AIR 1972 SC 2667

Special Marriage Laws

1. Vivan Varghese v. The State of Kerala and Ors., High Court of Kerala At Ernakulam Wp(C).
No. 16350 Of 2015 (P)
2. Deepak Krishna v. District Registrar and Ors., AIR 2007 Ker 257

Further Readings:

 Safiya Sultana v. State of UP, Allahabad, 2021.

 A & Anr. v. State of Haryana (CWP No.15296 of 2018, P&H High Court, 20 July 2018)
 Pranav Kumar Mishra & Anr. v. Govt. of Nct. of Delhi & Anr. (WP(C) No.748/2009)
 Leelamma v. Dilip Kumar, AIR 1993 Ker 57
 Sujatha v. Jose Augustine (1994) II DMC 442
 Molly Joseph v. George Sebastian, AIR 1997 SC 109
 “SC agrees to consider transferring same-sex marriage pleas to itself,” Hindustan Times,
December 14, 2022, https://www.hindustantimes.com/india-news/sc-agrees-to-consider-
transferring-same-sex-marriage-pleas-to-itself-101671040628351.html
 Perveez Modi, “Love and the Law: Love Marriage in Delhi,” Modern Asian Studies 36,
no.1 (2002): 223-256.
 Aneesha Mathur, “No one is dying due to lack of marriage registration: Centre tells HC
on same-sex marriage plea,” The Wire, May 21, 2021,
https://www.indiatoday.in/india/story/no-one-is-dying-due-to-lack-of-marriage-
registration-centre-tells-hc-on-same-sex-marriage-1806426-2021-05-24 (Last Accessed
Jun 19, 2021)
 Nandini Chatterjee, “Religious Change, Social Conflict and Legal Competition: The
Emergence of Christian Personal Law in Colonial India,” Modern Asian Studies 44, 6
(2010) pp. 1147–1195

Module IV: Matrimonial Reliefs

Week 7: Restitution of Conjugal Rights under Personal Laws

This week examines the law and principles that apply to the “matrimonial relief” of restitution of
conjugal rights. We explore how it is understood and applied in Indian jurisprudence, and discuss
its gendered implications, including those on privacy and bodily autonomy.

Essential Readings:

1. Kailash Vati v Ayodhia Prakash (1977) 79 PLR 216

2. Swaraj Garg v. Garg AIR 1978 Delhi 296
22
 3. T. Sareetha v. T.Venkata Subbaih AIR 1983 AP 356
4. Harvinder Kaur v. Harmander Singh AIR 1984 Del 66
5. Saroj Rani v. Sudershan Kumar AIR 1984 SC 1562

Further Readings:

 Krishnadas Rajagopal, “Plea on Conjugal Rights Pending in Supreme Court,”Live Law,

January 23, 2022,https://www.thehindu.com/news/national/months-since-sc-heard-challenge-
to-restitution-of-conjugal-rights-which-pits-right-to-privacy-with-sanctity-of-marriage/
article38314467.ece
 Kanika Sharma, “Withholding Consent to Conjugal Relations within Child Marriages in
Colonial India: Rukhmabai’s Fight,” Law and History Review 38, no. 1 (2020): 151-175
 Gautam Bhatia, “Privacy beyond the Public/Private Divide: Sareetha and Freedom within the
Family,” In The Transformative Constitution: A Radical Biography in Nine Acts. New Delhi:
HarperCollins, 2019, pp 216-250.
 Sumit Sarkar and Tanika Sarkar (ed.) Women and Social Reform in Modern India, New
Delhi: Permanent Back, 2007, pp 420-457.
 Saumya Uma, Wedlock or Wed-Lockup? A Case for Abolishing Restitution of Conjugal
Rights in India, International Journal of Law, Policy and the Family, Volume 35, Issue 1,
2021

Week 8: Divorce under Muslim Law

In this week, we discuss the concept of and types of divorce (talaq) in Muslim personal law. We
discuss the jurisprudence of high courts and the Supreme Court in order to examine the limits
and validity of kinds of divorce pronounced by a Muslim male as well as divorce at the initiative
of a Muslim female. The evolution of judicial prohibitions on instantaneous “triple talaq” and the
current position of its legal validity will be examined along with critiquing attendant issues.

Essential Readings:

Judicial Divorce by Wife under the Dissolution of Muslim Marriages Act, 1939

1. Itwari v. Asghari and Ors, AIR 1960 All 684

2. Abdurahiman v. Khairunnessa, Kerala High Court, March 1, 2010
3. Yousuf Rawther v. Sowramma, AIR 1971 Ker 261

Extrajudicial Divorce at the instance of the Husband

4. Shamim Ara v. State Of U.P., KLT 2002(3) (SC) 537

5. Masroor Ahmad v NCT of Delhi, 2008 (103) DRJ 137

23
6. Saptarshi Mandal, “Triple Talaq Judgment and the Continuing Confusion about the
Constitutional Status of Personal Law,” Economic and Political Weekly no.52, Vol. 35
(2017).

Further Readings:

 Krishnadas Rajagopal, “Prima facie Talaq-e-Hasan is ‘not so improper’ says Supreme

Court,” August 16, 2022, Live Law, https://www.thehindu.com/news/national/prima-
facie-talaq-e-hasan-not-improper-supreme-court-justice-sanjay-kishan-kaul/
article65774394.ece
 X v Y, Kerala, Matrimonial Appeal. Nos. 89 of 2020, 72/2021
 Lucy Carroll, “Talaq-i-Tafwid and Stipulations in a Muslim Marriage Contract:
Important Means of Protecting the Position of the South Asian Muslim Wife,” Modern
Asian Studies 16, no.2 (1982): 277-309.
 Sylvia Vatuk, “Divorce at the Wife’s Initiative in Muslim Personal Law: What are the
Options and What are their Implications for Women’s Welfare,” In Redefining Family
Law In India: Essays in Honor of B. Sivaramayya. Archana Parashar and Amita Dhanda,
eds. London and New Delhi: Routledge, 2008, pp 200-235.
 Marium v Shamsi Alam, 2008 (103) DRJ 137
 Muslim Women (Protection of Rights on Marriage) Act, 2019
 Flavia Agnes, “Muslim Women’s Rights and Media Coverage,” Economic and Political
Weekly 51, no.21 (2016), http://www.epw.in/journal/2016/20/web-exclusives/muslim-
womens-rights-and-media-coverage.html
 Special Issue on Triple Talaq, The Invisible Lawyer, September 01, 2017,
http://www.lawyerscollective.org/the-invisible-law-categories/special-issue/triple-talaq
 Ratna Kapur, “Triple Talaq Judgment: Wherein Lies the Much Hailed Victory?,” The
Wire, Oct 28, 2017, https://thewire.in/171234/triple-talaq-verdict-wherein-lies-the-much-
hailed-victory/
 Sylvia Vatuk, “Islamic Feminism in India: Indian Muslim Women Activists and the
Reform of Muslim Personal Law,” Modern Asian Studies 42, no. 2-3(March 2008): 489-
51.

Weeks 9 & 10: Divorce under HMA and SMA

In these two weeks, grounds of divorce under HMA and SMA will be discussed, while looking at
them through the prism of the different theories of divorce. The invocation of “Irretrievable
Breakdown of Marriage” as a ground of divorce will be explored through jurisprudence. Bars to
matrimonial relief will also be elaborated upon.

Essential Readings:
 Sections: 13, 13 A, 13 B, 15, 23, 28 of Hindu Marriage Act
 Section 27, 28 of the Special Marriage Act.

Cases:
Cruelty

24
1. N.G. Dastane v. S. Dastane, AIR 1975 SC 1534 81
2. Naveen Kohli v. Neelu Kohli (2006) 3 SCC 491
3. Animesh Trivedi v Kiran Bagai, F.A No. 139 of 2010, H.C of Jharkhand. 27 March 2012.

Desertion

4. Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 SC 176 122

5. Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591

Non-resumption of Cohabitation post an RCR or Judicial Separation decree (13-1A HMA)

6. Dharmendra Kumar v. Usha Kumar, AIR 1977 SC 2213 139

7. T. Srinivasan v. T. Varalakshmi, 1 (1991) DMC 20 (Mad.) 142
8. Hirachand Srinivas Managaonkar v. Sunanda, AIR 2001 SC 1285 149

Divorce by Mutual Consent

9. Sureshta Devi v. Om Prakash AIR 1992 SC 1904

10. Amardeep Singh v Harveen Kaur (CA No. 11158 of 2017, SC. 12, September 2017)

Further Readings:

 Saumya Ann Thomas v. The Union of India & Ors. (2010); Navya Benny, “Kerala High
Court Strikes Down 10A Of Divorce Act, 1869, One Year Waiting Period for Filing Divorce
Petition By Mutual Consent Declared Unconstitutional,” Live Law, Dec 9, 2022,
https://www.livelaw.in/top-stories/kerala-high-court-christian-divorce-strikes-down10a-
divorce-act-1869-one-year-waiting-period-filing-divorce-petition-mutual-consent-216281
 Irretrievable Breakdown of Marriage – Another Ground for Divorce Report No. 217 March
2009,http://lawcommissionofindia.nic.in/reports/report217.pdf
 Customary Divorce - Jasbir Singh v Inderjit Kaur, AI 2003 PH 317
 Samar Ghosh v. Jaya Ghosh, 2007 (3) SCJ 253 101
 V.Bhagat v. D. Bhagat, AIR 1994 SC 710
 Narendra vs K. Meena, SC, Civil Appeal No. 3253 Of 2008.
 Sec 13, CPC.
 Section 497, 498 A IPC, 1860
 Law Commission of India Report No 71, 1978: Hindu Marriage Act 1955 Irretrievable
Breakdown of Marriage as a Ground for Divorce, http://lawcommissionofindia.nic.in/51-
100/report71.pdf
 Herma Hill Kay, “Equality and Difference: A Perspective on No-Fault Divorce and its
Aftermath,” U. Cin. L. Rev 56, no.1 (1987-88): 1.
 Lynn D. Wardle, “No-Fault Divorce and the Divorce Conundrum,” BYU L. Rev (1991): 79.

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Module V: Custody, Guardianship and Adoption

Week 11: Custody and Guardianship

This week will explore developments in the law on custody and guardianship, critically
examining the underlying gender dimensions.

Essential Readings:

 Hindu Minority and Guardianship Act, 1956

Cases:
1. Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228
2. ABC v State, 2015 SCC OnLine SC 609
3. Aakansha Roy Rasmussen v Adwait Anil Dixit, 2015 SCC OnLine Bom 558
4. Vivek Singh v Romani Singh, CA No. 3962 of 2016, SC. 13 February 2017.
5. Asha Bajpai, Custody and Guardianship of Children in India, Family Law Quarterly, Vol.
39, No. 2 (2005), pp. 441-457.

Further Readings:

 Law Commission of India, Report no 257 on Reforms in Guardianship and Custody,

Laws in India. Pages 12-34.
 Barbara Bradley Hagerty, “Can Children Be Persuaded to Love a Parent They Hate?,”
The Atlantic, December 2020,
https://www.theatlantic.com/magazine/archive/2020/12/when-a-child-is-a-weapon/
616931/
 Elizabeth S. Scott, “Pluralism, Parental Preference, and Child Custody,” California Law
Review 80, no. 3 (1992): 615-672.

Week 12: Adoption

Essential Readings:

 Hindu Adoptions and Maintenance Act, 1956

 Juvenile Justice Act, 2015
Cases:
1. Vijayalaxmamma v. B.T. Shankar, (2000) 4 SCC 538
2. Vinay Pathak And His Wife v. Unknown, Bombay High Court, September 2009
3. Shabnam Hashmi v. Union of India (Supreme Court of India, FEBRUARY 2014)
Further Readings:

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 Lakshmi Kant Pandey v. Union of India AIR 1984 SC 469
 Inter-Country Adoption - CARA Guidelines, 2015
 Saptarshi Mandal,“An Official Family: Laws of Parenthood in India,” Firstpost,
http://www.firstpost.com/long-reads/an-official-family-laws-of-parenthood-in-india-
3425626.html

Module VI: Maintenance

Week 13: Maintenance under Hindu and Muslim Law, and under the Domestic Violence
Act, 2005

This module discusses the law of maintenance under various matrimonial statutes, personal law,
and under Sec 125 Cr.P.C. This week aims to provide an insight into the current law as it stands,
as well as how the law has developed overtime - highlighting various issues that have been
contended in Indian courts through the years.

Essential Readings:

 125 Cr.P.C
 Sections 24 and 25 of the Hindu Marriage Act, 1955
 The Hindu Adoptions and Maintenance Act, 1956
 The Protection of Women from Domestic Violence Act, 2005 – Relevant Provisions
 The Muslim Women (Protection of Rights on Divorce) Act, 1986
Cases:

Maintenance under Muslim Law/ Section 125 Cr.P.C / MWAct

1. Mohd. Ahmed Khan v, Shah Bano Begum, AIR 1985 SC 945
2. Danial Latifi v. Union of India (2001) 7 SCC 740
3. Shamima Farooqui v. Shahid Khan, 2015 SCC OnLine SC 288
Spousal Maintenance of Hindus under HMA/HAMA/Domestic Violence Act/Cr.P.C
1. Geeta Satish Gokarna v Satish Shankarrao Gokarna, AIR 2004 Bom 345
2. Chaturbhuj v Sita Bai, (2008) 2 SCC 316
3. Vinny Parmar v Paramvir Parmar (2011) 13 SCC 112.

Further Readings:

 Rana Nahid v Shahisul Haq, SC, 2020

 Saptarshi Mandal, “Towards Uniformity of Rights: Muslim Personal Law, the Domestic
Violence Act and the Harmonization of Family Law in India” In Conflict in the Shared
Household, Domestic Violence and the Law in India, Indira Jaisingh and Pinky Mathur
Anurag (eds.) (New Delhi: OUP, 2019), PP 171- 199.
 Zohara Khatoon v. Mohd. Ibrahim, AIR 1981 SC 1243
 Chand Dhawan v Jawaharlal Dhawan 1993 SCC (3) 406

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 Bhagwan Dutt V Kamla Devi, AIR 1975 SC 83
 Right of the Hindu Wife to Maintenance (Report No. 252., Law Commission of India,
January 2015)
 Flavia Agnes, “Maintenance for Women Rhetoric of Equality,” Economic and Political
Weekly 27, no. 41 (Oct. 10, 1992): 2233-2235.

Week 14: Maintenance in Non-Marital Intimate Partnerships

Essential Readings:

Maintenance for Women in Bigamous Marriages/ Non-Marital Intimate Relationships

1. Indra Sarma v V.K.V. Sarma, 2013 (14) SC 448
2. Badshah v Urmila Badshah Godse & Anr, (2014) 1 SCC 188
Overarching Guidelines on Maintenance

3. Rajnesh v Neha and Another, Cr. A No. 730 OF 2020

Further Readings:

 Velusamy v Patchaiammal, Cr. Appeal Nos. 2028 – 2029, SC, 2010

 Chanmuniya v Virendra Kumar Kushwaha, Civil Appeal No. 15071, SC, 2010
 Maintenance of Parents and Children
o Selva Saroja v. Sasinathan (1989) Cr LJ 2032
o Mahendra Kumar Gaikwad v. Gulabbhai 2001 Cr LJ 2111 (Bom)
o Vijaya Manohar Arbat vs Kashi Rao Rajaram AIR 1987 SC 1100

 Savitaben v. State of Gujarat, AIR 2005 SC 1809

 Ramesh Gajanan Rege v. Gauri Ramesh Rege 2015 SCC Online Bom 2436
 Rameshchandra Rampratapji Daga vs Rameshwari Rameshchandra Daga, 2004, SC
 Dutta, Brototi. (2019). Of ‘Keeps’ and ‘Concubines’: Rights of Cohabitees under
Domestic Violence Act Rights of Cohabitees under Domestic Violence Act.
10.1093/oso/9780199489954.003.0005.

Module VII: The Uniform Civil Code Debate

Week 15: UCC Debates

A class discussion on the UCC will be conducted, while keeping the learnings from this course
into context.

Recommended Readings:
 Consultation Paper on Reform in Family Law (Law Commission of India, 31 August 2018).

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 Werner Menski, “The Uniform Civil Code in Indian Law: New Developments and Changing
Agenda,” German Law Journal, Vol 09. No.03 (2008), pp 211-250.
 Alok Prasanna Kumar, “Uniform Civil Code: A Heedless Quest,” Economic and Political
Weekly, Vol 51,Issue No. 25 (2016).
 Nivedita Menon, “A Uniform Civil Code in India: The State of the Debate in 2014,”
Feminist Studies, Vol 40, Issue 2, pp 480-486.

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