FAMILY LAW I

WHAT IS FAMILY LAW?

(ALSO CALLED PERSONAL/ PRIVATE LAW)
DO WE NEED LAW TO GOVERN SOMETHING
SO PERSONAL?

LA
W
 IF YOU WANT TO IMPROVE THE
SOCIETY, IMPROVE THE FAMILY
-CONFUCIUS

Origin of Family
 KINDS OF FAMILY
Basis of Classification Type of Family

Ancestry & Authority Matrilineal – Malabar region

Patrilineal

Affiliation Endogamous - Sapindaship

Exogamous

Size Nuclear

Extended

Residence Matrilocal

Patrilocal

Plurality Monogamous

Polygamous

Polyandrous
 HINDU UNDIVIDED FAMILY (HUF)

• CREATURE OF LAW
• A HINDU FAMILY IS PRESUMED TO BE JOINT; PRESUMPTION IS STRONGER IN
CASE OF NEARER RELATIONS
• CONSISTS OF ALL MALES LINEALLY DESCENDED FROM A COMMON
ANCESTOR, INCLUDING THEIR WIVES, WIDOWS, ADOPTED CHILDREN,
UNMARRIED DAUGHTERS
• ELDEST SURVIVING MALE MEMBER OF THE FEMALE = KARTA/ MANAGER
• FUNDAMENTAL PRINCIPLE = SAPINDASHIP
 WHAT IS FAMILY?
• FUNDAMENTAL ECONOMIC & SOCIAL UNIT OF SOCIETY
• BIOLOGICAL UNIT REGULARIZING SEX RELATIONSHIP
• EMOTIONAL & PSYCHOLOGICAL INTENSITIES BIND ITS MEMBERS
• UNIVERSAL & DURABLE
• MOULDS THE CHARACTER OF ITS MEMBERS
• PATRILOCAL, PATRIARCHAL, NUCLEAR, MONOGAMOUS, PATRILINEAL,
ENDOGAMOUS
• PROVIDES “HOME”
 BASIC FEATURES OF FAMILY
• CLOSELY KNIT RELATIONS
• LEGALISED MARITAL RELATIONSHIP THROUGH THE INSTITUTION OF MARRIAGE
• PROCREATION AND LEGALISING THE CHILDREN
• HAVING A DISTINCT IDENTIFIABLE FAMILY NAME (SURNAME)
• COMMON HABITATION AND ECONOMIC BASE
• PLAYS A PIVOTAL ROLE IN KEEPING THE SOCIETY WITHIN THE MORAL & CIVIL
BOUNDS.
• RELATIONSHIP OF FAMILY MEMBERS AMONG EACH OTHER IS BASED ON:
 BLOOD
 MARRIAGE (HETEROSEXUAL, IN INDIA)
 ADOPTION
 DEFINITION OF FAMILY

BURGESS & LOCKE

 FAMILY IS A SOCIAL GROUP OF PERSONS UNITED BY THE TIES OF MARRIAGE,

BLOOD OR ADOPTION
 SINGLE HOUSEHOLD
 INTERACTING WITH EACH OTHER IN THEIR RESPECTIVE SOCIAL ROLES OF
HUSBAND, WIFE, MOTHER, FATHER, SON, DAUGHTER, BROTHER, SISTER
 CREATING COMMON CULTURE
 WHAT IS LAW?

• LEGISLATIONS, CASE LAWS…AND?

• DIFFERENCE BETWEEN LAW AND JUSTICE: DOES LAW ALWAYS DO JUSTICE?
PERSPECTIVE TO UNDERSTAND FAMILY LAW
EG: LAW ON EQUAL PROPERTY RIGHTS FOR HINDU WOMEN
SO… WHAT IS FAMILY LAW?

D. M. WALKER, OXFORD COMPANION TO

LAW:

FAMILY LAW IS AN AREA OF LAW

DEALING WITH THE ISSUES
RELATED TO FAMILY & ITS
MEMBERS
SCOPE OF FAMILY LAW
WHY IS STUDYING FAMILY LAW IMPORTANT?

• WHAT’S PERSONAL IS POLITICAL

• FAMILY IS THE STARTING POINT OF CLAIMING RIGHTS, SETTLING DISPUTES,
STARTING POINT OF HUMAN INTERACTIONS
• CHANCES OF HAVING FAMILY DISPUTES & CONTRACTUAL DISPUTES IN OUR
LIVES ARE MORE, THAN HAVING CONSTITUTIONAL/ ADMINISTRATIVE LAW
DISPUTES.
• FAMILY IS AN INDIVISIBLE PART OF EACH ONE OF US.
Hindus Muslims Christians Parsis Secular
Hindu Marriage Muslim Personal Christian Parsi Marriage & Special Marriage
Act 1955 (as Law (Shariat) Marriage Act Divorce Act Act 1954
amended in Application Act 1872 1936 (as
1976) 1937 amended in
1988)
Hindu Adoptions Dissolution of Indian Divorce CrPC 1973 (Ch.
& Maintenance Muslim Act 1869 (as IX – s. 125)
Act 1956 Marriages Act amended in
1939 2001)
Hindu Minority Muslim Women Foreign
& Guardianship (Protection of Marriage Act
Act 1956 Rights on 1969
Divorce) Act
1986
Hindu Wakf Act 1995 Protection of
Succession Act Women from
1956 Domestic
Violence Act
2005
Commission of Family Courts
Sati (Prevention) Act 1984
Act 1987
 NATURE OF PERSONAL LAWS IN INDIA

Heterogenous Homogenised Codified

customs, only some Law
recognized by law
 HOW TO STUDY FAMILY LAW IN INDIA?
( AND IMPORTANCE OF ART. 25)

Personal Law = Religious Law + Customary Law +

Statutory Law

CONSTITUTIONAL LAW & UNIFORM

CIVIL CODE

Hind Musli Jewish

u m Christi Parsi Law
Law Law an Law
Law
 SOURCES OF PERSONAL LAWS
Hindu Law Muslim Law Christian Law Parsi Law Jewish Law
Ancient Sources Ancient Sources Ancient Sources Ancient Sources Ancient Sources
1. Shrutis/ Vedas 1. The Quran 1. The Bible 1. Customary 1. Torah (Five
2. Smritis: 2. Hadith/ Laws books of
Dharmasutras Tradition Moses)
& 3. Ijma
Dharmashastra 4. Qiyas (not
s accepted by
3. Commentaries Shias)
& Digests 5. Customs &
Usage (to a
limited extent)
Modern Sources Modern Sources Modern Sources Modern Sources Modern Sources
1. Judicial 1. Legislation 1. Legislations 1. Legislations 1. Legislations
Decisions 2. Judicial
2. Legislation Decisions
3. Custom 3. Principles of
4. Equity, Justice Equity, Justice
& Good & Good
Conscience Conscience
 Hindu Law Muslim Law
Mitakshara SUNNIS SHIAS
1. Benaras School Hanafi Ithna Asharia/ Jafri
2. Mithila School (vast majority of Most of the Shias in
3. Dravida/ Chennai School Muslims in India) India
4. Maharashtra/ Mumbai School Eg: Cutchi & Halai
Memons – were
Personal Laws

governed by their
own customary law
Schools of

and Hindu law before

1937

Dayabhaga Shafi – (South India) Ismaili/ Fatimi

(Bengal School of Law) (minorities among
Muslims – western
and central India; eg:
Khojas & Boharas –
were governed by
their own customary
law & Hindu law
before 1937)

Maliki (no followers Zahdis (Zayd School

 NATURE OF HINDU LAW

• CONSISTS OF A BODY OF RULES CONTAINED IN SEVERAL SANSKRIT BOOKS

REGARDED AS AUTHORITATIVE THROUGH AGES. – MOOKHA KONE V.
AMMAKUTTI AMMAL, AIR 1928 MAD 299.
• ANCIENT HINDU LAW - NOT PURE CUSTOMARY LAW, NOT A RESULT OF
LEGISLATION
• BRANCH OF DHARMA, MIXTURE OF CIVIL, RELIGIOUS & MORAL SYSTEMS OF
LAW
• MODERN HINDU LAW – STATUTORY & CUSTOMARY
 WHO ARE HINDUS?

ARYA
SAMAJ

BUDDHIST SIKHS
S PRARTHNA
SAMAJ
BRAHMO
JAINS SAMAJ

LINGAYATS, VEERASHAIVAS, EVERYONE WHO IS NOT MUSLIM,

CHRISTIAN, PARSI, JEW
 DEFINING HINDU
• GEOGRAPHICAL ORIGIN – PEOPLE LIVING ON THE OTHER SIDE OF THE
RIVER SINDHU/ INDUS
• VERY WIDE SCOPE OF WHO IS A HINDU – BEEF EATER, ATHEIST,
HINDUISM HATER, ETC. – BHAGWAN KOER V. J. C. BOSE, ILR (1902) 31 CAL
11 (PC) 15.
• SECTION 2, HINDU MARRIAGE ACT 1955:
 HINDUS, SIKHS, JAINS & BUDDHISTS, INCLUDING CONVERTS & RECONVERTS
 VIRASHAIVAS, LINGAYATS, FOLLOWERS OF BRAHMO, ARYA & PRARTHNA SAMAJ
 EVERYONE (LEGITIMATE & ILLEGITIMATE CHILDREN) BORN OF HINDU, SIKH, JAIN &
BUDDHIST PARENTS
 IN CASE ONLY ONE PARENT IS A HINDU, THE CHILD MUST BE BROUGHT UP AS A
HINDU – MYNA BOYEE
 RESIDUARY CLAUSE: PERSON WHO IS NOT MUSLIM, CHRISTIAN, PARSI, JEW, AND
NOT KNOWN TO BE HINDU, JAIN, SIKH/ BUDDHIST, AND IS DOMICILED IN INDIA, AND
UNLESS IT’S PROVED THAT HINDU LAW DOESN’T APPLY TO HIM, IS A HINDU – EG:
 MYNA BOYEE V. OOTARAM, (1861) 8 MIA
400.
• FACTS:
 A CHRISTIAN ENGLISHMAN COHABITED WITH A MARRIED HINDU WOMAN WHO
WAS SUBSEQUENTLY DESERTED BY HER HUSBAND. THE ENGLISHMAN HAD TWO
ILLEGITIMATE SONS BY HER, B & C. ON THE DEATH OF B, QUESTION AROSE: BY
WHAT LAW ARE B & C GOVERNED?

• A LEGITIMATE/ ILLEGITIMATE CHILD WILL BE A HINDU IF:

 ONE OF HIS/HER PARENTS AT THE TIME OF HIS/HER BIRTH WAS A HINDU, AND
 S/HE WAS BROUGHT UP AS A HINDU
SHASTRI YAGNAPURUSHDASJI V. MULDAS BHUNDARDAS
VAISHYA,
AIR 1966 SC 1119.
• PEOPLE BELONGING TO SATSANGI SECT BUILT A SWAMINARAYAN TEMPLE IN
BARODA, DEDICATED TO THE FOUNDER OF THE SECT. QUESTION AROSE
WHETHER THIS WAS A HINDU TEMPLE.
• BOMBAY HINDU PLACES OF PUBLIC WORSHIP (ENTRY AUTHORISATION) ACT
1956 – HINDU TEMPLES THROWN OPEN TO HARIJANS
• HELD THAT, SATSANGI SECT IS A PART OF HINDU RELIGION, HENCE THE
TEMPLE IS A HINDU TEMPLE
 RATANSHI D. MORARJI V. ADMINISTRATOR
GENERAL OF MADRAS, ILR (1928) 52 MAD
160.
• A CHRISTIAN AUSTRIAN LADY CONVERTED TO HINDUISM AND THEN MARRIED
A HINDU. SHE DIED LEAVING AN UNATTESTED WILL.
• AN UNATTESTED WILL IS INVALID UNDER CHRISTIAN LAW, BUT VALID UNDER
HINDU LAW.
• HELD – HINDUISM RECOGNIZES CONVERSION, AND HENCE THE LADY IS A
HINDU
 PERUMAL V. PONNUSWAMI, AIR 1971 SC
2352.
• ANNAPAZHAM, A CHRISTIAN WOMAN WAS MARRIED TO PERUMAL, A HINDU, IN
ACCORDANCE WIH HINDU CEREMONIES AND RITES. THEY ALSO ENTERED INTO AN
AGREEMENT THAT THEY WILL BE GOVERNED BY MITAKSHARA LAW. A SON,
PONNUSWAMI, WAS BORN TO THEM.
• RELATIONSHIP BETWEEN HUSBAND AND WIFE GOT STRAINED, AND HENCE
ANNAPAZHAM STARTED LIVING SEPARATELY ALONG WITH HER SON PONNUSWAMI. THE
SON CLAIMED FOR A SHARE IN THE FATHER’S PROPERTY. FATHER CONTESTED THAT
THEIR MARRIAGE IS INVALID BECAUSE THE WOMAN IS CHRISTIAN.
• HELD – A PERSON IS DEEMED TO BE A HINDU IF S/HE EXPRESSES A BONA FIDE
INTENTION TO BECOME A HINDU ACCOMPANIED BY A CONDUCT UNEQUIVOCALLY
EXPRESSING THAT INTENTION COUPLED WITH THE ACCEPTANCE OF HER AS ITS MEMBER
BY THE COMMUNITY/CASTE.
ANCIENT SOURCES OF HINDU LAW
 ANCIENT SOURCES OF HINDU LAW

• DHARMA – “DHRU”, TO HOLD, TO CONTINUE, TO PRESERVE – THAT WHICH

HELPS IN SUSTAINMENT OF LIVING BEINGS
• PURANAS – EXPLAIN & ILLUSTRATE LAW (FIFTH VEDA)
• SHRUTIS/ VEDAS – “THAT WHICH HAS BEEN HEARD”/ “KNOWLEDGE” – DIVINE
REVELATION
1. RIG VEDA – OLDEST – HYMNS & SONGS IN PRAISE OF THE FORCES OF NATURE
2. YAJUR VEDA – RITUALS & SACRIFICES
3. SAMA VEDA – PRAYERS
4. ATHARVA VEDA – MAGIC, SPELL & INCANTATIONS
 ANCIENT SOURCES OF HINDU LAW
(CONTD.)
• SMRITIS – “THAT WHICH IS REMEMBERED”
1. DHARMASUTRAS – APHORISMS OF LAW; SHORT WITTY REMARKS WHICH
CONTAIN A GENERAL TRUTH OR BROAD AND GENERAL PRINCIPLES OF COMMON
SENSE & JUSTICE.
• EG: DHARMASUTRAS OF GAUTAMA, BAUDHAYANA, APASTAMBA, VASISHTA, VISHNU, ETC.
VISHNU FOR EXAMPLE DEALS WITH RULES OF CIVIL AND CRIMINAL LAW; VOUCHES FOR
WOMEN’S PROPERTY RIGHTS.
2. DHARMASHASTRAS – RULES REGARDING ACHARA (MORALITY), VYAVAHARA
(RULES TO SETTLE DISPUTES IN JUSTICE ADMINISTRATION), PRAYASHCHIT (PENAL
PROVISIONS)
• EG: MANU SMRITI, YAJNYAVALKYA SMRITI, NARADA SMRITI
 ANCIENT SOURCES OF HINDU LAW
(CONTD.)
• COMMENTARIES & DIGESTS
 INTERPRET THE LAW LAID DOWN IN SMRITIS
 COMMENTARIES: ORDERLY EXPLANATION OF SUTRAS/ SHLOKAS, SIMPLE EASY TO
UNDERSTAND; EVIDENCE OF CUSTOMS PREVALENT
 DIGESTS: COMPILATIONS OF ALL RELEVANT MATERIAL FROM SEVERAL SOURCES
ON ANY TOPIC OF LAW, WITH MINIMUM COMMENTS
 MOST IMPORTANT COMMENTARIES: “DAYABHAGA” BY JIMUTAVAHANA AND
“MITAKSHARA” BY VIGNANESHWARA
 MODERN SOURCES OF HINDU LAW

• EQUITY, JUSTICE, GOOD CONSCIENCE –

• WHAT IS JUST, FAIR AND REASONABLE – ENGLISH LAW APPLIED TO INDIAN
CIRCUMSTANCES AFTER MODIFICATIONS – WAGHELA RAJSANJI V. SK. MASLUDIN,
(1886-87) 14 IA 89.

• LEGISLATIONS –
• STRONGEST SOURCE OF LAW, AND IT PREVAILS OVER ALL OTHER SOURCES. –
SUPREINTENDENCE CO. OF INDIA (P) LTD. V. KRISHNAN MURGAI, (1981) 2 SCC 246,
257.
• POSITIVE LAW

• JUDICIAL DECISIONS
• STARE DECISIS
• COMMON LAW REGIME
 MODERN SOURCES OF HINDU LAW –
CUSTOM/ USAGE (SADACHARA)
• CUSTOM IS THE TWILIGHT OF LAW
• HINDU LAW ORIGINATED FROM CUSTOMS AND CONVENTIONS
• LUHAR AMRIT LAL NAGJI V. DOSHI JAYANTILAL JETHALAL, AIR 1960 SC 964, 970 –
CUSTOM IS A SOURCE OF LAW
• IF THERE IS A DISAGREEMENT BETWEEN SMRITI AND CUSTOM, LATTER PREVAILS.
• COLLECTOR OF MADURA V. MOOTTOO RAMALINGA SATHUPATHY, (1868) 12 MIA
397 – CLEAR PROOF OF USAGE WILL OUTWEIGH THE WRITTEN TEXT OF LAW
• BURDEN OF PROVING THAT CUSTOM DOESN’T EXIST/ IS DEROGATORY/ IS
DISCONTINUED TO A LAW IS ON THE PERSON MAKING THIS ALLEGATION
 WHEN WILL A CUSTOM HAVE A FORCE OF
LAW? – ALL THE FOLLOWING SHOULD BE
PROVED WITH EVIDENCE IN COURT
• VALID
• ANCIENT
• INVARIABLE
• CONTINUOUS
• CLEAR & UNAMBIGUOUS
• REASONABLE
• NOT OPPOSED TO PUBLIC POLICY, LAW, MORALITY
• NOT FORBIDDEN BY STATUTE
• MUST BE OBLIGATORY
 MORE ABOUT CUSTOM

• SANT RAM V. LABH SINGH, AIR 1965 SC 314 – CUSTOM IS AFFECTED BY PART
III OF THE CONSTITUTION, AND CUSTOMS & USAGES HAVING THE FORCE OF
LAW IN THE TERRITORY OF INDIA MUST BE HELD TO BE WITHIN THE
EXPRESSION “ALL LAWS IN FORCE” IN ARTICLE 13.
• KINDS OF CUSTOMS
1. FAMILY CUSTOMS – EG: PROPERTY SHOULD REMAIN IMPARTIBLE
2. CLASS CUSTOMS – EG: ADOPTION OF SON-IN-LAW AMONG REDDY & KAMMA
CASTES IN ERSTWHILE CHENNAI PRESIDENCY
3. LOCAL CUSTOMS
4. INSTITUTIONAL CUSTOMS – EG: CUSTOMS OF MATHS & RELIGIOUS & CHARITABLE
ENDOWMENTS ABOUT SUCCESSION TO OFFICE OF MAHANT, SHEBAIT/
DHARMAKARTA
 SCHOOLS OF ANCIENT HINDU LAW –
MITAKSHARA & DAYABHAGA
• SCHOOLS: DIVERSITY OF DOCTRINE WHICH IS A RESULT OF DIFFERENT
REASONING/ INTERPRETATIONS
• MITAKSHARA: “CONCISE WORK”: APPLICABLE TO THE WHOLE OF INDIA
EXCEPT BENGAL
• RIGHT IN FAMILY PROPERTY ACQUIRED BY BIRTH; NO INDIVIDUAL RIGHTS
• RIGHT TO PROPERTY PASSED TO MALE MEMBERS BY SURVIVORSHIP
• SUB-SCHOOLS: BENARAS, MITHILA, DRAVIDA/CHENNAI, MAHARASHTRA/MUMBAI

• DAYABHAGA: APPLICABLE TO BENGAL AND NORTH-EAST

• RIGHTS IN JOINT FAMILY PROPERTY ACQUIRED BY INHERITANCE/ WILL

• WHAT HAPPENS IF A HINDU GOVERNED BY ONE SCHOOL MIGRATES TO A

REGION GOVERNED BY ANOTHER SCHOOL, WRT UNCODIFIED HINDU LAW?
(LEX LOCI)
• RELEVANT ONLY FOR UNCODIFIED HINDU LAW
 DIFFERENCE BETWEEN MITAKSHARA & DAYABHAGA
SCHOOLS
Point of Difference Mitakshara School
Ownership of Property • Son co-owner of property
along with father, at birth
• Son can hence demand
partition even during
father’s life time
• Unobstructed Property
• No individual rights
Right of Son Son has right to control
unauthorised alienations of
property by his father
Alienation Member of a joint family
cannot alienate his right
Right of Survivorship Yes
Basis of heritability Blood Relationship &
Propinquity (Agnates
preferred)
Dayabhaga School
• Father is the absolute
owner of the property
• Son cannot demand
partition till his father’s
death
• Obstructed Property
• Individual Rights
Son has no such right
On father’s death, sons can
alienate their shares
Share devolves on the
widow
Spiritual benefit that the
claimant can confer by
offering prayers for the
deceased
NATURE OF MUSLIM PERSONAL LAW (SHARIAT) IN INDIA

• SHARIAT = “PATHWAY TO BE FOLLOWED”/ “PATH TO WATER”

• REVELATION OF RELIGION TO A SINGLE PERSON IS THE SPECIALITY OF MUSLIM LAW.
(CHRIST IS NOT THE FOUNDER OF CHRISTIAN LAW; JEWS BELIEVE IN A NUMBER OF
PROPHETS).
• A ONE-MAN LEGAL SYSTEM, CENTRES AROUND THE PERSONALITY, SAYINGS AND
DOINGS OF PROPHET MOHAMMED
• COMPLETE IDENTIFICATION OF ITS ORIGIN WITH THE PERSONALITY OF THE PROPHET
• WESTERN WRITERS CALL MUSLIM RELIGION AS MOHAMMEDVAD, WHICH THE MUSLIMS
DON’T ACCEPT. THEY RECOGNIZE ISLAM AS A FAITH TO ONE GOD.
• NO ANGEL/ PRIEST IS RECOGNIZED BY ISLAM EXCEPT THE PROPHET.
• MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT 1937 – LISTS OUT SPECIFIC
AREAS LIKE INTESTATE SUCCESSION, SPECIAL PROPERTY TO FEMALES, MARRIAGE & IS
DISSOLUTION, MAINTENANCE, DOWER, GUARDIANSHIP, GIFTS, TRUSTS, WAKFS
 NATURE OF MUSLIM PERSONAL LAW IN INDIA
• MUSLIM CRIMINAL LAW IS SUBSTITUTED BY IPC, CRPC, EVIDENCE & CONTRACT ACTS
• PROVISIONS REGARDING SLAVERY ARE CANCELLED
• CHILD MARRIAGES PROHIBITED
• IF A MUSLIM CONVERTS TO ANOTHER RELIGION, HE DOESN’T LOSE HIS PERSONAL RIGHTS UNDER MUSLIM LAW.
• AGE OF MAJORITY MADE 18 (EXCEPTIONS BEING MARRIAGE, MEHR, DIVORCE)
• DISPUTES REGARDING RELIGIOUS STATUS/ PROPERTY ARE TREATED AS CIVIL DISPUTES, AND CPC GOVERNS
THEM.
• MUSLIM LAW OF PRE-EMPTION (PREVENTING SOMETHING FROM HAPPENING) APPLICABLE EVERYWHERE IN INDIA
• COURTS ADJUDICATE UPON DISPUTES (NOT QAZIS & MULLAHS)
• RULE OF LEGITIMATION BY ACKNOWLEDGEMENT UNACCEPTABLE.
• SS. 494, 495 IPC ISN’T APPLICABLE TO MUSLIMS
• APPLICATION OF SPECIAL MARRIAGE ACT TO MUSLIMS IS DEBATABLE
• DOWRY PROHIBITION ACT ISN’T APPLIED TO MUSLIMS (MEHR WILL BE AFFECTED)
• PROVISIONS OF TRANSFER OF PROPERTY ACT THAT ARE CONTRADICTORY TO MUSLIM LAW AREN’T APPLICABLE
TO MUSLIMS
• INDIAN SUCCESSION ACT WILL BE APPLICABLE IF A MUSLIM MARRIES UNDER SPECIAL MARRIAGE ACT.
 WHO IS A MUSLIM?

• MUSALMAN/ MOHAMMADAN
• ATA WARIS V. S.A. KHAN, PLD 1959 LAH 205 (PAKISTAN):
• A PERSON WHO READS KALMA EVEN ONCE, BELIEVES IN THE UNITY OF GOD
& THAT THE PROPHET MOHAMMED (PBUH) IS THE LAST PROPHET &
PROFESSES TO BE A MUSALMAN MUST BE ACCEPTED AS SUCH.
• ALMOST 15 KINDS/ SECTS OF MUSLIMS IN INDIA
 SECTS OF MUSLIMS IN INDIA

• AHMEDIA • DAKHNI & KONKANI MEO

• CUTCHI MEMON • MOLESALAM GARASIA

• MOPLA
• HALAI MEMON
• KARKHANADAR
• SHIA
• GURJAR
• KHOJA
• AHLE QURAN
• DAUDI & SULAIMANI BOHRA • MAHAL-A-HADITH
• SUNNI BOHRA • KADIYAMI
 SHIAS & SUNNIS

• DISPUTE AS TO WHO WILL BE THE CALIPH OF ARABIA AFTER PROPHET

MOHAMMAD’S DEATH
• SHIAS WANTED PROPHET’S SON-IN-LAW, ALI, TO BE THE CALIPH (SUCCESSION TO
CALIPHATE TO REMAIN WITHIN FAMILY)
• SUNNIS WANTED ELECTION
• PROPHET’S WIFE, AYESHA, WAS AGAINST HER SON-IN-LAW BECOMING THE CALIPH
• SO SHE SUPPORTED HER FATHER, ABU BAKR TO BECOME THE FIRST CALIPH AFTER
PROPHET
• ALI WAS THE FOURTH CALIPH, AFTER UMAR & USMAN
• ALI WAS LATER KILLED
 DIFFERENCE BETWEEN SHIAS & SUNNIS
Basis of Difference Shias
Traditions/ Established Didn’t accept the
Practices interpretations of the Quran
by Prophet’s successors
Commands Oral commands of Prophet
valid only if they are in
consonance with Quran
Sources Accept only Quran, Hadith,
Ijma
Spiritual & Worldly Imam doesn’t wield any
(political) Power spiritual/worldly power;
both are different
Gaining of Caliphate Within Prophet’s pedigree/
progeny
Caliphate Recognise only Ali as their
Caliph (not the first three);
only Hasan & Hussain as
their Imams
Sunnis
Accepted the Successors’
interpretations
Only the commands of the
caliphs were supplementary
to Quran (no Imams)
Accept Quran, Hadith, Ijma,
Qiyas, customs, judicial
decisions, justice, equity &
good conscience
Caliph = Imam
Election
Recognise everyone as
Caliphs
 SOURCES OF MUSLIM LAW: ANCIENT
SOURCES

• QURAN:
• DIVINE REVELATION TO THE PROPHET IN THE LAST 23 YEARS OF HIS LIFE,
WRITTEN DOWN 18 YEARS AFTER HIS DEATH; IN ARABIC; CONTAINS MORAL
COMMANDS
• K. P. SAXENA: QURAN IS A DIVINE COMMUNICATION & REVELATION TO THE
PROPHET OF ISLAM & MAY APTLY BE SAID TO BE THE FIRST AND THE GREAT
LEGISLATIVE CODE OF ISLAM.
 SOURCES OF MUSLIM LAW

• HADITH/ TRADITION
• PRECEPTS, ACTIONS, SAYINGS OF THE PROPHET, WRITTEN DOWN AFTER HIS
DEATH
• COLLECTIVELY, HADITHS ARE CALLED SUNNA
• INCLUDE PRONOUNCEMENTS MADE BY THE PROPHET ON THE OCCASIONS
WHEN QUESTIONS AROSE FOR HIS DECISION

• DIVIDED INTO TWO GROUPS:

• SACRED HADITH: GOD HIMSELF SPEAKING
• NOBLE HADITH: PROPHET’S OWN ACTS & UTTERANCES
 SOURCES OF MUSLIM LAW

• IJMA
• AGREEMENT OF MUSLIM JURISTS OF ANY PARTICULAR AGE ON QUESTIONS OF
LAW
• DOGMATIC OPINION DELIVERED BY A COUNCIL OF DOCTORS
• SHIAS OPINE THAT IJMAS ARE TRUE FOREVER & UNCHANGEABLE
• SUNNIS DON’T SUBSCRIBE TO THIS BLIND FOLLOWING OF STATIC OPINION
 SOURCES OF MUSLIM LAW

• QIYAS
• ANALOGICAL DEDUCTIONS
• DERIVED FROM THE COMPARISON OF THE ABOVE THREE SOURCES
• WHENEVER JURISTS CONFRONTED WITH A PECULIAR CASE TO WHICH NONE
OF THE ABOVE THREE SOURCES DIRECTLY APPLY, CONCLUSION IS DEDUCED
BY APPLYING THE REASON OF THE ABOVE MENTIONED SOURCES AND TEXTS.
• SHIAS DON’T ACCEPT THIS AS A SOURCE OF MUSLIM LAW
 MODERN SOURCES OF MUSLIM LAW

• CUSTOMS: CHARACTERISTICS
• LEGAL FICTIONS
• LEGISLATIONS
• JUDICIAL DECISIONS
• EQUITY, JUSTICE, GOOD CONSCIENCE
 AKBAR ALI V. MOHAMMED ALI, (1932)34
BOM LR 655.
• WHETHER THE RELIGIOUS HEAD (MULLA SAHIB) OF THE DANDI BOHRA
COMMUNITY HAS THE AUTHORITY TO EXCLUDE A PARTICULAR PERSON(S)
FROM JOINING THE COLLECTIVE NAMAZ
• HELD – NO, HE DOESN’T.
• NO CUSTOM GIVES HIM THAT POWER.
 NATURE OF CHRISTIAN LAW

• CHRISTIANITY WAS FOUNDED IN JUDAEA (MODERN ISRAEL) ABOUT 2000 YEARS AGO
BY JESUS OF NAZARETH.
• BEFORE CHRISTIANITY, WESTERN EUROPEAN CULTURES RECOGNIZED MORE THAN
ONE FORM OF SOCIALLY ACCEPTABLE & BINDING UNION BETWEEN MEN & WOMEN.
BOTH MARRIAGE & CONCUBINAGE WERE SOCIALLY AND LEGALLY ACCEPTED.
• AFTER 3 CENTURIES, IT BECAME OFFICIAL RELIGION OF ROMAN EMPIRE
• ROMAN CATHOLIC CHURCH BUILT A LARGE & COMPLEX LEGAL SYSTEM OF ITS OWN
• 3 BRANCHES OF CHRISTIANITY: PROTESTANT, CATHOLIC & EASTERN ORTHODOX
• 3 PRIMARY ELEMENTS OF A VALID CHRISTIAN MARRIAGE:
1. CONSENT
2. PRESENCE OF CLERGY
3. CONSUMMATION
 WHO IS A CHRISTIAN?

• SECTION 3, CHRISTIAN MARRIAGE ACT 1872:

 CHRISTIAN MEANS A PERSON PROFESSING THE CHRISTIAN RELIGION
 INDIAN CHRISTIANS INCLUDE CHRISTIAN DESCENDANTS OF NATIVES OF INDIA
CONVERTED TO CHRISTIANITY.

• SECTION 2(D), INDIAN SUCCESSION ACT:

 NATIVE OF INDIA WHO IS, OR IN GOOD FAITH CLAIMS TO BE, OF UNMIXED ASIATIC
DESCENT AND WHO PROFESSES ANY FORM OF CHRISTIANITY

• KTB DAVID V. NILAMONI DEVI, AIR 1953 ORI 10:

 THOUGH NOT BAPTISED, ANY PERSON PROFESSING CHRISTIAN RELIGION IS A
CHRISTIAN FOR THE PURPOSES OF CHRISTIAN MARRIAGE ACT.
 SOURCES OF CHRISTIAN LAW

• TRADITIONAL SOURCE: THE BIBLE

• MODERN SOURCES:
 LEGISLATIONS:
• CHRISTIAN MARRIAGE ACT 1872: SOLEMNIZATION OF MARRIAGE,
REGISTRATION, ISSUANCE OF MARRIAGE CERTIFICATE, ETC.; APPLIES TO ALL
CHRISTIANS MARRIED IN INDIA, IRRESPECTIVE OF NATIONALITY, DOMICILE
• (INDIAN) DIVORCE ACT, 1869: MATRIMONIAL RELIEFS LIKE NULLITY OF
MARRIAGE, JUDICIAL SEPARATION, RESTITUTION OF CONJUGAL RIGHTS, ALIMONY,
CHILD CUSTODY
 NATURE OF PARSI LAW

• PARSIS CAME FROM “PERS”/ “PARS” PROVINCE OF PERSIA (MODERN DAY IRAN)
• THEY FLED THEIR LAND BECAUSE THE MUSLIM RULERS FORCEFULLY STARTED
CONVERTING THEM TO ISLAM, THEY WERE THREATENED OF BEING KILLED
• THEY FLED TO WESTERN EUROPE AND NORTH INDIA, AND SETTLED IN GUJARAT.
• THEIR TOTAL POPULATION IN INDIA IS 90,000 ONLY (0.014% OF THE INDIAN
POPULATION)
• THEY WERE LARGELY GOVERNED BY THEIR CUSTOMS, THEY WORSHIP ALL
ELEMENTS OF NATURE, LIKE, SUN, FIRE, EARTH, WATER.
• THEY BASICALLY ARE PERSIAN IMMIGRANTS
 WHO IS A PARSI (ZOROASTRIAN)?

• DESCENDANTS OF ORIGINAL PERSIAN IMMIGRANTS

• BORN OF ZOROASTRIAN PARENTS
• PROFESS ZOROASTRIAN FAITH
• PERSONS WHOSE FATHER IS A PARSI, AND MOTHER AN ALIEN, BUT ADMITTED
TO ZOROASTRIAN FAITH
• ZOROASTRIANS FROM IRAN WHO ARE TEMPORARILY/ PERMANENTLY
RESIDING IN INDIA
 SOURCES OF PARSI LAW

• CUSTOMS
• LEGISLATIONS: PARSI MARRIAGE & DIVORCE ACT 1936: MARRIAGE &
DISSOLUTION
 NATURE OF JEWISH LAW

• GOVERNED BY SECULAR LAWS OF INDIA, THEY DON’T HAVE THEIR SEPARATE

LAWS
• JEWS FOLLOW JUDAISM, AND ARE THE ORIGINAL INHABITANTS OF JERUSALEM
• JUDAISM IS A SET OF BELIEFS &PRACTICES ORIGINATING IN THE HEBREW
BIBLE (OLD TESTAMENT).
 WHO IS A JEW?

• ANY PERSON WHO PROFESSES/ PRACTICES JEWISH RELIGION IS A JEW.

• EVEN IF A PERSON SHOWS SOME DEGREE OF JEWNESS, HE IS A JEW.
• HE NEEDN’T STRICTLY FOLLOW ALL THE CUSTOMS.
• IF A PERSON ISN’T A JEW IN ANY DEGREE, HE ISN’T A JEW.
 SOURCES OF JEWISH LAW

• TRADITIONAL SOURCE: TORAH & TALMUD:

• TWO AMONG THE FIRST FIVE BOOKS OF THE JEWISH BIBLICAL CANNON, AND INCLUDES ALL OF
JUDAISM’S LEGAL & RELIGIOUS TEXTS, WITH RELIGIOUS, MORAL, CEREMONIAL, JUDICIAL & CIVIL
DIRECTIONS ISSUED BY PRIESTS & SCRIBES.613 COMMANDMENTS IN TORAH

• MODERN SOURCE: SECULAR LEGISLATIONS

• SPECIAL MARRIAGE ACT 1954
• INDIAN SUCCESSION ACT
• MAJORITY ACT 1875
• GUARDIANS AND WARDS ACT 1890
• PROHIBITION OF CHILD MARRIAGE ACT 2006
• PWDV ACT 2005
• FAMILY COURTS ACT 1984
IS THERE A NEED FOR CODIFICATION OF PERSONAL
LAWS?
Advantages Disadvantages
Of utility to Judges, people, government Impossible to have a complete & self
sufficient code
Saves labour Comments & decisions may overburden
codification, and hence code may become
useless
Cheapens litigation cost Affects the natural growth & elasticity of
law
Minimises errors from untrained judges Makes the defects in the law more clear,
hence encouraging misuse
Settles disputed questions
Prevents insertion of technicalities &
unsuited doctrines
Helps in reforming personal laws
Diffuses accurate knowledge to people
about their rights and duties
Makes law accurate, certain, precise
DO WE NEED A UNIFORM CIVIL CODE?
A HAPPY MARRIAGE IS A HARBOUR IN THE
TEMPEST OF LIFE, AN UNHAPPY MARRIAGE
IS A TEMPEST IN THE HARBOUR OF LIFE.

– J. PETIT-SENN
 WHAT IS MARRIAGE?

• STABLE, SOCIALLY PERMITTED, VOLUNTARY, EXCLUSIVE UNION BETWEEN A MALE AND A

FEMALE (IN INDIA)
• CIVIL & RELIGIOUS CONTRACT
• MAZUMDAR: MARRIAGE IS A SOCIALLY SANCTIONED UNION OF MALE AND FEMALE, OR
A SECONDARY INSTITUTION DEVISED BY SOCIETY TO SANCTION THE UNION & MATING
OF MALE & FEMALE FOR THE PURPOSES OF:
• ESTABLISHING HOUSEHOLD
• ENTERING INTO SEX RELATIONS
• PROCREATING CHILDREN
• PROVIDING CARE FOR THE OFFSPRING
 MARRIAGE UNDER DIFFERENT RELIGIONS
Hindus Muslims Christians Parsis Jews
(Nikah)
Before HMA: Civil contract, Contract A contract, Civil Contract
-A Sacrament, the object of solemnised by a ceremony of under SMA 1954
indissoluble which is mutual “minister of “ashirwad” by a
union to beget a enjoyment and religion”, priest is
son for procreating & licensed under essential for its
salvation & to legalizing the s. 9, CMA validity
discharge children; also a
religious & religious duty
secular duties. (ibadat)
After HMA: -Preservation of Nachimson v. “Ashirwad” is a Written marital
-Both a contract species Nachimson, prayer/ contract
& a sacrament -Fixing descent (1930) 1 and D, exhortation to between Jews is
-No more -Restraining p.271: the parties to called Katuba
indissoluble/per men from observe their
manent debauchery It should be the marital
-Divorce & - intention of the obligations
remarriage Encouragement parties when
allowed of chastity they enter into
-Promoting love marriage that it
& union betn. should last for
Husband-wife life.
 MARRIAGE DIFFERS FROM A PURE CIVIL
CONTRACT IN THE FOLLOWING WAYS:
1. CAPACITY TO MARRY
2. FORMALITIES OF MARRIAGE
3. GROUNDS OF VOID & VOIDABLE MARRIAGE (EG: MINOR’S MARRIAGE)
4. AVOIDANCE OF MARRIAGE (CAN’T HAPPEN BY REPUDIATION)
5. DISSOLUTION OF MARRIAGE (CAN’T HAPPEN BY
AGREEMENT/FRUSTRATION/BREACH)
6. TERMS OF MARRIAGE CONTRACT (NOT FREE TO PUT ANY TERMS)
 CAN ENGAGEMENTS BE CONSIDERED AS
ENFORCEABLE CONTRACTS?
• NO.
• SUIT FOR SPECIFIC PERFORMANCE OF MARRIAGE AGREEMENT IS NOT MAINTAINABLE
• INJUNCTION CANNOT BE ISSUED AGAINST A PERSON WHO GETS MARRIED IN
BREACH OF MARRIAGE AGREEMENT
• BUT, ON BREACH OF A MARRIAGE AGREEMENT, MONEY, JEWELRY, EXPENSES
INCURRED FOR ENGAGEMENT CEREMONY ARE RECOVERABLE.
• S. 26, INDIAN CONTRACT ACT:
 EVERY AGREEMENT IN RESTRAINT OF MARRIAGE OF ANY PERSON, OTHER THAN A MINOR,
IS VOID.
 FORMS OF MARRIAGE
1. POLYANDRY (FRATERNAL OR NON-FRATERNAL) – ONE WIFE, MANY
HUSBANDS
2. POLYGAMY/ POLYGYNY
3. HYPERGAMY – MARRIAGE OF DAUGHTER IN A HIGHER CLASS/CASTE FAMILY
4. LEVIRATE – MARRYING CHILDLESS WIDOW OF ONE’S BROTHER
5. SORORATE – MARRYING SISTER OF DECEASED WIFE
6. SORORAL POLYGAMY – MAN MARRYING SEVERAL SISTERS
7. ANULOMA MARRIAGE – UPPER CASTE MAN, LOWER CASTE WOMAN
8. PRATILOMA MARRIAGE – UPPER CASTE WOMAN, LOWER CASTE MAN
9. CONCUBINAGE – LIVING TOGETHER WITHOUT MARRIAGE
10. EXOGAMY – OUTSIDE FAMILY/COMMUNITY
11. ENDOGAMY – WITHIN COMMUNITY
 RIGHT TO MARRY

• ARTICLE 16, UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948

1. MEN & WOMEN OF FULL AGE, WITHOUT ANY LIMITATION DUE TO RACE,
NATIONALITY OR RELIGION, HAVE THE RIGHT TO MARRY AND TO FOUND A
FAMILY. THEY ARE ENTITLED TO EQUAL RIGHTS AS TO MARRIAGE, DURING
MARRIAGE AND AT ITS DISSOLUTION.
2. MARRIAGE SHALL BE ENTERED INTO ONLY WITH FREE AND FULL CONSENT OF
THE INTENDING SPOUSES.
3. THE FAMILY IS THE NATURAL & FUNDAMENTAL GROUP OF SOCIETY AND IS
ENTITLED TO PROTECTION BY SOCIETY AND THE STATE.

• ARTICLE 21, CONSTITUTION OF INDIA

• NO PERSON SHALL BE DEPRIVED OF HIS LIFE OR PERSONAL LIBERTY EXCEPT
ACCORDING TO PROCEDURE ESTABLISHED BY LAW.
 MR. X V. HOSPITAL Z, (1998) 8 SCC 296.

• IS RIGHT TO MARRY AN ABSOLUTE RIGHT?

• A SURGEON IN NAGALAND STATE HEALTH SERVICE DONATED BLOOD TO A SURGERY PATIENT IN A
MADRAS HOSPITAL. HIS BLOOD SAMPLE REVEALED THAT HE WAS HIV+, WHICH WAS UNKNOWN
TO HIM. HIS MARRIAGE WAS SCHEDULED, BY WHICH TIME HIS BLOOD REPORT GOT LEAKED AND
HIS MARRIAGE BROKE. HE APPROACHED THE CONSUMER DISPUTES REDRESSAL COMMISSION TO
CLAIM DAMAGES AGAINST THE HOSPITAL. CASE DISMISSED. APPROACHED SUPREME COURT.
• SC (DIVISION BENCH)– NO. RIGHT REMAINS SUSPENDED UNTIL THE AFFLICTED PERSON IS CURED.
IF AN AFFLICTED PERSON MARRIES A NON-AFFLICTED PERSON, EVEN WITH HIS/HER CONSENT,
S/HE WOULD COMMIT OFFENCES U/S. 269, 270 OF IPC (NEGLIGENT/ MALIGNANT ACT LIKELY TO
SPREAD INFECTION OF DISEASE DANGEROUS TO LIFE)
• OVERRULED BY A 3-JUDGE BENCH IN 2003: ANY AFFLICTED PERSON CAN MARRY A NON-
AFFLICTED PERSON, OR 2 AFFLICTED PERSONS CAN MARRY EACH OTHER WITHOUT ANY LEGAL
BAR, PROVIDED THERE IS KNOWLEDGE AND INFORMED CONSENT FOR THE SAME.
 LATA SINGH V. STATE OF U.P., AIR 2006 SC
2522.
• THREATS, COMPLAINTS, ARRESTS & CRIMINAL CASES AGAINST INTER-CASTE
MARRIAGE
• WRIT PETITION U/A 32, CONSTITUTION OF INDIA: PRAYER FOR ISSUING
CERTIORARI/ MANDAMUS FOR QUASHING TRIALS IN LOWER COURTS AGAINST
HER HUSBAND AND HIS RELATIVES
• SC – RIGHT TO MARRY ANYONE UPHELD. INTER-CASTE MARRIAGES ARE IN
THE NATIONAL INTEREST & WILL DESTROY THE CASTE SYSTEM.
 NATURE & OBJECTS OF MARRIAGE

• SOCIAL & RELIGIOUS INSTITUTION ORDAINED BY GOD (CHRISTIANS, PARSIS,

JEWS)
• CONTROL SEXUAL ACTIVITIESHindus & Muslims
• SYSTEMATIZE FAMILY LIFE
• PROCREATE CHILDREN
• PERFORM RELIGIOUS CEREMONIES & ATTAIN SALVATION (HINDUS)
 KINDS OF MARRIAGE
Valid (Sahih) Void (Batil) Voidable Irregular (Fasid)
Contracted Has no legal status; Valid till Court passes Lack of some formality/
following all Void ab initio nullity decree existence of some
required legal impediment which can be
procedures rectified
Parties have -Never having taken -Parties have all rights Rights & obligations are
many rights & place; no ensuing rights & obligations like a based on consummation:
obligations wrt & obligations valid marriage till Court -Before consummation:
each other passes decree No legal effect
-Parties can have -After consummation:
second marriage -Parties cannot have a 1)wife is entitled to dower
Eg: Nikah second marriage till (prompt/deferred, whichever
(permanent), Wife cannot get voidable marriage is is less)
Nikah Mut’ah maintence annulled 2)Wife is bound to observe
(temporary) iddat (in case of
-Wife can get death/divorce) for 3 courses
maintenance 3)Children are legitimate
Declared null at Declared null at the Declared null at the May be terminated by either
the instance of instance of either party, instance of party, either before or after
either party but recourse to Court AGGRIEVED PARTY, consummation
isn’t compulsory only a Court can annul
it
 ESSENTIALS OF A VALID MARRIAGE
HMA 1955 Muslim Law CMA 1872 + IDA PMDA 1936 SMA 1954 FMA 1969
1869
RELIGION Both Hindus Male: Muslim, At least 1 party Both Parsis Any two At least 1
s. 5 Christian, Jew should be a Ch. II heterosexual party should
Female: Only Christian parties (s. 4) be Indian
Muslim s. 4, CMA citizen (s. 4)
MARRIAGE Customs Offer+ “I call upon..” “Ashirwad” “Accept “I, AB,
RITUALS s. 7 Acceptance+ ss. 9, 60, CMA s. 3 each other..” take…”
Dower (s. 12) s. 13
BIGAMY Void Valid Void Void Void Void
s. 5 s. 60, CMA s. 4 ss. 4, 24 s.4+SMA
CHILD Neither Void Valid (with Valid (with Void Void Void
MARRIAGE/ nor Voidable Guardian’s Guardian’s s. 3(c) ss. 24, 4(c) s. 4 + SMA
AGE OF ss. 11, 12 consent) consent)
MARRIAGE “Option of s. 19, CMA
Puberty”
UNSOUND Voidable Valid (with Voidable Ground for Void Void
MIND s. 12 Guardian’s ss. 10, 19, IDA Divorce ss. 4, 24 s. 4 + SMA
consent) s. 32
IMPOTENT Voidable Ground for Divorce Ground for Nullity Void Void Void
s. 12 Decree s. 30 s. 24 s. 24, SMA
s. 19. IDA
WITNESSES Not required 2 men or 1 man + 2 witnesses 2 Parsi 3 witnesses 3 witnesses
2 women s. 25, CMA witnesses s. 12 s. 13
 HINDU MARRIAGE ACT, 1955
AN ACT TO AMEND & CODIFY THE LAW RELATING TO MARRIAGE AMONG
HINDUS

• 29 SECTIONS, 6 PARTS
• PART I – PRELIMINARY (SS. 1-4)
• PART II – HINDU MARRIAGES (SS. 5-8: CONDITIONS, CEREMONIES,
REGISTRATION)
• PART III – RCR & JUDICIAL SEPARATION (SS. 9-10)
• PART IV – NULLITY OF MARRIAGE & DIVORCE (SS. 11-18)
• PART V – JURISDICTION & PROCEDURE (SS. 19-28A)
• PART VI – SAVINGS & REPEALS (SS. 29-30)
 HMA 1955

• TERRITORIAL APPLICATION – APPLIES TO EVERY HINDU DOMICILED IN INDIA,

THOUGH THEY MAY BE RESIDING OUTSIDE INDIA, INCLUDING J&K
• DEFINES “HINDU”, DOESN’T APPLY TO SCHEDULED TRIBES
 CERTAIN TERMINOLOGIES

• FULL BLOOD – S.3(C), HMA 1955 – DESCENDED FROM A COMMON

ANCESTOR BY THE SAME WIFE
• HALF BLOOD – S.3(C), HMA 1955 – DESCENDED FROM A COMMON
ANCESTOR BY DIFFERENT WIVES
• UTERINE BLOOD – S.3(D), HMA 1955 – DESCENDED FROM A COMMON
ANCESTRESS BY DIFFERENT HUSBANDS
• SAPINDA RELATIONSHIP – S.3(F)(I), HMA 1955 – 3RD GENERATION OF
ASCENT THROUGH MOTHER, 5TH GENERATION OF ASCENT THROUGH FATHER
 S.3(G), HMA 1955 – DEGREES OF
PROHIBITED RELATIONSHIP:
THROUGH BLOOD, ADOPTION, (IL)LEGITIMATE/ FULL, HALF,
UTERINE BLOOD
• LINEAL ASCENDENTS
• SPOUSE OF A LINEAL ASCENDANT/ DESCENDANT
• BROTHER’S WIFE
• FATHER’S BROTHER
• MOTHER’S BROTHER
• GRANDFATHER’S BROTHER
• GRANDMOTHER’S BROTHER
• SIBLINGS
• UNCLE-NIECE
• AUNT-NEPHEW
HINDU MARRIAGE ACT 1955 (29 SECTIONS)

• S.5 – CONDITIONS FOR A HINDU MARRIAGE

• MONOGAMY
• SOUND MIND
• MAJORITY
• NOT WITHIN PROHIBITED DEGREES OF RELATIONSHIP
• NOT SAPINDAS OF EACH OTHER (EXCEPTION: CUSTOMS OF BOTH OF THEM)

• S.7 – CEREMONIES FOR A HINDU MARRIAGE

• CUSTOMARY RITES OF EITHER OF THE PARTIES
• IF SAPTAPADI IS A PART OF THEIR CUSTOM, MARRIAGE IS COMPLETE ON THE 7 TH
STEP

• S.8 – REGISTRATION OF HINDU MARRIAGES

• COMPULSORY, DEPENDING ON STATE GOVT. LEGISLATIONS
 RELIGION
GULLIPILLI SOWRIA RAJ V. BANDARU PAVANI,
(2009) 1 SCC 714
• MARRIAGE BETWEEN A HINDU AND A NON-HINDU UNDER HMA IS
NULL & VOID.
• A CATHOLIC CHRISTIAN MAN MARRIED A HINDU WOMAN IN A TEMPLE,
ACCORDING TO HINDU RITES & CEREMONIES, AND THEY REGISTERED THE
MARRIAGE U/S 8, HMA.
• LATER, THE HINDU WIFE FILED PETITION TO DECLARE MARRIAGE VOID, ON
THE GROUND THAT HUSBAND WAS A NON-HINDU.
• HELD – VOID MARRIAGE
 BIGAMY
RAMESHCHANDRA DAGA V. RAMESHWARI DAGA,
(2005) 2 SCC 33.
• A BIGAMOUS MARRIAGE UNDER HMA IS NULL & VOID.
• A WOMAN WAS INITIALLY MARRIED TO “G”, WITH WHOM SHE EXECUTED &
REGISTERED A DOCUMENT OF DISSOLUTION OF MARRIAGE. THIS DOCUMENT
WAS SHOWN TO THE CURRENT HUSBAND DURING THEIR MARRIAGE. AFTER A
CHILD WAS BORN TO THEM, THIS HUSBAND STARTED ILL TREATING HER. SHE
FILED FOR JUDICIAL SEPARATION & MAINTENANCE.
• HELD – BIGAMOUS MARRIAGES CAN BE ILLEGAL IN LAW, BUT CANNOT BE
HELD TO BE IMMORAL, SO AS TO DENY MAINTENANCE TO AN AFFECTED
SPOUSE FINANCIALLY WEAK AND ECONOMICALLY DEPENDENT. AN ILLEGAL
WIFE IS ENTITLED TO ALIMONY ON PASSING OF DECREE OF NULLITY
(CONSTRUCTIVE INTERPRETATION OF S. 25, HMA)
 RIGHTS OF THE SECOND WIFE & HER
CHILDREN
• SECOND WIFE CAN FILE FOR A DECREE OF NULLITY TO FACILITIATE HER TO
HAVE INTERIM ORDER OF PERMANENT MAINTENANCE.
• CHILDREN OF SECOND MARRIAGE ARE TREATED BY LEGAL FICTION AS
LEGITIMATE, FOR THE LIMITED PURPOSE OF INHERITING FROM THE PARENTS.
• FIRST WIFE CANNOT FILE NULLITY PETITION FOR THE SECOND MARRIAGE.
• BUT, SHE CAN FILE A CIVIL SUIT TO DECLARE HER HUSBAND’S SECOND
MARRIAGE AS VOID (S. 9, CPC – CIVIL SUITS & S. 34, SPECIFIC RELIEF ACT –
DECLARATION OF STATUS/RIGHT)
 RIGHTS OF ILLEGITIMATE CHILDREN
REVANSIDDAPPA V. MALLIKARJUN, 2011 (86) ALR 450.

• IN THE CASE OF A JOINT FAMILY PROPERTY, ILLEGITIMATE CHILDREN WILL BE

ENTITLED ONLY TO A SHARE IN THEIR PARENTS’ PROPERTY, BUT THEY
CANNOT CLAIM IT ON THEIR OWN RIGHT.
• ON PARTITION OF ANCESTRAL PROPERTY, PROPERTY FALLING IN THE SHARE
OF PARENTS OF ILLEGITIMATE CHILDREN IS REGARDED AS SELF-ACQUIRED &
ABSOLUTE PROPERTY.
 MAINTENANCE TO SECOND WIFE & HER
CHILDREN
BADSHAH V. URMILA GODSE, (2014) 1 SCC 188.
• BADSHAH WAS INITIALLY MARRIED TO SHOBHA. HE THEN MARRIED URMILA.
BADSHAH & SHOBHA ASKED URMILA TO ENDURE, OR TO GO BACK TO HER
PARENTS. EVEN WHILE URMILA WAS CARRYING BADSHAH’S CHILD IN HER
WOMB, SHE WAS MENTALLY & PHYSICALLY TORTURED BY HIM. SHE CLAIMED
MAINTENANCE.
• S. 125, CRPC – CREATIVELY INTERPRETED TO REMEDY THE CAUSE FOR
WHICH IT WAS LEGISLATED – PROTECTION OF VULNERABLE & MARGINALISED
IN THE SOCIETY. SOCIAL JUSTICE IS A PREAMBULAR GOAL OF OUR
CONSTITUTION. HENCE, URMILA AND HER CHILD GOT MAINTENANCE.
 BIGAMY AFTER CONVERSION
SARLA MUDGAL V. UOI, (1995) 3 SCC 635
• CAN A MARRIED HINDU MAN VALIDLY REMARRY AFTER CONVERTING
TO ISLAM?
• 4 PETITIONS WERE FILED U/A 32 OF THE CONSTITUTION. THE HUSBAND HAD
CONVERTED TO ISLAM AND HAD REMARRIED, EVEN THOUGH HIS FIRST
MARRIAGE UNDER HINDU LAW WAS STILL SUBSISTING.
• HELD – IF A PERSON CONVERTS MERELY TO REMARRY, THE SECOND
MARRIAGE WILL BE VOID, AND THE MAN WILL BE BOOKED FOR BIGAMY U/S
494, IPC. MERE CONVERSION DOESN’T DISSOLVE MARRIAGE
• UCC
 BIGAMY AFTER CONVERSION
LILY THOMAS V. UOI, (2000) 6 SCC 224.
• CAN A HINDU HUSBAND CONVERT TO ISLAM AND MARRY AGAIN
DURING THE SUBSISTENCE OF HIS FIRST MARRIAGE?
• WHETHER THE HUSBAND WOULD BE GUILTY OF BIGAMY THOUGH HIS
NEW RELIGION PERMITS POLYGAMY?
 INVALID CONSENT
BABUI PANMATO KUER V. RAM AGYA SINGH, AIR
1968 PAT 190
• IF THE CONSENT OF A PARTY TO A MARRIAGE UNDER THE HMA IS
OBTAINED BY FRAUD, WHETHER SUCH MARRIAGE IS VOIDABLE?
• BABUI WAS MARRIED TO RAM UNDER HMA. BABUI’S FATHER HAD OBTAINED
HER CONSENT TO MARRIAGE BY FRAUDULENT MISREPRESENTATION ABOUT
THE AGE & FINANCIAL CONDITION OF RAM, KNOWING THEM NOT TO BE
TRUE. BABUI FILED A PETITION FOR DISSOLUTION OF MARRIAGE ON THE
GROUND OF FRAUD.
• S. 12(I)(C), HMA – VOIDABLE
 FRAUDULENT CONSENT
ASHA QURESHI V. AFAQ QURESHI, AIR 2002
MP 263.
• ASHA WAS A WIDOW AT THE TIME OF MARRIAGE WITH AFAQ. BUT, SHE
HADN’T DISCLOSED THIS TO HIM.
• SUCH ACTIVE CONCEALMENT/ SUPPRESSION OF A MATERIAL FACT AMOUNTS
TO FRAUD WITHIN THE MEANING OF S. 12.
• THUS, AFAQ IS ENTITLED TO A DECREE OF NULLITY
 WHAT IS UNSOUNDNESS OF MIND?

• IDIOCY = CONGENITAL/ PERMANENT DISABILITY

• LUNACY = LUCID INTERVALS
• RECURRENT ATTACKS OF EPILEPSY
• SCHIZOPHRENIA
• EPILEPSY IF CURABLE , CANNOT BE INTERPRETED TO VITIATE THE MARRIAGE
• EVERY MENTAL DISORDER WILL NOT GIVE RISE TO REMEDY U/S 12, BUT ONLY THAT
MENTAL DISORDER WHICH RENDERS THE PARTY UNFIT FOR MARRIAGE & PROCREATION
• IN ALL THESE CASES, MARRIAGE IS VOIDABLE
 IMPOTENCY
SAMIR ADHIKARY V. KRISHNA ADHIKARY, (2010) 1
ICC 115 (CAL)
• DOES NON-CONSUMMATION OF MARRIAGE OWING TO IMPOTENCY OF
PARTNER RENDER MARRIAGE VOIDABLE?
• INFERTILITY/ STERILITY = IMPOTENCY?
• COUPLE WERE MARRIED, MARRIAGE WAS CONSUMMATED, BUT KRISHNA
(THE WIFE), WAS INFERTILE, SHE COULDN’T GIVE BIRTH TO A CHILD. SAMIR
FILED A SUIT FOR ANNULLING THE MARRIAGE.
• INFERTILITY IS NOT EQUAL TO IMPOTENCY. HENCE MARRIAGE IS VALID,
CANNOT BE ANNULLED.
 PARTY BECOMES IMPOTENT AFTER
MARRIAGE
• MARRIAGE COULD BE ANNULLED BY A DECREE OF NULLITY TREATING IT AS A
VOIDABLE MARRIAGE
• THE QUESTION IS WHETHER THE MARRIAGE HAS NOT BEEN CONSUMMATED
OWING TO THE RESPONDENT’S IMPOTENCE.
• AMENDMENT TO S. 12, THE MARRIAGE LAWS (AMENDMENT) ACT 1976
• CONDITIONS FOR DIVORCE ARE LAID DOWN BY LAW, AND CANNOT BE
ALTERED BY AGREEMENT BETWEEN PARTIES.
 MARRIAGE WITH A EUNUCH (CASTRATED
MEN)
• EQUATED WITH MARRIAGE WITH IMPOTENT PERSON
• PARMASWAMI V. SOMATHAMMAL, AIR 1969 MAD 124.
 WIFE PREGNANT BEFORE MARRIAGE BY SOMEONE
ELSE
B. VANDANA KUMARI V. P. PRAVEEN KUMAR, (2007) 50 AIC 803
(AP)
• DOES WIFE’S PREGNANCY PRIOR TO MARRIAGE BY SOME PERSON
OTHER THAN THE HUSBAND MAKE THE MARRIAGE VOIDABLE?
• DATE OF MARRIAGE: MAY 23, 2002
• DATE OF CONSUMMATION: MAY 23, 2002
• CHILD BORN ON: FEB 28, 2003
• BURDEN OF PROOF IS ON THE HUSBAND
 HUSBAND CAN GO TO THE COURT ONLY IF:

• HE WAS IGNORANT OF HER PREGNANCY AT THE TIME OF THEIR MARRIAGE

• HE DIDN’T HAVE SEXUAL INTERCOURSE AFTER DISCOVERING THE FACT
• THE PETITION FOR NULLITY IS BROUGHT WITHIN ONE YEAR FROM THE DATE
OF MARRIAGE
 CHILD MARRIAGE
VENKATARAMANA V. STATE, AIR 1977 AP 43
• IS A CHILD MARRIAGE VOID AB INITIO?
• A & B GOT MARRIED IN 1959. AT THE TIME OF MARRIAGE, HUSBAND WAS 13
YEARS OLD, & WIFE WAS 9 YEARS OLD. LATER, THE HUSBAND MARRIED
ANOTHER GIRL, DURING THE SUBSISTENCE OF THE FIRST MARRIAGE. THE
WIFE FILED A COMPLAINT U/S 494, IPC.
• ONLY CONSEQUENCE OF A CHILD MARRIAGE IS, PERPETRATORS WILL BE
PUNISHABLE U/S 18, AND U/S 13, AN OPTION TO REPUDIATE THE MARRIAGE
IS GIVEN TO THE WIFE IF SHE IS BELOW 15, ONCE SHE CROSSES THIS AGE.
SHE HAS TO REPUDIATE BEFORE SHE TURNS 18.
 CHILD MARRIAGE

• DOCTRINE OF FACTUM VALET: WHAT’S NOT TO BE DONE, BECOMES VALID

WHEN IT’S DONE.
• S. 13(2)(IV): WIFE CAN FILE DIVORCE PETITION WHEN SHE IS BETWEEN 15-
18 YEARS OLD, IF SHE WAS MARRIED BEFORE SHE WAS 15.
 MARRIAGE RITUALS
SHANKAR LOKHANDE V. STATE OF MAHARASHTRA,
AIR 1965 SC 1564
• IS A MARRIAGE UNDER HMA VALID, IF ESSENTIAL CEREMONIES AREN’T
PERFORMED?
• SHANKAR MARRIED INDUBAI IN 1956. IN 1962, WHEN INDUBAI WAS STILL
ALIVE, HE MARRIED KAMLABAI, WITHOUT PERFORMING ESSENTIAL
CEREMONIES. INDUBAI FILED A COMPLAINT U/S 494, IPC.
• WILL SHE SUCCEED?
 NEED FOR SAPTAPADI
S. NAGALINGAM V. SIVAGAMI, (2001) 7 SCC
487
• SAPTAPADI IS NOT A PART OF THE PARTIES’ CUSTOM. HENCE THEY
PERFORMED MARRIAGE WITHOUT SAPTAPADI. IS THE MARRIAGE VALID?
• NAGALINGAM MARRIED ANOTHER WOMAN (WITHOUT SAPTAPADI), WHEN HE
WAS STILL MARRIED TO SIVAGAMI. SIVAGAMI FILED COMPLAINT U/S 494, IPC.
• IT WAS OBSERVED THAT SAPTAPADI IS NOT A PART OF THE CUSTOM OF
NAGALINGAM & THE WOMAN. HENCE HIS SECOND MARRIAGE WAS HELD
VALID. HE WAS BOOKED U.S 494, IPC.
 REGISTRATION OF MARRIAGES
SEEMA V. ASHWANI KUMAR, AIR 2006 SC
1158.
• SUPREME COURT DIRECTED STATES TO TAKE STEPS TO MAKE REGISTRATION
OF ALL MARRIAGES COMPULSORY
• IT MAINLY PROTECTS RIGHTS OF WOMEN & CHILDREN IN CASE OF DISPUTES
 NULL & VOID MARRIAGES UNDER HMA (S.
11)
1. BIGAMOUS MARRIAGE
2. MARRIAGE WITHIN PROHIBITED RELATIONSHIP
3. MARRIAGE BETWEEN SAPINDAS
• CAN BE DECLARED SO WHEN ONE OF THE PARTIES TO THE MARRIAGE FILES
A NULLITY PETITION AGAINST THE OTHER PARTY (WHEN S/HE IS ALIVE)
• SO FIRST WIFE CANNOT FILE NULLITY PETITION TO DECLARE HER HUSBAND’S
SECOND MARRIAGE AS VOID
 VOIDABLE HINDU MARRIAGES (S.12)

1. NON-CONSUMMATION DUE TO IMPOTENCY

2. CONSENT TO MARRIAGE OBTAINED BY FORCE/FRAUD AS TO THE NATURE
OF THE CEREMONY OR AS TO ANY MATERIAL FACT/ CIRCUMSTANCE ABOUT
THE RESPONDENT
3. WIFE PREGNANT BY SOMEONE ELSE AT THE TIME OF MARRIAGE
4. UNSOUND MIND
• WITHIN 1 YEAR
 LEGITIMACY OF CHILDREN OF VOID &
VOIDABLE HINDU MARRIAGES (S. 16, HMA)
• ALL CHILDREN ARE LEGITIMATE
• THEY CAN CLAIM SHARE IN THEIR PARENTS’ PROPERTY, BUT NOT IN THE
ANCESTRAL PROPERTY
MARRIAGE UNDER MUSLIM LAW (BASED ON
DURATION)
 DIFFERENCE BETWEEN MUTA AND NIKAH
Mutah Nikah
Duration Temporary: Period fixed by agreement Permanent: Union for life subject to divorce
Recognitio Only Shias; Void under Sunni Law Both Sunnis & Shias
n
Dower/ If dower not specified, marriage is void If dower not specified, it becomes implied.
Mahr Unconsummated marriage: Half the dower amount Woman can claim at any time during the
If wife leaves him before the contract period, she gets subsistence of marriage
proportionate dower Unconsummated marriage: Doesn’t affect the
dower amount
Hanafi law: minimum limit of 10 dirhams (INR
182)
Divorce Not recognized Divorce recognized
If there’s earlier termination, husband has to give a
gift for the unexpired period (hiba-i-muddat)
Maintenan Under Shia Law, only if it’s specified in the Contract, Both, under Shia Law & s. 125, CrPC
ce otherwise only under s. 125, CrPC
Inheritanc No reciprocal rights, unless mentioned in the Reciprocal rights exist
e agreement
Children Legitimate; can inherit property Legitimate; can inherit property
Iddat 2 courses/ 45 days (only if consummated) 3 months
Death before muta term: 4 months 10 days Death: 4 months 10 days
No. of No limit 4
 KINDS OF MUSLIM MARRIAGES BASED ON
VALIDITY

• Shia Law doesn’t recognize the distinction between Void and

Irregular marriages.
• An Irregular Marriage under Sunni Law is a Void Marriage under
Shia Law.
ESSENTIALS OF A VALID MUSLIM MARRIAGE
• RELIGION:
1. MAN: CAN MARRY A MUSLIM, CHRISTIAN, JEW
2. WOMAN: CAN MARRY ONLY A MUSLIM

• POLYGAMY: ALLOWED ONLY FOR THE MAN

• INVALID CONSENT: VOID
• UNSOUNDNESS OF MIND: VALID, IF GUARDIAN’S PERMISSION IS TAKEN (CONSENT GIVEN BY
REMOTER GUARDIAN WHEN A NEARER GUARDIAN IS ALIVE, IS NOT VALID)
• IMPOTENCY: GROUND FOR DIVORCE U/S 2(V), DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939
• WIFE PREGNANT BY SOMEONE ELSE AT THE TIME OF MARRIAGE: VOIDABLE
• WITNESSES:
1. SUNNIS: 2 MALE WITNESSES OR 1 MALE & 2 FEMALE WITNESSES
2. SHIAS: NO WITNESSES

• KAZI NOT NECESSARY

• PROPOSAL (IJAB) + ACCEPTANCE (QABUL) AT ONE MEETING
• MARRIAGE VALID EVEN THOUGH NO MENTION OF MEHR IS MADE
 CONDITIONS IN A MUSLIM MARRIAGE
CONTRACT
• NOT OPPOSED TO THE DICTATES OF ISLAM
• REASONABLE, MORAL, LEGAL
• NOT OPPOSED TO RULES OF MARRIAGE & PUBLIC POLICY
• IF CONDITIONS ARE ILLEGAL, THEY WOULD BE NULL &VOID, BUT THAT
WOULDN’T RENDER THE MARRIAGE ITSELF NULL & VOID.
 CONDITIONS CONSIDERED VALID

• IF HUSBAND EFFECTS A SECOND MARRIAGE WITHOUT WIFE’S PERMISSION,

SHE WILL DIVORCE HIM.
• IF THE JAMAT THROWS OUT THE HUSBAND, WIFE CAN GET A DIVORCE
• IF RELATIONS BETWEEN HUSBAND-WIFE ARE STRAINED, WIFE IS ENTITLED TO
SEPARATE RESIDENCE AND MAINTENANCE.
• IF HUSBAND MISBEHAVES WITH WIFE/ BECOMES CRUEL TO HER OR TO HER
RELATIVES, SHE SHALL LEAVE HIS HOUSE.
• HUSBAND SHALL EARN & MAINTAIN HIS WIFE AND THAT THE WIFE WOULD LIVE
IN A HOUSE AS SHOWN & SANCTIONED BY HER PARENTS. IF HUSBAND FAILS
TO FULFIL THIS, SHE CAN GET DIVORCE.
 CONDITIONS CONSIDERED INVALID

• HUSBAND WILL HAVE TO LIVE IN HIS WIFE’S/ HER PARENTS’ HOUSE.

• HUSBAND & WIFE WILL LIVE SEPARATELY (AWAY FROM EACH OTHER) IN FUTURE., &
THAT HUSBAND WILL GIVE MAINTENANCE TO HER WHEN THIS HAPPENS.
• HUSBAND WILL NOT DIVORCE HIS WIFE.
• WIFE MAY VISIT ANT PLACE THAT IS IMMORAL & HUSBAND WILL NOT OPPOSE.
• HUSBAND-WIFE WILL NOT MUTUALLY SUCCEED TO EACH OTHER’S PROPERTY.
• WIFE SHALL NOT DEMAND DOWER.
• WIFE WILL PERMANENTLY LIVE WITH HER PARENTS.
• WIFE CAN LEAVE HUSBAND’S HOUSE ANY TIME AND CAN GO ANYWHERE AS SHE
PLEASES.
 MARRIAGE BETWEEN COUSINS

• NO BAR TO MARRY COUSINS, BOTH PATERNAL AND MATERNAL

• MUSLIM MAN CAN LAWFULLY MARRY:

1. UNCLE’S/ AUNT’S DAUGHTER
2. ANY FEMALE COUSIN OF HIS MOTHER/ FATHER

• MUSLIM WOMAN CAN LAWFULLY MARRY:

1. UNCLE’S AUNT’S SON
2. ANY MALE COUSIN OF HER MOTHER/ FATHER
 IMPORTANCE OF CONSUMMATION IN
MUSLIM MARRIAGES
• CURES DEFICIENCIES OF FORMALITIES
• A VALID HOME (WITH PRIVACY) RAISES PRESUMPTION OF CONSUMMATION
AND HENCE OF MARRIAGE
• FOR PURPOSES LIKE CONFIRMATION OF DOWER, PATERNITY, IDDAT,
MAINTENANCE, ETC.
PROHIBITED DEGREES OF MARRIAGE FOR A
MUSLIM MAN: CONSANGUINITY
• HIS MOTHER OR GRANDMOTHER, HOW HIGH SOEVER
• DAUGHTER OR GRANDDAUGHTER, HOW LOW SOEVER
• SISTER (FULL, HALF OR UTERINE)
• NIECE/ GREAT NIECE (PATERNAL/ MATERNAL)
• AUNT/ GREAT AUNT (PATERNAL/ MATERNAL)
PROHIBITED DEGREES FOR A MUSLIM MAN:
AFFINITY
• WIFE’S MOTHER/ GRANDMOTHER, HOW HIGH SOEVER
• FATHER’S WIFE OR FATHER’S FATHER’S WIFE, HOW HIGH SOEVER
• WIFE’S DAUGHTER/ GRAND DAUGHTER, HOW LOW SOEVER
• SON’S WIFE OR SON’S SON’S WIFE, HOW LOW SOEVER
PROHIBITED DEGREES OF MARRIAGE FOR A
MUSLIM MAN: FOSTERAGE
• CHILD & IT’S FOSTER MOTHER
• FOSTER MOTHER’S DAUGHTER
• FOSTER MOTHER’S SON’S WIFE

• A FEMALE CHILD CANNOT MARRY:

• FOSTER MOTHER’S HUSBAND/ SON
• FOSTER MOTHER’S DAUGHTER’S HUSBAND
 VOID (BATIL) MARRIAGE UNDER MUSLIM
LAW
• WHEN IT IS PROHIBITED BY REASONS OF: CONSANGUINITY, AFFINITY OR
FOSTERAGE
• NO RIGHTS & OBLIGATIONS BETWEEN THE PARTIES
• WIFE CAN ASK FOR CUSTOMARY DOWER ONLY IF CONSUMMATION HAS
HAPPENED.
• IF ONE OF THE PARTIES DIES, THE OTHER IS NOT ENTITLED TO INHERIT FROM
THE DECEASED.
• CHILDREN OF A VOID MARRIAGE ARE ILLEGITIMATE.
 IRREGULAR (FASID) MARRIAGE UNDER
SUNNI LAW
• LACK OF SOME FORMALITY/ EXISTENCE OF SOME IMPEDIMENT WHICH
CAN BE RECTIFIED.
• NOT UNLAWFUL IN ITSELF
• MAY BE TERMINATED BY EITHER PARTY, EITHER BEFORE OR AFTER
CONSUMMATION
• THE MARRIAGE HAS NO LEGAL EFFECT BEFORE CONSUMMATION
• AFTER CONSUMMATION,
1. WIFE IS ENTITLED TO DOWER, PROMPT OR SPECIFIED, WHICHEVER IS
LESS
2. SHE IS BOUND TO OBSERVE IDDAT FOR 3 COURSES (IN CASE OF DEATH
OF HUSBAND OR DIVORCE)
3. CHILDREN ARE LEGITIMATE
 EXAMPLES OF IRREGULAR MARRIAGES
UNDER SUNNI LAW
1. MARRIAGE WITHOUT WITNESSES (SUBSEQUENT ACKNOWLEDGEMENT BEFORE
WITNESSES OR CONSUMMATION)
2. MARRIAGE WITH A 5TH WIFE BY A MUSLIM MAN HAVING 4 WIVES (DIVORCING ONE
OF THE 4 WIVES)
3. MARRIAGE WITH A WOMAN UNDERGOING IDDAT (EXPIRATION OF IDDAT PERIOD)
4. MARRIAGE PROHIBITED BY REASON OF DIFFERENCE OF RELIGION (WOMAN
CONVERTING TO ISLAM, CHRISTIANITY/ JEW; OR THE MAN CONVERTING TO
ISLAM)
5. MARRIAGE WITH A WOMAN SO RELATED TO THE WIFE, THAT IF ONE OF THEM
HAD BEEN A MALE, THEY COULDN’T HAVE LAWFULLY MARRIED – UNLAWFUL
CONJUGATION (MAN DIVORCING THE WIFE WHO CONSTITUTES THE OBSTACLE)
6. CONSENT OBTAINED BY FORCE/ FRAUD (MARRIAGE SHOULD BE RATIFIED)
 CHAND PATEL V. BISMILLAH BEGUM, AIR
2008 SC 1915.
• WHETHER A MUSLIM MAN WHO MARRIES HIS WIFE’S SISTER, WHEN IS WIFE
IS ALIVE, IS OBLIGED TO PAY MAINTENANCE TO THE SISTER U/S 125, CRPC.
• HELD – MARRIAGE IS ONLY IRREGULAR, NOT VOID. HENCE, MAINTENANCE
ALLOWED.
• SEXUAL INTERCOURSE WITHOUT EITHER THE REALITY OR SEMBLANCE OF
MARRIAGE IS TERMED ZINA, AND THE OFFSPRING OF SUCH INTERCOURSE IS
ILLEGITIMATE.
 AMINA V. HASAN KOYA, (2003)6 SCC 93.

• WIFE PREGNANT AT THE TIME OF MARRIAGE

• AT THE TIME OF MARRIAGE, AMINA WAS 5 MONTHS PREGNANT.
• AFTER 4 MONTHS OF MARRIAGE, SHE GAVE BIRTH TO A GIRL CHILD
• WHEN THE WIFE DELIVERED, HUSBAND WAS PRESENT AT THE HOSPITAL
• HE CONTINUED MARITAL RELATIONS AFTER BIRTH, GAVE A NAME TO THE CHILD,
AND NURSED HER FOR 4 YEARS
• HE THEN ASKED TO DECLARE MARRIAGE INVALID
• HELD – NULLITY DECREE CAN’T BE GIVEN
 CHILD MARRIAGE UNDER MUSLIM LAW

• MAJORITY ACT, 1875 NOT APPLICABLE TO MUSLIMS WRT MARRIAGE, DIVORCE &
DOWER
• AGE OF PUBERTY = AGE OF MAJORITY
• SUNNI LAW:
1. MALE: 12 YEARS
2. FEMALE: 9 YEARS
3. IN THE ABSENCE OF ANY EVIDENCE TO THE CONTRARY, AGE OF PUBERTY = 15 YEARS

• SHIA LAW:
1. MALE: 15 YEARS
2. FEMALE: 9 YEARS

• GUARDIANS MAY CONTRACT MINORS’ MARRIAGE

 GUARDIANSHIP IN MARRIAGE OF MINORS

• FATHER
• PATERNAL GRANDFATHER, HOW HIGH SOEVER
• BROTHER, UNCLE’S SON & OTHER RELATIONS ON THE FATHER’S SIDE
• MOTHER
• MATERNAL UNCLE/ AUNT
• OTHER MATERNAL RELATIONS WITHIN THE PROHIBITED DEGREES
• THE GOVERNMENT
• OPTION OF PUBERTY, ONLY IF MARRIAGE ISN’T CONSUMMATED
 IDDAT

• PERIOD AFTER DISSOLUTION OF MARRIAGE, DURING WHICH NEITHER THE HUSBAND

NOR THE WIFE CAN REMARRY.
• WIFE HAS TO REMAIN IN SECLUSION
• TO ASCERTAIN HER PREGNANCY, TO AVOID CONFUSION REGARDING PATERNITY
• DIFFERENT PERIODS OF IDDAT BASED ON HOW THE MARRIAGE IS DISSOLVED &
STATUS OF CONSUMMATION
• IF A MAN WHO HAS 4 WIVES REPUDIATES ONE OF THEM, IT IS UNLAWFUL FOR HIM TO
MARRY ANY OTHER WOMAN DURING THE TERM OF IDDAT OF THE DIVORCED WIFE.
 DIFFERENT PERIODS OF IDDAT

• DIVORCED AFTER CONSUMMATION: 3 MENSTRUAL COURSES/ LUNAR MONTHS

• DIVORCED BEFORE CONSUMMATION: NO IDDAT
• DEATH OF HUSBAND: 4 MONTHS 10 DAYS
• IF SHE IS PREGNANT, IDDAT WILL CONTINUE TILL SHE DELIVERS THE BABY
 KINDS OF MEHR/ DOWER

• PERSONAL PROPERTY OF THE WIFE

• SPECIFIED DOWER: SUM SPECIFIED IN THE CONTRACT (SHIAS – WHOLE AMT. AS
SPECIFIED)
• PROPER DOWER: SUM AWARDED BY COURT WHEN NOT SPECIFIED IN THE CONTRACT
(DOWER FIXED BY LAW)
• PROMPT DOWER: PAYABLE ON DEMAND (SUNNIS – HALF PROMPT, HALF DEFERRED)
• DEFERRED DOWER: PAYABLE ON DEATH/ DIVORCE
• WIFE IS ENTITLED TO THE WHOLE DOWER ON DEATH/ DIVORCE OF HUSBAND AFTER
CONSUMMATION
• ENTITLED TO HALF THE DOWER, WHEN DIVORCED BEFORE CONSUMMATION
• SHEIKH MUHAMMAD V. AYESHA BIBI, (1938) MAD 609: IN THE ABSENCE OF ANY FIXATION
OF ANY AMT. AS PROMPT/ DEFERRED DOWER, THE WHOLE AMT. SHOULD BE PRESUMED TO
BE PROMPT.
• WIFE’S HEIRS CAN CLAIM DOWER AFTER HER DEATH
 IMPORTANCE OF DOWER
• RESULT OF MARRIAGE CONTRACT
• HUSBAND GIVES IT DUE TO RESPECT & REVERENCE TO THE WIFE
• WOMAN IS ENTITLED TO IT EVEN IF IT’S NOT FIXED AT THE TIME OF MARRIAGE
• EVEN IF NIKAH NAMA DOESN’T SPECIFY IT, MARRIAGE REMAINS VALID
• DOWER CAN BE FIXED ANY TIME EVEN AFTER MARRIAGE, & ITS AMOUNT CAN BE
INCREASED BY MUTUAL CONSENT
• EVEN IF THERE IS A CONDITION IN MARRIAGE CONTRACT TO GIVE UP DOWER,
WIFE’S RIGHT TO CLAIM IT & GET IT REMAINS INTACT (PROPER DOWER) – HAMIRA
BIBI V. ZUBAIDA, AIR 1916 PC 46.
• IF HUSBAND REFUSES TO PAY DOWER, WIFE MAY REFUSE TO CONSUMMATE THE
MARRIAGE
• A WIDOW’S CLAIM FOR DOWER IS A DEBT AGAINST THE HUSBAND’S ESTATE. SHE IS
THE CREDITOR, & HENCE SHE CAN RETAIN IT IN LIEU OF DOWER – RIGHT OF
RETENTION/LIEN
 WIDOW’S RIGHT TO DOWER
HAMIRA BIBI V. ZUBAIDA BIBI, (1915-16), 43
IA 294.
• INAYATULLAH, A MUSLIM RESIDENT OF GORAKHPUR, DIED IN 1892.
• HE WAS SURVIVED BY HIS WIDOW ZUBAIDA BIBI, DAUGHTER NAJUMUNNISSA, SISTER HAMIRA BIBI, 2
BROTHERS KHADIM HUSSAIN & AHSANULLAH.
• ALL THESE PERSONS WERE HEIRS TO HIS PROPERTY
• WIDOW ZUBAIDA WAS ENTITLED TO 1/8 TH SHARE + UNPAID DOWER AMT. (MORE THAN INR 1 LAKH)
• PROPERTY WAS IN ZUBAIDA’S POSSESSION, SO THAT SHE COULD RECOVER DOWER THROUGH ITS RENT.
• HAMIRA BIBI & WIDOW OF KHADIM HUSSAIN & HIS SONS FILED A SUIT ASKING FOR THEIR SHARES IN
THE PROPERTY. THEY ALSO CLAIMED THAT RENT WAS MORE THAN DOWER AMT. HENCE, THE EXTRA RENT
WAS TO BE DISTRIBUTED AMONG THEM.
• ZUBAIDA CLAIMED THAT SINCE THE DOWER WAS STILL DUE, SHE SHOULD GET INTEREST ON IT TOO.
SINCE RENT FROM PROPERTY IS LESS THAN THE INTEREST, THE DOWER DEBT STILL CONTINUES. HENCE
NO SHARE TO PLAINTIFFS.
• HELD – ZUBAIDA HAS PROTECTED THE PROPERTY & HAS SHOULDERED THE RESPONSIBILITY OF ITS
ADMINISTRATION. IN THE INTEREST OF JUSTICE & EQUITY, SHE SHOULD GET INTEREST. ALSO, HEIRS GOT
THEIR SHARES, AFTER CUTTING DOWER AMOUNT
 WIDOW’S RIGHT TO ALIENATE THE PROPERTY
MAINA BIBI V. CHAUDHRI VAKIL AHMAD, (1924-25) 52 IA
145.

• MOINUDDIN DIED LEAVING BEHIND HIS WIDOW, MAINA BIBI. SHE TOOK
POSSESSION OF HIS PROPERTY
• HIS SUCCESSORS FILED SUIT AGAINST MAINA BIBI TO OBTAIN THEIR SHARES.
• MAINA BIBI PREPARED 2 GIFT DOCUMENTS IN FAVOUR OF THE APPELLANTS &
GAVE THEM THE POSSESSION OF THE PROPERTY.
• SOME OTHER SUCCESSORS OF MOINUDDIN FILED A SUIT AGAINST THOSE
WHO HAD OBTAINED THE PROPERTY BY GIFT. THEY CLAIMED THAT WIDOW
DOESN’T HAVE RIGHT TO ALIENATE PROPERTY. THEY WANTED A SHARE IN
THE PROPERTY AFTER DEDUCTING DOWER AMT.
• HELD – WIDOW DOESN’T HAVE RIGHT TO ALIENATE HUSBAND’S PROPERTY
 HOW IS THE DOWER AMOUNT FIXED?
SHAHABUDDIN V. MOHD. UMATOR RASOOL, AIR
1960 PAT 511.
• CUSTOM & USAGE OF THE WIFE’S FAMILY
• NOBILITY OF HUSBAND’S/ WIFE’S FAMILY & REPUTATION
• SOCIAL POSITION, ECONOMIC CONDITION & STATUS OF BOTH THE FAMILIES
• EDUCATIONAL QUALIFICATIONS & ACHEIVEMENTS OF THE BRIDE & HER
BEAUTY
• SELF-SATISFACTION OF THE PARTIES CONCERNED
 WHAT CAN BE GIVEN AS DOWER?
• ANYTHING WHICH HAS VALUE
• EXCLUSIVE PROPERTY OF WIFE; HUSBAND OR ANY OTHER PERSON HAS NO
RIGHT OVER IT
• MONEY, GOODS, LAND, BUILDING
• SHARE IN THE PROFIT OF HUSBAND’S BUSINESS/ IMMOVABLE PROPERTY
• PART OF DEBTS DUE TO HUSBAND
• PART OF INSURANCE POLICY MONEY OF HER HUSBAND
• TIMEFRAME TO CLAIM DOWER: 3 YEARS FROM DEMAND OF DOWER/ DEATH
OR DIVORCE
• IF DOWER DEED (MAHR NAMA) IS REGISTERED, TIME LIMIT IS 6 YEARS.
 RELATION BETWEEN DOWER &
COHABITATION
ABDUL KADIR V. SALIMA, ILR (1886) 8 ALL
149.
• THE PARTIES WERE MARRIED. AFTER COHABITATION WITH ABDUL, SALIMA
HAD GONE TO HER FATHER’S HOUSE. FATHER REFUSED TO SEND HER BACK
TO ABDUL’S HOUSE, DUE TO WHICH ABDUL FILED A SUIT TO COMPEL HER TO
COME BACK TO HIM.
• SALIMA RAISED THE ISSUES THAT ABDUL HADN’T PAID HER DOWER YET, AND
HENCE TILL HE PAID IT, HE DOESN’T HAVE A RIGHT TO COHABITATION.
• HELD – IF THE MARRIAGE IS CONSUMMATED, IT’S NECESSARY TO PAY THE
DOWER AMT. HOWEVER, DOWER BEING NOT PAID IS NOT A DEFENCE TO
NON-COHABITATION.
• BOTH OF THEM GO HAND IN HAND.
 ANIS BEGAM V. MALIK MOHD. ISTAFA, AIR
1933 ALL 634.
• THE COUPLE COHABITED & BEGOT A CHILD, AFTER WHICH THE WIFE WAS
TAKEN AWAY BY HER RELATIVES. SHE DIDN’T WANT TO GET BACK TO HER
HUSBAND BECAUSE HE HADN’T PAID DOWER, HAD BROUGHT ANOTHER
WOMAN TO HOME, AND WAS MISBEHAVING WITH THE WIFE. WIFE THUS
CLAIMED DOWER. HUSBAND, AS AN ANSWER TO THE DOWER SUIT, FILED A
SUIT TO RESUME COHABITATION.
• HELD – HUSBAND’S RIGHT TO COHABITATION NOT ABSOLUTE. COURT CAN
IMPOSE THE CONDITION OF PAYMENT OF DOWER BEFORE MAKING A DECREE
OF RESUMING COHABITATION.
 CHRISTIAN MARRIAGE ACT, 1872
• 88 SECTIONS, 8 PARTS, 4 SCHEDULES
• PART I – PERSONS BY WHOM MARRIAGES MAY BE SOLEMNIZED (SS. 4-9)
• PART II – TIME & PLACE AT WHICH MARRIAGES MAY BE SOLEMNIZED (SS. 10-11)
• PART III – MARRIAGES SOLEMNIZED BY MINISTERS OF RELIGION LICENSED UNDER
THIS ACT (SS. 12-26)
• PART IV – REGISTRATION OF MARRIAGES SOLEMNIZED BY MINISTER OF RELIGION (SS.
27-37)
• PART V – MARRIAGES SOLEMNIZED BY, OR IN THE PRESENCE OF, A MARRIAGE
REGISTRAR (SS. 38-59)
• PART VI – MARRIAGE OF INDIAN CHRISTIANS (SS. 60-65)
• PART VII – PENALTIES (SS. 66-76)
• PART VIII – MISCELLANEOUS (SS. 77-88)
 KINDS OF POLITY IN CHURCHES
(ECCLESIASTICAL POLITY)
• PRESBYTERIAN:
1. REJECTION OF GOVERNANCE BY HIERARCHIES OF SINGLE BISHOPS
2. AUTHORITY FLOWS BOTH FROM TOP DOWN & FROM BOTTOM UP.
3. MINISTER, PASTOR, ELDER VS. BISHOPS
4. TOP DOWN: ONLY THE PRESBYTERY CAN ORDAIN MINISTERS, INSTALL PASTORS,
& START UP, CLOSE, & APPROVE RELOCATING A CONGREGATION
5. BOTTOM UP: MODERATORS & OFFICERS ARE NOT APPOINTED FROM ABOVE, BUT
RATHER ELECTED BY AND FROM AMONG THE MEMBERS OF THE ASSEMBLY

• EPISCOPAL
1. GOVERNANCE BY A HIERARCHY OF BISHOPS
 DEFINITIONS (S. 3)

• ANGLICAN CHURCH (QUASI-CATHOLIC; SPLIT FROM THE ROMAN CATHOLIC

CHURCH ON THE GROUND OF RECOGNITION OF DIVORCE, FOUNDED BY
HENRY VIII)
• CHURCH OF SCOTLAND (PROTESTANT: SPLIT FROM ROMAN CATHOLIC
CHURCH, FOUNDED BY JOHN KNOX)
• ROMAN CATHOLIC CHURCH (POPES ARE CONSIDERED AS DIRECT
SUCCESSOR OF SAINT PETER, WHO WAS APPOINTED BY JESUS CHRIST)
• MINOR = BELOW 21 YEARS OLD; NOT A WIDOW/ WIDOWER
HIERARCHY IN ANGLICAN CHURCH
HIERARCHY IN ROMAN CATHOLIC
CHURCH
(RANKS OF CLERGYMEN)
EXAMPLE: SYRO MALABAR CHURCH
CHURCH OF SCOTLAND (PRESBYTARIAN)
 WHO CAN SOLEMNISE MARRIAGES UNDER
CMA?
(S. 5-9)
CONTRAVENTION: 7-10 YRS JAIL (S. 68, CMA)
1. ONE WHO HAS OBTAINED THE ORDER OF THE BISHOP (CATHOLIC
CHURCHES)
2. ANY PRIEST OF THE SCOTLAND CHURCH (PASTORS)
3. ANY PRIEST (MINISTER OF RELIGION) WHO HAS GOT A LICENSE FROM THE
STATE GOVT. FOR THIS PURPOSE (S. 6)
4. CHRISTIAN MARRIAGE REGISTRAR APPOINTED UNDER S. 7, CMA
5. ANY CHRISTIAN TO WHOM LICENSE IS GIVEN BY STATE GOVT. UNDER CMA
TO GRANT MARRIAGE CERTIFICATE (S. 9, CMA)
 TIME & PLACE AT WHICH MARRIAGES MAY
BE SOLEMNIZED (SS. 10-11, CMA)
• BETWEEN 6 A.M. AND 7 P.M. (CONTRAVENTION: 3 YRS. JAIL – S. 69, CMA)
• EXCEPTIONS:
1. PRIESTS OF ANGLICAN & ROMAN CATHOLIC CHURCHES: SPECIAL
LICENSES BY THEIR RESPECTIVE BISHOPS OF THE DIOCESE/VICARIATE
2. PRIEST OF CHURCH OF SCOTLAND: ACCORDING TO THE RULES, RITES,
CEREMONIES & CUSTOMS OF THE CHURCH OF SCOTLAND

• PLACE FOR SOLEMNIZING MARRIAGE:

CHURCH WHERE WORSHIP GENERALLY HAPPENS; UNLESS THERE IS NO CHURCH
WITHIN 5 MILES DISTANCE FROM THAT PLACE, OR UNLESS THE PRIEST HAS A
SPECIAL LICENSE TO SOLEMNISE A MARRIAGE OUTSIDE THE CHURCH
 PROCEDURE OF MARRIAGE BY:

1. PRIEST/ MINISTER OF RELIGION LICENSED U/S 6 (PART III-IV)

2. CHRISTIAN MARRIAGE REGISTRAR (PART V)
3. ANY CHRISTIAN LICENSED TO ISSUE MARRIAGE CERTIFICATE (PART VI)
 S. 60, CMA – MARRIAGE OF INDIAN
CHRISTIANS
• NO NEED OF PRELIMINARY NOTICE
• CERTIFICATE TO BE ISSUED DIRECTLY WITHOUT FOLLOWING THE PROCEDURE IF:
• MAN – 21 YRS, WOMAN – 18 YRS
• MONOGAMOUS
• IN THE PRESENCE OF PERSON LICENSED TO GIVE CERTIFICATE + 2 WITNESSES,
SAYING “I….”
• CERTIFICATE TO BE GIVEN BY SUCH LICENCED PERSON
• SHALL FILE ALL CERTIFICATES IN HIS REGISTER BOOK, AND SHALL PERIODICALLY
SEND TO REGISTRAR GENERAL OF BIRTHS, DEATHS & MARRIAGES
 SS. 77 & 88, CMA

• WHEN ARE MARRIAGES UNDER CMA NOT VOID? – S. 77

1. DWELLING PLACE
2. CONSENT
3. NOTICE
4. CERTIFICATE OF NOTICE GIVEN
5. TIME & PLACE
6. REGISTRATION

• PROHIBITED DEGREES – AFFINITY, CONSANGUINITY, ETC.

• EG: A CHRISTIAN IS NOT ALLOWED TO MARRY A JEW
 PENALTIES
• FALSE OATH/ DECLARATION/ NOTICE/ CERTIFICATE: S. 193, IPC: FALSE
EVIDENCE: 3 YRS JAIL + FINE
• FALSE PERSONATION AS GUARDIAN WHOSE CONSENT IS REQUIRED, & THUS
FORBIDDING CERTIFYING A MARRIAGE: S. 205, IPC: FALSE PERSONATION: 3
YRS JAIL + FINE
• SOLEMNIZING MARRIAGE WITHOUT AUTHORITY: 7-10 YRS JAIL
• SOLEMNIZING MARRIAGE BEYOND STIPULATED TIME/ WITHOUT WITNESSES: 3
YRS JAIL + FINE
• SOLEMNIZING MARRIAGE WITHOUT NOTICE/ WITHIN 14 DAYS AFTER NOTICE,
IN CASE OF A MINOR: 3 YRS JAIL + FINE
 PENALTIES

• MARRIAGE REGISTRAR ISSUING CERTIFICATE WITHOUT PUBLISHING, SOLEMNIZING

MARRIAGE BEYOND 2 MONTHS OF GRANTING CERTIFICATE, SOLEMNIZING MINOR’S
MARRIAGE WITHIN 14 DAYS (WITHOUT COURT ORDER), ISSUING CERTIFICATE AGAINST
AUTHORISED PROTEST: 5 YRS JAIL + FINE + S.166, IPC: PUBLIC SERVANT DISOBEYING
THE LAW WITH INTENT TO CAUSE INJURY TO ANY PERSON
• PERSONS LICENSED TO SOLEMNISE, IF THEY DO ANY OF THE ABOVE: 4 YRS JAIL + FINE
• DESTROYING/ FALSIFYING REGISTER BOOK: 7 YRS JAIL + FINE
• UNLICENSED PERSON PRETENDING TO BE LICENSED: 5 YRS JAIL + FINE
• LIMITATION PERIOD: WITHIN 2 YRS OF OFFENCE
 PARSI MARRIAGE & DIVORCE ACT, 1936

• 52 SECTIONS, 6 CHAPTERS, 2 SCHEDULES

• CHAPTER I – PRELIMINARY
• CHAPTER II – MARRIAGES BETWEEN PARSIS
• CHAPTER III – PARSI MATRIMONIAL COURTS
• CHAPTER IV – MATRIMONIAL SUITS
• CHAPTER V – CHILDREN OF THE PARTIES
• CHAPTER VI - MISCELLANEOUS
 ESSENTIALS OF A VALID PARSI MARRIAGE

• NOT WITHIN PROHIBITED DEGREES, AS SPECIFIED IN SCHEDULE I

• “ASHIRWAD” BY PRIEST (DASTUR/ MOBED) + 2 PARSI WITNESSES
• 21 YRS MALE, 18 YRS FEMALE
• MONOGAMY (PRIEST JAILED FOR 6 MONTHS SI + INR 200)
• PRIEST TO GIVE THEM MARRIAGE CERTIFICATE – HIS SIGN + SIGN OF PARTIES &
WITNESSES (FINE INR 100); FALSE CERTIFICATE: 3 MONTHS JAIL + INR 100
• CERTIFICATE COPY TO BE SENT TO PARSI REGISTRAR APPOINTED BY GOVT.
• ULTIMATELY TO BE SENT TO REGISTRAR GENERAL OF BIRTHS, DEATHS & MARRIAGES
• FORMAL IRREGULARITY NOT TO INVALIDATE MARRIAGE
 SPECIAL MARRIAGE ACT, 1954

• 51 SECTIONS, 8 CHAPTERS, 5 SCHEDULES

• CHAP I – INTRODUCTION
• CHAP II – SOLEMNIZATION OF SPECIAL MARRIAGES
• CHAP III – REGISTRATION OF MARRIAGES CELEBRATED IN OTHER FORMS
• CHAP IV – CONSEQUENCES OF MARRIAGE UNDER THIS ACT
• CHAP V – RCR & JUDICIAL SEPARATION
• CHAP VI – NULLITY OF MARRIAGE & DIVORCE
• CHAP VII – JURISDICTION & PROCEDURE
• CHAP VIII - MISCELLANEOUS
 MARRIAGE UNDER SMA
• PROHIBITED DEGREES UNDER SMA – SCHEDULE I
• NOTICE – SCHEDULE II TO MARRIAGE OFFICER WHERE PARTY IS RESIDING
• PUBLICATION OF NOTICE
• OBJECTION TO MARRIAGE (WITHIN 30 DAYS OF FILING NOTICE) ONLY ON GROUNDS
U/S 4.
• INQUIRY INTO OBJECTION WITHIN 30 DAYS OF RECEIVING IT
• APPEAL BY PARTIES TO DISTRICT COURT AGAINST MO’S DECISION OF NOT
SOLEMNIZING MARRIAGE (WITHIN 30 DAYS OF SUCH REFUSAL)
• DECLARATION – SCHEDULE III – PARTIES + 3 WITNESSES
• SOLEMNIZATION WITHIN 3 MONTHS OF NOTICE GIVEN TO MO
• CERTIFICATE OF MARRIAGE – SCHEDULE IV
• S. 15, SMA – REGISTRATION OF MARRIAGES SOLEMNIZED IN OTHER FORMS –
SCHEDULE V