Sources of Hindu law- There are two sources of Hindu Law-

1) Ancient Sources
i) Sruti
ii) Smriti
iii) Digests and Commentaries
iv) Custom
v)
2) Modern Sources
a) Equity, Justice and good conscience
b) Precedent, and
c) Legislation

Sruti- Hindu law is considered to be a divine law, a revealed law. The word Sruti literally
means “what was heard by god”. The vedas, thus contains the divine revelation. The term
Sruti stands for four vedas viz the Rig, the Yajur, the Sam and the Atharva, along with their
Brahmanas. Since the Vedas are said to contain the voice of God, they are considered to be
the fundamental or the primary source of law. And since it has emanated from Vedas, Hindu
Law is a divine law, a divine revelation. Thus, in theory, the Sruti is considered to be the
fundamental source of Hindu Law. The Vedas contain “no statement of law as such, though
their statement of facts are occasionally referred to in the smritis and Commentaries as
conclusive evidence of legal usage.

Smriti- the word ‘smriti’ literally means “what has been remembered”. In theory the smritis
were based on the memory of the sages who were the repositories of the sacred revelation.
The Smritis may be divided into early smritis as Dharma sutras and later smritis as
Dharmasastras. Immediately after the vedic period the need of expounding the meaning
contained in the vedas arose and were understood in the light of new needs of the society.

Digests and Commentaries- In an ever advancing society, a clear and systematic exposition
of rules of law, legal concepts and principle was necessary. The rules of law enunciated in the
smritis were not always clear cut. One Smiritis were different from another, and sometimes
in the same smritis, there were conflicting texts. Thus, the need arose for further analysis,

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systematisation and assimilation of law. This need was satisfied by the Commentators and
Digest writers.

Equity, Justice and good conscience- the ancient Hindu Law had its own version of the
doctrine of equity, justice and good conscience. According to Gautama, “in cases for which
no rule is given, that course must be followed of which at least 10 persons who are well
instructed, skilled in reasoning and free from covetousness approve.

Two Main Schools of Hindu Law- Mitakshara and Dayabhaga or Bengal School

Mitakshara and Dayabhaga School- the Mitakshara School owes its name to
Vijnaneshwara commentary on the Yajnvalkya Smriti by the name of “Mitakshara”. The
Dayabhaga School owes its origin to Jimutavahana’s digest on leading smritis by the name of
“Dayabhaga”. The mitakshara is not merely a running commentary on the yajnavalkya Smriti
but it is also a digest of practically all the leading Smritis, and deals with all titles of Hindu
Law. The Dayabhaga is a digest on leading Smritis, and deals with all titles of Hindu law.
The Dayabhaga is a digest on leading Smritis and deals with only partition and inheritance.

Sources of Muslim Law- Four Sources of Muslim law

1. Koran
2. Hadith
3. Ijma
4. Qiyas

Schools of Muslim Law-

Sunni- (1) Maliki School

(2) Hanafi

(3) Shafii

(4) Hanbali School

Shia- 1) Immamiya

2) Ismailiya

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 3) Zaidiya

Who are Hindus-

1. Any person who is a Hindu, Jain, Sikh or Buddhist by religion, i.e., Hindus by
religion
2. Any person who is born of Hindu parents.
3. Any person who is not a muslim, Christian, Parsi or Jew and who is not governed by
any other law.

Types of Marriages under Hindu law-

Brahma Vivah- In this form of marriage the father of the girl respectfully invites the
bridegroom at his residence, worships him and offers him the girl as his wife along with a
pair of fine clothes and ornaments etc. A widow could not be remarried under this form of
marriage.

Prajapati Marriage- In this form the bride’s father, decorates the bride with colourful attires
and after worshipping her, offers her to the bridegroom, making a recitation to the effect that
they (bride and bridegroom) together may act religiously throughout and prosper and flourish
in life.

Daiva Marriage- In this form of marriage, a well decorated bride is offered to the priest who
performs religious acts and rituals for the spiritual benefits of the father of the bride

Arsha Marriage- In this form of marriage the bride is offered to a person, from whom the
father has accepted a pair of cow or bull for religious rituals only.

Unapproved Marriages

Asura Marriage- In this form of marriage the bridegroom after having given wealth as much
as it is within his means to the father and paternal kinsman or to the damsel herself takes her
voluntarily as his bride obviously with the consent of her father.

Rakshasa Marriage- In this form of marriage the girl is forcibly kidnapped and married to a
person, who intends to marry her but her father is not willing.

Gandharva Marriage - In this form of marriage there is a union of the bride and bridegroom
by mutual consent motivated by their mutual love and sexual instincts. Infatuated by their

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bond of love, the bride and the groom establish a bodily union without having performed any
religious rites and ceremonies.

Pisacha Marriage- if a woman is raped, hen she has to marry with the same man.

Concept of Marriage under Hindu Law- Among Hindus marriage is a necessary sanskar,
every hindu must marry. A wife is the very source of purusartha, not only of dharma, artha
and karma but also of moksha. Wife is not just patni but Dharmapatni- partner in the
performace of spiritual as well as secular duties. Thus, Hindus conceived of their marriage a
sacramental union- a sacrosanct, permanent, indissoluble and eternal union. Hindus did not
regard it as a contract, but as a tie which once tied cannot be untied. The Hindu marriage Act
does not lay down that a marriage without the consent of parties is void, though it does not
lay down that If consent of party to marriage is obtained by fraud or force, the marriage is
voidable. Similarly, when one of the parties to marriage is if unsound mind, the marriage I
voidable.A combined reading of Section,5,11 and 12 of Hindu marriage Act, leaves no doubt
that consent is not an essential aspect of Hindu marriage.

Concept of Marriage under Muslim Law- Muslim have from the beginning regarded their
marriage as a contract. Muslim marriage have been defined as a civil contracts for the
purpose of legalizing sexual intercourse and procreation of children. It is not a sacrament but
a contract, though solemnized generally with the recitation of certain verses from the Koran.

Seen from the religious angle, Muslim marriage is an ibadat. The Prophet is reported to have
said that marriage is essential for every physically fit muslim who could afford it. Now if
marriage is nothing but a civil contract, then keeping in view the above tradition we could
say: he who enters into a civil contract completes half of his religion; the almighty himself
has undertaken to help the person who enters into a civil contract is equal to Jehad; it is
obligatory on every physically fit Muslim to enter intoa civil contract. All these inferences
are patent absurdities, and are untenable which means muslim marriage is something more
than a civil contract.

Further more Muslim marriage is not merely a civil contract because:-

1) Unlike civil contracts, it cannot be made contingent on a future event

2) Unlike civil contracts, it cannot be for a limited time (Muta Marriage is an exception and
not a rule).

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Nature of Nikah- According to Fyzee, Nikah is an institution legalised for manifold objects,
such as the preservation of species, the fixing of descent, restraining men from debauchery,
the encouragement of chastity, the promotion of love and union between the husband and the
wife and developing of mutual help in earning livelihood. That Muslim marriage is
essentially a contract is evident from the nature of marriage and the mode by which it is
performed. Thus, only a civil ceremony, i.e., an offer made by one party and accepted by
another in one and the same meeting in the presence of two witnesses is sufficient for
entering into contract of marriage. Whatever religious ceremonies are appended to the civil
ceremony are merely to give it sanctity; their performance or non-performance does not
effect its legality. If a Sunni male takes five or more wives, his marriages with the fifth wife
or subsequent wives is not void but merely irregular.

Capacity of Marriage

 Monogamy and Bigamy- For hindus, bigamy has been abolished by the Hindu
Marriage Act, 1955 and has been made penal offence. In modern India, only Muslims
are permitted to practise polygamy, lmited to 4 wives. He should have the capacity to
do justice between the co- wives. It is a condition precedent. If a muslim takes a fifth
wive, it is merely irregular and not void whereas under the shia law, it is void.
 Age of Marriage- Under the Hindu Marriage Act, Parsi Marriage and Divorce Act,
Special Marriage act and Christian Marriage act minimum age of marriage for girls is
18 years and for boys is 21 years. It is only under the Special Marriage act that a child
marriage is void. Under the Hindu Law, child marriage is valid.

Muslim law lays down that a person who has not attained the age of puberty
has no capacity to marry without the consent of his guardian for marriage. However, it is
generally presumed to have been attained on the completion of 15 years of age. Under
muslim law marriage of a minor is not void.

 Mental Capacity- under Hindu Law, a marriage on account of lack of mental

capacity is voidable at the instance of the other party, but under the Special Marriage
act, the marriage is void. Under Muslim law, a person of unsound mind (called
majnun or faitr-ur-akl) has no capacity to marry except with the consent of marriage-
guardian. The insane person for the purpose of marriage are equated with minors
under the Muslim law.

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Prohibitions on account of relationship by blood or affinity :

Hindu law- In the modern Hindu Law, prohibitions of marriage on account of relationship
are recognized on two counts

1) Sapinda Relationship
2) Degree of prohibited relationship

 Sapinda Relationship- Section 3(f)(i) lays down “in sapinda relationship with
reference to any person extends as far as the third generation (inclusive) in the line of
ascent through mother, and the fifth (inclusive) in the line 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”. Then section 3(f)(ii) lays down, “person are said to be
‘sapindas’ of each other if one is a lineal ascendant of the other within the limits of
the sapinda relationship, or if they have a common inela ascendant who is within the
limits of sapinda relationship with reference to each of them.

 Degree of prohibited relationship- Two persons are said to be within the degree of
prohibited relationship-
i. If one is a lineal ascendant of the other
ii. If one was the wife or husband of lineal ascendant or descendant of the other.
iii. If one was the wife of the brother or the father’s brother’s wife or grandmother’s
brother’s wife, or
iv. If the two are brother and sister, uncle and niece, aunt and nephew or children of a
brother and sister or of two brothers or two sisters.

Muslim law- Muslim law lays down some impediments of marriage on the basis of
relationship by consanguinity, affinity or fosterage.

Consanguinity- On the basis of prohibition on the ground of consanguinity, a muslim male

cannot marry the following : (i) his mother or grandmother (ii) his daughter or granddaughter
(iii) his daughter or granddaughter (iv) his aunt (both and fathers and mother side).

Foster Relationship- Foster relationship arises on account of the fact that a child has been
suckled during the normal period of suckling by a woman other than its natural mother.

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Unlawful Conjugation- Under muslim law, a male is not allowed to have at the same time
two wives who are so related to each other by consanguinity, affinity or fosterage that if
either had been a male, they could not have been lawfully married each other. Also, a
marriage performed by a Sunni male with a woman during the period of iddat is irregular.
While, in the case of a shia male, it is void. Muslim law also lay down that husband of a
woman undergoing iddat cannot marry during her period of iddat.

(i) Muslim male (of any sect) + Muslim female (of any sect)- Marriage is valid.

(ii) Sunni male + Kitabia female- Marriage is valid.

(iii) Sunni male + Female who is neither Muslim nor Kitabia- Marriage is irregular.

(iv) Shia male + Non-Muslim female- Marriage is void.

(v)Muslim female + Non-Muslim male- Marriage is void.

The Special Marriage Act, 1954

 Conditions for a valid marriage under this Act

1. Any two persons belonging to different religions may marry under this Act without
changing their religions.
2. Neither party should have a spouse living at the time of marriage. Widow, widower
and a divorcee may exchange wedding vows under this Act.
3. Neither party should be incapable of giving a valid consent in consequence of
unsoundness of mind.
4. Neither party should be suffering from mental disorder of such a kind or to such an
extent as to be unfit for marriage and procreation of children.
5. Neither party should be suffering from incurable insanity.
6. Parties should not be within degrees of prohibited relationship.
7. Age: Bridegroom: 21 years &Bride: 18 years.

 Procedure for solemnization and registration of marriage under this Act

1. No religious ceremonies are required.
2. The marriage is solemnized a by Marriage Officer appointed by the Government.
3. Parties to the marriages shall give notice to the Marriage Officer in the prescribed
manner.

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 4. Marriage Officer enters this information in the Register maintained by him and a
public notice of this information is given by the Marriage Officer.
5. The Marriage is to be performed after 30 days of this public notice and before expiry
of two months from issue of notice.
6. Before marriage the applicants and three witnesses shall sign a declaration in the
form specified.
7. Marriage shall not be complete and binding unless each party says to the other in
presence of Marriage Officer and three witnesses “I (A) take thee (B) to be my lawful
wife/husband (in any language understood by the parties).”
8. The marriage is thus completed and recorded in a book kept for that purpose. The
entry is signed by the applicants and the witnesses.

 Grounds for divorce under this Act-

1. Respondent had voluntary sexual intercourse with any person other than the spouse
after the marriage.
2. Respondent has deserted the petitioner for a continuous period of not less than two
years.
3. Respondent being sentenced to imprisonment for seven years or more for any
offence.
4. Respondent has treated the petitioner with cruelty.
5. Respondent has been incurably of unsound mind.
6. Respondent has been suffering from venereal disease.
7. Respondent has been suffering from incurable form of leprosy.
8. Respondent not heard of as being alive for a period of more than seven years.
9. The respondent-husband has been convicted for rape or outraging modesty of any
female.
10. Wife may also get divorce on the ground that there was no resumption of
cohabitation for period of one year or more since passing of decree or order for
maintenance.

Succession- Another important point to be noted about Special Marriage Act is that, the
succession to property of persons married under this Act or any marriage registered under this
Act and that of their children will be governed by the Indian Succession Act. But, if the

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parties to the marriage belong to Hindu, Buddhist, Sikh or Jain religions, then the succession
to their property will be governed by the Hindu Succession Act.

Note- Any person married under the Special Marriage Act must know about this important
provision of the Act. The parties cannot petition for divorce to the District court unless and
until one year has expired from the date of their marriage as registered in the marriage books.
But, in cases where the court is of the opinion that the petitioner has suffered exceptional
hardships or the respondent has shown exceptional depravity on their part, a petition for
divorce would be maintained, but if any misrepresentation is found on the part of the
petitioner to apply for divorce before the expiry of 1 year, the court may if any order has been
passed, state the order to take effect only after the expiry of 1 year, as mentioned in Section
29 of the Act.

Validity and Voidability of Marriage-

Void Marriages- A void marriage is, in fact a misnomer, a contradiction. It is called a

marriage on account of the fact that two persons having no capacity to marry have, in fact,
undergone the requisite rites and ceremonies of marriages.

Voidable Marriages- A voidable marriage, on the other hand, is a valid marriage till it is
avoided, and a voidable marriage can be avoided only on a petition by either party to the
marriage. And, if a voidable marriage is annulled, then children of annulled voidable.

Valid, void and irregular marriages under Muslim law- Muslim law does not recognizes
the distinction between void and voidable marriages. Marriages are classified as valid (sahih),
void (batil) and irregular (fasid) marriages.

Valid or sahih marriage is the one which is performed between the parties having
capacity to marry with all the necessary formalities. Void or batil marriage is the one which
is performed in violation of perpetual impediments, under the sunni law, and of all
impediments under the shia law. A batil marriage is no marriage. Where a marriage is
performed in violation of an impediment of prohibition which is temporary or remedial, then
the marriage is irregular or fasid under the sunni law.

Grounds of void marriage under Hindu Law-

1. If at the time of marriage either party has a spouse living (the second marriage is void
only if the first marriage is valid).

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 2. If parties are sapinda to each other unless such a practice is permitted by custom
3. If parties are within the prohibited degrees of relationship unless the marriage is
permitted under the custom
4. If requisite ceremonies have not been performed.

Grounds of void marriage under Muslim Law:-

1. Consanguinity
2. Affinity
3. Fosterage

Grounds of Voidable marriage under Hindu Law

1. Failure of the respondent to consummate the marriage on account of impotency.

2. Incapacity of the respondent to give a valid consent in consequence of unsoundness of
mind, or though of capable of giving valid consent, respondent was suffering from
mental disorder of such a kind or to such an extent as to be unfit for marriage and
procreation of children or respondent was subject to recurrent attacks or insanity.
3. Respondent pregnancy at the time of marriage of which the petitioner was not the
cause of whoch petitioner was ignorant at the time of marriage, and the petition is
brought within one year of solemnization of marriage, and further that the petitioner
had no marital intercourse with the respondent after the knowledge of respondent
pregnancy.
4. Petitioner’s consent was obtained by force or fraud as to the nature of ceremony or as
to any material facts or circumstances concerning the respondent, provided that the
petitioner did not live with the respondent as husband or wife after the discovery of
fraud or cessation of force, and the petition was presented within one year of
discovery of fraud or cessation of force.

Grounds of Voidable marriage under Muslim Law

1. Marriage with a woman undergoing iddaat

2. Marriage in violation of prohibition on grounds of different religion
3. Marriage performed without witness
4. Marriage with a fifth woman
5. Marriage performed in violation of rule against unlawful conjugation.

Certain grounds of fraud for divirce

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 1. Fraud on the nature of ceremomy
2. Fraud as to identity of the parties to the marriage
3. Concealment of disease
4. Concealment of reliogion or caste
5. Concealment of unchastity
6. Concealment of illegitimate
7. Concealment of age
8. Concealment of financial status or job
9. Non-disclosure of pre marriage status
10. Wife being devoid of female organs

Right of Repudiation of Marriage- It has been earlier stated that under Muslim Law, a
minor can be given in marriage by the marriage – guardian. But in such a case the minor on
attaining majority has power to repudiate the marriage.

1. When the minor given in marriage by the father or grandfather, the minor’s right to
terminate the marriage is called repudiation of marriage.
2. When the child is given in marriage by guardian other than father or grandfather, the
right to terminate the marriage is known as option of puberty.

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Theories of Divorce-

Fault Theory- The guilt theory further lays down that the party seeking divorce must be an
innocent party. This dichotomy of guilt and innocence is the basic requirement of this theory.
In other words, on the one hand, one of the spouses must have been committed one or the
other matrimonial offence, and on the other the spouse seeking divorce must be innocent.

The common fault grounds are : adultery, cruelty, conversion, desertion of two years,
incurable insanity, virulent and incurable leprosy, veneral disease in a communicable form,
renunciation of the world, seven years of unheard absence. Under the Special Marriage act,
seven years sentence of imprisonment is a ground for divorce. Under the Hindu Marriage act,
the additional grounds for wife are : pre- Act polygamous marriage of the husband and
repudiation of marriage, rape, sodomy and bestiality of the husband and non resumption of
cohabitation for one year or more after the passing of order of maintence section 125 CrPC
etc.

Under the Dissolution of Muslim Marriage Act, 1939 , nine grounds for divorce
are recognized on which wife can sue for divorce. These are : unheard absence of husband for
four years, neglect or failure to provide maintenance by the husband for a period of two
years, seven years of imprisonemt, failure of husband to perform matrimonial obligation for
three years, impotency of husband, two years leprosy or virulent veneral disease, repudiation
of marriage by the wife, cruelty of the husband, not treating her equitably with the other wife
or wives, and any other ground recognized under Muslim Law.

Consent Theory of Divorce- It is argued that since the basis of marriage is mutual fidelity,
and if for any rreason parties feel that mutual fidelity cannot be maintained, they should have
freedom of dissolving their marriage, instead of being left to drift and go astray. The
argument is clinched by saying that freedom of marriage implies freedom of divorce. The
protagonist of this theory hold that freedom of divorce will bring about happy marriage and
reduce the number of unhappy ones. It will help the spouses to liuve in harmony and
consolidate the unity of family. Freedom of divorce impels the parties to a marriage to take a
serious and sincere view of each other. One will be very careful before marriage, lest one
may repent later.

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Under Muslim law, divorce by mutual consent is recognised In two forms: KHUL AND
MUBBARAAT

Thus, Khul is a divorce with consent but at the instance of the wife, in which she gives or
agrees to give a consideration to the husband or release i.e., gives up her right to dower or
gives some property to husband.

In Mubbaraat aversion is mutual; both parties desire dissolution of marriage. Mubbaraat

denotes the act of freeing one another mutually, and the proposal for divorce may emanate
from either spouse. But even in mubbaraat wife has to give up her dower or part of it.

Under the HMA, SMA and Parsi marriage and divorce act, the provision for divorce by
mutual consent is fairly stringent. It is laid down that a petition for divorce by mutual
consent can be presented to the district court by the spouses only if it shows that they have
been living separately for a period of one year or more, that they have not been able to live
together and they have mutually agreed that marriage should be dissolved.

Breakdown Theory of Divorce

It is argued that if a marriage has in fact broken down irretrievably, may be on account of
fault of one of the spouses or both, or at the fault of neither , is there any sense in continuing
such union? In such a situation, will it not be in the interest of the individual as well as
society that such a union os dissolved? The law should recognize the reality and redeem the
parties from such a situation that has become intolerable. The breakdown of marriage is
defined as “such failure on matrimonial relationship or such circumstances adverse to that
relationship that no reasonable probability remains for the spouses aginst the living together
as husband and wife. In the modern laws of the world the irretrievable breakdown of
marriage has three versions:

1. The law lays down that if a marriage has broken down irretrievably it should be
dissolved.
2. In its second version, the legislature lays down the criterion of breakdown. Once
criterion is satisfied, the courts ordinarily have no option but dissolve the marriage.
The divorce law reforms act,1973, lays down that if the parties have lived separate
and apart for a period of dive years, either party may sue for divorce.

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3. In the third version of irretrievable breakdown of marriage the criterion of non
resumption of cohabitation after a decree of judicial separation or non compliance to a
decree of restitution of conjugal rights for a certain duration.

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Customary Divorce Under Hindu Law- In respect of customary divorce, neither one year‘s
bar to divorce (the fair trial rule) under section 14, nor any of the bars laid down in section 23
of the Hindu Marriage Act, 1955 are applicable. The provisions of sections 24, 25 and 26 of
the Act are also not applicable. In short, no provision, of the Hindu Marriage Act, 1955
applies to such divorces; No petition in the court is required Thus, a divorce under custom
may be obtained through the agency of gram panchayat or caste tribunal or caste panchayats,
by private act of parties, orally or in writing, or under an agreement, oral or written, such as
bill of divorcement, tyaga-patra or farkat-nama. A custom permitting divorce to one spouse
against the wishes of the other is void being unreasonable and against public policy. No
specific grounds, of divorce are recognized220 Divorce may be obtained by mutual consent,
sometimes the husband divorces his wife on some flimsy ground, sometimes he abandons her
or renounces her, and sometimes wife obtains divorce from him on some flimsy ground, or
even without any.

Written Divorce- Some tribes, such as Ghuman Jat221 insist that the divorce must be in
writing. In such a case it is not necessary to state the ground of divorce. Mostly, in such a
caste divorce is unilateral; whenever the husband wants to divorce his wife, he writes a
tyagpatra (in case of Hindu tribes) or farkatnama (in case of Muslim tribes). However, there
is no rigidity. However, if it is in writing, the deed must clearly express the intention to
divorce. When written divorce is recognized and the husband divorces his wife by a writing
which may be in the form of a tyagpatra or farkatnama, or in any form, divorce is valid, and
the woman is free to remarry.

Renunciation, abandonment or repudiation- Among several tribes and castes, particularly

among the Jats, a husband has the power to repudiate the marriage. Immediately on
repudiation, the wife is free to remarry. A custom under which abandonment or desertion of
wife by the husband brings about dissolution of marriage is valid. It seems that if a husband
abandons or deserts the wife, the wife has the right to treat the marriage dissolved.

Immorality, unchastity, adultery or conversion- Among some tribes and castes, husband
has the power to divorce his wife on the ground of unchastity, immorality, adultery and
conversion. If the wife converts to another religion, the husbabd may divorce her.

Divorce by mutual consent- Customs among some castes and tribes recognize divorce by
mutual consent. It may be oral or in writing. Sometimes consent of the husabd is obtained by
making payment to the husband of the actual expenses of marriage; such a divirce is valid.

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But if consent to divorce is obtained on payment of some price in cash or kind, divorce is not
valid.

Divorce under Special Enactments- Prior the coming into force of the Hindu Marriage Act,
1955, some of States had passed statutes introducing monogamy and divorce in Hindu law.
Some States have some matrimonial statutes to regulate marriage and divorce among some
Hindu communities and castes a group of castes. The Hindu Marriage Act, 1955 has repealed
all the States‘ general statutes introducing monogamy and divorce. However, it has not
repealed the statutes falling under the second category. Section 29 (2) of the Hindu Marriage
Act, 1955 retains them.

If under custom or under special enactment a Hindu has a right to obtain dissolution on
grounds other than those enumerated under Section 13 of the Hindu Marriage Act, he is
entitled to avail of the same.

RESTITUTION OF CONJUGAL RIGHTS UNDER HINDU AND MUSLIM LAW

In India, a decree for restitution of conjugal right can still be executed by attachment of
respondent’s property. In modern India, the remedy is available to Muslim under general law,
too hindus under S.9 HMA, to Christians under S.32 DA. Except under Muslim law, a decree
for restitution of conjugal rights enables the wife to claim maintenance as an ancillary relief
under the HMA and SMA. It is submitted that under all the personal laws, for restitution of
conjugal rights, the following condition must be satisfied:

1. That respondent has withdrawn from the society of the petitioner.

2. That withdrawal is without any reasonable cause or excuse.
3. That the court is satisfied about the truth of statement made in such petition, and
4. That there is no legal ground why relief should not be granted.

Restitution pre- supposes valid marriage- It is a well-established proposition that if a valid

marriage does not exist between the parties, no decree for restitution of conjugal rights can be
passed. Nut once the factum of valid marriage is established everything necessary for the
validity of marriage would be presumed.

Withdrawal from society and cessation- The expression ‘withdrawal’ from society means
cessation of cohabitation by a voluntary act of the respondent. It means withdrawal from
conjugal relationship. Thus, it is withdrawal from the totality of conjugal relationship, such as
refusal to live together, refusal to have marital intercourse, and refusal to give company and

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comfort. Desertion by one spouse of the other would obviously amount to withdrawal from
the society. Obviously, while the spouses are living together, mere refusal to have sexual
intercourse does not amount to withdrawal from the society. In a petition for restitution, it is
not necessary to show that spouses were cohabiting earlier, even if spouses did not cohabit at
all, the cause of action arises once intention not to cohabit is established. Even when parties
are living together under the same roof, refusal to cohabit would give a cause of action for a
petition of restitution.

Where the husband dumped his wife at her father’s house and thereafter totally
neglect her, it was held that husband had withdrawn from society. Withdrawal from the
society is total cessation of cohabitation. Mere refusal to have sexual relationship while
parties are living together does not amount to withdrawal from the society.

It is not a valid defence to a petition for restitution that there has been a
premarriage or post marriage agreement to live separately. Similarly the premarriage
agreement under which the husabd agreed to live at the house of wife parent as Khana
Damad, is no defence petition for restitution.

Reasonable excuse or Reasonable Cause- Under all the matrimonial laws whenever
withdrawal from the society of petitioner is shown to be with “reasonable cause or reasonable
excuse”, it is complete defence to a petition for restitution of conjugal rights.

Section 33 of Indian Divorce Act specifically lays down that only that may be pleaded
against a petition for restitution pof conjugal rights which is a ground for nullity of judicial
separation. In some cases it has been held that it would amount to reasonable excuse, if the
petitioner is guilty of such conduct or act which makes it impossible for the respondent to live
with the petitioner.

Burden of Proof- It appears to be now established law that once the petitioner has proved
that the respondent has withdrawn from the society of the respondent, the burden of proof
that the withdrwal is for a reasonable cause is on the respondent. This has been made clear by
adding exlainnation to S.9 of HMA and S.22 of SMA.

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Grounds of Divorce under Hindu and Muslim Law-

S.13 OF HMA,1955- In the modern Hindu law, all the three theories of divorce are recognized &
divorce can be obtained on the basis of any one of them. The Hindu Marriage Act, 1955 originally,
based divorce on the fault theory, and enshrined nine fault grounds in Section 13(1) on which either
the husband or wife could sue for divorce, and two fault grounds in section 13(2) on which wife alone
could seek divorce. In 1964, by an amendment, certain clauses of Section 13(1) were amended in the
form of Section 13(1A), thus recognizing two grounds of breakdown of marriage.

 ADULTERY- While adultery may not have been recognized as a criminal offence in all
countries, the matrimonial offence of adultery or the fault ground of adultery is recognized in
most. Even under the Shastric Hindu law, where divorce had not been recognized, adultery
was condemned in the most unequivocal terms. There is no clear definition of the matrimonial
offence of adultery. Thus, intercourse with the former or latter wife of a polygamous marriage
is not adultery. But if the second marriage is void, then sexual intercourse with the second
wife will amount to adultery.
 Though initially a divorce could be granted only if such spouse was living in adultery, by the
Marriage Laws Amendment Act, 1976, the present position under the Hindu Marriage Act is
that it considers even the single act of adultery enough for the decree of divorce.
 Since adultery is an offence against marriage, it is necessary to establish that at the time of the
act of adultery the marriage was subsisting. Also, it follows that unless one willingly consents
to the act, there can be no adultery. If the wife can establish that the co-respondent raped her,
then the husband would not be entitled to divorce.
 The offence of adultery may be proved by:
1. Circumstantial evidence
2. Contracting venereal disease

CRUELTY- The concept of cruelty is a changing concept. The modern concept of cruelty includes
both mental and physical cruelty. Acts of cruelty are behavioral manifestations stimulated by different
factors in the life of spouses, and their surroundings and therefore; each case has to be decided on the
basis of its own set of facts. While physical cruelty is easy to determine, it is difficult to say what
mental cruelty consists of. Perhaps, mental cruelty is lack of such conjugal kindness, which inflicts
pain of such a degree and duration that it adversely affects the health, mental or bodily, of the spouse
on whom it is inflicted.

Some Instances of Cruelty are as follows–

 false accusations of adultery or unchastity

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  demand of dowry

 refusal to have marital intercourse/children

 impotency

 birth of child

 drunkenness

 threat to commit suicide

 wife’s writing false complaints to employer of the husband

 incompatibility of temperament

 irretrievable breakdown of marriage

The following do not amount to cruelty-

 ordinary wear & tear of married life

 wife’s refusal to resign her job

 desertion per se

 outbursts of temper without rancor.

DESERTION- Desertion means the rejection by one party of all the obligations of marriage- the
permanent forsaking or abandonment of one spouse by the other without any reasonable cause and
without the consent of the other. It means a total repudiation of marital obligation.

The following 5 conditions must be present to constitute a desertion; they must co-exist to
present a ground for divorce:

 the factum of separation

 animus deserdendi (intention to desert)

 desertion without any reasonable cause

 desertion without consent of other party

 statutory period of two years must have run out before a petition is presented.

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Conversion

When the other party has ceased to be Hindu by conversion to any other religion for e.g. Islam,
Christianity, Judaism, Zorostrianism, a divorce can be granted.

Insanity

Insanity as a ground of divorce has the following two requirements-

1. i) The respondent has been incurably of unsound mind

2. ii) The respondent has been suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the petitioner cannot reasonably be
expected to live with the respondent.

Leprosy

Contagiousness of leprosy and repulsive outward manifestations are responsible for creating a
psychology where man not only shuns the company of lepers but looks at them scornfully.
Thus, it is provided as a ground for divorce. The onus of proving this is on the petitioner.

Venereal Disease

At present, it is a ground for divorce if it is communicable by nature irrespective of the period

for which the respondent has suffered from it. The ground is made out if it is shown that the
disease is in communicable form & it is not necessary that it should have been communicated
to the petitioner (even if done innocently).

Renunciation

“Renunciation of the world” is a ground for divorce only under Hindu law, as renunciation of
the world is a typical Hindu notion. Modern codified Hindu law lays down that a spouse may
seek divorce if the other party has renounced the world and has entered a holy order. A person
who does this is considered as civilly dead. Such renunciation by entering into a religious order
must be unequivocal & absolute.

Presumption Of Death
Under the Act, a person is presumed to be dead, if he/she has not been heard of as being alive
for a period of at least seven years. The burden of proof that the whereabouts of the respondent
are not known for the requisite period is on the petitioner under all the matrimonial laws. This

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is a presumption of universal acceptance as it aids proof in cases where it would be extremely
difficult if not impossible to prove that fact. A decree of divorce granted under this clause is
valid & effective even if it subsequently transpires that the respondent was in fact alive at the
time when the decree was passed.

Wife’s Special Grounds For Divorce

Besides the grounds enumerated above, a wife has been provided four additional grounds of
divorce under Section 13(2) of the Hindu Marriage Act, 1955. These are as follows-

Pre-Act Polygamous Marriage

This clause states the ground for divorce as, “That the husband has another wife from before
the commencement of the Act, alive at the time of the solemnization of the marriage of the
petitioner. For example, the case of Venkatame v. Patil[ix] where a man had two wives, one of
whom sued for divorce, and while the petition was pending, he divorced the second wife. He
then averred that since he was left only with one wife, and the petition should be dismissed.
The Court rejected the plea.

Such a ground is available if both the marriages are valid marriages & the other wife (2nd wife)
should be present at the time of filing of the petition. However, today this ground is no more
of practical importance.

Rape, Sodomy Or Bestiality

Under this clause, a divorce petition can be presented if the husband has, since the
solemnization of the marriage, been guilty of rape, sodomy or bestiality.

Non-Resumption Of Cohabitation After A Decree/Order Of Maintenance

If a wife has obtained an order of maintenance in proceedings under Section 125, Cr.P.C., 1973
or a decree under Section 18, Hindu Adoption & Maintenance Act, 1956 & cohabitation has
not been resumed between parties after one year or upwards, then this is a valid ground for
suing for divorce.

Repudiation Of Marriage
This provision provides a ground for divorce to the wife when the marriage was solemnized
before she attained the age of fifteen years, and she has repudiated the marriage, but before the
age of eighteen. Such repudiation may be express (written or spoken words) or may be implied
from the conduct of the wife (left husband & refused to come back). Moreover, this right (added

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by the 1976 amendment) has only a retrospective effect i.e. it can be invoked irrespective of
the fact that the marriage was solemnized before or after such amendment.

IRRETRIEVABLE BREAKDOWN OF MARRIAGE-

Irrespective of the three remedies available to parties that is: restitution of conjugal rights,
judicial separation and divorce, the judiciary in India is demanding irretrievable breakdown of
marriage as a special ground for divorce, as sometimes courts face some difficulties in granting
the decree of divorce due to some of the technical loopholes in the existing theories of divorce.
Both the Supreme Court and Law Committee consider the implementation of such a theory as
a boon to parties who for one or the other reasons are unable to seek the decree of divorce.

The Irretrievable breakdown theory of divorce is the fourth and the most controversial
theory in legal jurisprudence, based on the principle that marriage is a union of two persons
based on love affection and respect for each other. If any of these is hampered due to any reason
and if the matrimonial relation between the spouses reaches to such an extent from where it
becomes completely irreparable, that is a point where neither of the spouse can live peacefully
with each other and acquire the benefits of a matrimonial relations, than it is better to dissolve
the marriage as now there is no point of stretching such a dead relationship, which exist only
in name and not in reality.

The breakdown of relationship is presumed de facto. The fact that parties to marriage are living
separately for reasonably longer period of time (say two or three years), with any reasonable
cause (like cruelty, adultery, desertion) or even without any reasonable cause (which shows the
unwillingness of the parties or even of one of the party to live together) and all their attempts
to reunite failed, it will be presumed by law that relationship is dead now. The profound
reasoning is that in situations when there is absolutely no chance to live again jointly or when
it is beyond repair, in such a case it would be futile to keep the marital tie alive. Here the ground
of irretrievable breakdown is really needed.

GROUNDS OF DIVORCE UNDER MUSLIM LAW-

 The Husband is missing for Four Years- If the husband is missing for a period of
four years the wife may file a petition for the dissolution of her marriage. The husband
is deemed to be missing if the wife or any such person, who is expected to have
knowledge of the husband, is unable to locate the husband. Section 3 provides that

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 where a wife files petition for divorce under this ground, she is required to give the
names and addresses of all such persons who would have been the legal heirs of the
husband upon his death. The court issues notices to all such persons appear before it
and to state if they have any knowledge about the missing husband. If nobody knows
then the court passes a decree to this effect which becomes effective only after the
expiry of six months. If before the expiry, the husband reappears, the court shall set
aside the decree and the marriage is not dissolved.

 Husband’s failure to maintain the wife for Two Years-

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

 Imprisonment of the husband for Seven Years-

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

 Husband’s failure to perform marital obligations for Three Years-

Under Section 2(iv) a wife is entitled to the dissolution of her marriage if her husband fails to
perform his marital obligations for a period of three years without any reasonable excuse. The
Act does not define ‘marital obligations of the husband’.

That the husband was impotent at the time of the marriage and continues to be so: for
getting a decree of divorce on this ground, the wife has to prove that the husband was impotent
at the time of the marriage and continues to be impotent till the filing of the suit. Before passing
a decree of divorce of divorce on this ground, the court is bound to give to the husband one
year to improve his potency provided he makes an application for it.

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 If the husband has been insane for a period of two years or is suffering from leprosy or
a virulent veneral disease: the husband's insanity must be for two or more years immediately
preceding the presentation of the suit. But this act does not specify that the unsoundness of
mind must be curable or incurable. Leprosy may be white or black or cause the skin to wither
away. It may be curable or incurable.

That she, having been given in marriage by her father or other guardian before she
attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen
years, provided that the marriage has not been consummated.

 Cruelty by the Husband-

(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such
conduct does not amount to physical illtreatment, or

(b) Associates with women of ill-repute or leads an infamous life, or

(c) Attempts to force her to lead an immoral life, or

(d) Disposes of her property or prevents her exercising her legal rights over it, or

(e) Obstructs her in the observance of her religious profession or practice, or

(f) If he has more than one wives, does not treat her equitably in accordance with the injunctions
of the Holy Quran.

IRRETRIEVABLE BREAKDOWN OF MARRIAGE UNDER MUSLIM LAW-

After observing that from the earliest time of the islam, Muslim wives have been entitled to
divorce when it was clearly shown that either marriage has ceased to be a reality and suspension
of marriage tie had in fact taken place or the continuance of marriage involved injury to wife.

This, in Muslim Law of modern India we have two breakdown grounds for divorce:
(a) non- repayment of maintenance by the husband even if the failure has resulted on account
of the conduct of wife.- S.2

(b) where there is total irreconciliability between the spouses or, in other words, where
marriage has broken down irretrievably- Clause 9 S.2

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MODES OF TALAQ BY HUSBAND AND WIFE-

There are two legal method of dissolution of Marriage under Muslim Law. A Muslim Marriage
can come to an end either by Divorce or by Talaq. Divorce is governed by Dissolution of
Muslim Marriage Act 1939. Talaq is governed by Muslim Personal Laws.

Types of Talaq- Talaq can be categorized under three categories , i.e. Talaq by a Muslim Man,
Talaq by Muslim Woman and Talaq by Mutual Consent.

Talaq by Muslim Men-

• Talaq ul Sunnat ~ ( Talaq – Ahasan and Talaq – Hasan)

• Talaq ul Biddat ~ ( Triple Talaq )

• Ila

• Zihar

Talaq ul Ahasan is the most approved form of Talaq. In this Talaq, man makes single
pronouncement of Talaq to his wife during the Tuhr period (Purity period during menstruation
cycles). After the pronouncement of Talaq, wife goes for Iddat period of 3 Months. During this
Iddat period, husband can revoke Talaq expressly or impliedly by having sexual intercourse
with his wife. Under Shia law witness to the pronouncement and Intention of husband are
important, however under Sunni law No witness are required and even Talaq pronounced by
Mistake is acceptable.

Talaq Hasan is a type of Talaq in which husband pronounce Talaq successively during three
Tuhr period of wife. There must be clear intention on the part of the husband. Husband is
abstained to have sexual intercourse with wife during the Iddat period, practiced by wife during
the Talaq period.

Talaq ul Biddat is the most common type of Talaq which is also known as Triple Talaq. It must
be noted that this form of Talaq was never approved by the Prophet. Muslims always believes
in the concept of reconciliation, however Talaq ul Biddat is irrevocable and hence there is no
chance of reconciliation. The entire three pronouncements are given at a single time and
Marriage comes to an end without any period of cooling down. It is the reason that Triple Talaq

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was always condemned. Shia school does not even recognize this type of Talaq. It is only
recognized under Sunni law and under which it is considered to be a sin.

Ila is a type of Talaq in which a husband abstain himself from having sexual intercourse with
his wife for the period of four months. It is believed that if a man is able to control is sexual
urges against his wife for four months, he is entitled to have divorce with her. Marriage
dissolves automatically at the completion of four months.

Zihar is a type of Talaq in which husband compares his wife with his mother or any female in
prohibited degrees. Ila and Zihar are not observed in India.

TALAQ BY MUSLIM WOMEN

• Talaq e Tafweez – It is also known as delegated Talaq, in which husband delegates his
power to give Talaq to any third person or to his wife. Wife can give Talaq to herself whenever
she wants to dissolve the Marriage.

TALAQ BY MUTUAL CONSENT

• Khula- In this type of Talaq, Wife can get herself out of the Marriage, by making an offer to
her husband with some consideration. If husband accepts the offer of the wife, he is bound to
give Talaq to his wife.

DIVORCE BY MUTUAL CONSENT IN HINDU AND MUSLIM LAW-

HINDU LAW- Under the Hindu Marriage Act, 1955 both the husband and the wife have
been given a right to get their marriage dissolved by a decree of divorce on more than one
grounds specifically enumerated in Section 13.

Section 13-B (divorce by mutual consent ) makes provision for divorce by mutual
consent on the ground that-

 Both the parties to the marriage have been living separately for a period of one
year or more.
 They have not been able to live together.
 They have now mutually agreed for the dissolution of the marriage.

Procedure to be followed for filing a petition of divorce by mutual consent-

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  Both the parties need to file together a petition seeking divorce before the District
court.
 Before filing of the petition, married couple should make sure that they are living
separately for a period of one year or more. After petition is allowed, parties are
required for filing of statement.

If any party is not available, any such family member of such party may file the
statement on his behalf. Once this is done, ‘First motion’ is established.

 Couple seeking divorce by mutual consent will have to give reason why they are not
able to live together and mention in the petition that they have not been able to live
together and that they have mutually agreed that the marriage should be dissolved.
 Court after a period of 6 months and not more than 18 months (cooling-off
period) will give a date for listening to the parties.

What Happens When Consent To Divorce is Obtained by Force, Fraud or

Undue Influence?

1. The provisions of section 23(1)(bb) of the Hindu Marriage Act require the Court to
satisfy itself that consent for divorce under section 13-B has not been obtained by
force, fraud or undue influence.
2. It is court’s duty to figure out the reasonableness of the case and to ensure while
looking at the facts that the consent is not viciously obtained. An appeal against the
decree of divorce is allowed as there can be situations where even court fails to ensure
that consent given for divorce is not free.

Is the Statutory Cooling Off Period of 6 Months Mandatory?

In many important cases, the apex court has taken the view that the statutory period of 6 months
is meant as it will provide the couple seeking divorce to rethink on the issue and also will give
more time to the family members so that, any chance of reconciliation, if possible, meets its end.

The said waiting period of six months can be waived in a suitable case because, in each case, it
cannot be insisted that the parties should go through the futile and meaningless ceremony of again
waiting for completion of six months.

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Custody of Child After Divorce by Mutual Consent

Since, the divorce is by mutual consent the couple have to come to an agreement as of who
will hold the custody of the child.

1. Joint custody is the new legal solution situations where a deadlock is created as
both the parents want their offspring.
2. A joint custody is such where only one of the parent will have physical custody
while both will have legal custody.[7]
3. Child’s wish and interest are kept in mind by the court all throughout.

UNDER MUSLIM LAW-

The Khul and the mubaraa are considered by many as species of divorce by mutual consent.
But, as has been submitted earlier, it is proper to call khul as divorce at the instance of the
wife. Since in mubaraa or mubaraat the aversion is mutual and proposal for divorce may
emanate from either party, it alone falls under the category of divorce by mutual consent.

The word, “mubaraa:’ denotes the act of freeing each other by mutual consent. In the words
of Fyzee, “In the case of khul, the wife begs to be released and the husband agrees for a
certain consideration, which is usually a part or the whole of the mahr, while in mubaraa
apparently both are happy at the prospect of being rid of each other”.

Among the Sunnis when the parties to marriage enter into a mubaraa all mutual rights and
obligations come to an end. The Shia law is stringent. It requires that both the parties must bona fide
find the marital relationship to be irksome.

According to them the mubaraa is a form of divorce which dissolves a marital bond which
both parties find irksome. Among the Sunnis no specific form is laid down, but the Shias
insist on a proper form. If the husband were to say to his wife, “I have discharged you from
the obligation of marriage for such a sum, and you are separated from me”, divorce would
result.

Among both the Sunnis and the Shias, the mubaraa is an irrevocable divorce as in the talak-
ul-bain. In the words of Al-Karkhi, “When the husband receives a compensation from the
wife the divorce is bain and even when it is without compensation and consequently rajai
(reversible at the option of the husband), if during the wife’s idda he were to accept from her
a compensation, the separation would be equally bain”.

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The other requirements of the mubaraa are the same as that of the khul Just as in the khul, so
in the mubaraa. The wife must undergo idda. In both the khul and mubaraa, the divorce is
essentially an act of parties, and no intervention of the court is required.

LIVE – IN- RELATIONSHIPS

Live - in - relationship is a living arrangement in which an unmarried couple lives together under the
same roof in a long term relationship that resembles a marriage. Section 2(f) of DV act defines Domestic
Relationships as “domestic relationship” means a relationship between two persons who live or
have, at any point of time, lived together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are
family members living together as a joint family.

Section 2(s) of DV Act defines shared household as: “shared household” means a household
where the person aggrieved lives or at any stage has lived in a domestic relationship either
singly or along with the respondent and includes such a house hold whether owned or tenanted
either jointly by the aggrieved person and the respondent, or owned or tenanted by either of
them in respect of which either the aggrieved person or the respondent or both jointly or singly
have any right, title, interest or equity and includes such a household which may belong to the
joint family of which the respondent is a member, irrespective of whether the respondent or the
aggrieved person has any right, title or interest in the shared household.

The first case in which the Supreme Court of India first recognized the live in relationship as a valid
marriage was that of Badri Prasad vs. Dy. Director of Consolidation , in which the Court gave legal
validity to the a 50 year live in relationship of a couple.

The Allahabad High Curt again recognized the concept of live in relationship in the case of
PayalKatara vs. Superintendent, NariNiketanand others, wherein it held that live in relationship is
not illegal. The Court said that a man and a woman can live together as per their wish even without
getting married. It further said that it may be immoral for the society but is not illegal.

Domestic Violence

The Domestic Violence Act was enforced as an attempt to protect women from abusive (physical,
mental, verbal or economic) marital relationships. However, as per Section- 2 (f), it not only applies to
a married couple, but also to a ‘relationship in nature of marriage’.

Therefore, considering all this even the Supreme Court in a couple of cases has allowed live-in
relationships to be covered within the ambit of the law specified.

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Children out of marriage

Partners living together for a long time may have kids together. However, live-in couples are not
allowed to adopt kids as per the Guidelines Governing the Adoption of Children as notified by the
Central Adoption Resource Authority.

In the case of Bharata Matha v. R. Vijaya Renganathan the apex court clarified while deciding this case
that a child born out of live in relationship may inherit the property of his parents but he does not have
any birthright in the Hindu undivided ancestral property.

Legitimacy and inheritance rights of children

Inheritance rights of children are mentioned in Section- 16 of the Hindu Marriage Act, where the legal
status of legitimacy is provided even to illegitimate children (those born out of marriage) for the sole
purpose of inheritance. Therefore, inheritance rights have been granted to children born out of a live-in
relationship. These rights are available in both ancestral and self-bought properties.

Custody and maintenance rights of children

The position on the maintenance rights of children out of marriage varies in personal marriage laws.
For instance, under the Hindu Law the father has to maintain the child, whereas under the Muslim Law
the father has been absolved of such an obligation.

However, under Section- 125 of the Criminal Procedure Code, remedy is available for children who are
unable to claim maintenance under personal laws. Section- 125 provides a legal right of maintenance
to wives, children.

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